40 N.H. 79 | N.H. | 1860
The plaintiff seeks to charge the alleged trustee, by virtue of his having subscribed, in the spring or early summer of 1850, for five shares of the capital stock of the defendant corporation. The terms of the subscription were as follows :
“White Mountains Bailroad. We, the subscribers, agree to take of the capital stock of the White Mountains Bailroad the number of shares set against our names respectively, said shares being one hundred dollars each; and to pay the same into the treasury of said corporation as ordered by the directors ; and if not paid as assessed, we agree to pay interest from the assessment; and, if paid faster, we are to receive credit for the interest up to the assessment, for the stock subscribed or toward new stock.
(Signed) G-eorse W. Nesmith, Franklin, five shares,” and by others.
Several positions have been taken by the counsel for the alleged trustee, showing why he should not be charged as the trustee of the principal defendant corporation ; - to only one of which, in the view a majority of the court
It is conceded that, within a few months after this subscription was made by the alleged trustee — but whether before or after assessments had been made upon the shares subscribed for, does not very distinctly appear — he withdrew the subscription, or repudiated the contract, claiming that he had a right to do so by virtue of an agreement made at the time of subscribing ; that he never attended any meeting of the corporation, or did any other act indicating that he considered himself a member or stockholder thereof, or holden as a subscriber for stock therein; that no stock was ever assigned or tendered to him by the corporation; no certificate of stock ever issued to him ; that no sale of the shares subscribed for by him was ever made by the corporation for the non-payment of assessments, as the charter provided might be done, and that nothing whatever was done by the corporation except to retain the stock subscribed for by the alleged trustee in their own hands, and make assessments thereon, and' give notice thereof to the delinquent and repudiating subscriber.
Upon these admitted and indisputable facts it seems to us quite clear that the delinquent subscriber cannot be chargeable as the trustee of the defendant corporation, upon the strongest view of his liability under the original subscription assumed by the plaintiff himself.
Conceding, for the purposes of this case, that the subscription of the alleged trustee was a valid contract for the purchase by him of the principal defendants of five shares of their capital stock, at one hundred dollars per share, payment to be made from time to time in such assessments as the directors might order, the property m the stock to remain in the corporation, 'liable to be sold for the non-payment of assessments, and only to pass to the purchaser upon payment in full by him of the stipulated price therefor — which is the only reasonable con
In Allen v. Jarvis, 20 Conn. 38, the defendant contracted with the plaintiffs to manufacture for him a number of surgical instruments, of which the defendant was patentee. After they were finished the defendant refused to accept them. The plaintiffs recovered the full price agreed upon, on the ground that the instruments Avere of no value to them. Stores, J., said : “ The rule of damages in an action for the non-acceptance of property, sold or contracted for, is the amount of actual injury sustained by the plaintiffs in consequence of such non-acceptance. This is ordinarily the difference between the price agreed to be paid for it and its value, where such price exceeds the value. If it is worth that price, the damages are only nominal. But there may be cases where the property is utterly worthless in the hands of the plaintiffs, and there the whole price agreed to be paid should be recovered. ■ The present appears to us to be a case of this description. The articles contracted for were those for the exclusive right of making and vending Avhich the defendant has obtained a patent. They could not be lawfully sold by the plaintiffs, and were, therefore, worthless to them.”
In Phillpots v. Evans, 5 M. & W. 475, it was decided that, where the vendee gives notice before the day of delivery that he Avill not accept the goods, the measure of damages, in an action against him by the vendor, is still the difference between the contract price and the market
So in Laird v. Pim, 7 M. & W. 474, 478, Parke, Baron, said : “ A party cannot recover the full value of a chattel, unless under circumstances which import that the property has passed to the defendant, as in the case of goods sold and delivered, where they have been absolutely parted with, and cannot be sold again.” See, also, 2 Parsons on Contracts 483-4-5, and notes.
In the case under consideration there is no pretence that the property in the stock ever passed to the alleged trustee; it was never assigned or in any way tendered to him by the defendant corporation, and the same was never sold, as it might have been by the express terms of the charter, for the non-payment of the assessments. In a suit for the breach of the alleged trustee’s contract, therefore, the proper measure of damages would seem clearly to be the difference between the price at which' he agreed to take the stock, and its actual or market value at the date of the breach of his contract.
But this difference is manifestly a matter of unliquidated damages [Butts v. Collins, 13 Wend. 139, and authorities cited, page 157; M’Cord v. Williams, 2 Ala. 71; Cowp. 56; 1 W. Bl. 394; 4 Johns. Ch. 287], to be ascertained by the verdict of a jury, or the finding of some other competent tribunal ; and unliquidated damages cannot be reached by the trustee process. Foster v. Dudley, 30 N. H. 463, and authorities cited on page 465.
If there were any doubt what might be the strict rule of law as to the measure of damages in a case like that which the plaintiff claims, and the admitted facts show to exist between the principal defendant and alleged trustee, and whether the principal defendant might not recover the full agreed price of the stock, and compel the alleged trustee to resort to a suit against the corporation to obtain
With these views of the proper measure of damages as between the alleged trustee and principal defendants, and of the nature of the trustee process, it is entirely unnecessary to examine the various matters urged by the alleged trustee 'in bar of the right of the principal defendants to recover any thing for the breach of the contract to purchase stock, since, upon the plaintiff’s own positions, and the conceded facts in the case, the trustee must be discharged.
Trustee discharged.
Nesmith, J"., did not sit.