28 Mo. App. 55 | Mo. Ct. App. | 1887
delivered the opinion of the court.
The defendant is sued on account of his subscription to the capital stock of the St. Louis Brick Corhpany, an insolvent business corporation, organized under the laws of this state in October, 1883. The plaintiff is the assignee of the corporation and claims under a deed of general assignment for the benefit of creditors, made in February, 1884. The cause was tried by the court without the intervention of a jury, and the trial resulted in a judgment for the plaintiff for twelve hundred and fifty dollars, and-interest, being the amount of fifty per cent, on the capital stock subscribed by the plaintiff.
The errors assigned are, that the petition fails to state a cause of action ; that the court admitted illegal testimony; that it made erroneous declarations of law, and that the judgment on the evidence should have been for the defendant.
The petition states in substance the incorporation of
It will be thus seen that the petition does state a good cause of action. The objection made to it is, that it is founded on an instrument of writing which recites that the fifty per cent, sued for herein has been paid. As these facts do not appear on the face of the -petition the objection, even if available, could not be taken by demurrer in any shape. Instruments of writing upon which a suit is founded, even if filed with the petition, do not constitute a part thereof, and can not be made the subject of demurrer. Curry v. Lackey, 35 Mo. 392; Bowling v. McFarland, 38 Mo. 467.
The assignment of error that the court admitted illegal evidence is not supported by any reference to the evidence thus admitted and will not be considered. McKensie v. Railroad, 24 Mo. App. 396.
Nor is it necessary to consider any alleged errors of the court in its declarations of law, as there is no conflict in the evidence, and the judgment of the court is a mere conclusion of law. The judgment in such a case must stand or fall by the determination of the law applicable to the conceded facts.
The answer of the defendant is a general denial.. The affirmative defences attempted to be set up by the evidence were, that the subscription was conditional and never became absolute by a performance of the condition. Also, that the defendant had parted with his stock, if any he had, while the corporation was solvent, and prior to the institution of this suit. The first of these defences goes to show that the corporation, and the plaintiff, as its assignee, never had any cause of action
The facts shown are as follows : One Selden, a promoter of the corporation in question, solicited the defendant to become one of its corporators. The defendant agreed tó do so, and to take twenty-five shares in the contemplated corporation, provided the corporation would agree to buy of him, machinery of the value of six thousand dollars, and pay to him the amount over and above his twenty-five hundred dollars subscription, in cash. To this arrangement Selden assented. Selden thereupon presented the articles of incorporation to the defendant, and the defendant subscribed the same for twenty-five shares. Two other persons signed the articles after the defendant, a number having signed before him. The articles were acknowledged and recorded,, the defendant being named therein as one of the first board of directors.
The defendant testified that he was informed by Selden that the condition of the subscription was embodied in the paper presented to him, and that he never read it, but there is no evidence that the defendant was not, at the time when he signed the paper, fully aware that he was signing articles of incorporation, nor is there any condition attached to his subscription.
The corporation law of the state, so far as it bears on the subject under consideration, provides that the articles of association shall state, among other things, that all the capital stock “has been bona fide subscribed, and one-half thereof actually paid up in lawful money of the United States, and is in the custody of the persons named as the first board of directors and managers.”
It can not be questioned that under the law the subscription, by any one, of articles of association for a cer
The plaintiff, therefore, was justified to charge that the defendant had subscribed for twenty-five shares of the capital stock of the corporation and had promised to pay twelve hundred and fifty dollars, or one-half .of the amount subscribed, to the company forthwith, as such was the legal effect of his subscription. The fact of such subscription is established by the production of the articles and the defendant’s signature thereto for twenty-five shares of the par value of one hundred dollars each. As this was a written promise, absolute on its face, and purporting to be complete, it is, to say the least, questionable whether the defendant could transform it into a conditional promise by proof of an oral agreement to that effect, entered into contemporaneously between himself and the corporation. James v. Clough, 25 Mo. App. 147, and cases cited; National Bank v. Hunt, 25 Mo. App. 175. It is needless to discuss that proposition, however, as a careful examination of the record fails to disclose any evidence tending to show any other contract between the defendant and the corporation than the one evidenced by his subscription to the articles of association.
The agreement, if any, as to the conditional character of the subscription, was made with Selden, a promoter of the company, and, therefore, even if provable, could not affect the corporation. It is well settled that a corporation is not responsible for contracts entered into before it came into existence by promoters assuming to bind the company in advance. Morawetz on
The declarations of law made by the court were mere enunciations of these familiar principles as applicable to the facts of this case, and we can not see how, 'under all the facts substantially conceded by the evidence, the court could have reached any other conclusion than it did.
The judgment is affirmed.
