Racine County Bank v. Ayers , 12 Wis. 512 ( 1860 )

By the Court,

Paine, J.

Most of the questions presented in this case have already been determined by this The validity of conditional stock subscriptions, was assumed J L 1 by the court in the case of The Fox River Valley Railroad Co. vs. Shoyer, 7 Wis., 365; and it was expressly sustained in the case of The Milwaukee and N. I. R. R. Co. vs. Field, argued at the last term. Undoubtedly there might be a condition annexed to such a subscription, which, from its peculiar character, might make the agreement void, as against public policy. But if the condition itself has no such character, the mere fact that there is a condition, does not invalidate the agreement. It is true, that in New York it has been held that a subscription, conditioned upon a certain location of the road, is void, as against public policy; it being supposed to introduce motives of private interest to control the location, instead of leaving it to be determined as public convenience might require. But this doctrine has not been adopted in other states. On the contrary, their courts have held such subscriptions valid. See Pierce on Am. P. R. Law, pp. 70, 71, and cases there cited. And after carefully considering the question, we are of the opinion that those courts have taken a correct view of the law. The charters of these companies impose such restrictions and requirements upon them as, in the opinion of the legislature, the public interest and public policy demand. And it having done so, it must be assumed that within these limits the company is left to accomplish the enterprise as best it may. And the mere fact that in some agreement it may appear that motives of private interest, may, to some extent, operate in influencing its action, ought not to be held to make such agreement - void, as against public policy. It is vain to suppose that such enterprises can be accomplished without the operation of such motives. They constitute the mainspring of human action, and must inevitably operate to a greater or less extent, in the execution of all great enterprises of this character, and we think it may be safely assumed that so long as the company complies with the requirements of the charter, the struggle between conflicting private and local interests will, from the necessity of the case, be so adjusted as best to advance the . enterprise and accommodate the public generally.

The power of the company to contract for the payment of interest on advance payments for stock, was also sustained in the case of R. R. Co. vs. Field; and the assignability of stock subscriptions, in the cases of Downie vs. Hoover, Downie vs. Page and Downie vs White, at the last term.

The only other points presented here are the following: It is said that this agreement does not purport to be made with the Racine & Mississippi R. R. Co., and that there is no allegation of any mistake, and that therefore this action cannot be sustained. This objection might be good, if it could be assumed that the Racine & Mississippi R. R. Co. was one corporation, and the Racine, Janesville & Mississippi R. R. Co. another. But this, in view of the allegations in the complaint, cannot be assumed. On the contrary, the complaint expressly avers that the name of the corporation was changed from the latter to the former, at about the time of making this agreement, and that it was made with this corporation by its old name. If this allegation was true, the misnomer would not defeat an action on the contract. Templeton vs. Craw, 5 Grreenl., 417; 13 John., 38; 10 Mass., 360; 6 Serg. & Rawle, 12; Ang. & Ames on Corp., § 234.

The question whether it was competent for the company to agree that the subscriber might forfeit his stock, after paying one-third, does not seem to be fairly presented on this demurrer. Eor the agreement is dated on the 5 th of July, 1855, and by its terms he was required, in order to avail himself of that condition, to give notice previous to the 1st of July, 1855, of his intention to forfeit. This was impossible, and the condition, therefore, never really existed. Merrill vs. Bell, 6 Smedes & Marsh., 730; Hughes vs. Edwards, 9 Wheat., 493-4.

The judgment must be reversed, with costs, and the cause remanded for further proceedings.