1 N.D. 52 | N.D. | 1890
On November 26, 1886, and as a result of certain parol negotiations theretofore had, the plaintiff, Hennessy, and the defendants Griggs and Eshelman, entered into a written agreement of copartnership, as follows: “This contract of copartnership, made and entered into between Alexander Griggs, J. S. Eshelman, and Thomas Hennessy, all of the city of Grand Forks, county of Grand Forks, and territory of Dakota, witnesseth: That the parties aforesaid have, and by these presents do, enter into and form a copartnership under the name and style of the ‘Dakota Gas and Fuel Company.’ The principal place of business of said copartnership shall be the city of Grand Forks; and the nature of the business to be transacted shall be the manufacture and sale of gas and coke, also dealing in and selling of fuel of all kinds. The capital of said copartnership shall consist of $50,000 — Alexander Griggs to furnish $5,000; Thomas Hennessy, $10,000; and J. S. Eshelman, $10,000; the remaining $25,000 to be held by Griggs, to be by
Under this agreement, the co-partnership proceeded to obtain from the city of Grand Forks the necessary franchise for the construction and maintenance of a gas-plant, and also a contract for lighting said city for a term of years, and contracts with various private parties; and in the summer of 1887 they began the work of erecting suitable buildings and tanks upon certain land, the title to which was in the defendant Griggs, and of laying gas-mains, erecting posts, and doing generally whatever was
• Plaintiff demanded of the corporation that it deliver to him $20,000 of the shares of its capital stock, paid up, and non-assessable. This the corporation refused to do, but offered to deliver to him said amount of stock provided he would pay the assessment of 40 per cent, which had been assessed against all of the stock of the corporation. Thereupon plaintiff brought this action, asking to have the conveyances to the. corporation set aside and canceled, and that said corporation be required to re-convey said real estate to said copartnership, and that a receiver •be appointed to take charge of the partnership property, and that the same be sold, and, after payment of all partnership debts, that the balance be divided between the copartners according to their respective rights. The findings .of fact by the trial court are very full, and seem to cover every point in the case. Many errors are assigned on these findings as not being-supported by the evidence, but, from an examination of the testimony, we conclude all of the findings to which exceptions were entered have reasonable support, and cannot be disturbed by this court. From its findings of fact the trial court declared as conclusions of law that the plaintiff and Griggs and Eshelman had, at the time of the attempted transfer to the cor
Among other things, the copartnership contract provided that “the capital of said copartnership shall consist of $50,000— Alexander Griggs to furnish $5,000; Thomas Hennessy, $10,000; and J. S. Eshelman, $10,000; the remaining $25,000 to be held by Griggs, to be by him negotiated and raised to and from certain persons in St. Paul, Minn.” It is not just clear what was meant by negotiating partnership capital. Had the contract been speaking of corporation stock, it would be perfectly clear. But the parol evidence introduced did not tend in any manner to explain that portion of the contract. Hence such evidence was properly, disregarded. This obscurity is largely swept away when we consider the other provisions of the contract, which provided that all profits of the copartnership should be divided pro rata according to the capital furnished and held by each member thereof, and that the stock of the corporation, which was to be formed “as soon as may be,” should “be held and divided among the parties hereto in the same proportien as ,the capital stock of said copartnership.” The purport of the .language was to give the defendant Griggs control of the ma
The corporation expended over $40,000 in the purchase of materials, and construction of the works. This money the court finds was furnished by Griggs and Eshelman, but it is found by the court to be a debt of the copartnership. Plaintiff, Hennessy, never paid in any money to the firm capital. His theory of the case is that the copartnership capital to be furnished by Griggs, Eshelman, and Hennessy was, nominal only; that in fact said parties were to pay in no money, but that their services' as copartners were to be received as such capital; that the works were to be constructed with the $25,000 to be raised from outside parties by Griggs, and when the corporation should be formed the copartners would receive their shares of capital stock, paid up, and non-assessable, without the expenditure of any money whatever. But such is not the contract. The capital was to be furnished; that is, supplied, provided, paid in. The services rendered by plaintiff were only such as the law required of a partner; and, in the absence of an express contract, no compensation therefor could be claimed.
Plaintiff became one of the incorporators of the corporation defendant. That corporation was formed under the articles of copartnership, and in pursuance thereof, and was formed to succeed the copartnership in all things, property, franchise, business, contracts, obligations, and liabilities. The two could not co-exist; and, as between the partners and the incorporators, the existence of the corporation worked eo instanti the dissolution of the copartnership. There no longer existed any rights or obligations which the partners, as such, could enforce, the one against the other. Nor can plaintiff be heard to say that the corporation defendant is not the corporation contemplated by the copartnership articles, because the capital stock is greater, and the incorporators five, instead of three. He signed the articles of incorporation fixing the amount of capital stock, and specially naming the five persons as incorporators and directors. He must be held to have assented to such alteration. Nor could his rights be in any manner injuriously affected thereby. If he performed the contract on his part, he was still
Under the partnership contract, all the effects of the partnership were to be assigned to the corporation. Granted that plaintiff was a necessary party to a transfer of the legal title to such property, yet equity, looking ever to the substance, regards that as done that ought to be done; and the full and equitable title is in the corporation. The transfer executed by Griggs and Eshelman cannot, in equity, be defeated because plaintiff wrongfully refused to join therein. Nothing remains in the copartnership; and the corporation, by accepting such
Lastly, it was claimed that plaintiff was entitled to paid-up, non-assessable stock. Had plaintiff paid in his full amount of partnership capital, perhaps his position would be correct. ¥e do not decide the point. It will be ample time for him to resist further assessments when he shall have paid up to the amount of his original agreement. Affirmed.