Dorman v. Jacksonville & Alligator Plank-Road Co.

Baltzell, C. J. delivered the opinion of the Court. This is a suit instituted to recover instalments for stock alleged to be due to this Company. Defendant demurred to the 7th, 8th, 9th, 10th, 11th and 12th counts of the plaintiffs’ declaration, but the Court adjudged them sufficient, and this ruling presents the first question for the consideration of the Court. — 279 — The seventh count objected to, is a specimen of the others, and its disposition will avoid the necessity of treating each of them separately. It alleges “that on the 1st of March, 1851, the plaintiffs were a body corporate, duly chartered by the Legislature of the State, and being such body corporate, a book of subscription to the Capital Stock of said Company was afterwards opened, and the said defendant subscribed for three shares of the Capital Stock of said Company, of one hundred dollars each ; by means whereof the said defendant became and was a stockholder in said body corporate, and in consideration of said three shares, the said defendant made and executed a promise or -agreement in writing and delivered the same to said plaintiffs, by which he promised to pay to the Treasurer of said plaintiffs the amount of three hundred dollars for th e said three •shares of stock, in such amounts and at such times and places as should be required by the Directors of said Company, and said plaintiffs aver that on the 9th of June, 1853, the Directors of said Company required twenty per cent., or sixty dollars of said amount, to be paid on or before the 15th of August next ensuing.” In the case of Barbee, vs. the same Plank-Road Company, 6 Florida, 265, the validity of a declaration based upon an engagement of the like kind with, that of the present defendant, was before this Court. It is true the principal objection there, was to the constitutionality of the law, yet other points were raised, and the sufficiency of the declaration was directly presented and adjudicated. Nor do we .see any reason to doubt the propriety of the decision then given. It is very true if a point material to the case of the defendant had been passed without notice, or even if a question then made had been erroneously decided, we should feel bound, on being satisfied in this respect, to give him the benefit of the new light, and to correct the error. But we — 280 — see nothing in the new points presented to raise a doubt as-to the correctness of the former adjudication. The decision of the Court is excepted to in sustaining the-3d, 4th and 5th dilatory pleas. These assert “that the heading to the book of subscription of stock, was unknown to defendant, and unauthorized by the Act of incorporation»’ and he was ignorant of the said heading, and believes it was entirely unauthorised,” &c. This is certainly a novel mode of raising an objection of the kind. The plaintiffs-had not declared upon a specific subscription in writing with any particular heading, nor attached any such to their -declaration. The allegation as we have seen, was that defendant became the purchaser of three shares of stock for which he agreed to give three hundred dollars. Now the true point in issue was as to this engagement, and his plea -of the general issue enabled him to set up and shew the precise nature, extent and character of his engagement, without regard to plaintiffs’ proof; and if this heading,made .against his consent, being a part of the agreement, changed it any degree, it certainly was competent for him to prove-it, and with such proof to sustain his defence. But it is by .no means competent in this action for a defendant to anticipate a portion of the plaintiffs’ testimony, raise an issue upon it, and assail it in this manner. Besides, it is not alleged how and in what respect this heading altered the engagement as actually made — to what extent it was effected by it, so as to enable the Court to judge of the injury •complained of. We see nothing then to satisfy us that the Court erred in the decision made as to these dilatory pleas-The next assignment of error is that the Judge over-ruled the demurrer of plaintiff to the second dilatory plea of defendant. This may be ground of exception by plaintiff; it is difficult to perceive how defendant was damnified by a decision thus made in his favor. — 281 — The next objection is that the Court sustained the plaintiffs’ demurrer to the first amended plea, and struck out the 2d, 3d and 4th amended dilatory pleas. This first amended plea is but a reiteration of the previous ones as to the heading of the agreement, and is obnoxious to the objections already stated. The second and third amended pleas set up a failure to pay the instalments, by reason of which failure and the Act of incorporation of the Company, the defendant’s stock became forfeited, and therefore that he is not liable to make further payment. The point raised by these pleas was fully considered by thé Court in the the case of Barbee, already cited, page 297, so that this ruling of the Court was not improper. The 4th amended plea reiterates the subject of the heading of the subscription paper already alluded to. Complaint is made of the Court’s overruling the 7th and 8th pleas in bar, the first of these alleging that the plaintiffs let off and declared the stock of other stockholders forfeited, without any payment, and settled with others on a partial payment. It is scarcely necessary to say that this forms no ground of discharge or satisfaction of defendant’s obligation. If wrong has been done in this respect, the injury maybe repaired by the Directors or injured stockholders, or by legal action,, and not by a renewal of the wrong by this Court. The eighth plea overruled by the' Court, alleges that the plaintiffs have abandoned their undertaking of building and constructing the said Plank-Road according to the said .Act of incorporation. Conceding that the Company have arrived at the conclusion not to prosecute the work of con. strueting a road such as was designated, it by no means follows, as we conceive, that their contracts and engagements are thereby at an end and abrogated. Very clear282 ]y, debts due by the Company to other individuals for work and service rendered the Company are not abrogated, and their own ability to discharge these may be dependent upon their realizing from the claims due by their own debtors. If all the debts due by the corporation were settled and adjusted, even then the legal consequence would not rightfully follow, for one or a few stockholders may have paid all their subscriptions and advanced means, wh'Ist others may have paid none and thereby defeated the undertaking. To acquit and discharge the latter, would be to offer a premium to wrong — to tempt those who entered upon these undertakings to seek the means of evasion and of escape from a just responsibility. A Court of Chancery on being satisfied that the Stockholders had paid an amout equal to their engagement, so as to make the burthen equal amongst them all, might interfere, in case of abandonment of an undertaking, to prevent further calls ; hut in a Court of Law we are clearly of opinion that the defence as set up here is not sustainable. Sucha state of things if true, might work a forfeiture of the Charter, but its truth could only be tried by proper proceedingsinstituted against the Corporation, in which proceedings the issue could be made. So long as the Corporation exists,it has a right to sue for and recover its lawful demands. In Angelí & Ames, on Corporations, page 575, it is said, in treating of suits by Corporations — “Neither can it be shown “in defence that the plaintiffs have forfeited their corporrate rights by misuser or nonuser. Advantage can only “ be taken of such forfeiture on process in behalf of the “ State, instituted directly against the Corporation, for the “ purpose of avoiding the Charter or Act of Incorporation. “ And individuals cannot avail themselves of it in collater- “ al suits until it be judicially decided.” Citing numerous cases, note 2. — 283 — Again on page 746, the same doctrine is laid down in different words : “ A cause of forfeiture cannot be taken advantage of or enforced against a Corporation, collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose against the Corporation, so that it may have an opportunity to answer.” Citing authorities, note 1. There are five other pleas asserting the same defence as to the heading of the subscription, the forfeiture of the stock, letting off the subscribers, to which demurrers were sustained. Of these we have this to say, that the Court should not have'permitted them to be filed, as the same questions presented in almost the identical language had been just determined. The Court owed it to itself — to its own dignity and character — to reject such effort to repeat and renew and reiterate the same defence. The most that a party can reasonably expect, is to have his defence adjudged and decided; when this is done his duty is to submit. On the trial of the case the plaintiff offered in evidence, the book of subscription of the Jacksonville and Alligator Plank-Roak Company, which was objected to on the ground of variance between it and the bill of particulars. We are wholly at a loss to percieve the variance alluded to. The bill of particulars is, for amount of subscription, $300; June 1,1853, to 20 per cent, on shares, $60 ; August 5, 20 per cent, on shares, $60 ; November 1, to 20 per cent, on-shares, $60. The subscription is, “ we agree to pay to the Treasurer of the Company the amount- of stock hereto subscribed, in such amounts and at such times as shall be required by the Directors of the Company.” The variance alleged in the brief is that there is a single name attached to the bill of particulars, whilst there are many to the agreement. It is scarcely necessary to say that this does not reach the form of an objection, much less the substance of one.— — 284 — The defendant moved the Court to instruct the jury, “ that it was necessary for plaintiffs to prove that defendant was aware of the heading or agreement at the beginning of the book of subscription when he subscribed for stock in the said book. This was obviously improper and should not have been given. With the same propriety a party having a note might be required to show that the part of the instrument preceding the signature had been written previous to the signing. The Court, instead of rejecting it absolutely, gave a qualified instruction going as far in favor of defendant as he had a right to expect. So another, the third instruction, to about the same effect, was asked and refused with the qualification. The other instruction refused, was as to the forfeiture of the stock, which we have already stated, has been sufficiently adjudicated by this Court. We then find no error in the ruling or adjudication of the Court below, and the judgment is therefore affirmed with costs.