Phillips v. Allegheny Car Co.

Mr. Justice Paxson delivered the opinion of the court, October 23d 1876. A reserved point must be based upon certain facts admitted in the cause or found by the jury. In this case the facts are admitted; expressly stated to be so in the point itself. The court below entered judgment on the reserved question for the defendant, and judgment on the verdict, which is assigned here for error. The case was tried below upon the theory that the contract was conditional, and that the right of the defendants to pay for one-half the lumber in stock of the defendant corporation depended upon their prompt payment in cash for the other half. But the facts as set forth in the reserved point are not so. It is there stated, “that it was a part of the contract that one-half the price was to be paid by defendant in cash, within the first fifteen days of each month, for the lumber delivered in the preceding month, and the other half was to be paid in the stock of the company at par value.” This was certainly an unconditional contract, but it was urged that the whole became payable in money for two reasons, viz.: 1. The failure to pay for one-half in money as the lumber was delivered, and 2. The failure to tender the stock. In regard to the first proposition, it is sufficient to say that the agreement to take pay in stock for one-half was absolute, and not contingent upon the prompt pay 372 ment of the cash portion. A-refusal to deliver the stock would undoubtedly have made the whole sum payable presently in money, but we are unable to see how a mere failure to pay the cash on the days and times appointed can enable the plaintiffs to rescind the contract and demand payment of the whole in money. Nor do we see that the failure to tender the stock to the plaintiffs can have such effect. It is true there is a line of cases which decide that where a contract is made to pay in a particular commodity the debtor must have the article at the time and place.designated in the contract for its delivery, or he becomes liable to pay in money : Roberts v. Beatty, 2 Penna. R. 63; Church v. Feterow, Id. 301; Fleming v. Potter, 7 Watts 380; White v. Tompkins, 2 P. F. Smith 365. There is also the case of Brown v. Foster, 1 P. F. Smith 165, in which Foster had done certain work for Brown under an agreement that one-half of it was to be paid for on completion, by Brown’s notes at six and twelve months. Before the period at which the first note would have matured, Foster brought suit, and was permitted to recover, on the ground that the giving of the notes was a privilege to Brown, and unless he chose to avail himself of it by delivering or tendering the notes at the time, the demand became a money demand, and Foster could sue at once. The court held that there was no agreement for time, and that the giving of the notes was the price of the indulgence and a condition precedent to his obtaining time. The present case is easily distinguished from any of those above cited. Here the contract was with a corporation. It agreed to pay for one-half the lumber in its own stock. Had the contract been to pay in a horse, or even in the stock of another corporation, the case would have been materially different. But here the stock was to be issued by the defendant corporation to the plaintiffs, and to that extent they became purchasers from said corporation of its own stock. Having paid for it in lumber, they became in fact and in law the owners of the stock, and were entitled to demand a certificate therefor from the company. The stock of a corporation is an intangible thing; it can neither be seen nor handled. The certificate is the mere evidence of its existence, and of the title of the owner. The failure of a corporation to issue certificates of stock for the first instalment of the subscription is no defence to a suit for a subsequent one: Shelbyville v. Shelbyville & Eminence Turnpike Co., 1 Met. (Ky.) 54; Hardy v. Merriweather, 14 Ind. 203; Vawter v. Ohio Railroad Co., Id. 174. A subscriber who has paid for his stock cannot recover his money back for the mere failure to deliver the stock without a previous demand for it. It was even held in Arnold v. Suffolk Bank, 27 Barb. 424, that “ an action for money had and received will not lie against a corporation by one who has subscribed for a certain number of shares and paid for them, merely on the ground that the company refuses to deliver the certificates.” There was no allega 373 tion here that the defendant corporation was not ready and willing to issue to these plaintiffs the certificates of stock to which they were entitled under this contract.- In the absence of such demand and refusal, we do not think the defendant is in any default, and the judgment must be affirmed.