83 Iowa 430 | Iowa | 1891
“We, the subscribers hereunto, for value received, severally, but not jointly, agree to take the number of shares in the capital stock of the Great Western Telegraph Company placed opposite our respective names, and pay for the same in installments, to-wit, five per cent, on amount paid in, and the balance as the directors from time to time may order. In consideration thereof the Great Western Telegraph Company agree that, when forty per cent, of the par value of the shares shall have been paid under such orders, and the installment receipts therefor surrendered to the company, the number of shares severally subscribed by the undersigned shall be issued to them as full paid stock by the said company. T. C. Snow is appointed-agent to solicit stock, and receive only the first installment of*432 five per cent, (fifty cents on a share) at the time of subscription. J. Snow,
“Secretary.”
In 1872 the executive committee of the board of directors of the telegraph company, by resolution, required the payment of all arrearages upon subscription to the capital stock of the company, and directed the secretary to notify the stockholders of this action, and to demand payment of all arrearages. It is not made to appear that the notices required were given to the stockholders.
II. The defendant pleads, as a defense, that the action is barred by the statute of limitations. In our opinion, this defense is sustained, and the action must fall. It will be observed that five per centum of the amount of the stock was payable when the subscription was made, and the balance was to be paid as the direct-tors of the corporation should order. It may be assumed that this balance did not become due, and no action to recover therefor could be maintained until such an order had been made. It rested with the corporation, by proper orders and notices, or other acts, to acquire the right to maintain an action. It is the case of a creditor or obligee holding, by the terms of the contract, the power to acquire, by his own act, the right to maintain an action upon the contract. It is plain that this power must be exercised at a just and reasonable time, and not hastened or delayed to the prejudice of the other party. In the case before us, if the position of counsel for the plaintiff be correct, no act of the corporation was ever had requiring payment of the arrears due on the stock subscrip