Slee v. Bloom

19 Johns. 456 | N.Y. Sup. Ct. | 1822

Spencer, Ch. J.

(after stating the facts in the case.) With the most profound and undissembled respect for the Chancellor, I am constrained to differ from the opinion held by him, that this corporation is not dissolved.

The object and intention of the legislature in authorizing the association of individuals for manufacturing purposes, was, in effect, to facilitate the formation of partnerships, without the risks ordinarily attending them, and to encourage internal manufactures. There is nothing of an exclusive nature in the statute ; but the benefits from associating and becoming incorporated, for the purposes held out in the act, are offered to all who will conform to its requisitions. There are no franchises or privileges which are not common to the whole community. In this respect, incorporations under the statute differ from corporation's, to whom some exclusive or peculiar privileges are granted. The only advaDtagBS of an incorporation under the statute over partnerships, and the only substantial difference between them, consists in a capacity to manage the affairs of the institution, a pew seject agents, and by an exoneration from any responsibility beyond the amount of the individual subscriptions.

In coming to the conclusion, that the corporation, in this case, is dissolved, ! lay out of the case every thing of misuser, or non-fcser, excepting (he influence which the fact of non-user may have as evidence, connected with other facts, .to show the renunciation of the corporate rights.' Upon the authorities, and for the reasons given by the Chancellor, mis-user or non-user, cannot be relied on as a substantive and specific ground of a dissolution.

... The ground on which I place my opinion, that the corporation is dissolved, is, that they have done, and suffered to be done, acts equivalent to a direct surrender. The Chancellor concedes, and it does not, in my judgment, admit of a doubt, that a"corporation may be dissolved by a surrender of all their corporate rights.

In 2 Kyd on Corp. 467. the rational and, true rule is laid down •, he says, “ the rule adopted in all the cases which have occurred on this question, seems to have been this, that where the effect of the surrender is to destroy the end for which the corporation, or the corporate capacity was instituted, the corporation, or the corporate capacity is itself destroyed and we have the high authority of Lord Colne to the same effect* He says, if there be a warden of a chapel, and the chapel and all the possessions be aliened, he ceases to be a corporation, because he cannot, be warden of nothing ; but if the body of a prebend be a manor and-no move, and the manor be recovered from the prebendary, by title paramount, yet his corporate capacity remains, because he has stalhm in thoro, ct vocom in capitulo, and he is prebendary, although he has no possessions. Thus, according to Lord Coke, a recovery by title paramount, would have produced an extinction of the corporation, had it reached all the rights and powers of .the corporation, but inasmuch as there were rights unaffected by the recovery, it did not work a dissolution. Suffering an act to be done which destroys the end and object for which the corporation was instiluted, must be regarded as equivalent to the doing an act which produces the very same consequences. A surrender is an act in pais ; it can, therefore, be no objection, in this case, that the acts which have dissolved the corporation are acts in pais.

This bill was not filed until the 24th of April, 1819. In February, 1818, all the estate, real and personal, of the corporation, was sold under an execution; and, as has already been stated, the corporation has totally ceased from acting since December, 1817. The bill charges, substantially, that the corporation is dissolved; and not one of the respondents asserts, that it does exist, or that there is the remotest idea of resuscitating it. Here is, then, a corporation possessed of nothing, abandoning the end and object of their institution, without pretending that they ever hope or expect to resume their functions ; and, it may be added, all the corporators, either admit the dissolution of the corporation, (1 speak of those who have suffered the bill to be taken pro eonfesso,) or deny, that they are corporators. Thus, presenting the phenomenon of a corporation without corporators, a nominal, inert body, pretending to have life and existence. Such an anomaly cannot be recognized. The argument is, that being incorporated for twenty years, there exists a corporate capacity during that period, and .that although all the functions of the corporation have ceased, yet they may be resumed. The second section of the act provides, that as soon as the certificate shall be filed, the persons who shall have signed and acknowledged the same, and their successors, shall, for the term of twenty years next after, be a body politic and corporate, in fact, and in name, &c. The legislature never meant, nor does the act authorize the conclusion, that the corporation should remain and continue during all that period, nolens volens. It was implied, that during that time they should do nothing to forfeit their rights, nor surrender them back, or do any act tantamount thereto. ¡ The act prolongs the corporation for twenty years, subject to all the incidents attending corporations ; and I have endeavoured to show, that one of the incidents is an extinction of the corporation, if it does what is equivalent to a surrender. I doubt, extremely, whether the capacity to resume the functions of the corporation does, in fact, exist, but it is not necessary to decide that point. I consider it merely as a matter of speculation, thrown out, without any practical reference to the cause, as a stumbling block to the attainment of justice between the parties. For all the substantial purposes of justice, and in effect, the corporation is dissolved. In the case of the King v. Pasmore, (3 Term Rep. 244.) Justice Ashhurst says, as to the contrariety of opinions in the books on this subject, I shall not attempt to reconcile them, but we ought to lean to that side which is supported by reason. Possibly, the seeming contrariety may have been, in some degree, occasioned by the equivocal use of. the term 6 dissolvedas far as concerns the power of the crown to grant a new charter, I think the corporation was dissolved. As to some particular purposes which do not relate to the powers of government, but to personal privileges which are annexed to the persons of the remaining individuals, such as rights of common, &c. it may be said pot to be dissolved, at lealt till the crown interposes.” Justice Grose, in the same case, said, “ now, in point of good sense, when the purposes for which a corporation was created can no longer be answered, there is no reason why it should not be considered to be so far dissolved, as that the crown may raise there a new corporation,” &c.

The doctrine urged by the respondents’ counsel is, that this corporation must endure for twenty years, unless it is judicially declared to be dissolved, for mis-user or nonuser ; and we perceive, by some of the cases cited by the Chancellor, that even where there had been an omission to elect burgesses, for 22 years, doubts were entertained whether there had been such a non-user as vacated the charter. It is observable, that the appellantjtas no control over the process or remedy to dissolve this corporation for non-user. The People of the state, through their law officer, can only institute such proceedings. Then, as regards the appellant, if ye are to consider this corporation in existence, he must patiently await the lapse of twenty years, before he can have any remedy. I say, in the words of Lord Mansfield, (3 Burr. Rep. 870.) “ without an express authority, so strong as not to be gotten over, we ought not to determine a case so much against reason.”

In point of good sense, this corporation was dissolved, within the meaning and intent of the act, as regards creditors, when it ceased to own any property, real or personal, and when it ceased, for such a spade of time, from doing any one act manifesting an intention to resume their corporate functions. The end, being, and design of the corporation, were completely determined ; and if even it had the capacity to re-organize and re-invigorate itself, the case has happened, when, as relates to its creditors, it is dissolved.

If I am right, thus far, then, by the 7th section of the statute, the persons composing the company, at the time of, its dissolution, are individually responsible, to the extent of their respective shares, for the debts then due, and owing, by the company.

With respect to the period of the dissolution, it appeal's to me, that we may safely say, it happened on the 1st of February, 1818, when all the property of the company was sold; for, since that time, no corporate act has been done.

The next question is, how far the resolution of the 3d of November, 1817, discharged those of the respondents who have complied with its terms, from any further liability to the appellant? That resolution gives the stockholders the privilege of forfeiting their stock, by paying 30 per cent, with costs, on or before the 1st of December following. It appears, in the body of the resolution, that the appellant protested against it, as it would not pay the debts of the factory. The evidence places it beyond all doubt, that the debt due to the appellant, who is the only creditor of the company, will be partially paid only, if that resolution has the effect intended by it. A large balance will be irrecoverably lost.

Now, could the trustees pass a by-law, having the effect to deprive a creditor of the company of his only means of satisfaction, by a resort to the stockholders rateably, until his debt was paid ? I answer, without hesitation, that such a by-law, or resolution, is utterly inoperative. It is an attempt to get rid of a responsibility which the law, and common justice, imposed on them; "the trustees who assented to this resolution must have known, at the time, from the report of their committees, and the state of their affairs, that 30 per cent, was inadequate to pay the appellant. The trustees had antecedently made calls to the amount of 50 per cent.; and, on the 18th of August, 1817, the appellant had assented to a resolution, that on payment of all the arrears of calls, (which, in fact, then amounted to 50 per cent.) with costs, the prosecutions should cease, and no proceeding should be had against any subscriber, other than by way of forfeiture. These calls had been made expressly to satisfy the appellant’s debt; and on the 3d of November, we find the same trustees, who were themselves interested in the question, discharging the stockholders, on payment of 30 per cent., conscious, at the lime, that the appellant must go unpaid for ever.

I do not stop to inquire by what means this resolution was obtained: I pronounce it to be against the fundamental principles of law and equity, legally fraudulent, bud, therefore, void and inoperative.

It is argued, that the appellant never gave public notice of his dissent to the resolution ; that the 30 per cent, had been paid by several of thé respondents, on the faith of the ■resolution, which was published in the papers; and that the silence of the appellant ought to preclude him from now objecting to the resolution.

There are several answers to this objection. I agree with the appellant’s counsel, that those who paid, ought to have ascertained the fact, that the appellant assented to a measure which was to deprive him of a great part of his debt; but how are those respondents prejudiced by the act of paying the 30 per cent. ? For if they are not injured in their rights by the payment, they cannot object to the want of notice. Do they mean to say, they would not have paid, had they known that the appellant objected to the resolution ? Then they would have been responsible as stockholders under the provisions of the act. The payment goes to diminish the amount which they then would have been compelled to pay. So that the payment does not in the least prejudice them. Whether there was notice or no notice, therefore, their situations are not altered. But as to the fact of notice, the appellant’s dissent was embodied in the resolution, and none of the respondents could have been ignorant of it, if they saw the resolution. All the stockholders lived in and near Poughkeepsie ; many of them had personal interviews with the trustees, and it is inconceivable that they should have been ignorant of so important a fact. Again; the trustees were the agents of the stockholders, and it is a fixed principle, that notice to an agent is notice to the principal.

The next point is, whether the appellant has ratified the resolution of the 3d of November, 1817, by his acceptance of money from the treasurer of the company, received under that resolution, or rather by his being present at the meeting of the trustees on the 1st of December 1817, when it was resolved, that the attorney of the company should apply the funds he had in hand, to the credit of the note given by Bloom and others to the Manhattan Bank, in consequence of their endorsing the appellant’s note for 10,000 dollars. It has been said, that this resolution was passed on the day the moneys were payable under the resolution of the 3d of November; and that it was passed with a view to these very funds; the appellant being present, and concurring in the resolution, and observing that payment on that note was as good to him as payment by the members on their stock. This has been pronounced a strong ratification of the resolution; and that as the appellant availed himself of the fruits of it, he could not, in good faith, now object, not having dissented from the application of the money. It has been, also, said, that he should have made his dissent as public as the resolution, and have abstained from particular and pointed participation in its results. His concurrence in a resolution of the 26th of December, 1817, directing suits to be brought against such persons as had not complied with the resolution of the 3d of November, has, also, been considered a conclusive ratification of that resolution.

It is with the utmost deference to the learned Chancellor, that I dissent from this reasoning. The appellant had,r in vain, protested against the resolution of the 3d of Novem6e?\ It would have been a work of supererogation to have,. repeated his protest, and dissent to resolutions growing out of, and bottomed on that resolution. Besides, he was not dealing with the stockholders, and his not dissenting from (he subsequent resolutions could have no effect upon their conduct. Silence, unless when a person is bound to speak, and when silence would mislead, can never have the effect attributed to the appellant’s conduct. It would, in my judgment, be carrying the principle of ratification to its utmost limits, to say, that the appellant, after his vehement and solemn protest to the original resolution, ceased his opposition when he saw the trustees following up that resolution. I cannot consider the appellant’s negative conduct on the occasions referred to, as a ratification of the unjust, resolution of the 3d of November. . y.

The next point is as to the effect of the resolution of the 1 Slh of August, 1817, as to those who complied with its terms, and as to such of the stockholders who did not comply with them. First, as to those who did comply with its terms, the appellant being present, and consenting to that resolution, I concur in opinion with the Chancellor, that he was bound. It was in the nature of a contract, and is free from any objection of compromitting the rights of third persons and creditors. Two of the respondents only have paid the 50 per cent., namely, Martin Hoffman and James Reynolds. Iloffman paid the 50 per cent, on the THh of January, 1818, and James Reynolds paid the 50 per cent, on the 15th of January, 1818. There had been the lapse of some time between the payments and the passing of the resolution; hut the payments were made before the sale of the factory on execution, and the resolution had not been rescinded, nor had these respondents been forewarned not to make the payments. Under these circumstances, I incline to the opinion, that Martin Hoffman and James Reynolds cannot be considered any further responsible. But 1 do not think the other respondents can take any benefit uqder that resolution. They have never complied with it; the appellant’s assent was undoubtedly given, with the view of, immediately realizing the amount which a compliance with that resolution would have produced. To say that he is now bound by an offer, made under a different state of things, after a total wreck of all the property of the company, in which the appellant was so largely interested, wrould be unreasonable and inequitable. The offer was made, and the respondents, except Hoffman and Reynolds, refused to comply with it. How, then, can the respondents, after such a lapse of time, claim the benefit of this offer, as a contract, when they rejected the offer ? The appellant might have very good reasons for making a large sacrifice upon the debt due him; He was willing to do so, upon prompt payment of the 50 per cent. No Court has a right to say to him, that he shall adhere to his proposition, which was rejected by the respondents. There would be no reciprocity in this, and I am entirely satisfied, that we cannot, and ought not, to consider it as an existing contract.

It has been urged, that the appellant was guilty of fraudulent representations, as to the value of the property lie sold, and the profitable nature of the business he was carrying on, so that the respondents ought not, in equity, to be bound by their subscriptions. The charge is so destitute of foundation, that it does not deserve a serious refutation. The facts show, that there was much examination and deliberation, on the part of the company, before the purchase was concluded ; and although subsequent events proved, that the appellant miscalculated as to profits, this was to be attributed to a change in political events, and not to any fraudulent design to deceive or misrepresent.

It is, also, contended, that such of the respondents as subscribed to the stock of the company, under a promise by the appellant that he would take it off their hands, must be considered, at their election, as holding the same as trustees for him, and are, therefore, not bound to make contribution.

It cannot be doubted, that if any of the respondents have become subscribers in behalf of the appellant, and have merely lent their names to accommodate him, without intending to have any interest in the concern, that they ought not to be holden to contribution. On the othér hand, if any of them have subscribed, under a general assurance from the appellant,, that he would take the stock off their hands, if they should require it, and they have gone on acting as stockholders, until the affairs of the company have become bad, and then require a fulfilment of the assurance, they can have no right, either in law or in equity, to an exoneration from contribution.

It will be, at once, seen, that there would be no mutuality or reciprocity in such a bargain. If the concern was profitable, then they would hold on upon their shares; if unprofitable, or disastrous, then they would throw the loss upon the appellant. They would thus make him run the risk of all the losses, whilst they took the chance of all the profits. There is one decisive test. Those of the stockholders who paid the calls out of their own pockets, are entirely precluded from setting up any such promise or assurance ; and with regard to them, we must say, that they are concluded. They have evinced, by their acts, that they hold the stock in their own rights, and not as trustees for the appellant. As to them, we arc bound to consider the appellant’s assurances as merely denoting his confidence in the success of the institution. These observations apply to George Bloom, Albert Cocks, Derick B. Stockholm, Leonard Davis, John Nelson, Abiel G. Thompson, Elizabeth Tappen, Daniel Hoffman, and Benjamin H. Conklin, and to such of the respondents as have suffered the bill tobe taken ' pro confesso, and also to Peter Ackerman and Catharine R. Eivingston, who have entered into a stipulation that these cases shall abide the decision with respect to others, in the same condition as themselves.

Having already expressed an opinion, that JUartin Hoffman and James Reynolds are exonerated, in consequence of their compliance with the resolution of the 18th of August, 1817, the particular cases of John E. Pells, and Daniel Coolidge, require tobe considered.

Pells was not an original subscriber. He purchased ten shares of Joseph H. Cunningham. These shares, at the time of the purchase, had been paid up in full. He received scrip for them, with an, endorsement by the treasurer that they were paid in full. I can perceive no principle on which he can be charged. If even there could be any doubt in such a case, with respect to creditors who have no concern in the institution, there can be none in this case, for the appellant has been benefited by this very payment. Pells, is, therefore, entitled to be dismissed from the cause.

With respect to Daniel Coolidge, he asserts, and proves, that he subscribed for twenty shares, under an assurance from the appellant, that he should be at liberty to pay for his stock, or not, as he chose, and that the appellant would at any time take it back, if he should not be desirous of keeping it. Coolidge admits, that he paid five dollars on each share, under the call of the 7th of March, 1815, and it appears, that he was appointed, and acted, as secretary of the company. On the 1st of December, 1817, he made a formal tender of his scrip to the appellant.

I can see no difference between this case and those of the respondents who went on paying other calls, and who availed themselves of the resolution of the 3d of November. The payment by Coolidge, out of his own funds, of the call of the 7th of March, 1815, his acting as one of the company, and his retaining his stock until the affairs of the company were desperate, manifest a willingness to be a stockholder, if the undertaking turned out prosperously, but, if otherwise, not.

It has been asserted, that Crosby and Cocks are creditors of the appellant, and have a set-off against him, and that these demands ought to be deducted from the amount which they may be required to pay in this case. It seems to me equitable, that such deductions should be made, if their respective demands are susceptible of adjustment before a master; for although the respondents are jointly sued, they are individually, and not jointly, liable to the appellant.

The respondents’ counsel has strenuously insisted, that the only responsibility assumed by the subscription, was a right, at the election of the subscribers, to forfeit their shares, with all previous payments made thereon; and this opinion is founded on the decision in this Court, in the case of Jenkins v. The Union Turnpike Company, (1 Caines' Cas. in Error, 86.) In a suit by the Dutchess Cotton Manufactory v. Davis, (14 Johns. Rep. 244.) which was an action on the subscription paper in this case, the Supreme Court had occasion to review all the cases ; and that Court entertained no doubt of the liability of the stockholders, in an action brought to enforce the calls. I need not now attempt to support the correctness of that decision, because, if the corporation is dissolved, and if the resolution of the, 3d of November is void, the respondents were stockholders when the corporation became dissolved, and then the statute expressly renders them liable to creditors, to the amount of their stock.

If, however, the corporation was not dissolved, I have no doubt, that upon the principles of the case of Dr. Salmon v. The Hamborough Company, (1 Cases in Ch. 204., and in 1 Kyd on Corp. 273.) the appellant would be entitled to a decree in-his favour. I forbear going into that case, for I do not feel that it is necessary. The Court intimated, on the argument, that we should not sustain the question on this appeal, what was the amount due to the appellant from the company, as the Chancellor had not considered that point..

The result of my opinion is, that the decree complained of be reversed ; that the cause be remitted to the Court of Chancery, with directions, to enter a decree, declaring all the respondents, except Martin Hoffman, James Reynolds, and John E. Pells, liable, individually, to the éxtent of their "respective shares of stock in the said company, and no further, to pay the appellant’s debt; but that the payments made by the respondents on their stock, shall be deemed so far to have diminished their liability ; and, as respects Martin Hoffman, James Reynolds', and John E. Pells, that the bill be dismissed, and that they be paid their costs incurred in the Court below.

Yates, J. and Van Ness, J. concurred.

Platt, J. being related to one- of the parties, declined giving any opinion.

• Woodworth, J. not having heard the argument, gave no opinion,

The rest of the Court (Austin, Senator, dissenting) concurring in the opinion of the Chief Justice, it was, thereupon, ordered, adjudged, and decreed, that the decretal' order of the Court of Chancery be reversed, and that the cause be remitted to the Court of Chancery, and that that Court enter a decree against all of the above-named respondents, excepting Martin Hoffman, James Reynolds, and John E. Pells.' That the said respondents respectively pay to the appellant, towards the discharge of his debt against The Dutchess Cotton Manufactory, the amount of their respective shares of stock of 100 dollars, on each share, or so much thereof as may be necessary to pay the appellant’s debt, when ascertained, to wit, George Bloom thirty shares; Cyrenus" Crosby, fifty shares ; Robert Forrest, ten shares ; Peter Ackerman, ten shares; Albert Cocks, ten shares; Nathan Myers and Nathaniel Ferris, twenty shares; Daniel Voolidge, twenty shares ; Derick B. Stockholm, ten shares ; Leonard Davis, thirty shares; John Nelson, ten shares; George Booth, thirty shares; Samuel S. Howard, five shares ; Abiel G. Thompson twenty shares; Daniel Hoffman, ten shares; Benjamin H. Conklin, thirteen shares; Elizabeth Tappen, ten shares; Catharine R. Livingston, ten shares ; and Jeremiah Wintringham, ten shares ; and that they jointly pay to the appellant his costs in the Court of Chancery; but from the amount of the said several sums to be paid by the respondents aforesaid, there is to be deducted such amount as appears by the pleadings and proofs, to'have been paid by them respectively, upon their respective shares of stock in the said company ; and if it shall appear, that the said Cyrenus Crosby, and Albert Cocks, or either of them-, are creditors of the appellant, as they have asserted, and have demands which ought in justice to be sei-ofi" towards the demands of the appellant against them respectively, and which are susceptible of adjustment before a. Master, such set-off is to be made in their favour: and it is further ordered, adjudged and decreed, that the appellant’s bill be dismissed as to Martin Hoffman, James Reynolds, and John E. Pells, and that he pay to them their costs in the Court below; and that the several parts of ^¡s decree he enforced, according to the practice of the Court of Chancery.”