89 Va. 557 | Va. | 1893
delivered the opinion of the court.
The record discloses that about February 1st, 1891, a paper headed “A New and Important Industry for Roanoke,” was circulated for signatures. It proceeds: “It is proposed to organize a company for the purpose of manufacturing locks, bolts, and all house hardware, and other articles of a similar character. The capital stock of the company will be from $350,000 to $400,000. An existing plant can be purchased at a proper valuation, and can be moved immediately to Roanoke. It would, at Roanoke, have a decided advantage over its present location. There can be no question that securing this manufacturing plant for Roanoke will be the greatest step,” &c.
The conclusion was: “We * * * hereby subscribe the amount set opposite our names, respectively, to the capital stock of the company to be formed in accordance with the provisions of the foregoing prospectus.” * * * To this prospectus, or subscription-list, is subscribed the name of “ J. R. Hockaday and others,” (opposite) $1,500.
The entire amount subscribed to this paper was less than
This prospectus paper concludes: “We, the undersigned, each, in consideration of the subscriptions of the others hereto, and the above agreement by the Roanoke Development Company, hereby subscribe the amount set opposite our names, respectively, to the capital stock of the company to be formed in accordance with the provisions of the foregoing prospectus,” &c. The name of J. R. Hockaday, or “ J". R. Hockaday and others,” is not among the names of the subscribers to the capital stock under this subscription-list or prospectus; and the fact in the record is that J. R. Hockaday was approached and asked to subscribe under this second prospectus, and he positively and pointedly refused to subscribe, saying that it was a different contract and scheme from the first. Under this second prospectus the lock manufacturing plant was not to be located in or at Roanoke City (as it expressly was in the first prospectus), but to be put beyond the city limits, on the opposite side of the river, and on the lands of the Roanoke Development Company, in the county of Roanoke, where its principal office was to be located. The charter under which
The Norwich Lock Manufacturing Company, the plaintiff in this suit, which was organized, under the foregoing charter, Angust éth, 1891, was not formed in accordance with the provisions of the prospectus or subscription paper on which the defendant, Hockaday, subscribed, but differs therefrom, radically and materially, in essential general object and purpose, as well as in special details, powers, and provisions.
The location, which was, by the subscription paper which the defendant, Hockaday, signed, in February, 1891, to be immediately placed in the city of Poanoke, is, by the charter, and terms and agreement with the Poanoke Development
The subscription-list which J. R. Hockaday and others signed in February, 1891, shows that the total amount of stock subscribed for, up to the day of the trial, was less, by $20,900, than the minimum capital stated in the prospectus or subscription contract signed by “ Hockaday and others.” There is no evidence in the record that the defendant, Hockaday, ever signed any but the subscription paper circulated in,February, 1891 ; that he ever attended or heard of any meeting of stockholders, or paid any part of his conditional subscription, or expressly or impliedly promised to do so, or knew of or in any way acquiesced in the wide and material variances between the charter and the paper which he had signed ; while it is explicitly in evidence that he refused to sign, or in any way recognize, the paper which was substituted therefor, and sued upon in this case.
After the evidence was all in, the court, on motion of the defendant, instructed the jury “ that the contract of subscription signed by the defendant, and proven in this case, is con
The jury did find for the defendant, and the court refused to set the verdict aside, and entered judgment accordingly.
Upon the facts in the case we can conceive of no instructions more proper, and less calculated to mislead the jury, than those given in this case. It is indisputably the province and the duty of the court to construe and instruct the jury as to the legal effect of all written instruments which are the subject of the controversy and the basis of the suit; and the court only exercised its legitimate function in comparing the subscription paper and the charter of the company under which they organized, and telling the jury that the latter was not, in legal effect, in accordance with the provisions of the former; that the plaintiff, Norwich Lock Manufacturing Company, was not such a company, nor the company, contemplated by and provided for in the subscription contract signed by the defendant. The charter, and the prospectus under which they organized, and to which the defendant positively refused to accede or consent, differ from the mere subscription-list signed by the defendant, as to the location, the maximum capital, and the objects and scope of the enterprise; and the company proposed to be formed, to whose capital stock he conditionally subscribed, was never formed.
In 1 Lawson R. R. and P., section 435, p. 777, it is said: “ One who signs a mere subscription paper, agreeing to take a number of shares in a corporation to be formed, is not liable therefor after the formation of the company,” where the company is formed not in accordance with the provisions of the subscription paper. “ One who signed, with others, a subscription paper, promising to take and pay for shares in a joint-stock association to build a hotel, most of which subscribers were afterwards incorporated, but the defendant was not one of them, is not bound, by his subscription, to pay for his shares to the corporation, there being no privity of contract.” Machias Hotel Company v. Coyle, 58 Am. Dec. 712; Mount Sterling Coal-Yard Company v. Little, 16 Bush. 429.
As before said, there is no question in this case of amendments to charter; but, even after a eoiqioration has been organized under its charter, its charter cannot be materially amended, to bind a stockholder, -without his consent. To vary the route
In Fry's Executor v. Lexington & Co., 2 Metcalf (Ky.) 314, the court said : “ Each stockholder has a right to insist on the prosecution of the particular objects of the charter.” The stockholder may say : “ I have agreed to become interested, and have contracted, in view of the profits expected, and the perils and losses incident to that description of business; but I have not agreed that those to be intrusted with the capital I contributed shall have power to use it in a business of a different character, and attended with hazards of a different description.” Marietta, &c., R. R. Co. v. Elliott, 10 Ohio St. Rep. 57 (1859); Ashton v. Burbank, 2 Dill. 435 (1873).
There is no evidence, or even a contention, that the defendant ever signed any subscription paper but the prospectus or subscription-list No 1, in February, 1891, which was abandoned and substituted by the prospectus and agreement dated May 11th, 1891; that he ever attended or heard of any meeting of stockholders, or paid any part of his alleged subscription, or expressly or impliedly promised to do so, or in any way acquiesced in the variances between the charter and the paper-lie had signed-; but there is undenied evidence that he positively refused to sign the paper which was substituted therefor. And the record plainly shows that there was in evidence before the jury the all-sufiicient defense against the plaintiff’s claim—viz., that, up to the trial, the plaintiff company had failed to obtain subscriptions to the extent of even its minimum of capital stock; and, therefore, it could not lawfully hold the defendant liable for his mere conditional subscription,
The rule of the Code of 1887, sec. 3484, applied to the evidence certified in this record, requires that the verdict of the jury, which is fully warranted by the facts and the law, and the judgment of the court thereon, should be affirmed.
Judgment affirmed.