31 Me. 470 | Me. | 1850
This action has been commenced to recover the amount remaining unpaid of assessments made upon twelve shares of the stock of the corporation after a sale of them at auction. The defendant denies, that he became the owner of those shares; that the proceedings were legal, by which the assessments were made and the shares sold; and if they were, that he is personally liable to pay any balance remaining unpaid. The last objection will be first considered.
A corporation may, in an action at law, recover the amount due for its shares or for assessments legally made upon them, when by its charter or other statute provision, a personal obligation is imposed upon the holder to pay for them. And when the holder has made an express agreement to pay for them. Without proof of such an agreement, or personal obligation, the corporation cannot recover. These positions are established by many decided cases, a few of which will be referred to.
Bangor Bridge Co. v. McMahon, 1 Fairf. 478; Bangor House Proprietary v. Hinckley, 3 Fairf. 385; South Bay Meadow Dam Company v. Gray, 30 Maine, 574; Franklin Glass Company v. Alexander, 2 N. H. 380; Worcester Turnpike v. Willard, 5 Mass. 80; Andover & Medford Turnpike Company v. Gould, 6 Mass. 40; Portland, Saco & Portsmouth Rail Road Company v. Graham, 11 Metc. 1; Essex Bridge Company v. Tuttle, 2 Verm. 393; Hartford & New Haven Rail Road Company v. Kennedy, 12 Conn. 499; Turnpike Company v. Thorp, 13 Conn. 173; Goshen Turnpike Company v. Hurtin, 9 Johns. 217; Herkimer Manufacturing & Hydraulic Company v. Small, 21 Wend. 273; same v. same, 2 Hill, 127; Small v. Herkimer Man. & Hydraulic Company, 2 Comstock, 330; Canal Company v. Sansom, 1 Binn. 70; West Philadelphia Canal v. Jones, 3 Whart. 198; Silk Company v. Anderson, 1 McMullan, 300; Selma & Tennessee Rail Road v. Tipton, 5 Ala. 787.
There may be differences of opinion in the decided cases, whether a particular form of subscription to the stock would constitute an agreement to pay for it; and there are serious differences of opinion, whether charters and statutes impose a personal liability.
When the language of a charter or statute does not in
Under a statute providing, that “ it shall be the duty of the directors, for the time being, to call for and demand of the stockholders respectively, all such sums of money by them subscribed, at such times and in such proportions, as they shall see fit, under penalty of forfeiture to said company of their shares, and all previous payments made thereon,” the decision was made in the case of The Herkimer Manufacturing and Hydraulic Company v. Small, 21 Wend. 273. And the language was regarded as imposing upon the directors, the duty to make a personal call, and upon the share-holder a personal obligation to pay. In a case between the same parties, in 2 Comstock, 330, a majority of the court came to a different conclusion.
If this action is maintained, it must be by virtue of the contract subscribed by the defendant; or by virtue of some
The subscription made by the defendant, on October 28, 1846, contains no promise or agreement to pay for the shares. It is at most but an agreement, by which he became the owner of twelve shares of the stock, subject to payment to be made for them.
The sixth section of the charter provides, that the corporation “ may make and collect such assessments on the shares of such capital stock, as may be deemed expedient, in such manner as shall be prescribed in their by-laws.” Here is no personal obligation imposed by the charter itself. All that can be claimed, is, that the clause authorizes the corporation to impose such an obligation by its by-laws. The language is peculiar. It does not authorize the corporation to make assessments on the shares, and to collect them in such manner as shall be prescribed in their by-laws. The authority conferred is to “ collect such assessments on the shares” “ in such manner as shall be prescribed in their by-laws.” When it was well known at the time, when the charter was granted, that by the law, as administered in this State, no personal obligation to pay was imposed upon the owner of stock without an express • provision therefor, if it had been the intention to subject the owners of the stock to such a personal liability, it is highly improbable, that the Legislature would have omitted to do it, and have delegated the power to do it to the corporation. The language used can have its full effect without a construction, which would confer such a power. It is more appropriate to authorize a collection on the shares by a sale or other disposition of them as the by-laws should prescribe, than it is to confer the power to impose a personal liability. This construction is sustained also by the consideration, that by the first section of the charter authority is conferred to make by-laws “ not repugnant to the laws of the State,” and that.neither by the existing laws nor by the acts then recently passed concerning corporations, c. 200, and defining the rights and duties of rail road corporations, c. 204, is any such liability
The sixteenth by-law provides for the sale of shares, when the assessments made upon them have not been paid, and that “if the shares of any such delinquent stockholder shall not sell for a sum sufficient to pay his assessments with interest and charges of sale, he shall be held liable to the corporation for any deficiency.”
A corporation may contract with one of its members as well as with a stranger. When it so contracts, there are two parties to the contract, the terms of which can no more be varied by one party without the consent of the other, than they could be, if made between individual persons. A vote passed by the corporate members can have no effect upon a contract made by the corporation with one of them to his prejudice. The legal effect of the paper subscribed by the defendant cannot be varied by a vote or by-law of the corporation. As it contains no promise to pay, one cannot be engrafted upon it by a by-law or by any other act of the corporation. Revere v. Boston Copper Company, 15 Pick. 363.
The defendant being exempt from any personal liability to pay by the existing laws of the State and by the charter, the laws regulating the relations and duties of corporations and their members cannot be changed by a corporate by-law. A by-law, made in pursuance of an express power to make such laws, if contrary to the common law or to a legislative act, is void. It must be lawful and reasonable. Com. Dig. Bylaw, B. 1; Sargent v. Franklin Ins. Co. 8 Pick. 96; Durham v. Trustees of Rochester, 5 Cow. 462.
In the matter of the Long Island Railroad, 19 Wend. 37,
As the case fails to show, that the defendant has assumed any personal liability to pay assessments regularly made upon the shares, it will not be necessary to consider the other questions presented.
Plaintiffs nonsuit.