Elizabeth City Cotton Mills v. Dunstan

*16 Clark, J.: The agreement was that the subscription was not to be binding unless the sum of $80,000 was subscribed “by July 1.” The full amount named was subscribed at the meeting held on the night of July 1. This was a performance of the condition. “By” has many significations, but when used to designate a terminal point of time it is defined by the Century Dictionary to mean “not later than,”' “as early as.” The Standard defines it “not later than,” and Webster “not later than,” “as soon as.” The condition therefore, “by July 1” meant that the whole amount should be subscribed “not later than” July 1. It has been held that a bill or note for the payment of money “by November 1” is due on that day, Preston v. Dunham, 52 Ala. 217; Randolph on Com. Paper, Section 110. A note payable “by 20th of May” is due on that day, Stevens v. Blount, 7 Mass., 240; 1 Daniel Neg. Inst., Sec. 43. In like manner a promise to pay “against 25th of December” is due on that day, Goodloe v. Taylor, 10 N. C., 458. Anote payable “on or by” a certain day is payable on that day, Massie v. Belford, 68 111, 298. A contract to deliver “900 bushels of barley by November 1,” is performed by its delivery on or before that day. Coonley v. Anderson, 1 Hill N. Y., 519. The evidence is un contradicted that the stock was duly advertised and sold in accordance with the terms of the company’s by-laws, notice first having been sent the defendant by mail, who admits receipt. His denial of having seen the advertisement has no bearing. It is true that, in the absence of statutory authority, 'the power to declare stock forfeited for non-payment of assessments is not inherent in a corporation (23 Am. & Eng. Enc., 818), but The Code,. Sec. 664, empowers corporations to provide by their bylaws, inter alia, “the mode of selling shares for non-payment of assessments.” The by-law in this case is a reasonable one. The defendant has been unfortunate but he has. *17 no valid ground of objection to the proceeding by which he has both lost his stock and been adjudged to pay the difference between liis subscription and the price for which the stock was sold. He would have avoided all loss, if he had paid for his stock according to the terms of his subscription. The other stockholders had a right to hold him to his. contract. If this were not so, all corporate enterprises would fail in the beginning. No error.