Horseshoe Pier Amusement Co. v. Sibley

MELVIN, J. The judgment and order of the lower court in this ease was affirmed by the district court of appeal and this court granted a rehearing in order that we might further consider the effect upon the contract, which was the basis of *444 the action, and upon the rights arising therefrom, of the organization of the plaintiff corporation without including the name of Luella Sibley in the list of subscribers. A further study of the matter has convinced us that while, under certain circumstances, such action might operate as an estoppel against the corporation, preventing it from pursuing its claim that the defendant was a stockholder, this is not a case for the application of the doctrine of estoppel announced in Monterey & Salinas Valley R. R. Co. v. Hildreth, 53 Cal. 123. In addition to that which is written upon this subject in the opinion-of the district court of appeal, it might be added that Mrs. Sibley, who made certain payments under the contract to the corporation long after its organization, is herself perhaps estopped from asserting that she was not a subscriber to the capital stock. If the action were reversed and she were suing for the delivery of stock, the corporation which had.accepted payments from her under her contract could not successfully defend upon the ground that her name did not appear upon the list of subscribers to the capital stock. Such payments and their acceptance evidence a mutual obligation binding upon both parties. Perhaps this phase of the matter could not be considered under the present form of the pleading, but if a new trial were ordered, doubtless the court would permit such proper amendments as would justify a ruling upon the result of her voluntary payments to a corporation from which she had demanded no stock. We are satisfied, however, with the opinion of the district court of appeal, which we hereby adopt. “Defendants appeal from a judgment and an order of court denying their motion for a new trial. George Sibley is made a party defendant by reason of the fact that he is the husband of Luella Sibley, also known as Mrs. George Sibley. “The action is founded upon a certain agreement alleged to-have been signed by defendant, as follows:— “ T hereby subscribe $1500 to be used in the construction and fitting out of a Pleasure Pier running from or near the foot of Pier Avenue to or near the foot of Marine Street, in the cities of Ocean Park and Santa Monica, California, and amusement buildings and structures connected therewith; and I hereby agree to pay to the Ocean Park Bank, trustee, or its assigns, upon demand, in two payments of 50% each, *445 at any time after the sum of $40,000 (including my subscriptions) has been subscribed for said purpose, the second payment, however, not to be called for until at least 60 days after demand made for the first. “ Tt is expressly understood that this is a subscription for stock in a corporation to be hereafter formed to build, maintain, and operate said pier, buildings and structures; and that I am to receive stock in said corporation when formed in the proportion that my said subscription bears to the total capitalization of such corporation. “ ‘Mrs. Geo. Sibley.’ “The court found that defendant, Mrs. George Sibley, executed and delivered this agreement to the Ocean Park Bank, as trustee, for the use and benefit of plaintiff, which was thereafter incorporated and created pursuant to and in consideration of said agreement and a number of similar agreements theretofore executed and likewise delivered, and that plaintiff is the corporation referred to in said agreement as the corporation to be thereafter formed to build, maintain, and operate the pleasure pier and structures contemplated in said agreement; that in accordance with the terms of said agreement plaintiff did construct and fit out said pleasure pier and is now the owner and in the actual possession, control and operation thereof; that more than $40,000 had' been subscribed for the purpose contemplated in said agreement; that calls were made for the amount of said subscription as follows: In November, 1905, 20 per cent; February, 1906, 30 per cent; May, 1906, 25 per cent; June, 1906, 25 per cent; that defendant paid $800 on account of the subscription made in said agreement, and, although demand therefor was made, refused to pay the remainder thereof, amounting to $700; that at the time of making the demand for said $700, the balance of defendant’s subscription, plaintiff tendered to her the amount of capital stock in said corporation which her subscription bore to the total capitalization thereof; that no representations other than contained in said agreement were made to said defendant for the purpose of inducing her to sign the same. “At the trial it was stipulated that the name of defendant Sibley did not appear in the articles of incorporation of said company as one of the stockholders thereof, nor in any of the papers or proceedings relating to the organization of the com *446 pany, or subsequent increase of the capital stock thereof. Notwithstanding this fact, the court found that by virtue of said agreement defendant Sibley was a subscriber to the capital stock of the corporation. “Appellant’s chief contention is that this finding is not supported by the evidence, and that by reason of such stipulation plaintiff is estopped from claiming defendant to be a subscriber to the capital stock, for the reason that her name did not appear as a stockholder in the articles of incorporation. In support of such claim appellant cites the case of Monterey & S. V. R. R. Co. v. Hildreth, 53 Cal. 123. In that case the action was by a corporation to recover assessments levied upon stock alleged to have been owned by the party sued. The only point involved therein was the defendant’s obligation to pay the assessments levied upon the stock the ownership of which he disclaimed. In the case at bar, however, the obligation of defendant Sibley is not founded upon her ownership of stock in plaintiff corporation, nor upon any assessment levied thereon in accordance with the provisions of section 332 of the Civil Code, but such obligation rests solely and alone upon the written agreement and promise to pay the sum subscribed to be used in the construction of the pleasure pier and amusement buildings and structures connected therewith. Clearly, the contract is a valid one. Under the terms thereof, the payment of the amount subscribed did not depend upon the creation of the corporation, but she agreed to pay the same to the trustee named at any time after $40,000 had been subscribed for such purpose, upon demand therefor, in installments of 50 per cent each, the second installment being payable not less than sixty days after the first payment. While she was entitled to the stock, delivery of which was tendered her, the question of her membership therein is wholly foreign to the controversy, plaintiff’s right to recover, as we have seen, resting upon an express promise to pay, not upon an obligation due to the relation of stockholder. (West v. Crawford, 80 Cal. 19, [21 Pac. 1123]; San Joaquin L. & W. Co. v. Beecher, 101 Cal. 70, [35 Pac. 349].) 'A stockholder may expressly agree to pay the amount of his subscription immediately, or at stated times, and thus relieve the corporation of the duty of making calls. He will be liable to pay upon such contract according to its terms.’ (Kohler v. Agassiz, *447 99 Cal. 9, [33 Pac. 741]; California Southern Hotel Co. v. Callender, 94 Cal. 120, [28 Am. St. Rep. 99, 29 Pac. 859].) “Appellant also insists that in the absence of an assignment of the agreement by the trustee to whom the subscription was made payable, plaintiff cannot maintain suit to enforce payment. In view of the findings heretofore referred to, and the further finding that said agreement ‘was made solely for the benefit of plaintiff/ no formal assignment was necessary. That plaintiff was not named in the agreement is immaterial, for, notwithstanding such fact, it clearly appears that the subscription was made for its benefit and in contemplation of its creation. ‘In legal effect, the promise of defendant was to pay to the plaintiff corporation when organized/ (Marysville etc. Co. v. Johnson, 93 Cal. 538, [27 Am. St. Rep. 215, 29 Pac. 126].) Plaintiff was the real party in interest, and therefore could maintain the action. (Code Civ. Proc., sec. 367; Western Development Co. v. Emery, 61 Cal. 611.) Its right in this respect is unaffected by the fact that the Ocean Park Bank, as trustee of an express trust, might also, by virtue of the-provisions of section 369 of the Code of Civil Procedure, have maintained a like suit. “There is no merit in the contention that the calls or demands as made were for a less sum than 50 per cent of the amount subscribed. Defendant could not be prejudiced by such fact. Moreover, she, having voluntarily paid all of her subscription except a balance of $700, is in no position to insist that she be released from her obligation upon the ground that, such balance is less than 50 per cent of the whole sum subscribed. “A number of objections are urged to the rulings of the court in admitting testimony, but they are largely based upon appellant’s theory that the contract was non-enforceable by reason of the fact that defendant’s name was omitted from the articles of incorporation, and are fully answered in discussing that point. “There was no abuse of discretion on the part of the court in reserving its decision upon defendant’s motion for a non-suit. It was properly denied. “A careful examination of all the points to which our attention has been called in appellant’s brief discloses no prejudicial error, and, as said by this court in Los Angeles National Bank *448 v. Vance, 9 Cal. App. 57, [98 Pac. 58], upon every principle of right and justice, as well as upon authority,’ the judgment and order should be, and are, affirmed.” Sloss, J., Angellotti, J., Shaw, J., Lorigan, J., and Henshaw, J., concurred.