99 Tenn. 1 | Tenn. | 1897
Lead Opinion
This is a bill to collect the balance of a subscription made by W. M. Sneed, in his lifetime, to the increased capital stock of the complainant company. There was a decree in the Court below for the amount claimed and costs, and defendants have appealed and assigned errors.
The contention is that the estate of W. M. Sneed is not bound for the subscription, inasmuch as it was ultra vires, illegal, and void. There is no-cross bill to recover back the amounts paid.
The railway company was organized April, 1886, under the general incorporation law of .1875, and on the twenty-fourth of May the capital stock was fixed by law at $27,000, all of which was subscribed.
On the sixth of January, 1890, the clirectors of the corporation passed a resolution increasing the stock to |60,000, and, on March 31, 1891, the directors, by resolution, made another increase of the capital stock to $100,000. W. M. Sneed subscribed for stock after the increase from $27,000 to $60,000, and was not an original subscriber. He became a director in the company after making his subscription. The contention is that the attempted increase of stock from $27,000 to $60,000, and afterwards to $100,000, was illegal, and ■ not binding upon the subscriber, because not made in compliance with Ch. 163, Acts of 1883. Sneed paid calls upon his subscription,' which was for $5,000 in all, as follows: April 10, 1891, $1,000; May 10, 1891, $1,000;, August 3, 1891, $1,000; April 19, 1892, $100;,
Under the general incorporation Act of 1875, Ch. 142, it is provided that “the board of directors may, at any time, increase the capital stock, if the necessities of the corporation, in their estimation, require said increase.” By the Act of 1883, Ch. 163, it is provided that any persons organized as a corporation under a charter granted by a chancery court of this State, or under the Acts of 1875, Ch. 142, approved March 23, 1875, which is the general Act of incorporation, who may desire to sin-crease its capital stock, shall have the right to do so under and in the manner provided by the nineteenth section of said Act (of 1875). That section provides, among other things, that the board of directors shall copy the desired amendment, make formal application to the State, and have the amendment probated and registered, and its registration certified by the Secretary of State, under the great seal of the State, provisions similar to those required upon the original incorporation. This Act was in force when this increase of stock was made, though afterward repealed by Acts of 1893, Ch. 146, Sec. 1.
The only provision in the Act of 1875 relating to the increase of capital stock of charters taken out under that Act, is found in Sec. 6 of the Act, which simply provides, as before stated, that '‘ the board of directors may, at any time, increase the capital stock if the necessities of the corporation, in their estimation, require said increase.”
It is true that Sec. 19 prescribes how the capital stock shall be increased, hut that section applies only to corporations theretofore chartered by the General Assembly, referring to such as, previous to the Constitution of 1870, had obtained their charters under special Acts of the General Assembly, and not to such as were provided for by the general law of 1875.
The Act of 1883, Ch. 163, refers alone to charters granted by a chancery court, or taken out under the Act of 1875, and prescribes that they shall pursue the same mode as prescribed by Sec. 19, Act of 1875, for charters granted by the General Assembly.
The question presented in this case, was raised in the case of Cartwright v. Dickinson, 4 Pickle, 476, 485-487, but was not decided, not being necessary for .the disposition of that case, Cartwright, the protesting stockholder in that case, being a subscriber to the original stock oi: the company, and not to the increased stock.
The result is that the,, increased stock was illegal and void, and the subscriber to the increase stands not in the attitude of a stockholder, but in that of a creditor, having advanced money upon a void contract, and, having received no consideration therefor, is entitled to recover the same back. 3 Thomp. on Corporations, Sec. 3691; Schierenberg v. Stephens, 32 Mo. App., 314; Nichols v. Stephens, 32 Mo. App., 330; Winters v. Armstrong, 37 Fed. Rep., 508. In the latter case Judge Howell E. Jackson says:
Complainant’s counsel rely-upon the cases of Pullman v. Upton, 96 U. S., 328; Stuts v. Handly, 41 Fed. Rep., 531; Handly v. Stuts, 139 U. S., 417; Cook on Stock & Stockholders, Sec. 288, as holding that holders of increased stock cannot defend against their subscriptions by showing that the increase was irregularly effected, and the State alone can raise that question.
The case of Pullman v. Upton, 96 U. S., 328, was a suit by an assignee in bankruptcy on behalf
Mr. Justice Brown, in delivering the opinion, said he had no doubt the learned Circuit Judge held correctly that it was subsequent creditors who were entitled to enforce their claims against the stockholders, since it is only they who could, by any legal presumption, have trusted the company upon the faith of the increased stock, citing 42 Minn., 327; 2 Morawetz on Corp., 832, 833; 14 Fed. Rep., 12.
In Cook on Stockholders, after stating' under what conditions a subscriber to irregularly increased stock may be held liable, especially when creditors are concerned, says in the latter part of the section : ‘ ‘ But a contrary rule prevails as regards essential steps in the increase. If there is no vote of the stockholders, as required by statute, they are not liable on the stock.”
In the cases of Schierenberg v. Stephens, 32 Mo. App., 314, and Nichols v. Stephens, 32 Mo. App., 330, the facts are substantially the same. The plaintiff had paid in a call upon his subscription to
Bat it is said that Mr. Sneed actively participated in the increase of stock, was a director in the company, and has since paid the greater portion of his subscription, and is therefore now estopped to deny his liability upon his subscription. This contention is fully considered in the cases to which ive have referred, and they hold that the doctrine of estoppel can never be invoked to confer corporate powers, which by statute can only be conferred in a certain way, and the party’s direct and affirmative act could not make an invalid act valid and binding. If anyone has been misled by false statements, representations, or actions, they may seek relief against those misleading them as individuals, but not as stockholders, a relation which neither they nor the corporation could establish in any other than the statutory manner. Winters v. Armstrong, 37 Fed. Rep., 520; Scovill v. Thayer, 105 U. S., 143; Charleston, v. Bank, 5 Rich Law (N. S.), 103; Schierenberg v. Stephens, 32 Mo. App., 314; Tube Works v. Machine Co., 139 Mass., 9-11.
It will be assumed that Sneed expected the company to comply with the statute, so as to make the increase of its stock legal, and his payments into the treasury cannot be considered a waiver upon his part that such requirements would be complied with. It appears that no stock has been issued to him, or to anyone else, under the increase. It does not appear that the company can' legally issue such stock. Certainly any one of the original subscribers to the $27,000, which was regularly subscribed, could enjoin the issuance of the increased stock.
We are of opinion that the estate of W. M. Snfeed cannot be held responsible in this action for the unpaid balance of subscription sued for, and the decree of the Court below is reversed, and bill dismissed, at cost of complainants in both Courts.
Rehearing
OPINION ON PETITION TO REHEAR.
Upon petition to rehear it is urged upon us that on the original hearing the Court did
Our attention is also called to the case of Peck & McGuffey, Receivers, v. J. M. Elliott, Jr., decided in the United States Circuit Court for the Eastern District of Tennessee, on the second of March, 1897, by Judges Taft, Lurton, and Sage. It is insisted that this case. is in point, and persuasive in favor of the binding obligation of this subscription. We have examined the case critically. The proceeding was one affecting the properly of the Southern Malleable Iron Company, a manufacturing corporation chartered under the Acts of 1875, Ch. 142, Sec. 11, but incorrectly stated in the opinion to be Ch. 97 of said Acts. The object of
The provisions of Sec. 5 of the general incorporation Act of 1875 were considered as applicable, but not those of Sec. 6, inasmuch as the corporation then before the court was not a railway, but a manufacturing corporation. The court below held that the proper construction of Sec. 5, and of the Act referred to, was that while the corporation could fix its capital stock by by - law, yet, when once fixed, it must remain fixed, and could not be either increased or diminished by a subsequent bylaw. The provision of Sec. 5 is substantially that
The petition to rehear is therefore dismissed.