90 Wis. 442 | Wis. | 1895
1. The vital point in this case is whether the plaintiff’s ninety-two shares of stock in the defendant corporation were full-paid when the corporators had conveyed or caused to be conveyed to the company the property they had purchased at the foreclosure sale, and had executed the declaration and agreement of September 11, 1866, stating and defining their respective contributions to and proportionate interests in the property and franchises of the company. The plaintiff’s interest was therein stated to be of the entire property, or three shares, equal to ninety-two shares of the capital stock of the corporation.
Provision having been made for the completion of the works of improvement and the payment of the evidences of state indebtedness, as provided by ch. 289, Laws of 1861, the purchasers, as authorized by the second section of that
Subsequently, and on the 26th of September, 1866, the directors passed resolutions, in substance, that the whole capital stock be distributed among the incorporators in proportion to their cash contributions for the purchase of the property; that no scrip or certificate should be issued for such stock until $5 per share should be paid in by the cor-porator or his assigns, on or before December 4, 1866, when
The imposition of $20 per share is pleaded and sought to be maintained, both on the ground that it was for lawful calls on the stock, and that it was a valid assessment. It does not appear that there was any stock subscription prepared or made, or that the corporation had passed any bylaws. The contract relations between the corporation and its stockholders depend wholly on the certificate of incorporation signed and acknowledged by them and the instrument of September 11, 1866. It does not appear that they ever after acted in an aggregate capacity on that subject, or that they ever delegated any authority to the directors to act for them. The act under which the corporation was organized (Laws of 1861, ch. 289, sec. 2) provided that the purchasers at the sale might form a corporation “ by filing in the office of the secretary of state a certificate declaring the name of the said corporation, the amount of the capital stock and the number of shares into which the same shall be divided, and what portion, if any, shall be entitled to a preference in dividends or otherwise, the number of the directors and the names of the directors for the first year; . . . and
The conveyance to the company was, in any event, a sufficient consideration, as between the stockholders and the corporation, for the issue of the stock as full-paid. None but creditors could be heard to object to its adequacy, if, in such case as the present, 'that question could be mooted at all, and then only on the ground of fraud. Beach, Priv. Corp. §§ 559, 561; Scovill v. Thayer, 105 U. S. 153. There is a distinction between the capital and the capital stock of a corporation. The capital of a corporation is the property of means which the corporation owns, and it may vary in amount, while the capital stock is fixed, and represents the interests of the stockholders, and is their property. Van Allen v. Assessors, 3 Wall. 573, 584; Wetherbee v. Baker, 35 N. J. Eq. 505; People v. Comm’rs, 4 Wall. 244; People ex rel. Union T. Co. v. Coleman, 126 N. Y. 433, 437; Burrall v. Bushwick R. Co. 75 N. Y. 211. In Bailey v. Clark, 21
2. It was not essential to the title of the plaintiff to his ninety-two shares that he should have had a certificate of his ownership of them. It was a convenience, not a necessity. There was no adverse claim or holding of the shares until the defendant corporation denied his right to them, less than a year before this action was commenced. Until then he had- no right of action to compel the execution and delivery of the proper certificate. There is no ground for saying that he had lost a strictly legal right to the shares
3. The directors, though not necessary, were proper parties defendant, to enable the plaintiff to obtain discovery under sec. 4096, R. S. Story, Eq. Pl. (10th ed.), § 235; Wood v. Union G. C. B. Asso. 63 Wis. 9. If it appeared that they refused from improper motives to direct the issue of the certificate, they might be charged with costs. The appeal is jointly by all the defendants, and it appears all were jointly charged with costs; but before it was taken the judgment for costs against the directors had been released, and they cannot now complain of the judgment.
4. At or about the time the plaintiff offered to pay the company such siim as would make his contribution substantially equal to those of other stockholders, one of the stockholders, Mr. Smith, an officer and director of the company, was allowed a certificate, as assignee of Binninger, for the 122 shares of Binninger’s stock, upon which no part of the twenty per cent, calls had been paid, upon the payment to the company of $14.52£ per share,— in all, $1,772.52. The Circuit court, acting doubtless upon the ground that equality is equity, and that directors who are trustees for all would
By the Court.— The judgment of the circuit court is affirmed.