39 N.H. 491 | N.H. | 1859
This action is brought upon the following promise: “Piscataqua Ferry Company. The undersigned severally agree to and with the Piscataqua Ferry Company to take the number of shares in the capital stock of said company, fixed at two thousand dollars, set against their names respectively, and to pay to the treasurer thereof the assessments thereon, not exceeding fifty dollars on each share, at such times as the directors may order. October 13, 1855,” which was signed by the defendant for one share, and by other persons for thirty-nine shares. Article seven of the by-laws, adopted before the defendant became a subscriber, provides that if any subscriber shall not pay the assessments upon his stock within thirty days after notice of the same, said stock shall be sold at auction, &c.
The first question raised is, whether this action is properly brought, or whether the stock should have been first sold to pay the assessments, according to the provision of the by-law. In other words, whether the two are concurrent remedies, in a ease like this, or whether the remedy provided by the by-law is the only one, to which the plaintiff is confined in the first instance. This by-law cannot, of course, have any greater or more controlling effect than a provision of the same kind would have if incoi’porated into and made a part of the charter; and it has been settled, after full discussion and extended examination of the authorities, in N. H. Central Railroad v. Johnson, 30 N. H. 402, that where there was a provision in the charter similar to this by-law, and where there was, also, as in this ease, an express promise to pay assessments,
Another question raised is, whether the representation made at the time the defendant and Somerby subscribed for stock, by the person who had the paper, was competent evidence to be considered, and if so, was it material ? Did it or could it affect the case? We think it was not competent, and would not have been so, even if the person making it had been the agent of the company. It was only a verbal statement, and does not come within the rule stated in White Mountains Railroad v. Eastman, 34 N. H. 124, where it was held that a contract, in writing, given back to a subscriber for stock, at the same time of the subscription, by an agent of the company authorized to contract, providing that the terms of the subscription might be modified in a certain way, might be valid as part of the original contract of subscription, as between the parties, provided it did not operate as a fraud upon others. But this case is more like George v. Harris, 4 N. H. 533, where it was held that where a promise is direct, positive, unconditional, and in writing, parol evidence is inadmissible to contradict or vary such contract. And the.farther reason then stated also applies here, that the defendant’s 'putting upon paper an unconditional promise to pay, may have induced others not only to subscribe but to pay, and his attempts now to shield himself by this private understanding may be a fraud upon others, who have thus been induced to subscribe and to pay. Parol agreements, made at the time of subscribing for stock, and inconsistent with the written terms of subscription, are inadmissible, inoperative and void. Conn. & Pass. River Railroad v. Bailey, 24 Vt. 465.
But this evidence, upon the case stated, would hardly be material if it were not incompetent. It no where
The amount of stock is limited by the charter, so as not to exceed $10,000, and the amount of the shares is also limited to $50. No objection is suggested to the vote of the company limiting their stock to $2,000, and this vote would seem to be unobjectionable.
The principal remaining question is, whether the subscription of the defendant was void, and could not be enforced on account of his not paying ten per cent upon it when he subscribed. If the defendant’s and Somerby’s subscriptions were valid and binding upon them, then the company might well make the assessments and collect them. The provision of the by-law was as follows: “ Ten per cent shall be payable upon subscription, or the subscription shall be void.” The defendant’s argument has proceeded upon the ground that this provision of the bylaw is to have the same force and effect as though the provision had been contained in the act of incorporation of
In Highland Turnpike v. McKean, 11 Johns. 98, the question was raised as to the validity of the subscription, on account of the non-payment of the sum required by the charter to be paid at the time, of subscription; and it was decided in a way to follow what the court supposed to be the decision in Jenkins v. The Union Turnpike, in the Court of Errors. But the court say: “ It is a little difficult to ascertain the point upon which the Court of Errors grounded their decision. One of the questions before them was the one raised in the argument of the present motion. And this court, in the case of the Goshen Turnpike Co. v. Hurtin, seemed to suppose that to have been the point upon which the Court of Errors intended to decide.”
Erom these remarks we infer that though the courts of New-York felt themselves bound by the decision of the Court of Errors, yet that they did not consider the decision either as very intelligible or very satisfactory. And our impression is, from such examination of authorities as we
In Kentucky, in Wight v. Shelby Railroad Co., 16 B. Mon. 4, it is held that the failure of a subscriber for railway stock to pay the amount required by the charter to be paid at the time of subscription, does not exonerate him from his liability for his subscription. It was his duty to pay it, and he will not be allowed to take advantage of his own wrong.
In Vermont Central Railroad v. Clayes, 21 Vt. 30, the court allude to the decision of the case of Union Turnpike Co. v. Jenkins, by the Supreme Court of New-York, as having decided that the non-payment of the ten dollars per. share by Jenkins, when he subscribed for the stock, did not invalidate the subscription as to him, even though the company might have avoided the contract on that ground, had they chosen to do so. The court then say, “though the Court of Errors reversed that decision, it may well be questioned which is the better opinion.”
In case of a lease of real estate for life or for years, when there is a condition that upon the neglect of the tenant to pay rent, or for any other default or misconduct on his part, the lease shall “ cease and determine,” or shall become null and void, or shall become utterly void and of no effect, or shall be and become void to. all intents and purposes, in all these cases it has been held that the lease is not absolutely void as to the lessor, but only voidable. It may be void as to the estate and interest of the lessee, who has done the wrong, or who has failed to do all that was required of him, at the election of the lessor, but as to the lessor it is only voidable. Doe v. Bancks, 4 B. & Ald. 401; Arnsby v. Woodward, 6 B. & Cr. 519; Roberts v. Davy, 4 B. & A. 664; Clark v. Jones, 1 Den. 516.
The lessor may dispense with the forfeiture and con
But there is a wide distinction between the contract or provision in the case before us and the one we have been considering, aside from the fact-that in the one case the provision is inserted in the charter by the legislature, and in the other it is a provision adopted by the company in the shape of a by-law. In the case before us the provision is that “ ten per cent shall be payable upon subscription, or the subscription shall be void.” The provision is not that the ten per cent shall be actually paid, but shall be
It is putting no forced construction upon this contract to hold that the intention was, not that each subscriber, by the terms of his subscription and of this by-law, was
In Northern Railroad v. Miller, 10 Barb. S. C. 260, the subscription was to be voidable upon the non-payment of the required per cent, and it was held that the payment was not essential to the subscriber’s becoming a member of the company. So here, the requirement is not that the ten per cent should be actually paid, but only that it should thereupon tecome payable; that it is due and liable to be called for at any time — payable on demand, whenever needed by the plaintiffs; that no subscription should be received upon any other terms, or in other words; and that any subscription that should be made, or attempted to be made, upon any other grounds or conditions, should be void. In this view, the subscription was filled up properly before any assessments were laid upon the members. No demand having been made by the company for the ten per cent, and there having been no intention or wish on the part of the company at any time to avoid the defendant’s subscription, if they could have done so; but they, on the other hand, having voted at the earliest opportunity that all persons who had signed the subscription, which was then presented for their consideration, signed by the defendant and others, should be admitted as members of said corporation, thus making it a matter alto
According to the agreement of the parties, therefore, there must be 'judgment for the plaintiffs for the amount of the assessments, with interest from the time when they became due.
Judgment for the plaintiffs.
Doe, J., having been of counsel, did not sit.