Hoyt v. Quicksilver Mining Co.

Dykman, J.: It is not necessary to decide whether the resolution of February 24, 1870, directing the issue of preferred stock is ultra vires or not. If all the shares had been voted on at the meeting which adopted it, and had voted in the affirmative, it would have been 180 binding- on the company, and it follows that so far as the issue of the stock was sanctioned by the 75,658 shares voting for it, it is. to that extent valid and binding now. In respect to the holders, of the balance of the common stock, their subsequent acquiescence deprives them of the right to challenge the act, to the same extent, as their previous license would have done. If they intended to raise any objection it was incumbent on them to do so promptly, and not allow the public to deal in the preferred stock under the belief engendered by their silence and inaction that no objection would be made against its validity ; this they failed to do, and having remained silent when equity and good conscience required, them to speak, they ought not to be permitted now to object when, equity requires them to keep silent. It is quite true that mere lapse of time will not show knowledge» of the issue of the stock in the remaining holders of the common stock, but under all the facts and circumstances of the case, such, knowledge must be imputed to them, and it would be inequitable to allow them after the great lapse of time to disturb the stock after the money raised by its sale has all been used for the benefit, of the company and cannot now be restored. The judgment of the Special Term should be affirmed, with, costs.