267 Pa. 1 | Pa. | 1920
Opinion by
This is an action to- recover for a subscription to the stock of a corporation. The plaintiff has appealed from a judgment in defendant’s favor. The defendant, in the
To be relieved of this continuing liability, tbe subscriber may transfer bis right or interest in tbe shares subscribed, but such transfer must be made as required by law, subject to such regulations as may be provided by tbe by-laws. Where such transfer is entered upon tbe books of tbe corporation, be ceases to be liable for future calls, tbe consent of tbe corporation is in effect a novation, a release of tbe transferor’s liability; and, unless there is some statutory regulation, tbe assignor is no
In this case there was no by-law regulating the subject of transfers, and, while the transfer books and stock ledgers were offered, they were not used to record either the sales of stock from the corporation, or any transfers that were made thereafter; and, as the appellee defended on a transfer of his subscription, it was incumbent on him to prove some act on the part of the corporation evidencing a consent or acceptance of the transfer, to release him from liability. There is no minute showing the acceptance of the assignment, nor is there evidence that the company transferred the shares owned by the subscriber to another by issuing a new certificate, nor that any one was authorized in its behalf to accept or •.consent to the transfer. See Bell’s App., 115 Pa. 88. An attorney-at-law, employed to procure a charter, cannot, unless specifically authorized, accept a transfer in behalf of the company. Such acts are not ordinarily within the scope of an attorney’s authority. If he has been employed generally to act for the company in this and other matters, or if he has been employed to obtain a charter, using others than those intended to be the real stockholders, with express or implied power to have the
It will be noted in this case that the so-called books of the company do not show the registry of stock in any person’s name and we learn of this subscription, as hereinabove noted, and others, only from the testimony that the company actually did issue shares of stock. If the company failed to provide the proper books to register and record transfers, and an effort is made to recover the amount of the subscription, the fact that the subscriber’s name does not appear as a registered owner will not relieve him from liability; nor will the fact that his transfer has not been made on the books, hold him for his subscription, if he has in fact duly assigned his stock or interest and the company has acted thereunder or consented to the transfer. The mere delivery of the assignment to an officer of the company, or to the attorney for the real incorporators, would not be sufficient, but if delivered to the officers of the company whose duty it is to make the transfer, or whose duty it is to sign and issue new certificates, or to the attorney who was employed for the real incorporators, inter alia, for obtaining the transfer, statements of such officers or attorney to the effect that the transfer was recognized or acted upon would, under such circumstances, be sufficient to bind the company; it would be evidence of consent. It is not illegal for an attorney to procure disinterested persons to sign a certificate of incorporation with the understanding that when the charter is granted the subscription is to be assigned to the real owners. In such case, the law must be complied with as indicated herein.
Unhappily the case was not submitted to the jury along the lines above set forth. Among other things, the trial judge said: “Mr. Cox, who it is admitted was
Further on the court charged the jury: “Now, if that transfer of all his interest was made as stated, and you find that to be true, then you come to consider the effect of it. The defendant was one of the original incorporators of the corporation. If his twenty shares of stock went into, and was considered by those who received it as a part of, the capital stock, then he would not be responsible upon that capital stock. If it was accepted, if his assignment or transfer of it was accepted by the corporation, or those who controlled it, then under the law there could be no recovery against him on that stock, or any unpaid portion of it, in the absence of proof that a demand had been made upon him prior to the time the corporation went into the hands of the receiver.” This also was error, for defendant would be liable even though his stock “was considered, by those who received it, as a part of the capital stock,” unless the assignment of his interest in the company or the stock was accepted by some one authorized to receive it; and, if it was not so accepted, defendant would be liable if a call were made upon him, by order of court, after “the corporation went into the hands of the receiver.”
Another important question not passed on by the court below is as to whether a call had been made. As we have stated, the directors may make calls in such amounts and at such times as in their judgment they deem wise and proper, but if the stock was subscribed with the understanding that it was to be then paid in cash, it is immediately due and the subscriber may be
The claim for the amount certified by the appellee as being in his hands as treasurer at the date of incorporation is clearly barred by the statute. The minutes show the treasurer was succeeded by another more than six years prior to the institution of this action; if the corporation had any claim against him, it should have proceeded to collect it. Not having done so within six years, the corporation and the receiver afterwards appointed are barred. But it appears in the evidence that the money was in the hands of his successor. Whether that is true is not now material.
The first and second assignments are sustained, the judgment is reversed so far as the claim upon the stock is concerned, and a new venire awarded.