108 Ga. 281 | Ga. | 1899
Isadore Silverberg brought suit in a justice’s court against the Savannah Real Estate, Loan & Building Company, on a written instrument of which the following is a copy:
“No. 214. 1 Share.
Preferred Stock, $100,000. Common Stock, $250,000.
Shares $50 each. Shares $100 each.
Savannah Real Estate, Loan and Building Company.
This is to certify that Isadore Silverberg is entitled to one share of the preferred stock of the Savannah Real Estate, Loan and Building Company, of the par value of fifty dollars per*282 share, the same being a part of an issue aggregating one hundred thousand dollars, which was created and established by the board of directors by a resolution passed on December 15th, 1892; and the holder thereof is entitled to receive a dividend of eight per cent, per annum from the first day of January, 1893, payable semi-annually on July 1st and January 1st, in each year, upon the full amount thereof, before any dividend whatever is payable on the common capital stock. This preferred stock is accumulative, but does not participate in any dividends or profits on the common capital stock over and above an eight per cent, dividend, and the same is not invested with power to vote at the meetings of the stockholders, but the holder thereof shall have the right to attend such meetings.The entire issue of this preferred stock shall be retired by the company on January 1st, 1897, at its face value, but the company reserves the right to retire the same or any part thereof at any time after two years from date, upon giving three months notice thereof in one of the Savannah newspapers. This preferred stock is transferable only on the books of the company by the stockholder in person or by attorney duly authorized, on surrender of this certificate. In witness whereof the said company has caused its corporate seal to be hereto affixed and this certificate to be signed by its President at Savannah, Georgia, this 19th day of April, 1897.
(Seal). T. G. Reid, J. S. Collins,
Treasurer. President.”
The defendant filed a plea setting up, that the paper sued on is simply a certificate showing that the plaintiff is entitled to one share of an issue of two thousand shares of preferred stock in the defendant company, and that it is not permissible for one such shareholder by judgment or otherwise to obtain an advantage over other shareholders of the same class; that it was intended that the preferred stock should be retired on the 1st day of January, 1897, but at a meeting of such stockholders on the 12th of January, 1897, it was unanimously resolved that the officers of the defendant company carry on the business without attempting to retire the stock, and that plaintiff had notice of the time and place of this meeting; that it has
At the trial the plaintiff introduced in evidence the certificate sued on, which is set out above. Also, the following resolution of the directors of the defendant: “Resolved further, that this company does hereby create and establish $100,000 of preferi'ed stock of the par value of $50 per share, bearing and carrying an eight per cent, dividend from January 1st, 1893, payable semi-annually on July 1st and January 1st of each year. The said stock shall be accumulative and non-votable, and will not entitle the holder thereof to participate in any dividend or profits on the common stock over- and above said eight per cent.; and said stock shall be issued subject to the right reserved by this company to redeem same at any time-
The following extracts from the charter of the defendant company were introduced in evidence in behalf of plaintiff: “ Fourth: That the amount of capital to be employed by said corporation actually paid in will be the sum of one hundred and twenty-five thousand dollars ($125,000), divided into one thousand two hundred and fifty shares of one hundred dollars ($100) each. Fifth: In addition to the powers necessary for the carrying out of the purposes above set forth, petitioners ask that said company shall be empowered as follows: To issue common and preferred stock, to increase the said capital stock from time to time in the discretion of and through the board of directors of said company to any amount not exceeding in all the sum of five hundred thousand dollars ($500,000), divided into shares as aforesaid, and to decrease said capital stock from time to time similarly not below the sum of one hundred thousand dollars ($100,000), to receive real and personal property in payment for said capital stock, and subscribe for, purchase, receive, hold, and dispose of the stock, securities, and obligations of any other corporation now or hereafter to be formed under the laws of this or any other State or Territory, or of the United States; to lend or borrow money on note» bill, bond, pledge, deed, mortgage, or other obligation or lien, with or without real or personal security. Stockholders who have paid their stock subscriptions in full to be in no wise liable for the debts of the corporation nor for any wrongs committed by it.”
J. S. Collins, president of the defendant company, introduced as a witness for plaintiff, testified, in substance, that the preferred stock issued by the company was issued to the subscribers, who paid cash for it, and that the money received from it was used by the company to pay for its lighting plant, machinery, etc.; that the company had made no effort to retire or pay off the preferred stock since January 1, 1897, on account of the action taken at the preferred stockholders’ meeting on January 12, 1897; that the plaintiff was not present at this
The justice rendered judgment in favor of the plaintiff for $50 and costs of suit. The defendant carried the case to the superior court by certiorari, where the judgment of the justice was affirmed, and the defendant excepted. It is contended by
The question as to whether the holder of a certificate issued by a corporation is a member of such corporation, or whether the certificate is simply evidence of a debt due by the corporation to the holder, is one that depends upon the ]Deculiar facts of each case; and if such certificate makes the holder a preferred stockholder in the corporation, the question as to what are his rights against other stockholders depends also upon the facts of each case. Therefore the decisions relating to these questions are only helpful in so far as they lay down general principles to guide in the determination of any case that may be for consideration. We have found no decision in which the facts were so nearly the same as those in the present case as to be cited as controlling authority, but the following authorities and decisions will be found to recognize the principles which we have endeavored to apply in the present case: 2 Thomp. Cor. §§2277-8, 2282; 1 Cook, Cor. §271; 23 Am. & Eng. Enc. L. 602 et seq.; Boardman v. Railway Company, 84 N. Y. 157; Railroad Company v. Jackson, 77 Pa. St. 321; Bates v. Railroad Company, 49 Me. 491; Davis v. Proprietors, 8 Met. (Mass.)
Judgment affirmed.