Milliken v. . Caruso

Collin, J. The principles applied in Christensen v. Eno (106 N. Y. 97) and Southworth v. Morgan (205 N. Y. 293) are decisive of- the questions raised by the record submitted to us, and need not he expressly applied by this opinion. In this case there could not be a recovery unless the plaintiff proved a contract between the defendant and the bankrupt by which the defendant promised to pay for the shares a sum greater than the $2,000 paid by the defendant. The facts that the shares, or the certificate evidencing their existence, were issued and accepted and upon the payment of $2,000 as stated in the complaint do not allege and if proven would not constitute a promise to pay the $3,000, the part of their face value remaining unpaid, or any part thereof. The statutory conditions or other conditions or circumstances entering into the creation of corporate shares and the issuance and acceptance of the certificate may make and prove a contract. In other words, the contract may be implied. Circumstances may show that a party intended to enter into an obligation. A party may assume an obligation by putting himself in a position which requires the performance of duties imposed by law; hut the circumstances, or the characteristics of the *561 position, which create the obligation must be alleged and proved. Here we have apparently a transaction fully executed. The corporation created the shares and issued the certificate to the defendant, who accepted it and paid $2,000. Therein is no circumstance or condition which indicates that the defendant was bound to pay a further sum or that aught intended by the parties remained undone. The judgment should be affirmed, with costs. Cullen, Oh. J., Haight, Vann, Willard Bartlett, Hisoock and Chase, JJ., concur. Judgment affirmed.