Williams v. Benet

34 S.C. 112 | S.C. | 1891

-The opinion of the court was delivered by

Mu. Justice Wallace.

This is an action at law brought to recover an unpaid balance of a subscription to the capital stock of the Georgia Construction and Investment Company. The defendant denies that he subscribed to the stock or paid any instalment thereon, and sets up a special defence, to wit: “1st. That the defendant was the attorney and counsellor of Susong & Co. prior to the organization of the Georgia Construction and Investment Company, who were the contractors and had the control of the Atlantic, Western & Knoxville Railway Co., and as such attorney rendered valuable services. 2nd. That a majority of the members of the last mentioned company became members of the Georgia Construction and Investment Company and held a controlling interest therein, and upon its organization the said Susong & Co., in payment of his services as attorney, was to deliver to the defendant fifty shares of the par value of one hundred dollars each of the Georgia Construction and Investment Company. 3rd. That it was not intended and there was no agreement on the part of the defendant that he should pay any part of the said sum of five thousand’ dollars, and the amount paid in, to wit, fifteen hundred dollars, was paid by the said Susong & Co., in part performance of their contract with defendant, and not by the defendant. 4th. That defendant had nothing whatever to do with subscribing to the stock of said company, and he did not attend its meetings as a stockholder, but as attorney; and he denies that he is liable for any balance on the stock, but avers that the whole of the fifty shares has been paid for, so far as this defendant is concerned, by services rendered as aforesaid.”

The issues came on to be heard before a jury, and the plaintiff put in evidence tending to show that defendant had acted as a stockholder, claiming to hold fifty shares; had been appointed and acted as a director of the company from the date of his appointment up to the appointment of the receivers, who are plaintiffs here. As further tending to show that defendant recognized his liability as a subscriber, plaintiff put in evidence the two following letters, rvritten in answer to a demand by the company of payment of instalments for shares held by him:

“Dear Mr. Sibley : Repeated and prolonged absence from home must excuse any seeming negligence in the matter of the instalments you call for. Another thing, there was a little misunderstanding about the payment of it between Mr. Susong and myself, which is all cleared up now. All my dues will be paid up by the middle of this month, which Mr. Susong said would be soon enough.

“Yours truly,

“(Signed) W. C. BENET.”

“Dear Mr. Sibley : Your letter came during my absence from home, and it was forwarded to me with others to Sumter the very day I left Sumter, and then I did not receive it for nearly two weeks. I will try at once to arrange about my instalments. I must see Mr. Susong first, and will do so at my earliest leisure.

“Yours truly,

“(Signed) W. O. BENET.”

1 After plaintiff closed his case, defendant offered to prove the allegations of his special defence copied above. Plaintiff objected and moved to strike out the special defence as not stating facts sufficient to constitute a defence. The presiding judge, Judge Aldrich, granted the motion in so far as it related to the defences numbered 1 and 2, and this ruling is the first ground of appeal. There is no question but that a contract such as is set out in the special defence was made between defendant and Susong & Co., but there is nothing in the record tending to show that the Georgia Construction and Investment Company was a party to it, or assented to it or knew of it. Its existence, therefore, could not alter the relation between the latter company and its stockholders, or affect the rights that arose from that relation. If defendant’s name was upon the stock list with his consent, prima facie he was bound to pay for the shares, and that liability was not discharged by a private agreement between himself and Susong & Co. that the latter would pay for them. The presiding judge, therefore, did not commit error in ruling that proof of the contract — set up in the special defence — was irrelevant to the issue, or by granting the motion to strike out paragraphs 1 and 2.

The remaining grounds of appeal all relate to the charge of Judge Aldrich to the jury. The second and third grounds were not argued at the hearing. They merely state the principle that if defendant authorized Susong & Co. to subscribe for stock for him, or if Susong & Co. made such subscription with his consent, in either case Susong & Co. would be his agents and he would be bound.

2 With respect to the remaining grounds of appeal, it may be said that there certainly was a subscription to the stock of the company in the name of defendant, and the issue was whether he had originally authorized or subsequently approved and adopted it, and the parts of the charge excepted to confine the jury to the trial of that issue. In this there was no error.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.