156 Mich. 216 | Mich. | 1909
James A. Randall, the plaintiff, Seymour Brownell, and Edward W. Voigt, embarked in an enterprise of building an electric railway from Detroit to Farmington, with two branches, one to Orchard Lake and another to Southfield. In furtherance of this design, they organized a railroad corporation with a capital stock of $500,000; the three persons named being subscribers for nearly all of the stock in substantially equal proportions.
It is stated by counsel for defendant — and we discover nothing to the contrary — that no cash was put into this enterprise; it being the scheme of these parties to provide for building and equipping the road by a sale of its bonds to the public. Accordingly an issue of $900,000 in bonds was authorized and made. Substantially coincident in point of time, and as part of the plan, the same parties organized the Wolverine Construction Company, with a capital of $20,000, of which $5,000 was paid in. When the bonds were provided for, the arrangement appears to have been that $260,000 should be delivered to Randall, Voigt, and Brownell as the price of two short stub lines, which they appear to have owned and which they conveyed to the Detroit & Northwestern Company, $80,000 were to be set aside for the Southfield branch, and the remaining $560,000 were to be used to build and equip the road. It is obvious that, if this plan had not miscarried, the three persons mentioned (with a few nominal associates) would have owned all of the stock of the road and $260,000 of bonds. Accordingly the Detroit &• Northwestern Company made its mortgage of the property to the Union Trust Company, its trustee, to secure said bonds. The date of this mortgage appears to have been omitted from the record, but we assume that it was May 1st; that being mentioned in a contract of that date as the date of the bonds. That contract was executed by the Wolverine Construction Company, Randall, Randall, trustee, Brownell, and Voigt, as parties of the first part, and Frederick W. Hayes, party of the second part. It
“Out of said $360,000 face value of said bonds so delivered to the party of the second part, he shall hereafter sell, as convenient to him, and on or before January 1, 1900, a sufficient number thereof at the price above stipulated to pay to the Preston National Bank the sum of $60,000 to be applied upon certain indebtedness of $160,000, and also a further sufficient number to pay the sum of $6,000 now owing to Edward W. Voigt, from the said the Detroit & Northwestern Railway Company, provision for the payment of which is made by the delivery to said Edward W. Voigt, Seymour Brownell, James A. Randall, and James A. Randall, trustee, of its bonds, being part of the said $360,000 of bonds above mentioned. The balance of the funds in the hands of the party of the second part arising from the sale of said bonds to raise said sum of $66,000 being under $1,000 shall be by the said second party paid to the Preston National Bank upon the balance of said debt of $160,000. The residue of said $360,000 of bonds then remaining in the hands of the party of the sec*219 ond part, after said sale to raise said sum of $66,000 or the proceeds arising from the sale thereof, shall be by him retained until said railway is fully equipped and completed, when, if any are unsold, they shall be sold by the party of the second part at the price above stipulated, and the proceeds thereof, together with any cash in his hands arising from the sale of bonds, shall be used, first, to liquidate the balance of the said debt of $160,000; and, second, the remainder shall be paid over by the party of the second part to the parties of the first part hereto, except the said the Wolverine Construction Company, Limited, upon their joint receipt therefor.”
Other provisions more particularly relating to the Wolverine Company, its obligations and rights, are omitted, being unimportant in this connection. The contract also includes the following provision:
“ It is understood and agreed that this contract is made for the purpose of providing the necessary funds as needed to construct said extensions and improvements, and to provide the necessary material therefor, and that said the Wolverine Construction Company, Limited, has entered into contracts for materials, and will enter into contracts for the purpose of further materials and for the performance of work relying upon the proceeds of sales of said bonds to pay for the same; and, if said sales are not made fast enough to provide funds as required to purchase said materials and pay for said work, it shall be competent for said first parties to terminate this contract on that ground after such default by giving fifteen days’ notice in writing to said second party of their intention to so terminate the same on that ground, provided that within such fifteen days such default is not made good.”
The bonds were guaranteed by the Union Trust Company, and all but the $80,000 were issued. They were never issued and are of no significance in the controversy.
The road was completed and equipped, and by the end of 1900 the company was insolvent, the road having cost it upwards of $1,000,000, represented by its bonds and its debts up to that time. It is said that the bonds netted less than $450,000, and that the remainder of the cost was
“Under the law of sureties, Randall’s entire one-third interest in the 259 bonds was released and discharged from all liability the moment the indebtedness of $188,353.82 for which they were collateral was paid, without regard to the method or means by which the Detroit & Northwestern Railway issued the securities or raised the money to make the payments.”
If this were a case where Randall and his associates stood in the position of a mere surety to the Detroit & Northwestern Railway Company, and the Detroit & Northwestern Railway Company managed to perform the obligation for which they were sureties, there would be more force in the contention of plaintiff’s counsel that they were released from their obligation and entitled to their stock, but there is more to this case than that. If the arrangement that the three promotors entered into and maintained throughout was not sufficient to make them copartners in the enterprise, it certainly had some resemblance to a copartnership. So far as we can judge from the circumstances, they owned the stub lines in common. It is true we do not know in whose name that. property stood. We do not know whether they acquired them by purchase of stock; indeed, we do not know that those lines were ever owned by any corporation issuing stock until they were sold or turned over to the Detroit &
We find no error, and the judgment is affirmed.