Walter A. Wood Harvester Co. v. Jefferson

CANTY, J. [2] This is the second appeal in this action. See 57 Minn. 456, 59 N. W. 532. After the last appeal the complaint was amended by alleging that the plaintiff corporation is able, ready and willing to deliver to the defendants the shares of stock so subscribed for by them. On the trial thereafter had, the court ordered a verdict for plaintiff for the amount claimed, and from an order denying a motion for a new trial defendants appeal. 1. The stock subscription on which this action is'brought is in the following form: [369] “We, the undersigned, severally subscribe for and agree to take and pay for the number of shares set opposite our names, respectively, of the capital stock of the Walter A. Wood Harvester Company (being the same corporation formerly known as the Minneapolis Harvester Works), of the par value of one hundred dollars each. “These subscriptions shall become binding as soon as stock in the said company to the amount of $1,500,000 at par value shall have been subscribed for, of which amount stock to the amount of $750,-000 at par value shall be subscribed for by the Walter A. Wood Mowing & Reaping Machine Company of Hoosick Falls, N. Y., or by the stockholders in that company. The payment on the subscriptions shall be made in instalments as called for by the board of directors of said company, and at such times as said board shall direct, provided that not moré than fifty per cent, thereof shall be called for or be payable within one year from the first day of January, A. D. 1892.” Among others who signed it, the appellants signed for 50 shares. We are clearly of the opinion that this was a subscription for stock, not a sale of stock, and that a tender of the stock before bringing suit was not necessary; that it was sufficient to allege and prove that plaintiff is ready and willing to deliver the stock on receiving payment, and this is all that was held on the former appeal. 2. Appellants assign as error that they were not allowed to prove that several other subscribers to this agreement had paid for their stock in property worth less than the amount subscribed. These assignments of error are not well taken, if for no other reason, because no such defense is pleaded. 3. The testimony that the plaintiff corporation expended money for the purposes for which it was organized, may, as appellants claim, have been wholly immaterial, and if so its admission is error without prejudice. i 4. Appellants offered to prove that it was falsely represented to them by the person who solicited their subscription, and by another who subsequently became an officer of the corporation, that the corporation was to be a branch of the Walter A. Wood Mowing & Reaping Machine Company of Hoosick Falls, N. Y., and that its factory was to be located in a certain portion of St. Paul, and that they were induced to sign the subscription list by reason of these representations. The offer was refused. It was not competent [370] for several reasons. The subscription signed showed that it was not a branch of the New York corporation. While the answer set up these false representations, it did not allege that the stock or assets of the .plaintiff corporation were worth any less than they would have been if the representations were true, and it alleges that the stock is worth one hundred dollars per share. The evidence was not competent, because it did not appear that the other subscribers to the agreement were privy to, or had any notice of, these false representations. See Minneapolis v. Davis, 40 Minn. 110, 41 N. W. 1026. 5. A large number of the subscribers to this agreement were corporations, among them the Walter A. Wood Mowing & Reaping-Machine Company of New York. It is claimed by appellants that these corporations had no authority under their articles of incorporation to subscribe for this stock; that their acts in doing so were ultra vires; that, if the subscriptions of these corporations are rejected, the remaining amount subscribed will not be sufficient to comply with the terms of the contract, which provides in effect that it shall not be binding until stock to the amount of $1,500,000 is subscribed for. It appears by the evidence that all of these corporations have paid their subscriptions in full except two; that the total amount of the subscriptions of these two is but $5,000; and that the balance of the total amount of the subscription, after deducting that sum, is $1,503,150, being- more than the amount required by the contract to make the subscription binding. Besides, appellants signed the contract after most of these corporations had, by their officers, signed it, and must be held to have known that their signatures were then on the paper. Appellants paid five per cent, of their subscription, and so far as appears never made any objection to the signatures until after this action was brought. Under all of these circumstances, the objection was clearly waived, even if it could ever have been made at all in such an action as this. See Union v. Hersee, 79 N. Y. 454; U. S. v. Foehrenbach, 148 N. Y. 58, 42 N. E. 403. See, also, Hause v. Mannheimer, 67 Minn. 194, 69 N. W. 810; Duluth v. Witt, 63 Minn. 538, 65 N. W. 956. There is nothing in appellants’ claim that it was error to receive [371] evidence as to the different calls made by the board of directors for the unpaid subscriptions on all of the stock. This disposes of the case. Order affirmed. Footnotes [2] BUCK, J., absent, took no part. [2] Reported in 74 N. W. 149.