83 Mo. 235 | Mo. | 1884
This is an action to enforce an alleged •subscriptibrf to the capital stock of plaintiff. The demand was first presented in the probate court for allowance against the estate of the subscriber; and was taken thence by appeal to the circuit court. The principal facts in the case are set forth in the following agreed statement:
It is hereby stipulated and agreed by and between the parties hereto, that upon the trial of this case the following facts shall stand admitted, viz:
1. That the plaintiff is a railroad corporation, created and existing under the general railroad incorporation laws of the state, under the corporate name of the Sedalia, Warsaw & Southern Railway Company.
2. That its articles of association were filed in the office of the Secretary of State, September .16,-1879, the same having been prepared and signed by the parties thereto, between the first day of September, 1879, and the sixteenth day of September, 1879, and that said Smith did not sign said articles, nor authorize any one to sign Ms name thereto, and that said Smith died intestate on .the eleventh day of JulyJ.879.
3. That in the year 1877, the defendant, said George R. Smith, signed and delivered to one Cyrus Newkirk, who was afterwards named in said articles as one of the directors of plaintiff and who was then soliciting subscription to the capital stock of said proposed incorporation, now the plaintiff herein, a certain written instrument to be read in evidence in the case.
3 J. That prior to the bringing of the suit in the pro
4. That for the purpose of this trial the same effect shall be given to the instrument referred to in the third stipulation as though the name of the Sedalia, Warsaw & Southern Railway Company appeared in it instead of that of the Sedalia, Warsaw & Memphis Railway Company.
5. That after said articles of association were filed in the office of the Secretary of State, as aforesaid, the plaintiff corporation duly organized by the appointment ■of Wm. Gentry, one of the directors named in the said articles, as president, also by the appointment of' D. H. Smith, another of said directors, as vice-president, Jno. I). Crawford, secretary, and Cyrus Newkirk, treasurer.
6. That after such organization by plaintiff, said Cyrus Newkirk turned over and delivered said instrument referred to in the third stipulation to the secretary •of plaintiff, and that plaintiff thereupon received and accepted t&e same as a subscription to its capital stock, and ordered the name of said Smith to be placed upon its stock books as a stockholder of 55 shares of its capital stock, which was accordingly done.
7. For the purpose of this case-the instrument of writing referred to in stipulation No. 3, shall be considered as applying only to the $1,000 cash part thereof, which yet remains unpaid, the remaining portion having been heretofore arranged in a manner not affecting the issues in this case.
8. These stipulations shall not be taken as binding ■or estopping either party hereto, in any other cause, but shall be used in the trial of this case only.
The plaintiff read in evidence the subscription paper referred to in the stipulation signed by the defendant’s
“We, the undersigned, agree each severally to take the number of shares of the capital stock of the Sedalia, Warsaw & Memphis [Southern] Railway Company written opposite our names respectively, and to pay for the same as soon as the road of said company shall be fully completed and in operation to the south line of Pettis county, in the direction of Warsaw, and the road-bed of said company completed from Sedalia to Warsaw. The payment of our several individual subscriptions to be secured to the satisfaction of the board of directors of said company before a contract for the building of said road is closed.
Names. Shares. • ■ Amount.
George R. Smith,..................$5,500
On condition as follows: One thousand dollars cash j three .thousand dollars in work, to be done for said railway company at the shops of the Smith Manufacturing Company, at regular prices; fifteen hundred dollars in real estate, consisting of the three lots on the north side of Fourth street, in the city of Sedalia, lying south of the lots of the Smith Manufacturing Company, and adjoining the M., K. & T. railroad on the west — above mentioned lots are numbered 14, 15 and 16, of block one, Smith & Martin’s Third Addition.
[Signed,] G. R. Smith.”
This being all the evidence, the plaintiff asked the court to declare, in substance, that the plaintiff, upon the agreed facts, was entitled to recover the one thousand dollars mentioned in the subscription paper. The court refused to make the declaration and rendered judgment on said facts in favor of defendant, from which the plaintiff appeals.
The only question presented in the record is, whether the defendant’s intestate by virtue of his signature to the paper submitted in evidence, which was preliminary
In recurring to the statute it would seem that only two modes are provided by which a person may become a subscriber to the capital stock of a corporation, either by signing the articles of association alluded to in the first section of the second article, or by subscribing to the capital stock after the creation of the corporation. The defendant’s intestate died before the_articles of association which gave being to the corporation were executed and filed, consequently he could not have become a member by subsequent subscription.//If he did not become such before they were filed then he was no subscriber or stockholder at all. As it appears from the agreed statement of facts that his name was never signed to the articles of incorporation, the argument against the plaintiff is conclusive, if the premises are correct.
' That they are correct, I think no one can doubt after reading the provisions of the statute relating to the incipient steps necessary to be taken in order to give rise to the relation of stockholder and corporation. Section 764, Revised Statutes, provides that any number of persons,
I am unable to perceive how any persons of the requisite number, desirous of forming a railroad company under the provisions of this statute, can do so in any other mode than the one pointed out in it. In no other mode can the relation of stockholder and corporation, under this statute, be established. The statute neither contemplates, nor alludes to, any preliminary paper of subscription such as the one given in evidence. The fact that informal papers and circular letters are commonly signed and published as a part of the enterprise and zeal which gives birth to public corporations, can make no difference as long as the statute fails to recognize them among the necessary and prescribed legal steps to be taken by the incorporators to create the body corporate.
It has been held by the courts of New York, in construing a statute in most respects like our own, that a party failing to sign the articles of association could not be subjected to the liability of a stockholder, although he had signed a preliminary subscription paper. Troy & Boston R. R. v. Tibbitts, 18 Barb. 297; Poughkeepsie & Salt Point Plank Road Co. v. Griffin, 24 N. Y. 150. I find nothing in the cases cited by plaintiff’s counsel materially conflicting with this construction. Some of them are cases in which preliminary requests, petitions or subscriptions were made prior to, or in contemplation of the grant of a charter by legislative enactment. The acts when passed took effect upon the petitioners or subscribers, and by force of their terms made them liable as members or stockholders, although they may have failed to participate in the subsequent proceedings by which the corporation was organized. Others are cases in which the act of incorporation, either general or special, had been passed, and the defendants were held liable as stockholders by reason of subscriptions within the peculiar meaning and terms of the acts; or because the acts, unlike the one before us, failed to prescribe any particular method of ■subscription by which a person might acquire the rights and be subject to the responsibilities of a stockholder. Tonica, etc., Ry. v. McNeely, 21 Ill. 71; Johnson v. Ewing Female University, 35 Ill. 518; Buffalo & N. Y. City R. R. Co. v. Dudley, 14 N. Y. 336; Hartford & New Haven R. R. v. Kennedy, 12 Conn. 500; Taggart v. Western Md. R. R., 24 Md. 663; Penobscot R. R. Co. v. Dummer, 40 Me. 172; Kennebec & Portland R. R. v. Palmer, 34 Me. 366; Cross v. Pinckneyville Mill Co., 17 Ill. 54; Athol Music Hall Co. v. Cary, 116 Mass. 471.