| Mass. | May 13, 1907
Under the titles of these two cases we have before us twenty cases brought to recover certain sums alleged to be due to the plaintiff from the defendants, in payment of their several subscriptions to shares in its (the plaintiff’s) ordinary share capital. The cases were sent to an auditor. The evidence at the trial consisted of his report and other
Before the cases came on for trial, Eaton, the defendant in one of the actions, died, and his executor was summoned in to defend against his objection and exception. The question raised by this exception is also submitted to us by this report.
The circumstances out of which these actions arose are stated at length in the auditor’s report and are in substance as follows:
In October, 1889, the Thomson European Electric Welding Company (which we shall hereafter speak of as the Thomson Company), being the owner of certain patents for Great Britain and Europe for welding iron by electricity, entered into a contract with one Lenon, by which Lenon agreed to form a company to buy its patents. The plaintiff company was incorporated under the English companies acts in pursuance of this agreement. Lenon further agreed in this contract to have thirty thousand ordinary shares of the capital stock of the plaintiff ■corporation underwritten, and, when that had been done, to have the ordinary shares advertised for public sale. It was further provided in this agreement that the transfer of the patents was to take place when thirty thousand ordinary shares had been subscribed for, and that the whole transaction should be completed before June 1,1890. This contract was entered into by Lenon as agent for the London Contract Corporation (which we shall speak of hereafter as the Contract Corporation), and its performance was guaranteed by that corporation.
During the months of April and May of the same year, the promoters procured some sixty-four or sixty-nine underwriting agreements in the United States, most of them in and about Boston. At this time the Contract Corporation was in fact and in law the promoter, for Lenon was acting as its agent in making the contract already spoken of. Later on (as will be stated) he dropped out and a new contract was made between the Thomson Company and the Contract Corporation. Since Lenon acted as agent of the Contract Corporation in all he did, this change did not affect the legal relations of the parties, and we shall hereafter in all cases speak of the promoters generally, without
These underwriting agreements between the promoters and the defendants were in the form of an underwriting letter signed by each defendant on a blank prepared by the promoters. This letter being accepted by the promoters became a binding contract between the promoters and the several defendants. The auditor found that this letter was an offer by the several defendants to the promoters not accepted by the promoters. In this matter we are of opinion that (on the facts stated in his report) the auditor was wrong. We shall consider this matter later on.
With the underwriting agreement each defendant handed the promoters an application for fifty ordinary shares of ¿£10 each and another application for one founders’ share, and paid to the promoters ¿£25, being ten shillings per share on the fifty ordinary shares, and being payment in full, ¿£10, for the one founders’ share.
The rights of the parties to this contract of underwriting are to be gathered from the four corners of this underwriting letter and the preparatory draft prospectus referred to therein, and will have to be construed with care before this case is disposed of. It is not necessary, however, in stating the sequence of events, to go into that matter now.
On May 1,1890, the plaintiff company was incorporated under the English companies act.
By a series of supplementary agreements the time for bringing out the plaintiff company was postponed until October 27, 1891, when the transfer of the patents to it by the Contract Corporation was carried into effect. In one of these agreements Lenon dropped out, as we already have said. At that time releases were executed by Lenon, the Thomson Company and the Contract Corporation, and a new contract was made between the Thomson Company and the Contract Corporation. Changes also were made in the make up of the plaintiff company, and in the terms on which the purchase of the patents was to be made.
No further underwriting agreements were procured by the promoters between May, 1890, and August of the following
On August 28, 1891, sixteen thousand six hundred and sixty-seven ordinary shares were offered to the public. The public took four hundred and seventy-two, a number slightly in excess of two per cent of the amount offered.
The applications for ordinary shares signed by the defendants were each of them for fifty ordinary shares, with the exception that the defendant Wetherbee’s application was for one hundred ordinary shares. The directors of the plaintiff company, on these applications being filed with them, allotted to each ninety-eight per cent of the amount applied for, that is to say, forty-nine shares to each defendant except Wetherbee, and ninety-eight to Wetherbee. At the same time the Contract Corporation paid to the plaintiff company the sums paid it by the defendants, being ten shillings a share on the fifty shares applied for (£25 in ease of each defendant except Wetherbee, and £50 in case of Wetherbee), and payment in full for the founders’ shares applied for (£10 in case of each defendant except Wetherbee, and £20 in case of Wetherbee).
“ Notice of the allotments was duly made,” and “ In due time the names of the defendants were placed upon the list of registered shareholders of ordinary stock and are still upon the list,” to quote the findings of the auditor.
By the terms of the application through its reference to the prospectus issued to the public, a further sum of £8 10s. became due from each holder of ordinary shares on allotment, and a first instalment of £2 a share became due on October 31,1891, under a call duly made. Notices of this call were duly mailed to each defendant.
On May 20, 1892, the defendant Prince paid £171, being the £3 10s. per share due'on his forty-nine ordinary shares on their being allotted to him, and on the same date the defendant Pope paid £98, being the £2 due as the first instalment on each of his forty-nine ordinary shares.
The actions now before us were brought in May, 1894. In
Each declaration contains three counts. In the first the plaintiff alleges that the defendant in question applied for fifty shares ■and was allotted forty-nine, and so became liable to pay the sums sued for. In the second it is alleged that the defendant applied for shares, was allotted shares, and was put on the register as a shareholder; and being a shareholder, is liable for the sums sued for. The third count alleges that an underwriting contract ■.was made between the plaintiff and the defendant, under which it allotted forty-nine shares to that defendant, and that in this way he became liable to pay the sums sued for.
It is plain that no underwriting agreement was made between the plaintiff and the defendants. The Contract Corporation agreed with the Thomson Company that it would find underwriters for the capital stock of the plaintiff company, and agreements were made between the Contract Corporation and the several defendants, by which the several defendants agreed with the Contract Corporation to underwrite the fifty ordinary [shares of the plaintiff company on the terms therein stated, and in pursuance of that agreement between the Contract Corporation and the several defendants the defendants handed the Contract Corporation applications to be used by it in behalf of the defendants under the terms of these agreements. If the agreements between the Contract Corporation and the defendants authorized it to deliver the applications, a case under the first count was made out. But in no event were the allegations of the third count proved.
This brings us to the defence set up to the first count.
The defence set up to the first count is that the adventure into which the underwriters were put was materially different from that stated in the preparatory draft prospectus.
The first difference relied on by the defendants is that the contract between the ,Contract Corporation and the Thomson
ordinary shares, and have guaranteed the subscription of the remainder of the share capital.” The underwriting letter states that the capital is to be forty-five thousand ordinary shares, all of which is to be issued, “ of which fifteen thousand ordinary shares and five hundred founders’ shares are taken by the vendor. The remaining five hundred founders’ shares will be subscribed by the guarantors of subscriptions for the first £250,000 of ordinary share capital, in the proportion of one founders’ share for each fifty ordinary shares guaranteed.”
Putting these two statements together it is in effect an agreement by the Contract Corporation to take five thousand out of thirty thousand ordinary shares, giving the privilege of subscribing to the five hundred founders’ shares as the commission to be paid to the underwriters for underwriting twenty-five thousand ordinary shares. Thus the Contract Corporation had an interest in the contract between it and the Thomson Company as to the terms on which the patents were to be sold to the plaintiff company, and the underwriting agreement between the Contract Corporation and the defendants left it to the Contract Corporation to make such changes in the purchase contract as it found to be for its interest to make, presumably because its interest was identical in that respect with that of.the underwriters.
The next difference on which the defendants rely is the lapse of time. Fifteen months less one day expired between the date of the last underwriting contract here in question and the day
We do not find it necessary to come to a final conclusion on this point.
But there are two other, and in our opinion fatal, objections to the use which the Contract Corporation made of these applications. The first objection is this: By the terms of the underwriting letter, the signer of it agreed to underwrite “ fifty of the above ordinary shares of ¿610 each,” on condition that “ I am only to be allotted my proportion of the deficiency pro rata with the other persons who are similarly situated in this arrangement.” The words “ above ordinary shares ” refer to the heading of the underwriting letter, where it is stated that the issue is an “ issue of 45,000 ordinary shares ” “ of which 15,000 ordinary shares and 500 founders’ shares are taken by the vendor. The remaining 500 founders’ shares will be subscribed by the guarantors of subscriptions for the first ¿6250,000 of ordinary share capital, in the proportion of one founders’ share for each fifty ordinary shares guaranteed.” The underwriting agreement therefore was to take fifty twenty-five thousandths of the shares not taken by the public, in which, as we already have said, the Contract Corporation was to take the other five thousand not taken by the vendor. By subsequent changes in the contract between the Thomson Company and the Contract Corporation the number of shares to be taken by the vendor was reduced from fifteen thousand to eight thousand three hundred and thirty-three, and the issue was likewise reduced from forty-five thousand to twenty-five thousand ordinary shares, leaving sixteen thousand six hundred and sixty-seven to be offered to the public. While, as we already have stated, the Contract Corporation had a right to change the contract between itself and the Thomson Company, and so had a right to change the contract price to be paid by the plaintiff company for the patents, it had no right to change the basis on which the defendants had agreed with it, the Contract Corporation, to furnish the underwriting which it, the Contract Corporation, had agreed with the Thomson Company to secure. When it was determined that sixteen thousand six hundred and sixty-seven shares in place of thirty thousand shares were to be offered to
The second objection to the authority of the Contract Corporation to use the application as it did is this: By the terms of the underwriting letter it was only “ in the event of my failing to put in an application when called upon by you, [that is, by the promoter] ” that the underwriter authorizes the Contract Corporation to make application in his behalf.
It appears that on the public’s taking four hundred and seventy-two shares only, the Contract Corporation made application for shares in behalf of the defendants without calling upon the defendants to apply for their respective proportion of the shares not taken.
It is one thing to agree with a promoter to apply for a certain proportion of the shares of a new company not taken by the public; it is quite another thing actually to become a shareholder in the new company for the number of shares so ascertained. In the first case the underwriter can refuse to become a member of the company in pursuance of his contract with the promoter. If he does refuse to do so, he is liable to the promoter for any damages which he, the promoter, may have sustained from that breach of contract. But the underwriter may prefer paying damages to becoming a member and so liable to pay the amount due in respect of the shares in question. See in this connection Grorrissen’s case, L. R. 8 Ch. 507. The clause here in question manifestly was inserted to give the underwriter this locus penitentiae, and the Contract Corporation had' no right to make any application for shares in behalf of the defendants until they had severally failed to put in an application when called upon by the Contract Corporation so to do, in which case, as we have said, its authority could be revoked by the underwriter,
For these two reasons we are of opinion that the plaintiff failed to prove that an application for shares authorized by the defendants was made by them or in their behalf, and the plaintiff’s case on the first count failed.
But we are of opinion that the plaintiff made out a case on the second count.
It was proved in the case at bar as a fact that, by the law' of England, so long as a person suffers himself, to remain as a shareholder on the register of such a company as we are dealing with, he is bound to pay all calls duly made for payment of the capital stock in respect to shares ‘of which he is the registered holder.
The law of England being that a shareholder is liable to pay calls so long as he is a shareholder, the question of a shareholder’s liability to pay calls has arisen in England in suits to have his name removed from the list and in similar proceedings; and it is the law of England (as appears from the evidence in this case) that where a person (whose name has been put on a list of shareholders on his application) has a right by reason of misrepresentation, (see Oakes v. Turquand, L. R. 2 H. L. 325, Ashley's ease, L. R. 9 Eq. 263,) or a subsequent change in or misunderstanding as to the make up of the company, (Lawrence's case, L. R. 2 Ch. 412, Wilkinson's case, L. R. 2 Ch. 536, Perrett's ease, L. R. 15 Eq. 250,) to repudiate the allotment of shares to him, he must repudiate his being a shareholder without delay or lose his right to do so. The principle on which this rule is founded is that a person who has a right to repudiate being a shareholder cannot lie by and await the financial success or failure of the company and then exercise his right of repudiation. Lawrence's case, L. R. 2 Ch. 412, and other cases supra.
In the case at bar it was found by the auditor that “ none of the defendants ever notified the plaintiff company or the promoters of the withdrawal of the underwriting offers or applications and have never repudiated the allotment except in so far as their failure to pay upon demand constitutes such repudiation.” That is to say, from August 31,1891, to December 2,1904, when the auditor’s report was filed, a period of over thirteen years,
But that is not important here. Two years and eight months and more had expired after allotment before these actions were brought. That is enough to bar the defendants from afterwards repudiating if the time after suit brought is to be excluded. See Lawrence’s case, ubi supra; Wilkinson’s ease, ubi supra; Ex parte Boyle, 52 L. T. (N. S.) 501.
The defendants’ answer to this contention is first, that the privilege of applying to have their names removed from the list of shareholders is a remedy given by the English law; and second, that the underwriting letters were mere offers on their part, and they being mere offers and offers not accepted within a reasonable time, the defendants were not called upon to repudiate their position as registered shareholders.
In the first place, the company in question being an English one, the liability to pay calls as matter of contract is to be determined by the English law. Anglo-American Land, Mortgage 8; Agency Co. v. Dyer, 181 Mass. 593" court="Mass." date_filed="1902-06-18" href="https://app.midpage.ai/document/anglo-american-land-mortgage--agency-co-v-dyer-6427925?utm_source=webapp" opinion_id="6427925">181 Mass. 593. In the second place, the question whether as between the company and a shareholder a person is or is not a shareholder is a question of law so peculiarly to be decided by the laws of the country by which the company is incorporated that ordinarily the courts of this State will not entertain jurisdiction of a case involving that question. Smith v. Mutual Ins. Co. 14 Allen, 336. Kimball v. St. Louis 8; San Francisco Railway, 157 Mass. 7" court="Mass." date_filed="1892-06-23" href="https://app.midpage.ai/document/kimball-v-st-louis--san-francisco-railway-co-6424270?utm_source=webapp" opinion_id="6424270">157 Mass. 7. National Telephone Manuf. Co. v. Du Bois, 165 Mass. 117" court="Mass." date_filed="1896-01-02" href="https://app.midpage.ai/document/national-telephone-manufacturing-co-v-du-bois-6425458?utm_source=webapp" opinion_id="6425458">165 Mass. 117. Wason v. Buzzell, 181 Mass. 338" court="Mass." date_filed="1902-05-20" href="https://app.midpage.ai/document/wason-v-buzzell-6427846?utm_source=webapp" opinion_id="6427846">181 Mass. 338.
It is plain that the effect of the failure to repudiate the allotment of shares depends upon the law of England, and that it is a matter going to the merits of the question of the defendants’ being or not being shareholders in the plaintiff company.
It was held in Somerville's case, L. R. 6 Ch. 266, that if shares were put in the name of a person without his having applied for them he was not under a duty to repudiate within a reasonable time. The principle on which this case was decided is put in these words by Lord Hatherley, at p. 272: “The mere fact of standing by and being told there is something done which you have not authorized, cannot fix you with the heavy liabilities which shares in a joint stock company would create. We are all subject to have things sent to us at our houses by persons with whom we have nothing whatever to do, and I think that the mere writing to this gentleman, telling him that something had been done, was not enough to fix him.” In that case the shareholder’s name was not put on the list under color of authority.
Grorrissen’s case, L. R. 8 Ch. 507, the other case relied on by the defendants in this connection, is not a case of this kind. That case, so far as the question now before us is concerned, goes on the ground that the notice sent to Gorrisen was not that he was a shareholder but that having agreed to place one thousand shares his name was entered “as the person to be referred to respecting those shares.” See p. 517.
This case would not come within Somerville's case even if the auditor was right in his conclusion that the underwriting letters were unaccepted offers and remained so until August, 1891. Even if that were so, each defendant had entrusted a written application for shares to the Contract Corporation’s agent Lenon, and they knew that an allotment had been made on that application. ' Whether that allotment was binding on the several defendants depended upon the authority of the Contract Corporation, under all the circumstances, to deliver those applications to the plaintiff company, as it did in behalf of the several defendants.
On the facts stated in the auditor’s report we do not see why the auditor came to the conclusion that these underwriting letters were unaccepted offers although it is not necessary to express a final opinion on this point. These underwriting letters were signed at the solicitation of a promoter who had agreed to furnish underwriters for the ordinary share capital, and who
Had the public taken all the ordinary shares issued, could there have been any question as between the Contract Corporation and the defendants as to their right to the commission of one founders’ share for which each had paid the Contract Corporation in fact ? And again, had the public not taken all the stock and that taken by the underwriters had gone to a premium and the Contract Corporation had not included the defendants among the underwriters, there could be no question (in our opinion) of the defendants’ right to damages from the Contract Corporation for not getting the shares to which they were entitled. In the English cases cited at the argument,. Ex parte Stark, [1897] 1 Ch. 575, In re Bultfontein Sun Diamond Mine, 12 T. L. R. 461, and In re Grutta Percha Corp. 15 T. L. R. 188, the underwriting agreement was not with one who had underwritten the whole share capital, but was procured on behalf of the company itself. And further, in the first two cases the blank used in making out the underwriting contract called for an acceptance ; and in Ex parte Stark the underwriter agreed to underwrite “on 'the amount of shares for which you accept this contract as below.” See p. 577.
In spite of the fact that the underwriting contract was made, if at all, with the company and not with one who had agreed with the company to furnish underwriters for its capital stock, it was held in In re Bultfontein Sun Diamond Mine, 12 T. L. R. 461, that a contract was completed by retaining the underwriting letter.
The fact found by the auditor that Prince and Pope subsequently paid the two sums afterwards paid by them in ignorance of the variations from the contract made by the underwriting letters is not material. The two changes which in our opinion were material consisted in the fact that the underwriters had not
We are therefore of opinion that the presiding judge was wrong in directing a verdict for the defendants on the second count. A verdict should have been directed for the plaintiff on that count in the actions against Prince and Pope, and the other cases should have been left to the jury on the question of the defendants having knowledge of the allotment, that is to say, on the question of their having received the letters mailed to them, if there was any evidence to rebut the prima facie case made out by proof that they were mailed. See Briggs v. Hervey, 130 Mass. 186" court="Mass." date_filed="1881-01-06" href="https://app.midpage.ai/document/briggs-v-hervey-6420168?utm_source=webapp" opinion_id="6420168">130 Mass. 186 ; Hedden v. Roberts, 134 Mass. 38" court="Mass." date_filed="1883-01-08" href="https://app.midpage.ai/document/hedden-v-roberts-6420785?utm_source=webapp" opinion_id="6420785">134 Mass. 38. But under the terms of the report all the cases are to be remanded for a new trial.
The question of the jurisdiction of the court to summon in the executor of the defendant Eaton remains to be disposed of.
Eaton died in June, 1902, some eight years after the entry of the action. His death was suggested of record by the plaintiff, and on his motion Eaton’s executor was ordered to appear and defend the action. The motion and’ the order thereon having been served upon the executor, he appeared specially and suggested that Eaton having died after the entry of the action there is no jurisdiction in the court to summon in his executor, and prayed that the action be dismissed. This motion was denied. To this the executor took an exception which is before us on this report.
In our opinion this exception must be overruled.
The defendant Eaton’s executor. has asked us to hold that R. L. c. 171, § 5,
If the construction of the section were dependent upon the interpretation of the wording used apart from other considerations, it may be conceded that the construction put forward by Eaton’s executor would be the true construction of the section.
But there are other considerations. Without going through the history of the earlier acts it is enough to take them up as they were brought together in the Revised Statutes. It was there provided:
First. That in all personal actions in which the cause survives, if the sole plaintiff or defendant dies before entry of the action or of an appeal, or at any other time before final judgment, the action may be prosecuted by and against the administrator or executor as provided in that chapter. Rev. Sts. c. 93, § 1. This was necessary because at common law all actions abated on the death of the plaintiff or the defendant, whether the cause of action survived or not. Mellen v. Baldwin, 4 Mass. 480" court="Mass." date_filed="1808-09-15" href="https://app.midpage.ai/document/mellen-v-baldwin-6403267?utm_source=webapp" opinion_id="6403267">4 Mass. 480, 481. Putnam v. Putnam, 4 Pick. 139, 140, 141. Green v. Watkins, 6 Wheat. 260" court="SCOTUS" date_filed="1821-03-18" href="https://app.midpage.ai/document/green-v-watkins-85329?utm_source=webapp" opinion_id="85329">6 Wheat. 260, 262. Booth v. Northrop, 27 Conn. 325" court="Conn." date_filed="1858-04-15" href="https://app.midpage.ai/document/booths-administrators-v-northrop-6577391?utm_source=webapp" opinion_id="6577391">27 Conn. 325, 328. Garter v. Jennings, 24 Ohio St. 182, 186.
Secondly. It was provided that the action or appeal might be entered if it had not been entered and the death of the party be suggested of record, and thereupon the administrator or executor might voluntarily appear and prosecute or defend the action. ' Rev. Sts. c. 93, § 2.
Thirdly. It was provided that in case the administrator or exócutor did not voluntarily appear a citation might be taken
These sections were re-enacted in Gen. Sts. c. 127, §§ 5-10, and in Pub. Sts. c. 165, §§ 5-7 and 9—11.
The Commissioners of the Revised Laws reported the act as it now stands. From the marginal references in their report it appears that they intended to re-enact the earlier acts, and particularly that R. L. c. 171, § 5, was intended to be a re-enactment of Pub. Sts. c. 165, §§ 5, 6 and 7, which correspond to Rev. Sts. c. 93, §§ 1, 2 and 3.
The evident purpose of these commissioners in reporting a consolidation of existing law was to abbreviate as much as possible.
Reading R. L. c. 171, § 5, in the light of these facts, and of the further fact that the construction urged by this defendant would leave unprovided for the case which ordinarily occurs and which in case of the sole survivor of several plaintiffs and defendants is expressly provided for in R. L. c. 171, § 8, we are of opinion that the object of the first sentence of that section was to authorize the entry of the action or appeal in case the death occurred after the action was begun or the appeal claimed but before the entry thereof, and also to authorize the suggestion of the death on the i’ecord under those circumstances.
The second sentence provides that after the entry of an action the cause of which survives or of an appeal in such action, and after the entry of the suggestion of the death of a sole plaintiff or sole defendant “ as aforesaid,” (that is to say, upon the record of the court,) no matter when the death suggested occurred, his executor or administrator may voluntarily appear and prosecute or defend.
The third sentence provides for citing in an administrator or executor in all cases where he is authorized to appear and does not do so voluntarily.
The result is that in the case originally brought against Eaton the exceptions must be overruled, and, in all the eases, under the terms of the report the entry must be
Case to stand for trial on the second count.
“ Section 5. If the sole plaintiff or defendant in a personal action, the cause of which survives, dies before the entry thereof or of an appeal from a