48 N.Y.S. 427 | N.Y. App. Div. | 1897
Upon the trial it was proven that on March 1,1892, a corporation known as the M. S. Robinson Musee Company was formed, and that it thereafter carried on business at Buffalo and Rochester, and that the plaintiff became a manager thereof. In April, 1892, ten shares of the capital stock of the company were transferred to the plaintiff, who became the owner thereof. Evidence was given tending to show that prior to July 11, 1893, the plaintiff loaned to M. S. Robinson, who was the president of the corporation, $2,150, which went into the corporation and was used for its benefit; and in July, 1893, there was issued by the company to the plaintiff fourteen shares of the preferred and fifteen shares of the common stock of the corporation for the money which was so loaned by the plaintiff and used by the corporation, and evidence was given tending to show that the money had never been repaid. In July, 1893, the company was indebted to divers persons to the extent of $37,000.
On the 2d day of August, 1893, the defendant entered into a
The defendant consummated the sale of the property to Moore and received $10,000, besides a note of $2,000 made by M. S. Robinson, which was indorsed by Moore to the defendant, without recourse. There is sufficient evidence to show that, before this action was commenced, the plaintiff made a demand of the defendant that he pay the $2,150, and the defendant refused to pay the same. This action was not commenced until July 20, 1895, which was long after the defendant had realized the full fruits of the sale made by him of the property to Moore.
It is contended in behalf of the appellant that the plaintiff did not prove any cause of action. The plaintiff had an interest in the assets of the corporation. When he signed the consent he waived that interest. “ A share of stock may be defined as a right which its owner has in the management, profits and ultimate assets of the corporation.” (Cook Stock & Stoclch. [2d ed.] § 5.)
We think the consent furnished a sufficient consideration for the agreement made by the defendant, and that the promise of the defendant was an original undertaking founded upon a new and dis
We think the exception to the charge that “ there was sufficient consideration in law to uphold the claim, if they believe the testimony of the plaintiff,” presents no error. In connection with that exception there was a request “ upon that subject ” that “ it was not necessary that every stockholder should'give his consent, either in writing- or orally, in order to enable the trustees to make a valid sale of the property, which it conveyed under the bill of sale in question, and, of course, that is the main question over again.” We think the request was so involved, connected with the subject of the consideration, and an avowal that it is the main question over again, to wit, the question of consideration, that the refusal to charge in accordance therewith presents no error. The parties acted upon the assumption that the consent of all the stockholders was essential to complete the negotiations that were set on foot between the defendant and Moore. Indeed, the defendant acted upon the assumption that the consent of all the stockholders was necessary, and especially the consent of the plaintiff, and if he made the agreement that, if the plaintiff would consent, he would pay him $2,150, as the jury have found, he became liable to pay him that sum.
We have looked at some other exceptions taken during the progress of the trial, and find none of them which require us to disturb the verdict on the principal question of fact.
We think the verdict should remain.
All concurred.
Judgment and order affirmed, with costs.