19 F. Cas. 429 | U.S. Circuit Court for the District of Eastern Missouri | 1878
*Tbe gravamen of the plaintiff’s case is that the defendant is the holder, by transfer, of certain unpaid shares of stock in the La Motte Lead Company, and that, under the statutes of Missouri (1 Wag. St. p. 21)3, § 22), the plaintiff, as a creditor of that company (which is insolvent and dissolved), may compel the defendant to pay for the said shares held by him, or pay the balance due thereon. As between the transferrer of said shares and the corporation which issued them, it was agreed that the shares had been fully paid for by the transferrer to the company.
The charge to the jury was given without any opportunity to examine the law, and in accordance with what seemed, at the moment, to be the principle applicable, to the case as made at the trial. Mr. Broadhead’s argument, at the bar for the plaintiff, in support of the motion for a new trial, tended to shake the impressions I had at the trial; and this, in connection with the importance of the case, in the amount as well as the principles involved, has induced me to look into the matter with some care and deliberation.
The plaintiff — a single creditor — does not for himself, or for himself and other creditors, file a bill to impeach as fraudulent this transaction between the corporation and the original shareholders; but he simply states that the shares of stock issued to Rowland G. Hazard have not been paid for, either by him or by the defendant, the transferee and present holder of the shares. Issue was taken on this averment, and the proof showed that the shares in question had been paid for precisely as they were originally agreed to be paid for, viz.: by a conveyance of the mining property to the corporation. This ■conveyance has been received and recorded by the corporation. Unless this agreement is rescinded or set aside for fraud, how can it be said that the stock has not been paid for? The parties have agreed that it has been paid for, and that agreement is conclusive, unless it is rescinded or impeached for fraud, and this cannot be done unless the attack is directly made. Undoubtedly, such an attack could be made while the stock was in the hands of the original takers of it; but it is not so clear that it could be made by a subsequent creditor of the corporation against, a transferee of the stock for value, who purchased the same in good faith as full-paid stock, relying upon the records of the ■corporation, which showed the shares to have been fully paid for, and the manner in which the payment had been made.
Lord Justice Mellish, in one case, seemed to be of opinion that a bona fide transferee of shares of stock which purported to be full paid, held the same exempt from a liability to be called upon to make payment therefor on the ground that .the original subscriber had not- fully paid for them. But it is not necessary, under the pleadings in this case, for us to consider or determine that •question.
The cases are numerous in which such • transactions as that which was entered into in this instance between the owmers of the mining property and the corporation which they formed have come before the courts, and, in absence of fraud, have been sustained. Pell's Case, L. R. 5 Ch. 11; In re Baglan Hall Colliery Co., Id. 346; Maynard’s Case, L. R. 9 Ch. 60; Schroder’s Case, L. R. 11 Eq. 131; Cleland's Case. L. R. 14 Eq. 387; Sichell’s Case, L. R. 3 Ch. 119; Jones' Case, L. R. 6 Ch. 48; Forbes’ Case, L. R. 5 Ch. 270; Pritchard’s Case, L. R. 8 Ch. 956; Ferrao’s Case. L. R. 9 Ch. 355; Bush’s Case, Id. 554; Dent’s Case, L. R. 8 Ch. 768; Carling’s Case, 1 Ch. Div. 115; Savage v. Ball, 17 N. J. Eq. 142; Smith v. North American Min. Co., 1 Nev. 423; Goodrich v. Reynolds, 31 Ill. 490; Spense v. Iowa Valley Construction Co., 30 Iowa, 407, 411.
The exigencies of the case now before the court do not require us to examine into the soundness or consistency of all these decisions. We shall refer to a few of them by way of illustration, and because, whatever else they hold, they clearly establish these propositions: (1) That such a transaction as that here in question is not ultra vires, and absolutely void. (2) That the contract is valid and binding upon the corporation and the original share-takers, unless it is rescinded or set aside for fraud, and that, while the contract stands unimpcached. the courts, even where the rights of creditors are involved, will treat that as a payment which the parties have agreed should be payment.
These propositions are decisive of the present case.
For the purpose above indicated, a brief statement of some of the English cases upon this subject wdll now' be given. In the origin, purposes, situation of the property, and fate of the company, the Case of Baglan Hall Colliery Co., L. R. 5 Ch. 346, is strikingly analogous to the Case of the La Motte Lead Company. In the ease just cited, nine-persons bought a moiely of a colliery from Parker for £10,000, and the ten, after working it for some time, agreed to form a company for carrying it on, and a company was accordingly registered, the memorandum of association of which was subscribed by the owners of the colliery for numbers of shares proportioned to their respective interests; the nominal amount of shares subscribed for being £20,000. The memorandum of association stated nothing as to the shares being treated as paid-up shares, but the articles of association provided that all the shares subscribed for in the memorandum should be treated as fully paid up. The colliery was made over to the company, but no other payment was made by any of the subscribers of the memorandum. No other shares than those subscribed for by the memorandum were ever allotted; and it was held (reversing the decision of Malins, vice-chancellor) that the subscribers of the memorandum of the association were not liable as contributories, for that the shares must be taken as having been fully paid up by the handing over the colliery. In pronouncing his judgment on appeal. Lord Justice Gif-fard said: “Here was a colliery in -which at first Parker was alone interested. He sold a moiety to certain gentlemen for £10,000, which was paid. The colliery was then subject to two mortgages, for £3,000 and £1,000.
After stating that the colliery had been handed over to the company in consideration for the shares of the subscribers, the lord justice adds: “According to the decided cases, this, in the absence of fraud, was an effectual paying up of the shares in full. The test to be applied is this: Could the company, by any proceeding, have set aside the transaction by which it was arranged that the owners of the colliery were to have paid-up shares as the price of their interests in the colliery V And 1 say, on the evidence, that the company clearly could not. It was urged that the parties only agreed with themselves, and that therefore there was no contract. But every company is started by parties agreeing among themselves, and it is idle to say that they have nobody to agree with. There is nothing in the evidence to show that any person has been deceived. It appears probable that if the additional ¿3.000 which was raised by the last mortgage had been applied in working the colliery, the concern would have prospered.” (The colliery had been sold by the mortgagee under his power of sale for £4,500.) “The case is precisely the same as Pell’s Case, L. It. 5 Ch. 11, and it must be held that the persons who subscribed the memorandum of association have paid all that they were bound to pay. Creditors have no ground for complaint, for persons wrho are about to enter into transactions of magnitude with an individual make inquiry into the state of his circumstances; and so, if they enter into them with a limited company, it is their own fault if they do not inquire into the nature of the memorandum and articles, and look to the register of shareholders. In this case there was no concealment, and it would, in my judgment, be a total misapplication of the act to say that a transaction like the present is not authorized by it. If strangers mo misrepresentation being made) choose to deal with a company without inquiry, they have no right to complain when it turns out that the shareholders are under no personal liability.”
“In Pell's Case (above referred to) the master of the rolls,” says Lord Justice Giffard, in the same opinion (L. It. 5 Ch. .*>551. “allowed The agreement between Poll and the company that he should hand over the property to the company, and that his shares should be taken .as fully paid-up shares, to stand, so far as the value of the property went, but directed an inquiry as to its value. This was varied on appeal, and the agreement not being impeached, it was held that the shares must be taken as fully paid up by the handing over of the property.”
Commenting on Pell's Case, Lord Chanceb lor Hatherley said: “The master of the rolls thought that Pell, being bound to pay the full amount of £20 per share, was not to be taken to have paid it in full unless the property he handed over was worth that amount. That result, however, could only be arrived at by rescinding the contract to buy Pell’s business, and Lord Justice Giffard thought that the contract, not being impeached, must be treated as a good contract, and one that ought to be acted upon, so that no question could be raised as to the actual value of the business made over.” Forbes’ Case. L. R. 5 Ch. 270-273; Fothergill’s Case, L. R. S Ch. 270; Pritchard’s Case, Id. 950.
In Schroder’s Case, L. R. 11 Eq. 131. shares taken in a company were decided to be lawfully paid for'in Confederate bonds, at the market price, and in tea which was required for the company's purposes.
In Spargo’s Case, L. R. 8 Ch. 407, decided by the lord justices on appeal, the same doctrine was applied with reference to a company to which the companies act of 1807 (section 25) applied. That section in the act was in these words: “Every share in any company shall be deemed and taken to have been issued, and to be held subject to the payment of the whole amount thereof in cash, unless the same shall have been otherwise determined by a contract duly made in writing and filed with the registrar of joint stock companies at and before the issue of such shares.”
Spargo’s Case is thus stated by Vice-Chancellor Malins in a subsequent similar case (Coates’ Case, L. R. 17 Eq. 169, 177): “Spar-go signed the memorandum of association for thirty-one shares, and he was. in consequence, liable to pay £1,550. It does not require the act of 1S67 to show that such a person is liable for the amount for which he subscribes, and the vice-warden of the stan-naries court put him on the list of contribu-tories, considering that he had incurred a liability by signing the memorandum of association, which could only be discharged by payment in cash. But Spargo had also agreed to sell to the company the lease of a mine for £2.776, and in a settled account they gave him credit for the £2,776 as against the price of his shares. That was treated by the court of appeals as a good payment. The lease of the mine was the thing with which the company was trading, and so they gave him credit for that.” And it was held that the aforementioned section 25 of the companies act of 1S67 had not altered the law as to what would constitute a good payment for shares.
In Coates’ Case, supra, the facts were shortly these: The memorandum of association of a company formed for the purpose of purchasing and carrying on the business before that time carried on by Coates was subscribed by Coates for twenty-live hundred shares, which were of £1 each. It was also subscribed by other persons, by which the number of shares taken amounted to sixty-two
Without pursuing the subject more at length, we are of opinion that the direction to the jury was right, and that the motion for a new trial must be overruled. Judgment on the verdict.