The opinion of the court was delivered by
Benson, J.:
A corporation is clothed with the powers given by its charter. (A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596.) The issuance of preferred stock, in the absence of statutory prohibition, violates no rule of public policy. (1 Cook, Stock & Stock., 3d ed., § 268.) It is urged, however, that such [76] preference can only be in earnings, and can never be made up out of capital. It is conceded that there may be a preference in the distribution of capital when such distribution is proper, but that capital can not be applied to the payment of profits or dividends in any event. That this is the rule with reference to preferred stock in ordinary corporations must be admitted.
“An agreement to pay dividends absolutely and at all events — from the profits when there are any, and from the capital when there are not — is an undertaking which is contrary to law, and is void.” (1 Cook, Stock & Stock., 3d ed., § 271.)
This rule is referred to with apparent approval in the second edition of Endlich on Building Associations, section 464, as applicable to such corporations. The contention, is that the preference, as claimed by defendants, is contrary to the spirit and purposes of such an association, preventing the execution of the scheme for which it is organized, which scheme and purpose must be considered as limiting the effect of the language of the by-laws. It is said that the intention of the legislature in providing for this class of corporations circumscribes the extent of their lawful powers, although such restrictions are not expressly named in the statute. It has been held, however, that such an association, in the absence of charter or other legal inhibition, may lawfully give one class of shares preference over another, both with respect to dividends and principal, and that prepaid shares, bearing a fixed dividend to be paid at a definite time in pursuance to the by-laws, may be issued; that the preference thereby given is lawful, and, as between the holders of such stock and other shareholders, will be enforced in the distribution of assets, (Wilson v. Parvin, 56 C. C. A. 268, 119 Fed. 652.) In In re Guardian Permanent Benefit Building Society, 23 L. R. Ch. Div. (Eng.) 440, in discussing the rights of preferred shareholders on the winding up of a building association, it was said:
“There is nothing in the statute which says that you [77] may not contract to give some shares an advantage over others for value received. But then there is this further consideration which must be discussed. Is it contrary to the nature of these societies, so that it is impossible to make a society with this kind of shares consistent with the law and conduct of the society ? On that point I do not think it is the province of the judicature to find out things to be inconsistent with the ordinary requirements of mankind, which the people themselves have not found out. It is all very easy for people to say it is against policy, or against the meaning of these societies; but when you see that people who have established the society do not think so, and have acted on a contrary view, it is very improbable that it is contrary to the nature of the society, and contrary to the objects the members have in view.” (Page 464.)
In Vought v. Eastern Bldg. & Loan Assn., 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761, a case where the holder of preferential stock sued for the maturity value of $100 per share, after having paid in seventy-eight payments of one dollar each, the court said:
“At the threshold of this investigation we find an absolute and unqualified promise upon the part of the ■defendant to pay to each of the holders of the stock owned by the plaintiff the sum of one hundred dollars for each share at the end of seventy-eight months from the date of the certificate, and also an indorsement thereon of the actual time when the shares were to mature. Therefore, as that time had expired and the required payments had been made, it is manifest that the plaintiff was entitled to recover, unless there is some other part of the contract which modifies or changes that provision.” (Page 512.)
The court then reviewed the by-laws and articles of association and held that the agreement expressed in the certificate of stock was not modified, and added:
“Can any one suppose for a moment that the plaintiff or her assignor, when she or he purchased this stock, with an agreement that it should mature at the end of seventy-eight months, even suspected that such maturity was to depend upon other conditions or circumstances than the expiration of the time? Obviously not. [78] This contract must be interpreted as an agreement upon the part of the defendant to pay to the plaintiff and her assignor the amount of one hundred dollars upon each of the shares represented by the two certificates in suit at the expiration of seventy-eight months from their date and at the time indorsed upon the back thereof.” (Page-516.)
It was contended in that case that the statute did not authorize such preference. On this point the court said:
“We deem it unnecessary at this time to determine whether the defendant was authorized by that statute to enter into such contracts, for if we assume that the making of them was in excess of the express power conferred upon the corporation by that statute, still, as the contracts involved no moral turpitude and did not offend any express statute, they were not illegal in a sense that would prevent the maintenance of an action thereon. It is now well settled that a corporation can not avail itself of the defense of ultra vires when the contract has been, in good faith, fully performed by the other party, and the corporation has had the benefit of the performance and of the contract.” (Page 517.)
In Leahy v. The National Building & Loan Association, 100 Wis. 555, 76 N. W. 625, 69 Am. St. Rep. 945, it appeared that certain shares, called “definite contract stock,” had been issued, upon which a certain sum was to be paid at maturity. Referring.to the claim of the contesting stockholders that this issue was unauthorized, it was held that when they became members and assented to the contract in that form they became foreclosed from contesting it.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Benson, J.:
A corporation is clothed with the powers given by its charter. (A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596.) The issuance of preferred stock, in the absence of statutory prohibition, violates no rule of public policy. (1 Cook, Stock & Stock., 3d ed., § 268.) It is urged, however, that such [76] preference can only be in earnings, and can never be made up out of capital. It is conceded that there may be a preference in the distribution of capital when such distribution is proper, but that capital can not be applied to the payment of profits or dividends in any event. That this is the rule with reference to preferred stock in ordinary corporations must be admitted.
“An agreement to pay dividends absolutely and at all events — from the profits when there are any, and from the capital when there are not — is an undertaking which is contrary to law, and is void.” (1 Cook, Stock & Stock., 3d ed., § 271.)
This rule is referred to with apparent approval in the second edition of Endlich on Building Associations, section 464, as applicable to such corporations. The contention, is that the preference, as claimed by defendants, is contrary to the spirit and purposes of such an association, preventing the execution of the scheme for which it is organized, which scheme and purpose must be considered as limiting the effect of the language of the by-laws. It is said that the intention of the legislature in providing for this class of corporations circumscribes the extent of their lawful powers, although such restrictions are not expressly named in the statute. It has been held, however, that such an association, in the absence of charter or other legal inhibition, may lawfully give one class of shares preference over another, both with respect to dividends and principal, and that prepaid shares, bearing a fixed dividend to be paid at a definite time in pursuance to the by-laws, may be issued; that the preference thereby given is lawful, and, as between the holders of such stock and other shareholders, will be enforced in the distribution of assets, (Wilson v. Parvin, 56 C. C. A. 268, 119 Fed. 652.) In In re Guardian Permanent Benefit Building Society, 23 L. R. Ch. Div. (Eng.) 440, in discussing the rights of preferred shareholders on the winding up of a building association, it was said:
“There is nothing in the statute which says that you [77] may not contract to give some shares an advantage over others for value received. But then there is this further consideration which must be discussed. Is it contrary to the nature of these societies, so that it is impossible to make a society with this kind of shares consistent with the law and conduct of the society ? On that point I do not think it is the province of the judicature to find out things to be inconsistent with the ordinary requirements of mankind, which the people themselves have not found out. It is all very easy for people to say it is against policy, or against the meaning of these societies; but when you see that people who have established the society do not think so, and have acted on a contrary view, it is very improbable that it is contrary to the nature of the society, and contrary to the objects the members have in view.” (Page 464.)
In Vought v. Eastern Bldg. & Loan Assn., 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761, a case where the holder of preferential stock sued for the maturity value of $100 per share, after having paid in seventy-eight payments of one dollar each, the court said:
“At the threshold of this investigation we find an absolute and unqualified promise upon the part of the ■defendant to pay to each of the holders of the stock owned by the plaintiff the sum of one hundred dollars for each share at the end of seventy-eight months from the date of the certificate, and also an indorsement thereon of the actual time when the shares were to mature. Therefore, as that time had expired and the required payments had been made, it is manifest that the plaintiff was entitled to recover, unless there is some other part of the contract which modifies or changes that provision.” (Page 512.)
The court then reviewed the by-laws and articles of association and held that the agreement expressed in the certificate of stock was not modified, and added:
“Can any one suppose for a moment that the plaintiff or her assignor, when she or he purchased this stock, with an agreement that it should mature at the end of seventy-eight months, even suspected that such maturity was to depend upon other conditions or circumstances than the expiration of the time? Obviously not. [78] This contract must be interpreted as an agreement upon the part of the defendant to pay to the plaintiff and her assignor the amount of one hundred dollars upon each of the shares represented by the two certificates in suit at the expiration of seventy-eight months from their date and at the time indorsed upon the back thereof.” (Page-516.)
It was contended in that case that the statute did not authorize such preference. On this point the court said:
“We deem it unnecessary at this time to determine whether the defendant was authorized by that statute to enter into such contracts, for if we assume that the making of them was in excess of the express power conferred upon the corporation by that statute, still, as the contracts involved no moral turpitude and did not offend any express statute, they were not illegal in a sense that would prevent the maintenance of an action thereon. It is now well settled that a corporation can not avail itself of the defense of ultra vires when the contract has been, in good faith, fully performed by the other party, and the corporation has had the benefit of the performance and of the contract.” (Page 517.)
In Leahy v. The National Building & Loan Association, 100 Wis. 555, 76 N. W. 625, 69 Am. St. Rep. 945, it appeared that certain shares, called “definite contract stock,” had been issued, upon which a certain sum was to be paid at maturity. Referring.to the claim of the contesting stockholders that this issue was unauthorized, it was held that when they became members and assented to the contract in that form they became foreclosed from contesting it.
The office of by-laws is to regulate the conduct and define the duties of the members toward the corporation and among themselves. (Thomp. Bldg. Assoc., 2d ed., §41.) The by-laws constitute the contract between the members which determines their rights, provided they do not violate the statute or public policy. (Thomp. Bldg. Assoc., 2d ed., § 51.) The by-laws of this association, as also the certificates of stock in both classes, plainly stated the preference, and postponed the re[79] demption of guaranty stock until all series stock should be redeemed at $500 per share. It was the hope and'expectation that, with the high rate of interest then allowed and the withdrawals that were anticipated, there would be ample funds to redeem the remaining shares of series stock at maturity without resorting-to the guaranty fund; and this hope, it seems, was realized upon the first issue, leaving a fair profit to the holders of guaranty stock then matured and paid. Because the holders of series stock of later issues did not withdraw so large a proportion, and because profits were diminished by the reduction of the legal rate of interest, investors in guaranty stock were disappointed in the result, and found that instead of receiving back the amounts paid in, with a profit, they would receive but little, if anything. It must be supposed that when they guaranteed full payment to the series stockholders out of the guaranty fund, into which their monthly payments were to go, they believed that as the owners of the residue of the assets after the series stock should be retired they would be the gainers. With the plan before them, unfolded in the by-laws, they chose to invest in this guaranty stock upon the conditions stated in the bylaws and in the certificates. Their hopes, except as to the first issue, have not been realized. Without claiming any fraud or deception, they now ask that the by-laws be so interpreted in connection with the plan and purposes of such association as to allow them to share pro rata with the holders of the series stock. It is difficult to see how this can be done without impairing the right of contract or doing violence to the agreement upon the faith of which the investments were made in series stock.
Decisions have been cited to the effect that the issuance of such preferential stock in such associations is unlawful, as being in violation of certain underlying principles of cooperation, equality and mutuality which are not common to ordinary corporations, and which have been termed the common law of their existence [80] (Sumrall, &c., v. Commercial Building Trust’s Assignee, &c., 106 Ky. 260, 50 S. W. 69, 44 L. R. A. 659, 90 Am. St. Rep. 223; Winegardner v. Equitable Loan Co., 120 Iowa, 485, 94 N. W. 1110) ; but in the circumstances of this case, where the only question arises upon the relative rights of these two classes of stockholders under the by-laws and the recitals in the certificates, we believe the true rule to be as stated in section 149 cf Thornton and Blackledge on Building and Loan Associations :
“ ‘Shares conferring on their holders preferential or additional rights not enjoyed by the holders of other shares are called preference shares or preferred shares. They can only be created when the authority to create them is given by statute or charter, or by'agreement between all parties interested.’ Unless there be some law authorizing it, the power to issue preferred stock rests upon universal consent on the part of all stockholders ; but this universal consent may be contained in the articles of association providing for the issuance of such shares, adopted when the association was formed.”
As all the parties interested agreed to the preference claimed by the series stockholders, and the guaranty stockholders pledged their stock payments to make up the necessary amounts to redeem such series stock, it is not perceived how they can be relieved from their undertaking. This association differs essentially from ordinary corporations. It has no capital except such as it receives in monthly instalments from its members, and the earnings thereon; consequently its engagement to pay a definite amount to shareholders must, if the net earnings are insufficient for that purpose, be kept, if kept at all, by resorting to the fund so paid in. In the absence of any statutory inhibition, no fraud or mistake being claimed, the agreement of one class of share-' holders in a building and loan association that the amounts contributed by them in payment for stock shall be' held in a guaranty fund pledged for the redemption and payment at a certain time of the stock of another class', at a fixed amount, will be enforced, and [81] such guaranty fund will be applied according to the agreement when it becomes necessary to do so in order to effect the redemption of the shares so guaranteed.
The district court having rendered a decision in harmony with these views, the judgment is affirmed.
Smith, Graves, JJ., not sitting.