Excelsior Grain Binding Co. v. Stayner

61 How. Pr. 456, 32 N.Y. Sup. Ct. 91

• Court: New York Supreme Court
• Decided: July 15, 1881
• Status: Published

Opinion

Daniels, J.

This action was prosecuted for the recovery of the sum of $5,000, being the amount of the defendant’s subscription for 100 shares of the capital stock of the plaintiff. These shares were of the par value of fifty dollars each, and the subscription by which the defendant agreed to take them was made before the company was completely organized. The company was incorporated under the authority of chapter 611 of the Laws of 1875. The certificate required for that purpose was filed, and the persons making it were empowered to open books for subscriptions to the capital stock, as that has been provided for by section 4 of this act. And the subscription made by the defendant was taken in the course of the proceedings for that purpose so authorized. But neither at the time when the subscription wag made, nor at any time after that, did he pay to the commissioners any part of the amount for which the ‘stock was afterwards to be issued to him. All that was done was to subscribe for the stock and deliver his check for ten per cent of the amount of the subscription. After the company was organized the board of directors declared the subscriptions to the capital stock to be due and payable, and because of a failure to pay on the part of the defendant this action was brought against him for the recovery of the amount. It was resisted chiefly because of the omission of the defendant to make the payment which the statute has required for the purpose of constituting a complete subscription to the stock of such a corporation. The provision of the act upon this subject is, that the commissioners shall proceed to open books for subscriptions to the capital stock of such corporations, but no subscription shall be received, unless at the time of making it the person so subscribing shall pay to said commissioners ten per cent of the par value of the stock subscribed for in cash (Laws 1875, p. 756, sec. 5).

The court at the. trial held that this requirement had not been observed; that the execution and delivery of the subscriber’s check for the ten per cent was not a payment of the amount of it in cash, and for that reason the subscription was ineffectual, and he never became liable upon it. Before the check was presented for payment it was countermanded by the defendant, and nothing, in fact, was ever received, either by the commissioners or the company itself, on this subscription. The provision contained in this act declaring how the payment shall be made for the purpose of completing the subscription is practically the same as that contained in the statute, relating to the formation of limited partnerships. There the contribution made to the capital by the special partner is required to be paid in cash; and in the case of Durant agt. Abendroth (69 N. Y., 148) it was held that a delivery of a check was not a compliance with what the law required to he done for the purpose of forming such a partnership. And as the act under which the plaintiff was incorporated has been enacted upon this subject in terms practically identical in their effect, this decision must be accepted as controlling in this case.

A different view of the effect of a check seems to have been taken in the case of Thorpe agt. Woodhull (1 Sand. Ch. Rep., 411), but as this authority is subordinate to that pronouncing the judgment in the preceding case, it cannot properly be followed in the determination of this appeal. As the language employed in the enactment of this statute has been construed, it can he satisfied only by a payment in cash or its actual equivalent. The object of the law in making this requirement was to prevent the organization of corporations upon mere paper capital, and the security of persons dealing with them requires that such organization should not he permitted. If a check could he received as a compliance with what the law has required on this subject from one person, it could be from all; and the consequences of such a construction would -be that a corporation might be organized without receiving a single cent of actual capital. That would induce the existence of fraudulent corporations, which it must have been the object of the legislature by means of this provision to prevent. It is a wholesome and proper restraint, and should be observed and enforced according to the fair import of the terms by which it has been created.. In no proper sense of those terms can the unpaid or uncertified check of the subscriber be accepted or regarded as cash. And for that reason the provision contained in this statute was not complied with at the time when the defendant’s subscription was made. A similar provision is contained in the general railroad laws of the state (2 R. S. [5th ed.], 669, sec. 4). And in the case of Beach agt. Smith (28 Barb., 254), it was intimated that the ten per cent required to be paid at the time of the subscription might be received in a check or sight draft. But whether it could or not, was a point not presented by the case for the determination of the court, and for that reason what was said upon this subject cannot be accepted as authority. In that case, as well as the case of the Ogdensburg R. R. Co. agt. Davis, mentioned in the opinion, the amount required to render the subscription valid was in point of fact finally and actually paid, and, while this was not a formal compliance with what the statute had required, it was substantially so, and the transactions were sustained because the payments had actually been made in fact. This was the view which was taken in the further consideration of the case of Beach agt. Smith, in the court of appeals (30 N. Y., 116), and for that reason the judgment of the supreme court was there affirmed. No binding authority has been found, allowing the payment required by the statute on such a subscription to be dispensed with. It must be made either in cash or its equivalent actually passing into the hands of the commissioners. Neither was done in this case, and therefore what the statute has declared to be necessary was not in this instance observed.

Because of this failure no lawful subscription was made by the defendant for the stock of this corporation. The terms of the statute are clear and explicit that no subscription shall be received by the commissioners unless at the time of making it the person so subscribing shall pay to them ten per cent of the par value of the stock subscribed for, in cash. This was a clear prohibition, which they had no power to evade. They could receive the subscription in no other manner, and if the payment in cash was not made they were prohibited from permitting the party to become a subscriber. The language used upon this subject is so clear as to be incapable of' misunderstanding. It was the intention of the legislature by means of it to render the requisite payment an indispensable condition to the validity of the subscription. If that should not be made, they could not allow the person proposing to take the stock to become a subscriber for it, and if they did so in contravention of the clear restraint of the statute, the subscriber could acquire no right to the stock, neither could the commissioners or the corporation enforce the formal terms of a contract made for the payment of its price. The principle is a general one that a contract which is repugnant to or contravenes the terms of a statute of the state is unlawful and cannot be enforced (Burton agt. Port Jackson, &c., Plank Road Co., 17 Barb., 397; Seneca Co. Bank agt. Lamb, 26 Barb., 595-601).

A provision of a somewhat similar nature, though not as restricted in its expression as this, was considered in the case of the Union Turnpike Road agt. Jenkins (1 Caine, 381), and it was there held by the supreme court, the chief justice dissenting, that the failure to pay the per centage inquired upon the subscription would not prevent the maintenance of an action afterwards for its recovery. But this case was taken to the court of errors, and the decision made in it was reversed, because of the omission to pay the amount required to be received by the commissioners at the time when the subscription for the stock was made (Caine's Cases in Error, 86), and the doctrine of this case appears, to have met the approval of the court afterwards, deciding those of The President, &c., agt. Hintin (9 John., 217), and The President, &c., agt. McKean (11 id., 98). In Rensselaer, &c., Co. agt. Barton, reported in a note to the case of Lake Ontario, &c., R. R. Co. agt. Mason (16 N. Y., 451, 457), the correctness of these decisions was drawn in question, but they were neither overruled nor substantially impaired as authority. In the principal case to which the note has been appended, the validity of such a subscription was not presented for decision, for it did not depend upon the similar provision made upon this subject by section 4 of the act providing for the incorporation of railroad companies. The subscription forming the subject of that controversy was made under a preceding section of the act, and it was so held, which did not render it in terms dependent upon an accompanying payment of any amount in cash. After these two decisions were made, the validity of a stock subscription, under section 4 of the act providing for the formation of railroad corporations, was further considered by the court of appeals (Black River, &c., Co. agt. Clarke, 25 N. Y., 208). The language then construed was in its effect similar to that employed in the act under the authority of which the subscription of the defendant was taken, and in the reference made to it, in the opinion of the court, it was said “ that the intent of this section doubtless was, that no subscription- should be valid until ten per cent was paid thereon, and not that it should be invalid if a short interval occur between the actual subscription and the payment of the money. The subscription and the payment of the ten per cent must both concur to make a valid subscription. The subscription one day, with payment the next, would satisfy the statute, and so would actual payment, at any period after subscription, with intent to effectuate and complete the subscription. The writing of the name in the subscription book should be deemed but part of the transaction and provisional or conditional till the ten per cent is paid (Id. 210). A similar view was expressed in one of the opinions delivered in Beach agt. Smith (supra). It was there stated “ that the statute under which the subscription in question is made, not only requires ten per cent to be paid, but it forbids the subscription to be received without such payment. It seems to me that a subscription taken in violation of this provision is not binding.” These authorities plainly sanction the conclusion reached by the court of errors in the case of The Union Turnpike Company agt. Jenkins, and that has been further very materially fortified by a similar decision in the state of Pennsylvania (Hibernia Turnpike Co. agt. Henderson, 3 Serg. & Rawle, 219). The act in that case required a payment of five per cent upon the price of the stock to render the subscription a compliance with its provisions, and because of a failure to pay the amount the subscription itself was held to be void. A different conclusion was reached in Henry agt. Vermillion, &c., Railroad Company (17 Ohio, 187). That was a creditor’s suit to enforce the payment of á subscription for the stock of the company, and in deciding it this point received no extended consideration, either upon principle or authority, but it was disposed of as a subject meriting very little attention in the case. The same observations are applicable to a like decision in the case of Vicksburgh, &c., Railroad Company agt. McKean (12 Louisiana Ann., 638). And for these reasons these cases should not be allowed to exercise any controlling authority over the disposition of the present controversy. The cases of McFarlan agt. Triton Insurance Company (4 Denio, 392) and Booth agt. Cleveland, &c., Company (74 N. Y., 15) have no direct or necessary application to the-point in controversy, and need not, therefore, be specially considered. The authorities having a material bearing upon this point are so well sustained by the terms and theory of the statute itself as to require them to be followed, although in doing so the cases cited from the reports of other states are required to be disregarded. As the statute must be construed, no binding subscription was made by the defendant for the stock of the company, because of his failure to make the payment mentioned in the statute before the subscription itself could be received by the commissioners. What was done was entirely ineffectual, and for that reason it was properly held at the trial that the action could not be maintained.

The judgment, for the reasons already assigned, should therefore be affirmed, with costs.

Beady, J., concurs.