145 Minn. 205 | Minn. | 1920
We regard this transaction as an executed sale of stock, with an option to return the same upon failure of the stipulated condition. Ophir Consol. Mines Co. v. Brynteson, 143 Fed. 829, 74 C. C. A. 625.
Plaintiff’s remedy upon failure of the condition was, not to recover damages, but to exercise his option to return the stock and demand a return of his money. Vent v. Duluth Coffee & Spice Co. 64 Minn. 307, 67 N. W. 70; Lyons v. Snider, 136 Minn. 252, 161 N. W. 532; Matson v. Bauman, 139 Minn. 296, 166 N. W. 343.
In the first place this conditional contract was the only contract to which plaintiff ever assented. If the company never assented to it, there was no meeting of the minds at all. Vent v. Duluth Coffee & Spice Co. 64 Minn. 307, 67 N. W. 70; Anderson v. Johnson, 74 Minn. 171, 77 N. W. 26.
Again, the evidence is clear that the company had notice of this condition before it delivered the stock. By delivering the stock, and by now claiming the benefit of the subscription, defendant has ratified Connor’s
It is not in any sense ultra vires, against public policy or contrary to law, for a corporation to move its principal place of business from one city to another. We see no reason why, by authority of a vote of the stockholders, it might not agree to do so. G. S. 1913, § 6185. A stock salesman could not make such an agreement, nor could an officer of the corporation, unless properly authorized. The stipulation made with plaintiff did not purport to agree that the corporation would move its place of business. It merely stipulated that the subscription of plaintiff was to be absolute only in the event that the corporation should take such action. The action being such as the corporation might, upon proper procedure, lawfully take, the condition was not unlawful or void.
4. Under decisions in some states a corporation may not, on a sale of its stock, give a right of rescission or return, Civil Service Inv. Assn. v. Thomas, 138 Tenn. 77, 195 S. W. 775; Interstate Grocer Co. v. Taylor, 200 Mo. App. 205, 204 S. W. 408, but the rule is settled in this state that, where no right of creditors is involved, a corporation may do so. Vent v. Duluth Coffee & Spice Co. 64 Minn. 307, 67 N. W. 70.
As to what foundation is necessary to warrant the reception of secondary evidence of a document, which, at the time of the trial, is beyond the jurisdiction of the court, the courts are not agreed. Some hold that secondary evidence is admissible on a mere showing that the original is out of the jurisdiction. Others hold that this fact alone is not sufficient, but that some effort must be made to produce it. All are agreed that if the document is part of the record of a foreign court, or if it belongs in any public office of another jurisdiction, secondary evidence may be received. The whole subject is discussed, and the authorities are reviewed, in Federal C. Co. v. Jennings, 112 Miss. 513, 73 South. 567, L.R.A. 1917D, 539, note p. 530 and in 3 Wigmore, EVid. §§ 1213, 1218.
It was said in Kleeberg v. Schrader, 69 Minn. 136, 140, 72 N. W. 59, that the contents of a written instrument beyond the jurisdiction of the court, and not in the control or custody of a party, may be proved by secondary evidence. The instrument there referred to was in the custody of the ducal court of Holzminden in Germany. This fact alone put the question beyond doubt.
In Humphrey v. Monida & Y. Stage Co. 120 Minn. 94, 139 N. W. 132, it was intimated that a carbon copy of an agreement might properly have been offered in evidence “either as original or secondary evidence; the original being out of the jurisdiction of the court and in possession of a stranger to the action.” There had been a showing of diligence which the court said made “a question addressed to the discretion of the trial
In Wood v. Cullen, 13 Minn. 365 (394), it was said that the fact that a document is shown to have been last in the hands of some person without the state, does not excuse diligent effort to procure it, but the document was traced into the hands of the opposite party.
These decisions are none of them decisive of,the main question above stated. We think the better rule is that the mere fact that a document is without the state, and in the possession and control of one not a party, is not alone sufficient to permit secondary proof. Some effort should be made to produce it. The nature of the effort depends on the circumstances of the case. Such a document may sometimes be easily and quickly procured upon request. Original documentary evidence should be produced where it reasonably may be. The matter should be left to the discretion of the trial court, 2 Wigmore, Evid. § 1213, as are other questions pertaining to sufficiency of the foundation for reception of secondary evidence. There was no abuse of- discretion in this case.
Order affirmed.