DocketNumber: L. A. No. 232
Citation Numbers: 5 Cal. Unrep. 469, 46 P. 287
Judges: Vanclief
Filed Date: 10/3/1896
Status: Precedential
Modified Date: 1/12/2023
The plaintiff is a corporation organized in accordance with the laws of this state for the purpose of constructing and operating a railroad in this state. Its capital stock, as fixed by its articles of incorporation, is $250,000, divided into two thousand five hundred shares of $100 each, of which shares only two hundred and sixty had been subscribed prior to the commencement of this action, and two hundred of which were subscribed prior to the incorporation. Subsequent to the incorporation, in June, 1892, the defendant subscribed for twenty shares at the price of $2,000, and at the same time paid to plaintiff ten per cent of the par value thereof, and on June 15, 1893, paid a call of the corporation for an additional ten per cent of the subscription, and on July 13, 1893, paid another call for ten per cent, said payments aggregating $600. On June 6, 1895, the corporation made another call on all the subscribers for forty per cent of their subscriptions, the defendant’s proportion of which was $800. The defendant refused to pay this last call, and thereupon this action was commenced to enforce payment thereof. The defendant’s demurrer to the complaint having been overruled, and he having declined to answer the complaint, judgment was rendered against him for said sum of $800, with interest and costs. Defendant brings this appeal from the judgment, upon the judgment-roll, and asks a reversal of the judgment on the alleged ground that the court erred in overruling his demurrer.
The alleged grounds of the demurrer are that the complaint is ambiguous and uncertain and that it does not state a cause of action. In addition to the facts above stated the complaint contains the following allegations: “ (4) That prior to the incorporation of the plaintiff corporation there was actually subscribed to its capital stock for each mile of the contem
The following is a copy of Exhibit A, referred to in the above:
“EXHIBIT A.' AGREEMENT.
“Whereas, for the development of the material interest of the town of San Buenaventura and the territory embraced within the Ranchos Santa Ana and Ojai, it is deemed necessary to have railway communication in and between said town and territory, and in the nature of a street railway; and whereas, a local corporation can best attain such object: Now, therefore, we, the undersigned, hereby agree to and with each other that we will together form a corporation to be known as the Ventura Railway Company, having all the corporate powers that may be deemed necessary or appropriate in the premises. We further agree that we will subscribe to the capital stock of said corporation in and at its organization the sum severally set by us opposite our respective names, and thereon pay in cash ten per cent in accordance with the law regulating the formation of railway corporations, and upon the subscription hereto of not less than $20,000; that such corporation' shall be formed by the subscribers hereto for the purposes suggested herein.
■Subscribers. Stock Amount of
Subscribed. Cash.
W. S. Chaffee............. ...........$2,000 $200 Pd.
Richard Robinson......... ............2,000 200 Pd.
Joseph Hobart............ ........... 1,000 100 Pd.
E. P. Foster.............. ........... 2,000 200 Pd.
K. P. Grant............... ...........2,000 200 Pd.
E. S. Hall................ ........... 2,000 200 Pd.
J. K Gries............... ...........2,000 200 Pd.
G. W. Chrisman.......... ........... 2,000 200 Pd.
W. H. Wilde............. ...........2,000 200 Pd.
A. D. Bamdrd........... ........... 2,000 200 Pd.
A. Bernheim............. ........... 1,000 100 Pd.
“Whereas, under and pursuant to the foregoing agreement and subscription, there was incorporated the Ventura & Ojai Valley Railway Company, to the capital stock of which there*473 was subscribed the amounts above named by the parties named respectively: Now, therefore, we, the undersigned, subscribe and agree to take the number of shares set opposite our names, respectively, and thereon pay the amount in cash named, to wit, ten per cent of the amount of stock by us subscribed, to A. Bernheim, treasurer of said corporation:
Subscribers. Stock Amount of
Subscribed. Cash.
J. S. Collins...............:.......$2,000 $200 Pd.
F. Hartman....................... 2,000 200 Pd.
J. R. Thorpe...................... 2,000 200 Pd.”
1. Counsel for appellant contend that the averment in the fifth paragraph of the complaint, that the defendant, by his subscription, agreed to pay the sum of $2,000 “when and as it might be demanded,” is inconsistent with the subscription itself, as exhibited and made a part of the complaint, because, they say, there is no express promise of Collins, Hartman and Thorpe, who subscribed after the incorporation, to pay more than ten per cent of the $2,000 subscribed by each of them. The pleader evidently attempted to state the subscription contract according to its legal effect; and, if he did so, the alleged inconsistency does not exist. The only question, therefore, to be considered is one of construction of the subscription agreement. Read in the light of the circumstances alleged in the complaint, I think the subscription agreement implies a promise to pay the full sum subscribed upon such demands or calls as should be made therefor by the corporation; and surely whatever is implied in an agreement, though not expressed, may consistently and properly be alleged in a complaint upon such agreement. A subscriber for stock is one who has entered into an express contract to take a certain definite number of shares of the original issue of stock: Cook, Stock, Stockh. & Corp. Law, sec. 10, and notes. “The contract of subscription for shares of stock in an incorporated mump any may be entered into in various ways. Whenever an intent to become a subscriber is manifested, the courts incline, without particular reference to formality, to hold that the contract of subscription subsists..... Formal rules are, for the most part, disregarded”: Id., see. 52, and notes. “A subscription for shares implies a promise to pay for them, and this promise sustains an action to collect, without proof of any particular consideration. This rule
2. It is claimed by appellant that the complaint is ambiguous and uncertain as to whether the action is founded upon the subscription agreement or upon the statutory liability of a stockholder to the creditors of the corporation. But I perceive no ambiguity nor uncertainty in this respect. The action is brought by the corporation, and not by a creditor thereof, and unequivocally counts upon defendant’s subscription to the capital stock of the corporation.
3. It is claimed that the complaint does not state a cause of action for the same reasons that it is said to be ambiguous and uncertain, and no other reason is specified by counsel. These reasons having been disposed of, no further consideration of this ground of demurrer is necessary. I think the judgment should be affirmed.
We concur: Searls, C.; Belcher, C.
For the reasons given in the foregoing opinion the judgment is affirmed.
March 11, 1897.
Upon the authority of Ventura etc. Ry. Co. v. Hartman, 116 Cal. 260, 48 Pac. 65, this day decided, the judgment entered herein is reversed, and the superior court is directed to sustain the demurrer to the complaint.