151 Mo. App. 601 | Mo. Ct. App. | 1910
Action by the plaintiff corporation against Henry Zeigenhein to collect a supposed subscription of five thousand dollars to the capital stock of the corporation. After the trial the defendant died and the case had been revived in the name of his administrator. Trial was had in the circuit court of St. Louis county before the court, and the issues found for plaintiff, and from the judgment in its favor the defendant has appealed. The date of the subscription was prior to the formation of the corporation, and the defense to the action was two-fold. First, that the subscription being preliminary only, and the defendant not having signed the ardides of incorporation nor having subscribed for stock after the formation of the corporation bis subscription was for that reason null and void. _ Second, that the subscription paper which he signed was delivered in escrow to his son, Fred W. Zeigenhein, to be by him held until the site for holding the exposition should be selected and in case any part of Forest Park should be selected the subscription should either be destroyed or returned to the subscriber, and that Forest Park was selected as a site for the exposition and his subscription was, therefore, never delivered and was for that reason not binding.
The defense that the subscription was delivered in escrow only and was never delivered to the plaintiff raised an issue of fact, and by reading the testimony taken at the trial we find there was testimony sufficient to warrant a finding either way upon that question and
As to the other defense that the deceased, Zeigenhein, signed a subscription for five thousand dollars of the stock of plaintiff prior to its incorporation, it'was not contested that the subscription antedated the formation of the corporation, and to sustain defendant’s contention that this made a complete defense to plaintiff’s cause of action we are cited to the case of the Sedalia, etc., Railway Co. v. Wilkerson, 83 Mo. 235, in which the Supreme Court held that a subscription to the capital stock of a railway corporation to be formed in the future was not binding, and it was stated in that case that the only way a person could become a stockholder in a railroad corporation was by signing the articles of incorporation, or by subscribing for stock after the corporation was organized. It is now insisted that that decision is controlling in this state and that this court is, therefore, bound by it and must for that reason reverse this case..
It will be observed that the decision in the Wilkerson case was based upon the statute providing for the incorporation of railroad companies, and if the statute under which the plaintiff corporation was organized .was identical with the railroad statute in its general scope and in its specific provisions this court would be bound by the Wilkerson case, and would of necessity be compelled to reverse the judgment in this case.
It is a familiar'canon of construction of statutes that the conditions under which the statute was enacted, and the purpose to be secured by it, should always be kept in view in determining what the legislature meant by the language used in the statute. Keeping this in view and looking to the history of the statute under which the plaintiff was incorporated, we find that the incorporation of the plaintiff was for the purpose of holding what is commonly known as the World’s
Section 957, Revised Statutes 1899, which was also in force at the time of the decision in the Wilkerson case and which is found in article 1, chapter 12, which contains general provisions supposed to he applicable to all corporations alike wherein not otherwise specified provides as follows: “When such articles of association and affidavit are filed in the office of the Secretary of State the directors named in said articles of association may, in case the whole of the capital stock is not before subscribed, open books of subscription filling up the capital stock of the company . . . ,” and it was upon the construction of the two sections of the statute above referred to that the Wilkerson case rested. The statute under which the plaintiff was organized, sections 1523 and 1524, Revised Statutes 189$, are as follows:
“Section 1523. Who may form Corporation — Articles of Agreement Shall set Forth, What.— Any twenty-five or more persons, who shall have associated themselves by articles of agreement, in writing, as provided by law, for the purpose named in section 1528
“Section 1524. Articles of Agreement, How Signed and Acknowledged — Secretary of State to Issue Certificates — Rights, Powers and Privileges of Corporation. — The articles of agreement shall be signed and acknowledged by the parties thereto, and recorded in the office of the recorder of deeds of the county or city in which the corporation is to be located, and a certified copy of such recorded instrument shall be filed in the office of the Secretary of State, who shall thereupon give a certificate that said corporation has been duly organized, and such certificate
It will he noticed that the provisions of these two sections are not identical with the sectioh applied to railroad corporations. The railroad corporation authorizes any five or more persons to incorpórate while this statute requires at least twenty-five. That fact alone indicates that the Legislature understood that an incorporation for the purpose of holding an exposition should he to a certain extent a public institution. Wé also find that this statute, section 1523, requires the twenty-five who sign the articles of incorporation to set forth in said articles the names and places of residence of the first fifty of the subscribing shareholders and the number of shares subscribed by each. The fact that the provision which requires the names and places of residence of fifty subscribing shareholders to be stated in the articles of association only requires twenty-five to sign the articles of association of itself shows that the legislature contemplated that there would be preliminary subscribers other than those signing the articles of association, and if a preliminary subscriber was' not to he regarded as a stockholder in the corporation when organized how could twenty-five persons who were authorized to form the association comply with the statute'.and give the names of fifty stockholders in the corporation? Agáin in section 1524
Further distinguishing the statute under which plaintiff is organized from the railroad statute we find a provision, section 1526, that its board of directors shall be not less than twenty-five- nor more than seventy-five in number, a majority of whom shall be bona fide citizens of this state; again showing that the. Legislature understood that any corporation formed under this article should be a public institution. Then follows provisions for the election of directors, the filling of vacancies and other matters that are usually left to the by-laws of an ordinary business corporation. In business corporations there is a provision for a fee being paid to the state. Under this article no fee is exacted. There is also a provision, section 1534, that certain property held by a corporation under this article shall be exempt from taxation. This provision is not found in the statutes relating- to railroads and other corporations organized for profit. This statute also provides, section 1532, that a corporation organized under it may condemn property as provided in cases of other corporations, but adds that it may appropriate only an interest in such lands, or may take it in fee simple, and that this shall be considered in estimating the damages. This corporation is also 'authorized, section 1531, to acquire and hold such property as may be necessary or incident to the carrying out of the purpose of its organization, and it may also convey the same, or any part thereof, or any interest therein, by way of gift or donation for a limited period
Our conclusion is that a proper construction of the statute .and the contract of the parties themselves is that the twenty-five men who signed the articles of incorporation were the agents of all the subscribers and that each was bound by his contract to pay what he had agreed to pay by his subscription to the stock.
Contention is now made that the evidence failed to show that the deceased, Zeigenhein, was notified of the calls of the board of directors for payments upon his subscription of stock, and that for that reason the suit was prematurely brought, contending that notice and demand of payment were necessary before any suit could be maintained upon this subscription. The answer to this contention is that the defendant himself testified upon the trial that he did receive one notice, and that he then notified the plaintiff that he would not pay it, and denied all liability under his subscription. This being true, it is a familiar rule of law that subsequent notices were unnecessary. The judgment will be affirmed.