108 Mo. App. 105 | Mo. Ct. App. | 1904
— This proceeding was instituted by plaintiff against the defendant, as a delinquent subscriber, for the enforcement of his subscription to its capital stock. The petition narrated, that with many others, appellant united in subscribing a written agreement to become a stockholder, for an enumerated number of shares in a corporation to be organized to solemnize the one hundredth anniversary of the Louisiana Purchase, upon condition that such subscription should not become obligatory until the full amount of five millions of dollars should have been subscribed, and agreeing to make payment for such subscription in manner detailed; that the total of the requisite and named amount was duly .subscribed, the proposed corporation organized, and all steps adopted required by law for the incorporation of such company; that it had accepted such subscription of defendant and, relying upon the subscription of defendant and his associates, it had proceeded to obligate itself for and expend large sums of money in its organization, construction of buildings and other preparations for a World’s Fair in the city of St. Louis. Continuing, the petition charged the making of the various calls upon the subscribers to its stock in manner provided by such subscription instrument and notice thereof to appellant, that he had paid the first installment of ten per cent, but had defaulted in subsequent calls and judgment therefor was asked.
The answer admitted the execution of the subscription, but making denial of all other allegations of ihe petition, by way of affirmative defense, averred that the amount of five millions of dollars essential to render defendant’s subscription binding never was subscribed, but that the aggregate subscriptions fell short of such amount. A jury was waived, and the trial before the
The first section of the legislative act, general in character but special in its practical application and employment, being an act of the Fortieth General Assembly of the State of Missouri, under which, together with subsequent amendatory acts not material herein, the plaintiff was brought into legal existence, April, 1901, and denominated “World’s Fairs and Centennial Expositions” (Laws 1899, 130) and adopted to commemorate and solemnize the centennial anniversary of the Louisiana Purchase by holding a World’s Fair at the city of St. Louis, in defining the recitals to be set forth in the articles of agreement for the legal creation of a corporation, to be invested with the powers and authority of such legislative act, and for the purposes enumerated in section 6, especially the inauguration and maintaining of national, international and World’s Fairs, centennial and other expositions, commemorativof any historical event or for the promotion. and encouragement of the arts, sciences, professions and industries by the exhibition of products of the arts, industries and manufactures and of soil, land and sea, prescribed that the amount of the capital stock of the corporation, the number of shares of a minimum par value of ten dollars and maximum of one hundred dollars per share, and that not less than one-half of the entire
The evidence received, presently further considered, being the testimony of a witness familiar and entrusted with the subscription lists and original subscriptions, which had been preserved and transferred under his individual direction, by him personally verified and compared, and the aggregate amounts computed, established that the subscription lists, accounts
In Litchfield Bank v. Church, 29 Conn. 137, an action to enforce a subscription, to capital stock of a bank organized under a special act of the State of Connecticut, under which a board of commissioners was delegated to superintend subscriptions to the bank and certify the result and where the validity and good faith of specified subscriptions were assailed, the Supreme Court of that State replies:
“In the next place, we think the doings of the commissioners are conclusive on this point. The commis
In Connecticut & Pass. Rivers R. R. Co. v. Bailey, 24 Vt. 465, a proceeding to recover assessments upon the stock of a railroad corporation, where the defense made impugned subscriptions to the capital as fictitious and not bona fide, and where the plaintiff was organized pursuant to an act empowering commissioners, when the quota had been subscribed, to take steps for the organization and make return to the Secretary of State, the court of that State declares: “To guard against fraudulent subscriptions, and to see that this provision of the act was complied with, commissioners were appointed under the fourth section of the act of 1835, whose duty it was to open books and receive subscriptions, and when the amount‘required was raised, to notify a meeting of the stockholders for the election of directors, and of which they are the inspectors; and they are required to certify under their bands, the names of those elected, and by the fifth section of the act of 1845, that organization is to be duly certified to
It may be deserving of remark that the report of commissioners in the cases above cited is replaced under the law of Missouri, by articles of association, but no just distinction can be observed between the officers and powers of the incorporators and such commissioners.
In Belfast & Moosehead Lake Railway Co. v. Inhabitants of Brooks, 60 Me. 568, an action in assumpsit
In the earlier case of Penobscot Railroad Company v. White, 41 Me. 512, a similar action for recovery of assessments to a railroad subscription, the same court declared: “Prom the very nature of the contract of subscription, it must have been within the contemplation of the parties, that the shareholders, or corpora-tors, should determine who were apparently responsible as subscribers, and when they had done so in good faith, the subscribers to the stock must be regarded as bound by such decision.”
It is manifest that such introductory questions must be referred for decision to some competent and proper body composed of individuals whose judgment and conclusions are at least presumptively correct and fixed, subject only to impeachment for fraud or if absence of good faith be established. It would be difficult- to picture an instance where the foundation and application of this rule would appear more in harmony with reason and sound judgment than illustrated by the prodigious undertaking of the plaintiff and its diversified and multitudinous stock subscribers.
The reason justifying the exception made to the general rule of evidence requiring the contents of books and papers to be established by the exhibition of the writing's themselves, where the evidence aimed at is the general summary of voluminous facts, or the result of calculations ascertained from the examination of numerous books and papers, has been assigned by a leading commentator in the following sentences:
“To prevent the time of the court from being unduly occupied in the examination of evidence consisting of numerous and bulky books and papers in order to prove a single fact or circumstance, the production of such voluminous writings may be dispensed with, and a witness may state verbally the general result of his examination of books or written instruments made out of court. Here it should be noted the witness is not asked to testify to the contents of the writings. He is asked to give primary evidence of an independent fact within his personal knowledge which he has ascertained by the use of his own powers of observation. Thus an expert who has examined the books of account bearing upon the facts in issue may testify that a certain general balance is due thereon,” etc. Underhill, Evidence, sec. 37.
Other eminent text-writers may be cited tó same
Such testimony is tolerated, where the books and papers are so considerable and unwieldy, as to render their direct or immediate examination in court impracticable or difficult. It is apparent, therefore, that the physical presence or absence of the documents themselves is not decisive of the admissibility, but that the latter is a distinct and independent question. If the exhibition of such books and papers shall have been required by the opposite party to test or corroborate by cross-examination the statements of the witness testifying, their production becomes imperative or their non-production should be justified by legal apology, but where the production of the books and papers, the results of which are offered orally in convenient and intelligible form, has not been required or called for, as in the present instance, the witness offered to establish their contents, under the conditions here presented, is not to be disqualified by objecting to the non-appearance of the documents, which have not been requested. We have been referred to no authority in this State, determining this proposition, but the same question has been considered by the appellate tribunals of sister States.
In McCann v. Gould, 71 Conn. 629, the court says: “In such cases, unless there is some legal excuse for not producing the books of account from which the witness has obtained the result testified to, they must be produced, if required by the opposing party, for examination, or to enable him to cross-examine the witness.”
In Iowa, the court, in reply to the objection that the testimony of a witness could not be received in absence of the book itself, declares: “The testimony was unquestionably competent, and it was so, either with, or without, the books. There was no necessity 'for the
No error is revealed in the trial of this cause and the judgment of the lower court is affirmed.