Holliday v. Persons

1. In a contract of subscription to stock in a proposed corporation it is implied that all the capital stock shall be subscribed, as a condition precedent to the subscriber’s liability for payment of the amount' of his subscription. Particularly is this true where the total amount of the capital stock and the number of shares are stated in the subscription'agreement, as in'the case under-consideration. 1 Cook on Corporations (7th ed.), § 176; 1 Thompson on Corporations (2d ed.), § 529; Memphis Branch R. Co. v. Sullivan, 57 Ga. 240; Hendrix v. Academy of Music, 73 Ga. 437 (3). Therefore, *in the absence of any estoppel against the defendants or any waiver by them of the non-performance of this condition precedent to their liability, there is no liability against them for their unpaid subscriptions to the capital stock, where the total capital stock has not been fully subscribed. This is true even against creditors of a 'bankrupt corporation,'who are a favored class and against whom a stock subscriber is estopped from setting up certain defenses against the payment of his stock subscription, which he could set up against the corporation, unless it can be shown that the stock subscriber has by his conduct become estopped from setting up his right under the contract as against the creditor. The defendants are entitled, even as against creditors, to stand on the terms of their [786] contract and can avail themselves of the non-performance of any condition precedent to their liability, unless by their acts and conduct towards the corporation or the creditors they have become estopped from relying upon the defense which the contract gives them. In a suit by the trustee in bankruptcy, in behalf of the creditors, which discloses .the contract providing a condition precedent to the defendants’ liability and fails to allege the performance of this condition, no cause of action is set out where the petition fails to disclose facts which would operate as an estoppel against the creditors. There being no such facts disclosed in the petition, no cause of action in the trustee is alleged. Stearns v. Sopris, 4 Colo. App. 191 (35 Pac. 281); Hollander v. Heaslip, 137 C. C. A. 1 (222 Fed. 808); Exposition Ry. &c. Co. v. Canal St. &c. Ry. Co., 42 La. Ann. 370 (7 So. 627); Birge v. Browning, 11 Wash. 249 (39 Pac. 643); Heiskell v. Morris, 135 Tenn. 238 (186 S. W. 99, Ann. Cas. 1918B, 1134); Converse v. Gardner Co., 174 Fed. 30 (98 C. C. A. 16). The allegation in the petition that the “ incorporators ” held a meeting and accepted the defendants’ subscriptions to the capital stock, organized the corporation, and began business, can avail the plaintiff nothing by way of an allegation that the defendants took any part in this meeting or in the organization of the corporation. The subscribers to the capital stock a,re not necessarily the incorporators. The incorporators are the persons obtaining the charter. See 2 Words & Phrases, 1623. Construing the petition most strongly against the pleader, as we must, it does not appear that the act of the incorporators in organizing the corporation was the act of the defendants, who, it appears, were only subscribers to the stock. Whatever right, if any, the creditors may have had to presume that after the organization of the corporation the minimum capital stock had been subscribed and the liability of the subscribers had thereby become complete, this presumption can not avail against a subscriber who relies upon the terms of his contract, and has not done anything that would estop him from setting up his legal defense thereunder. The creditors are protected under the Civil Code (1910), § 2220, which provides as follows: “Persons who organize a company and transact business in its name before the [787] minimum capital stock lias been subscribed for are liable to creditors to make good the minimum capital stock with interest.” 2. It appears from the petition that two of the defendants, at some indefinite time, made partial payments to the corporation upon their stock subscriptions. This, it is contended by the plaintiff, amounted to a waiver by the defendants of any right to insist upon a subscription of the minimum capital stock as a condition precedent to their liability. Since it does not appear when the payments were made, this can avail the plaintiff nothing. The payments, so far as it appears from the petition, may have been ’made at the time the subscription agreement was entered into, and therefore, not being an act subsequent to the accrual of the rights under the. agreement, can not amount either to a waiver by the subscriber of the performance of the condition precedent to his liability or to an estoppel against the assertion of his rights under the contract. It certainly does not appear that the payments were made after the corporation was organized and had begun to transact business. If not so made, the act of payment certainly was not such an act respecting the operating of the corporation as would amount to a waiver or estoppel beneficial to creditors. See, in this connection, Birge v. Browning, supra. 3. The cases of Chappell v. Lowe, 145 Ga. 717, and Lowe v. Byrd, 148 Ga. 388 (supra), are distinguishable from this case. In the first case the stock subscription sued on was entered after the corporation had organized and had begun doing business. The second case was a suit against the subscribers to stock in a corporation, instituted by a trustee in bankruptcy in behalf of creditors of the corporation, some of whom were directors of the corporation. A judgment was rendered in favor of the defendant subscribers, upon the ground that the creditors, being directors, could not recover, and that, as there were sufficient funds to pay the other creditors, it was therefore unnecessary to go upon the defendants. The case as reported is where the directors excepted to this judgment. The Supreme Court, in affirming the judgment, held that the directors of the corporation, being, on account of their relationship to the corporation, charged with notice of the corporation's affairs, could not recover unpaid subscriptions where the minimum capital stock had not been subscribed. No question as to the liability of the stockholders was there involved. Judgment affirmed. Bell, J., concurs. Jenkins, P. J., dissents.