44 Cal. 462 | Cal. | 1872
When the defendant made the promissory note in suit it was not definitely determined what amount of land the contemplated homestead association should own, nor what should be the number of its shares of stock. It was proposed to call it the Golden Gate Driving Park Homestead
When the corporation was afterward formed it adopted the name of the “ Geary Street Extension Homestead Association,” and it was provided in the articles of association that the capital stock of the corporation should be one hundred and forty thousand dollars, gold coin, divided into four hundred shares of three hundred and fifty dollars each.
Article Y of the articles provided: “Each person taking shares of the stock of this corporation shall, upon his becoming a member thereof, pay into the treasury the sum of twenty dollars ($20) in gold coin on each share, as the first
By Article XI it was provided: “ The land purchased by this corporation shall be divided and distributed among the shareholders in the following manner: * * * The Board of Directors shall also fix a time, which shall be in the month of September, 1869, and a place for the distribution, and decide in what order the lots shall be offered to the members. * * * At the time and place mentioned in such notice a meeting of the stockholders shall be held, when all the lots, parcels and subdivisions to be distributed shall be offered by auction to the members, and stockholders willing to give the highest premium upon the purchase of any lot offered shall be entitled to the same. * * * All premiums bid upon lots or subdivisions by the stockholders must be paid the Treasurer at the time of the salé in gold coin of the United States. * * * A dividend shall be declared pro rata among all the shares of the balance of the moneys realized as premiums, and which shall remain in the hands of the Treasurer after all the expenses, taxes, and Inabilities, including outside land assessments of this corporation, have been paid or provided for.”
Attached to the articles of association, and printed on a fly-leaf, was a notice, in the following words: “The Board of Directors have purchased the lands mentioned in the articles of association, at the rate of three hundred dollars, gold coin, per lot, with interest at the rate of ten per cent, payable quarterly—the monthly installments to be applied on the purchase price of the land as they are paid in. To
At the organization of the company, the Secretary, by the direction of the plaintiff, who was its President, but without any authority so to do from the defendant, entered upon the books of the company the name of the defendant as the holder of thirty shares of the stock, numbered from two hundred to two hundred and twenty-nine, both inclusive.
The defendant never accepted any shares of stock in the company, and never attended any of the company meetings, and no certificates of stock were ever made out in his name, or tendered to him, till after the commencement of this action.
In view of these facts, the defendant contends that the stock of the “Geary Street Extension Homestead Association ’ ’ is substantially different, not only in name, but in character and value, from that for which he bargained with the plaintiff. He insists, therefore, that the consideration for the note has wholly failed.
We do not see how the name wdiich the association adopted, or the number of shares into which it divided its capital stock, could have been very material to the defendant. The shares represented lots or subdivisions of the land, and there is no pretense that the land, as_ a whole, was any other, or that the lots were any smaller or less valuable than the defendant had reason, from the representations of the plaintiff, to expect. As already seen, the defendant was, however, to receive shares which would not cost him, in the aggregate, more than three hundred and fifty dollars each, and he was at liberty, if he chose, to stand upon the terms of his contract, and refuse to accept such as did not comply with this or any other of its conditions.
But it is claimed, on the part of the plaintiff, that under the “notice” which was printed on the fly-leaf of the articles of association, only so much of the capital stock could be called in as might be necessary to pay the sums named in the notice. If this be so, still there was required three hundred dollars for each share or lot, and interest on that sum at the rate of ten per cent, payable quarterly, until the amount shall be paid by the monthly installments, besides “the taxes on the land, the outside land assessments to which the land is subject, and the necessary expenses of the association.” In this view of the case, the “interest ” was not within the terms of the defendant’s contract, and whatever it might amount to, it was an additional burden which he could not be required to bear.
On the whole, we are of the opinion that the stock offered to the defendant was, or at least might be, of greater cost to
Judgment and order reversed, and cause remanded for a new trial.