106 Ala. 561 | Ala. | 1894
— A condition to a subscription for stock in a public or private corporation, must be performed before a subscriber can be compelled to pay his subscription. Reasonable performance is all that is required. — 1 Cook on Stocks & Stockholders, § 86; 2 Beach on Private Corp., § 540. The complaint alleges performance of the conditions found in the note offered in evidence.
ÍS¡jThe note reads as follows : “I promise to pay to the Alabama Midland Railway Company, as now chartered under the general railroad law of the State, or any amendments that may be hereafter made, either by general law or by act of the legislature, its order or assigns, five hundred dollars at the banking house of Farmers’' and Merchants’ Bank, Troy, Ala., to be paid in cash, on demand, at the maturity of the note, the amount being the total amount of my subscription to the capital stock of the Alabama Midland Railway Co. It is agreed, that the saidamoimt, to-ivit,five hundred dollars, mature and become due and payable whenever the Board of Directors of said Railway Company shall decide that the railroad has been finished to a point within one mile from the centre of the'city of Troy, Ala., from one or the other of its terminal points ; and that said road is of standard gauge, laid with steel rails, publication of said decision of said Board of Directors to be made in one of the daily papers of the city of Montgomery, Alabama, shall be final and conclusive notice to me of the same. It is hereby agreed and made part of the condition of this contract, that if the said Alabama Midland Railway Company-shall fail to complete the-wqrk necessary to make this__óbligatión ’ binding' by'October 1, 1890,, "*
j^Now, the declaration of the directors, when made, on the 3d of March, 1890, omitted to state, “that the road has^beenpinished to |a point within one mile from the centre of the city of Troy, Ala./’ but it did declare, that said road “is now built and finished to a point within one mile of the city of Troy in Pike county, Ala.” Because of this omission, the déclaration as evidence was, on motion of defendant, excluded ; and the plaintiffs were not allowed to prove that the road was finished prior to the 6th of March, 1890, — the date of the published notice of that fact, — to a point within one mile from the centre of the city of Troy from its eastern terminal point; that'it was of standard gauge, and laid with steel rails. In this the court erred. It is entirely consistent with the declaration of the directors as made, that the road had in fact been built within one mile of the centre of the city of Troy. If built within a mile from the centre, it was necessarily within a mile of the city. though the converse of the proposition may not be true, viz., that if the road was within a mile of the city, it was not necessarily within a mile of its centre. The declaration of the directors does not negative the fact, that the road was within a mile of the centre of Troy ; and if it was a fact, it ought to have been allowed to be shown, — as was proposed to be done, — just as well as if the directors had made a false statement, as touching this matter, that fact might have been shown by the defendant. It was the truth of the fact declared, and not the mere declaration of it, that was important and controlling.
We have confined ourselves to the single question which counsel have presented and argued in their briefs.
Reversed and remanded.