Baltimore City Passenger Railway Co. v. Sewell

Robinson, J., delivered the opinion of the Court. This is an action to recover damages for the refusal on the part of the appellant, to issue and deliver to the appellees certain certificates of its capital stock, to which they claim to he entitled, as set forth in the declaration. The plaintiffs obtained a verdict below, and the defendant filed motions for a new trial and in arrest of judgment, both of which were overruled by the Supremo Bench of Baltimore city, and this appeal is taken from the order overruling said motions. I. — The motion for a New Trial. In Sauer vs. Schulenberg, 33 Md., 288, and Merrick vs. Balt. & Ohio R. R. Co., 33 Md., 481, it was held, that the granting or refusing a new trial by the Supreme Bench under section 33 of Article 4, of the Constitution, was a matter resting in the sound discretion of the Court, and its action thereupon was not the subject-matter of review upon ap — 250 — peal or writ of error. We find nothing in the case before us to exempt it from the operation of this well established rule. II. — The motion in Arrest of Judgment. The question on this motion is, whether the facts averred in the declaration and found to be true by the jury, constitute a sufficient cause of action to entitle the plaintiffs to a judgment. If the cause of action be defectively stated, such defect is cured by the verdict, because to entitle the plaintiff to recover, “all the circumstances .necessary in form or substance to complete the title so imperfectly stated, must be proved at the trial, and it is therefore a fair presumption that they were proved.” Gould on Pleadings, 497; Coulter vs. Trustees of West. Theol. Sem., 29 Md., 74. Where however, no cause of action is stated, such a defect is fatal, and the Court will on motion arrest the judgment. It is contended, that the cause of action set forth in the pleadings, is defective, because although precedents may be found for an action by an assignee of shares against a corporation for wrongfully refusing to perfect an assignment or transfer of the same on its books, yet in this case the stock, of which a transfer is demanded, did not exist prior to May, 1862, when the company became incorporated, while the alleged acts of assignment all took place one or two years previously. We start then, with the concessum, that an action will lie against a corporation for wrongfully refusing to -issue certificates of stock to a party entitled. Let us see then, how far the case before us differs in principle from the one thus admitted. The appellees, it is true, do not sue as subscribers, nor in the character of assignees of stock of the appellant, but found their right to recover upon the fact, that Brock, whilst a member of the association, assigned to them certain shares of the latter, whereby they claim to be entitled upon its incorporation, to a given number of shares of the company. — 251 — The declaration avers that Brock and others, being assignees of certain City Passenger Railway franchises acquired under an ordinance of the Mayor and City Council of Baltimore, constituted themselves into an association for the purpose of using and operating said railway franchises, and did by articles of association, provide, among other things, that the beneficial interest in the properties, rights and franchises of the association should be divided into forty thousand equal shares of the par value of $50 per share; that these shares were transferable on the books of the association; that provision was made for its incorporation; that in pursuance thereof it became duly incorporated, whereby all the property and rights and franchises of the association became vested in the new company; and that by the express terms of the Act of incorporation, the associates became entitled to the stock of the appellant, in proportion to their respective interests in the association. Under these averments, the right of the associates to stock of the company in lieu of their shares in the association, is beyond all question, and wo think it is equally clear that, upon a refusal to issue the same, an action at law would lie. If so, why should a bona fide assignee stand upon a different footing? If the association, upon demand and presentation of his muniments of title, had refused to transfer the same upon its books, a Court of Equity would have enforced it, and if the association had in the meantime become incorporated, capable of suing and being sued at law, there is no reason why the assignee should be obliged to seek relief in equity. The right then, of an associate or his assignee to sue the appellant for its refusal to issue certificates of stock to which he is entitled, does not differ in principle from that of an ordinary assignee of stock. If any equities existed at the time of the assignment, or have intervened subsequent thereto, and prior to the demand of the assignee, affecting the interest of the assignor in the shares thus assigned — if the latter was indebted to the association, and such indebtedness was under the articles of the associa — 252 — tion or by-laws, a lien on the shares of the assignor, these and other like defences could be relied on in an action at law as well as in a suit in equity. But it was insisted, that if the appellees claim as assignees of shares of the association, the declaration upon its face shows that the transfer was not made on its books in pursuance of the articles and by-laws of the association. The legal effect of a provision in the charter or by-laws of a corporation, requiring a transfer of its stock to be made on its books, has often been the subject matter of controversy, and although a literal construction has been given in Connecticut to such clauses, yet in other States, and in the Supreme Court of the United States, a more liberal construction, and one far more in accordance with'their spirit and meaning, has been adopted. In regard to such provisions, says Angeli & Ames on Corporations, sec. 354: “ As they are intended merely for the protection of the interests of the corporation, no effect is given to them further than is necessary to effect that purpose. It is necessary that an incorporated company should have the means of knowing who are stockholders and members, in order that they may know to whom dividends are to be paid, and who are entitled to vote upon the stock; and where the company has a lien upon the stock for debts due to it from a stockholder, that it should have the means of preventing a transfer in derogation of its own rights. To secure this knowledge, and to enable corporations to avail themselves of their lien upon the stock of the company without danger to the rights of purchasers, these clauses are usually inserted in their charters, or form a part of their by-laws. Accordingly, where transfers of stock are made without conforming to the requisitions of the charter or by-laws in making them, or having them registered on the books of the company, the better opinion decidedly is, that the transfer passes to the purchaser all the right that the seller had; and that such provisions do not incapacitate the owner of the stock from transferring it at his pleasure, by way of equitable assignment of his interest in — 253 — it, subject to the charter rights of the corporation. In other words, such provisions, whether by charter or by law, apply solely to the relation between the corporation and its stockholders — to the questions, who shall vote, to whom dividends shall be paid ; and enable the corporation to protect any lien it may have upon the stock, or equity in it, as between itself and the stockholder transferring it.” And in considering this question, Redfield on the Law of Railways, vol. 1, 113, says, “the assignee need only make his right known to the company, and require the transfer to be entered upon the books, and his title becomes perfected.” In accordance with these views, it has been repeatedly decided that an assignee may sue a corporation for refusing to issue or transfer certificates of stock, although the assignment was not made on its books, in pursuance of the charter and by-laws. Bank of Utica vs. Smalley, 2 Cow., 770; Sargent vs. Franklin Ins. Co., 8 Pick., 90; Mechanics’ Bank vs. N. Y. and N. H. R. R. Co., 13 N. Y., 624; N. Y. and N. H. R. R. Co. vs. Schuyler, 34 N. Y., 80; Gilbert vs. Manchester Iron Manufacturing Co., 11 Wend., 628; Kortright vs. Buf. Com. Bk., 20 Wend., 91. In the cases relied on by the appellant, the question was whether such an assignment would pass title against a creditor of the assignor who had attached the stock in the hands of the company prior to a transfer on its books; or against a subsequent purchaser without notice; or against the lien of the company on the stock for an indebtedness of the stockholder. Fisher vs. Essex Bk., 5 Gray, 378 ; Blanchard vs. Dedham Gas Light Co., 12 Gray, 215; Union Bk. vs. Laird, 2 Wheat., 390; Pinkerton vs. Manchester and Lawrence R. R., 42 New Ham., 427. If such is the effect of a provision of this kind in the charter or by-laws of a corporation, we see no reason why the same effect should not be given to such a provision in the articles or by-laws of the association, and more particularly as the association was formed and the articles adopted with a view of being incorporated. It is not to be presumed that such a provision was intended to better the right of transfer by — 254 — unreasonable and unnecessary restraints, but on the contrary, in providing that the shares should be transferable, to afford every facility for the sale and convertibility of the same, consistent with safety to the association. If then, the transfer from Brock, although not made on the books of the association, passed his title and interest in the shares to the appellees, and in lieu thereof, they became entitled to the stock of the appellant, we think it is equally clear that upon a refusal to issue the same an action may be maintained in their names. The shares thus assigned may differ in some respects from an ordinary chose in action, and may be regarded as the muniments and evidence of the holder’s title to a given number of shares in the property and franchises of the association, yet nevertheless, they are personal property, the title to which will pass by a transfer and delivery. If the transfer is not made on the books of the association, as required by the articles and by-laws, the transferee acquires at least an equitable title, which it was the duty of the association to recognize and permit to be ripened into a complete legal title, and, if prior to a demand it had become incorporated, it was equally the duty of the company. For a breach of this duty, a duty imposed by the very terms of its charter, we are of opinion that an action at law may be maintained in the name of the transferee. But it is further contended, that it does not appear upon the face of the pleadings that the appellees are bona fide assignees. The declaration however avers an assignment under seal by Brock, accompanied by a delivery to the plaintiffs of the certificates of shares attached to said assignment, and further, that under a call subsequently made by the appellant, the appellees paid to its treasurer authorized to receive the same, one dollar per share on the capital stock to which they were entitled by reason of the assignment as aforesaid. These averments, however, it is said, are not inconsistent with a mere.naked power, not coupled with an interest, to which it may be replied they are equally consistent with an interest — 255 — under the power. Moreover, this objection is not made on demurrer, but on a motion in arrest of judgment, and on the ground that these averments do not constitute a sufficient cause of action to entitle the plaintiffs to a judgment upon a verdict, in support of which, every fair legal intendment is to bo made. It may be true, that the appellees must be bona fide assignees to entitle them to recover, but where the declaration avers an assignment under seal, accompanied by a delivery of the certificates of stock, the Court will, on a motion in arrest of judgment, pi’esume that the assignment was made for a bona fide consideration, and that the jury so found. We are not to be understood however, as intimating that the declaration would have been bad even on demurrer, because it does not aver an assignment for a valuable consideration. Crawford vs. Brooke, 4 Gill, 213; McDowell vs. Goldsmith, 6 Md., 343. But it is also contended, that the Act of incorporation, as set forth in the declaration, required the capital stock of the new company to be divided among the members in proportion to their respective interests in the association, to be by them ascertained at the time of the acceptance of the charter, and that a party claiming a transfer of shares of the company, should either show that he or his assignor was the actual holder of the stock upon the books of the company, or that he or his assignor had such an interest, by ascertainment made at the time of the acceptance of the Act of incorporation. We do not understand however, it is contended, that this ascertainment was a condition precedent to the organization of the company. On the contrary, it was admitted, and the declaration avers, that the charter was acccepted, and all the pre-requisites to making the same operative, and constituting the defendants a body corporate, were duly complied with. Can it then, be construed as a condition precedent to the right to sue the company for its refusal to issue to a member certificates of stock to which he claims to be entitled? Clearly not. The Act provided that an acceptance thereof by a ma — 256 — jority of the members should be binding on all, and various causes might operate to prevent an ascertainment at the time of its acceptance. In fact, the very majority thus accepting might refuse to make the ascertainment at that time, and not being a condition precedent to the incorporation of the company, the latter would be entitled to all the property of the association, and according to the view of the appellants, the members would be obliged to seek relief in equity. And why in equity? The articles of association provided that the beneficial interest in the properties, rights and franchises thereof should be divided into a given number of shares, of a fixed and determinate value, and the Act of incorporation provided, that the associates should be entitled to the stock of the company in proportion to their interests in the association. There is no reason why this interest could not be ascertained, subsequent as well as prior to the acceptance of the charter. True, the ascertainment ought to have been made at the time of the acceptance of the charter, but the mere failure to do so could not in any manner affect the right of an associate or his transferee to the stock of the company to which they were entitled, under its charter, in lieu of their shares in the association. If, prior to notice and demand by the appellees, the company had ascertained the number of shares to which Brock was entitled as an associate, and had issued the same to him, or any one claiming under him, or if by reason of an indebtedness by him to the association, he was not entitled to the stock claimed by the appellees, these, and other like defences, could and ought to have been relied on at the trial below. This brings us to the last reason urged in support of this motion, namely: that in all the counts of- the declaration the claim of damages embraces, not only compensation for the stock, but the dividends accrued thereon. It does not occur to us as being very unreasonable, that in a suit against a corporation for refusing to issue certificates of stock to a party entitled to the same, he should, in addition.to the value — 257 — of the stock, be allowed the dividends which had accrued thereon prior to the demand. If he is entitled to the stock, he is also entitled to the dividends, and we know of no rule of pleading which forbids his claiming damages in the declaration for wrongfully withholding the same. An action at law against a corporation for refusing to issue or transfer stock, is a convenient common law remedy to obtain compensation in damages, in lieu of a proceeding in equity tor' specific performance. In The King vs. The Bank of England, Doug., 523, Lord Mansfield refused a mandamus to compel the bank to enter a transfer of stock on its books, upon the ground that an action would lie at law for complete satisfaction, equivalent to the specific remedy by mandamus. How it is very clear, that in cases where equity has jurisdiction, Courts have not only decreed that the certificates of stock should issue or be transferred, but in addition, have decreed payment of the dividends which may have accrued. In Bowman Chew and Wm. Goldsborough vs. The Bank of Balt., 14 Md., 299, this Court decreed, that the bank should make the transfer as prayed in the bill of the complainant, and also pay the dividends accrued thereon, with interest on the same. In an action at law, a party may not be able to enforce a specific performance, yet he ought to be entitled to complete satisfaction, equivalent to specific relief in equity, and if he can only recover the value of the stock at the time of the demand, with interest to the day of sale, it is very clear he gets no compensation for dividends which have accrued prior thereto, for the interest allowed is in lieu of dividends accruing subsequent to the demand. A party would therefore be compelled to bring a suit for the value of his stock, and another suit to recover the dividends declared thereon. In the cases cited by the appellant, the question was as to the measure of damages, in regard to the stock itself, whether the plaintiff was entitled to recover the value of the same at the time of the demand, or the value at the time when the same ought to have been transferred; or the value at the time — 258 — of the trial, or at any intermediate period. In such cases, the general rule is, that the plaintiff is entitled to recover the value of the stock at the time of the demand, with interest thereon. The question however as to the right to recover in addition thereto, the dividends which may have accrued prior to the demand, did not arise, and was not considered in any of these cases. (Decided 23d February, 1872.) We see nothing, therefore, either on principle or upon authority, to prevent a party from claiming in the same suit, the value of the stock, together with the dividends due thereon; and in such a case, the measure of damages would be the value of the stock at the time of the demand, together with the dividends accrued thereon at that time, with interest to the. day of trial. And such is. the claim made in the plaintiff’s declaration. It was said in argument, that damages were allowed by the jury to the day of trial, but they are assessed generally, and it is not for us to say, on a motion in arrest of judgment, that the jury have assessed other damages not claimed in the declaration. Order affirmed.