Oler v. Baltimore & Randallstown Railroad

Brent, J., delivered the opinion of the Court. ' This is an action of assumpsit brought by the appellee to recover a subscription to its stock, to which the appellant has pleaded non-assumpsit. The first exception is taken to the -admissibility of the certificate of incorporation of the appellee, as the Baltimore and Randallstown Railroad, offered in evidence, which the appellant insists ought not to have been admitted by the Court below. This certificate of incorporation recites, that certain persons have associated together for the purpose of constructing a horse railroad in accordance with the provisions of the Act of 1870, ch. 476, “the termini of said road to be the city of Baltimore and the village of Randallstown ; the whole route of said road passing through Baltimore County, the Baltimore terminus being within the City of Baltimore.” It is claimed that the purpose of this Association is not embraced by the Act of 1870, and that the persons who had associated together to form this company, could only become a body — 589 — corporate under the “Corporation Act” of 1868. It is very manifest, that they could not become a corporation under the last mentioned Act. That Act only makes provision for the construction of railways outside the limits of the city of Baltimore. The railroad contemplated in this case was to pass through Baltimore county, and run within the limits of the city, where there was to be one of its termini. A certificate of incorporation under the Act of 1868 would therefore have been of no avail, and could have conferred no corporate rights upon those obtaining it. But it is said on the part of the appellant, that they could not legally obtain an existence as a corporation under the Act of 1870, because the railroads referred to in the provisions of that Act, are roads similar to those alone upoii which steam is at present used as the motive power. We do not see why so limited a construction should be put upon this law. It would be against both its spirit and letter. The term railroad is used without qualification or restriction, and we have found nowhere, either in the preamble or body of the law, any allusion to the motive power used as limiting its ordinary.meaning or making a distinctive class. It is very true that many of the special requirements, contained in the law, are applicable only to railroads of the character of those upon which steam is now used. Had they not been made parts of the law, it might have furnished an argument that would not have been without weight, that such roads were intended to be excluded from its operation, but we do not understand that their being in the law can furnish any sound reason for the exclusion of other classes of railroads, when the language of its general provisions, as is the case with the law before us, is broad enough to embrace them. The other objection to the certificate is, that it is acknowledged before a justice of the peace in Baltimore city, and certified to by a Judgcof the Supreme Bench of that city, when the acknowledgment and certificate, could — 590 — only have been attested by a. Justice and Judge for Baltimore county. This objection has for its foundation the statement in the articles of association as follows: “the whole route of said road passing through Baltimore county.” We will here say, as the point has been made in argument, and is properly before us, that we do not concur with the counsel for the appellee, that the certificate of a Judge, to articles of incorporation under the corporation laws of this State, is final and cannot be inquired into. His authority to sign the required certificate is a qxiestion of jurisdiction, and as such, is a proper subject of inquiry lay the Courts, when the legal existence of the corporation is put in issue before them. Whether the mere form of proceedings, taken to create a corporation, is open after the Judge has certified that they are formal, is not involved in this case, and we must he understood as expressing no opinion about it. But we do not think there has been an improper exercise of jurisdiction by the Justice and Judge, who have' attested this certificate of incorporation. To ascertain the route of the road it is not sufficient to look at a part of the articles of association, but it is to he ascertained from the whole. We not only find them containing what we have quoted above, hut it is also stated in them that one of the termini of the road is to be “within the city of Baltimore.” This cannot be, unless the road in its route passes through some portion of the city, as well as through Baltimore county. • A part of it, therefore, being designed to be located in the city,, the certificate of incorporation could he attested by the proper officers in that city as well as it might have been done by the proper officers in the county. The next exception is to the ruling of the Court in permitting the subscription hook to he read in evidence to the jury. The objection to it is, that it purports to he a subscription to the stock of the Baltimore and Randallstown Horse Railroad, while the corporate name is the Balti — 591 — more and Randallstown Railroad. The subscription list is headed as follows: “Baltimore and Randallstown Railroad; We the undersigned, whose names are hereto affixed, do hereby agree to subscribe to the amount of stock set opposite to our names in the capital stock of the Baltimore and Randallstown Horse Railroad, to run, &c.” This certainly is such a description of the corporation as enabled the subscribers to know and understand the exact corporation, to the stock of which they were subscribing, and this is all that the law requires. The true corporate name is given at the commencement of the heading to the list, and the introduction of the additional word in the name, where it afterwards appears, could not mislead, but rather tended to a fuller and more certain description of the corporation by explaining to some extent at least, its character and purpose. It is a much stronger case than the one in 5 H. & J., 123, which was also an action to recover upon a subscription list, and in which it was attempted to avoid responsibility upon the ground that the true title of the corporation had not been given. The principle decided in that case would make the present subscription list a valid one, with no other name upon it, designating this corporation, except the one objected to. It is there said in the opinion of the Court, “if there is enough in the expressions used to describe the corporation intended, it will effectuate the contract.” That there is enough used in the expressions to describe this corporation cannot admit of a doubt. We think the objection is without weight, and that the proof was properly admitted. The prayer of the plaintiff, which was granted, and the fourth and fifth prayers of the defendant, which were refused, present the same question. The capital stock of this company is limited to forty thousand dollars, but it appears they have obtained a further subscription to the — 592 — amount of eight thousand dollars in excess of that sum. This the appellant claims releases him from liability upon his subscription. Whether it does or not depends upon the facts in the case. If the appellee has not the ability to give the appellant a valid certificate of stock upon the payment of the money subscribed by him, there is a failure of consideration on their part, and all the authorities agree there can be no recovery. The fact, however, of taking additional subscriptions does not of itself render the company unable to comply with its part of the contract, or excuse a subscriber in refusing for that reason to pay his own regular subscription. If all the authorized stock has not been signed, and the corporation has retained a sufficient amount, which it is ready and able to issue to the subscribe! when he performs his part of the contract, he cannot reasonably complain. Litchfield Bank vs. Church, 29 Conn., 137; Smith, et al. vs. North American Mining Co., 1 Nevada, 430. If the present appellant was a subscriber for the additional unauthorized stock, there could be no recovery against him, and he would clearly.be within the principle decided in the case of McCord vs. The Ohio & Mississippi R. R. Co., 13 Ind., 221, so strongly relied upon. But such is not the fact. He is one of the earliest subscribers to the original stock of forty thousand dollars, and the testimony shows there are four thousand dollars, or eighty shares of that stock not issued — being twenty shares more than the number subscribed for by him. The appellee is then in a condition to give him a valid certificate of stock upon the payment of the money by him, and being able to do this the company is entitled to recover in this action. The Court was therefore right in giving an instruction to this effect, and refusing those asked for by the appellant containing the opposite view. The first prayer of the ajDpellant is in reference to the sufficiency of the certificate of incorporation, and has been disposed of by what has been said in considering the first — 593 — exception. The second prayer is upon the theory, that the appellee was not entitled to recover except upon proof of the payment of five dollars upon each share by the appellant at the time of his subscription, and the case of Taggart vs. Western Md. R. R. Co., 24 Md., 583, is relied upon in support of it. That case is different from the present one. There the Act of incorporation required one dollar to be paid by the subscriber at the time of making his subscription to the stock, while in this case the Act directs that five dollars on each share shall be payable at that time. Act, 1870, sec. 6. Thus by the very terms of the latter Act the validity of the subscription is not made to depend upon the actual payment at the time of a sum certain upon each share, as in the case of Taggart vs. Western Md. R. R., but its meaning, and effect is to fix the time when such sum becomes due cmd collectible. The third and sixth prayers, presenting questions of proof as to demand and notice, have been waived, as they are in direct conflict with the evidence in the case. (Decided 5th March, 1875.) The rulings of the Court below being without error, the judgment will be affirmed. Judgment affirmed.