Rogers v. Burr

31 S.E. 438, 105 Ga. 432, 1898 Ga. LEXIS 531

• Court: Supreme Court of Georgia
• Decided: July 28, 1898
• Status: Published

Opinion

Little, J.

There are two main facts on which the parties are at issue, and the right of the plaintiff to recover depends upon the determination of both in her favor, to wit: (1) Did the plaintiff’s intestate contract for sixty shares of the capital stock of the Barnesville Manufacturing Company on the faith of a written agreement signed by the defendants, conditioned that the defendants guaranteed to her intestate the payment of an annual dividend amounting to eight per cent, on the shares subscribed, and also by which they undertook,_ after the expiration of three years from the date of the agreement and on thirty days notice, to pay him the par value of the stock for which he had subscribed; and (2) if the plaintiff’s intestate did so sub.scribe, did he or his personal representative so comply with the terms of such agreement as to notice, as would entitle the plaintiff to recover ? This case has heretofore been before this court, and is reported in 97 Ga. 10. Construing the contract, this court there held, that if the intestate did so subscribe, he or his personal representative had the right, at the expiration of three years from the time stated, to elect whether he would keep the stock, or turn it over to the defendants and require them to pay him par value for such stock. The court further held that such election could not be made until after November 30, 1892, and it was further held that the petition now under consideration set out a good cause of action against the defendants. To determine whether the verdict which is sought to be set aside is unsupported by evidence in the record, it is necessary to ascertain the obligations imposed by the contract on each of the parties thereto, as well as to review such portions of the evidence as bear on the questions presented. The contract upon which the suit was brought was an original undertaking by the makers with such persons as would subscribe for any portion of the balance of the capital stock of the Barnesville Manufacturing Company which remained untaken at the time of the execution of the instrument, that such makers would guarantee to such subscribers the payment of an annual dividend on the amount of átock so taken, equal to eight per cent, per annum on the money paid into said company on said stock. So that the obligation of the makers of the contract was to pay to these subscribers annually such a sum as, when added to any dividends which might be declared by the manufacturing company, would equal the amount of eight per cent, per annum on the amount which such subscribers had actually paid into the company on the stock for which they "subscribed, and this guarantee was to be in force for the term of three years from December 1, 1889. The makers further contracted with the subscribers, that at the expiration of said three years, if the holder or holders of the stock so subscribed should so desire, and did not wish to carry the stock any longer, they would, with thirty days notice given by any or all of such subscribers, pay to each holder of the stock fifty dollars (being the par value) for every share of stock so subscribed. So that the stipulations of the agreement bound the makers to pay the subscribers, as dividends on their stock for three years, eight per cent, per annum on the money such subscribers had paid for the stock, less such a sum as might be paid by the company as dividends thereon. Also, if, after three years from December 1, 1889, any or all of such subscribers did not desire to hold the stock subscribed for, the makers, after thirty days notice from such of them as did not desire to carry the stock, would pay to such subscribers fifty dollars for each share of such1 stock, upon a transfer of the same. The theory of the plaintiff’s case, as set out in her petition, is that her intestate, IT. R. Chambers, in his lifetime, under the terms and conditions of the agreement aforesaid, subscribed to sixty shares of such capital stock, of the aggregate par value of three thousand dollars. The evidence does not show the date atwhichthe alleged subscription was made, nor whether the same was in writing. But the petition alleges that before her intestate had paid for the stock he died, and that R. J. Powell, his administrator, knowing that the intestate had contracted and subscribed for the stock, carried out such contract and paid the subscription therefor and received a certificate. It was of course a question of fact to be determined by the jury whether such contract had been entered into by the plaintiff’s intestate with the manufacturing company.

1. It was insisted by counsel for plaintiff in error, that even if Chambers had contracted for the sixty shares of stock, the plaintiffs in error were not bound, because there was no consideration moving them in the execution of the instrument sued on, and also that the contract of subscription was not in writing, and did not, therefore, become a binding contract of subscription. A reference to the instrument shows, that the makers of it were residents of the town in which it was proposed to erect .and put in operation a manufacturing plant in which the promisors and promisees were jointly interested, and the subscription to the stock invited to be made was in furtherance of the undertaking. See 6 Am. & Eng. Enc. L. 704; 28 Ill. 188. In the opinion of the makers, the establishment of such a plant would add to the prosperity of the town, and thus directly to their own. Undoubtedly, such a consideration is sufficient to support the undertaking entered into; for a consideration is valid if any benefit accrues to him who makes the promise. Civil Code, §3657.

2. We also think it is not necessary to the validity of a contract of subscription to the shares of stock in a manufacturing' company that such contract should be reduced to writing. Shares of joint-stock companies are neither goods, wares, nor merchandise, within the meaning of the statute of frauds. 1 Thomp. Corp. §1068, and authorities cited in notes 11 and 12 on page 858, and-note 1 on page 859. In the same volume, §1147, this author says: “It is neither necessary that there should be a contract in writing to take and pay for shares, nor an actual receipt o'f them, or, what is tantamount, a receipt of their symbol, a stock certificate, in order to constitute one a shareholder. It has accordingly been held that one may become a shareholder without signing the stock-book or any agreement to take shares, and that a parol agreement made with the directors of the corporation to take stock can be enforced, when neither the governing statute, nor the charter, requires such contract to-be in writing”; and in notes 2 and 3 eases are cited to support the doctrine laid down. The contract of subscription for shares of stock in an incorporated company may be entered into in various ways. Whenever an intention to become a subscriber is manifest, the courts incline, without particular reference to formality, to hold that the contract of subscription subsists. It is, as in case of other contracts, very much a question of intention. Formal rules are for the most part disregarded, and, in general, a contract of subscription may be made in any way in which other contracts may be made. Any agreement by which a person shows an intention to become a stockholder, is sufficient to bind both him and the corporation. 1 Cook on Stock and Stockholders, § 52, note 1.

3. In the present case the plaintiff testified that her intestate-entered into a contract Avith the corporation for sixty shares of' its capital stock, in addition to the forty shares theretofore subscribed; and a receipt Avas introduced in evidence showing the payment by the administrator to the company of the amount due for such stock at its par value. The plaintiff further testified that such subscription was made to that part of the capital stock which the defendants in error referred to in their written agreement, and that such stock was taken under the terms and on the-faith thereof; and we must rule as a matter of law that the consideration shown was sufficient to support the contract, and the evidence that the stock was subscribed under the terms of the instrument sued on was sufficient to authorize the finding by the-jury that a valid contract for stock had been made by the intestate under the defendants’ agreement. The jury having determined that a subscription to sixty shares of stock had been made by the intestate under the terms of the agreement executed by the defendants, the question then arises, under the evidence, whether the plaintiff had so complied with the other terms of the agreement as to entitle her to recover. As we have seen, the obligation that the plaintiff should receive eight per cent, per annum for three years on the money which her intestate, or any other representative of his estate, had paid into the company under the subscription, was absolute, depending on no condition. But the agreement that the makers of the instrument would pay, at the expiration of three years, to the holders of stock subscribed under such agreement, the par value thereof, was conditional. The holders of such stock were under no obligation, at the end of three years, to sell their stock to the defendants for fifty dollars per share, but it was optional with them whether they would do so or not. Iff any holder so desired and would indicate such desire by notice as stipulated, then the makers agreed to make the purchase. It was therefore necessary in any event, at the expiration of such term, if any holder desired to-sell his stock, that notice be given to the makers of the instrument that he elected to exercise his right of option and call on them to purchase the stock. The pregnant clause in the agreement was: “ And if, at the expiration of said three years, the-holder or holders of said stock desire and wish not to carry the same any longer, we hereby agree, with thirty days notice from any or all of them, to pay each holder par value or fifty dollars for each share of stock held by them.” This contract therefore, so far as it imposed liability on the defendants to purchase the-stock, was, as has been said, conditional; and if a holder desired, under its terms, to sell his stock, he was bound to give to the makers of the instrument, within a reasonable time after November 30, 1892 (Rogers v. Burr, 91 Ga. 10), thirty days notice of the exercise of his option and of his wish to sell them his stock; and until such notice was given, there was no obligation on the part of the makers to purchase the stock of any holdfer; and if no such obligation existed until notice was given and no liability to purchase in the absence of such notice, then no right of action accrued to the plaintiff against the defendants to recover the purchase-money of the stock until such a notice had been given. The notice required by the contract was a condition precedent to the liability of the defendants to purchase the stock. If, by the express terms of a contract, notice be a condition precedent to performance, or be implied from the nature of the contract, such notice must be averred and proved. 2 Story on Contracts (5th ed.), §1332, and authorities cited in note 1 on page 504. Clark, in his work on Contracts, page 667, says: “A promise may be conditional in the sense that its operation awaits the performance of some act to be done by the promisee. If no time is specified in which the act is to be done, the non-fulfilment of the condition merely suspends and does, not discharge the rights of the promisee. Common illustrations of such conditions are furnished by cases of promises conditional upon demand or notice. If a person promises another to do something upon demand, he can not be sued until demand has been made; or if he promises to do something upon the happening of an event, and stipulates that notice shall be given him of the event having happened, he can not be sued until such notice has been given.” Apply this rule to the contract under consideration. It will be found that no time was specified in which the makers of the instrument obligated themselves to purchase this stock, except that it was not to be done until after three years from a given date. The instrument contained a promise 'that if it should so happen that the holder desired, after a given time, to sell his stock for a given price, then the defendants agreed to purchase it at that price, upon thirty days notice of such desire being given to them. It must therefore be held that, until such notice was given, the defendants were under no obligation to purchase the stock held by the plaintiff, although it had been taken under the terms of the agreement. Whether or not the notice was given is a question of fact. The plaintiff avers that it was so given. The defendants in their answer deny it. The plaintiff, in her testimony on the subject of notice, says: “ I never made any demand of the defendants for the eight per cent, interest; nor did I make demand of them to take the stock off of my hands. The only demands that ever were made were made by Mr. Burr, my husband, and they refused. Mr. Burr for me demanded that the parties should take the stock. This was done by a demand on Mr. Rogers. I never did make any demand personally. I never did give any personal notice that I wanted them to take the stock and to pay the interest.” Burr in his testimony says: “ I served each of the defendants on June 5th, 1893, with a copy of the notice (written demand). I mailed a copy to each one.” So far as the record discloses, this written demand constituted the only notice which was ever given. Some of the defendants admitted having received this notice at a given date. Others of them denied that they had ever received any notice prior to the bringing of the suit. It is fair to treat Mr. Burr, in giving the notice, as the agent of his wife and as acting for her. ’ Of course such of the defendants as received this written demand before the institution of the suit must he affected with the notice referred to in tlie agreement as of the date of the receipt thereof, if the same was given within a reasonable time after the expiration of the time when the plaintiff had a right to exercise the option; hut can those defendants who deny that they received the written demand he affected with the notice required by the terms of the agreement ? It will ho noted that while Mr. Burr says ho served each of the defendants with a copy of the notice on June 5th, 1893, lie explains this by saying that he mailed a copy to each one.-' The notice required by the terms of the contract as fixing a right in the plaintiff to demand of the defendants the purchase of her stock, could only he met by showing actual personal notice to the' defendants. The notice required is equivalent to demand. If it was a condition precedent to the institution of her suit that thirty days notice should be given that she desired to sell her stock, in order to render the defendants legally liable to purchase it, then such notice must be a demand that the defendants purchase the stock; because it is only on the failure or refusal to so purchase that the right of action accrues. The notice required being actual, it is apparent that the requirement is not met by simply mailing to the address of each of the •defendants a statement that she exercised her right of option and demanded that they purchase the stock, where the defendants or any of them deny that they received such notice, unless it be further shown that such written notice was in fact received by them. The evidence is uncontradicted, therefore, that some of the defendants received no notice prior to the bringing of the suit. In our opinion, before the plaintiff could maintain the action and recover against the defendants, on this branch of the •case, it was necessary that the requisite notice should have been .given to each of the makers. The contract was a joint obligation; and as to any particular undertaking therein set forth, .all must be shown to be liable, or none are.

4. In the next place, we do not think that the contention of 1 the defendant in error, that notice to one or more of the defendants was, in law, notice to each and every one of them, because •of the fact that they are joint contractors, is sound. We are • aware that in the case of Cox v. Bailey, 9 Ga. 467, it was held that a payment made by one of two or more joint contractors, within the statute, and before its bar had attached, constituted a new starting-point for the statute, and bound all of such joint contractors; and the ruling there made was adhered to in the case of Tillinghast v. Nourse, Stone & Co., 14 Ga. 641. The principle upon which those cases were decided was, that the same rule applied to joint contractors or joint promisors as did to partners (for which as it now exists see section 3791 of the Civil Code). Such joint contractors or joint promisors were regarded as partners with reference to the particular joint obligation. In the latter of the cases cited above, however, Lumpkin, J., delivering the opinion of the court, after stating that, owing to disqualification, he did not preside in the former case, says: “We know that the correctness of the principle, that the .admission of one joint contractor or partner binds the other, has been frequently doubted and sometimes denied. The doctrine was first laid down by Lord Mansfield in Whitcomb v. Whiting (Douglas, 652), and it is founded upon the idea that the har ■created by the statute, rests entirely upon the presumption that the debt has been paid, and that such an acknowledgment or payment removes the presumption and reviyes the original promise. And the conclusion is that in this, as in other cases, an acknowledgment by one of many who are jointly concerned is evidence against all, sufficient to remove the presumption of payment.” He further says: “ But I must say that this principle has not only been questioned in England (1 B. & Alds. 467), but from the examination by the Supreme Court of the United States, in Bell v. Morrison (1 Peters, S. C. R. 363), the foundation on which it rests found to be altogether unsatisfactory. In Pennsylvania and some of the other States it has been utterly exploded”; citing Levy v. Cadet, 17 Serg. & Rawle, 126; 4 Greenleaf, 140; also cases collected in 2 Pick. Rep. (2d ed.) 583, note 1. In the case of Hunter v. Robertson, 30 Ga. 479, the court, in declining to extend the principle announced in the 9 Ga. and 14 Ga. supra, so as to prevent the statute of limitations from attaching as against the indorser or surety by reason of a payment on a note made by the principal or maker, said that the correctness of the principle, even as to joint contractors and partners, was gravely doubted by this court, but as the question was no longer open¿ but an adjudicated one, the principle was adhered to, although a contrary holding would have been the better policy. The court further said, Lyon, L, delivering the opinion, “ If the principle is wrong when applied to joint makers — and there is no doubt in my mind but that it is — shall-we extend it to an endorser on the same fallacious reason?” We think the true law is enunciated in the case of Coleman v. Fobes, 22 Pa. St. 156, s. c. 60 Am. Dec. 75, where it was held that partial payment by one of several joint debtors, not partners at the time, was not such an act as justifies an inference of a new promise by the others, so as to remove the bar of the statute of limitations; and that joint debtors, as such, are not agents of each other. In that case, Lowrie, J., delivering the •opinion of the court, after commenting upon the case of Whitcomb v. Whiting, supra, and charging to it, for the most part, the confusion which exists in the decisions, both in England and in this country, on this subject, says: “It is not true that joint debtors, as such merely, are the agents of each other. Partners are so while the relation continues, and this is part of the law and essence of that relation, but not of that of joint debtors. The distinction is palpable, when it is noticed that a joint contract by persons not partners can have no inception, and can not be changed in time, amount, subject, form or substance, without the several act of each of the joint contractors. Their interests are joined only in so far as the contract joins them. Their contract or understanding by which they agree together to enter into the j oint liability to the creditor is one thing, and the joint contract with the creditor another thing. Their relations to each other are defined by the former, and their joint relations to their creditor by the latter; and their joint relations in one aspect in no sense define those in the other. Whether, as among themselves, one is to pay all or half or none, depends, not upon the contract with the creditor, but on their own arrangement. One alone may be the re'al debtor, and may be so abundantly able to pay that the others may be said to have no real interest in the matter. And even if they are, as among themselves, equal debtors, there is no real community of interest; for by enforcing contribution, each is made to answer for his true share.”

It can not be seriously contended that under the evidence, service of a notice to purchase the stock on Rogers was notice to the other promisors. It appears from the evidence that j\lr. Rogers procured the makers to execute the agreement which after execution was left with him to procure, under its terms, the desired amount of subscription.. Ilis agency could, under this, extend no further than to procure subscribers; when this was-done his agency ceased.

What has been said in reference to notice or demand docs not apply to-the question of recovering the dividends contracted to be paid. That right, so far as it is stipulated in the contract, is absolute (Rogers v. Burr, 97 Ga. 14); and if any legal reason exists why the plaintiff is not entitled to recover the amount of the dividends contracted to be paid during the period of three years; such reason must be founded on causes other than the want of notice.

In the view we take of the law applicable to the case, we are-constrained to rule that as some of the defendants in this case-were without notice, prior to the bringing of the suit, and therefore no right of action as to them accrued to the plaintiff upon the obligation to purchase the stock in her hands, it must follow that the verdict in her favor, requiring the defendants to pay over to her the par value of this stock, was contrary to law, and should be set aside. As above said, the contract on which the suit was brought was joint, not several, and was an obligation of the promisors jointly to purchase the stock, and not an undertaking on the part of any one severally to do so. The action, therefore, was not, as to this particular stipulation, maintainable, unless each and all of the promisors, who were in life and within the jurisdiction of the court, were not only made parties but shown to be liable. Booher v. Worrill, 43 Ga. 587; Graham v. Marks & Co., 95 Ga. 38. We have shown there could be no recovery against all for a breach of this stipulation, and therefore, because of the joint character of the obligation, there could have been no recovery against any.

Judgment reversed.

AU the Justices concurring, except Simmons, G. J., disqualified.