40 W. Va. 307 | W. Va. | 1895
The Greenbrier Industrial Exposition, ,as a corporation, obtained a judgment in the Circuit Court of Greenbrier county against L. W. Squires, based on a subscription by liim to its capital stock, and Squires obtained'this writ of error.
Squires depends on the theory that there never was a legal corporation as to him, and that the subscription which he made to its stock is not binding. The formation of this alleged corporation was under chapter fifty four of the Code. The preliminary agreement constituting the first step and basis in the process of formation of the corporation was ■signed by Squires, but not acknowledged by him. The certificate of incorporation issued colorably under lit. By the agreement the proposed corporation was to expire December 1, 1910, while the certificate of incorporation fixes the date of its expiration December 1, 1919. By reason of non-acknowledgment of agreement and variance between it and the certificate of incorporation, Squires would not be liable for his subscription made by said preliminary'agreement, had he done nothing more, as this Court decided in. Industrial Exposition v. Rodes, 37 W. Va. 738 (17 S. E. Rep. 305.) That statutory requirements as to; preliminary steps in the organization of a corporation, to bind signers of the agreement, must be complied with, I refer to 1 Lawson, Rights, Rem. & Prac. §§ 436, 437; Childs v. Smith, 55 Barb. 45. The case of Real Estate Co. v. Tower, 161 Mass. 10 (36 N. E. Rep. 680) holds the right of one signing preliminary articles to withdraw before organization, and is a full discussion of how he may withdraw. See Tavern Co. v. Burkhard, 87 Mich. 182 (49 N. W. Rep. 562). This case, however, differs from the Bodes Case in its facts. Rodes did not acknowledge the agreement, though he signed it, and took no part in the organization of the company, did nothing but sign the agreement. Squires
It is contended that a corporation was formed, but not the corporation contemplated. It is the same name, different ■only as to date of expiration from the agreement. We can not say this makes it another corporation. It is the same in all other aspects. “Even where articles of association are altered, or an attempt is made to transfer a subscription to a new company, the subscriber will be liable if he consented to the change, either by word or act indicating acquiescence.” Hammond v. Straus, 53 Md. 1, 16; 1 Mor. Priv. Corp. § 63. “If any question could arise as to the identity of the corporation organized as the one mentioned in the subscription paper, it must be held to have been waived by the defendant when he appeared at its meetings, and took part in the discussion of questions there raised, and voted his stock.” Opinion in Association v. Walker, 83 Mich. 393 (47 N. W. Rep. 338). There is not a shadow of evidence that any other corporation of anything like the same name existed, and it ■seems to me that it is utterly impossible to say that Squires, in his acts of participation, in fact meant any other, or that the law would say they are not referable solely to the corporation contemplated by the agreement .which he signed. It was the same. The mere variance above spoken of between agreement and certificate did not, for the purpose of the question now spoken of, make it another company; it did not change, identity. The frame, tlie-. business, the nature of the corporation made by the certificate are the same as those of the one contemplated by the article, so1 that Squires’ acquiescence or waiver would surely apply to the corporation made
Rut it is argued that when Squires did the acts of acquiescence he did not know of the variance. The certificate of incorporation was read aloud at the organization. He says-he did not hear it read. No one was charged with the duty to inform him of it. It -was his own duty to look to that, and means were open. In Railroad Co. v. Bowser, 48 Pa. St. 29, it was argued as here, that to bind the subscriber by acquiescence he must know of the change. An instruction to the jury that if he did not know of it, he was not bound, was held erroneous. The opinion said that after the act of the legislature reduced the capital, “the company was organized, and the defendant voted in right of his subscription at the organization, and at the election of directors Upon this state of facts the court instructed the jury that unless the defendant knew when he voted that the required subscription to the capital stock had been reduced by law from one hundred and fifty thousand dollars to twenty five thousand dollars, the change released him from his subscription; that the presumption of law would be that he knew of the change in the charter, but that whether he did or not the jury should determine. In this, we think, there was error. By voting, the defendant admitted himself still a corporator, and the general principle of law is that a corporator must be held cognizant of his own charter. There was no evidence to rebut this legal presumption, even if it was capable of rebut
We affirm the judgment.