Mayhaw Canning & Preserving Co. v. Cohen

Holden, J., delivered the opinion of the court. The Mayhaw Canning & Preserving Company, a corporation, sued the appellee, I. Cohen, for one hundred dollars claimed to be due appellant corporation as a subscription for certain shares of its capital stock. The declaration contains two counts, one alleging that Cohen subscribed in writing for the stock, and the other claiming that he subscribed orally for- the stock, and that he failed to pay the one hundred dollars and receive the stock certificate. Prom a judgment sustaining a demurrer to the declaration, this appeal was taken. The contention of the appellant is that Cohen was bound by the written subscription for the stock, but that, if the alleged written subscription is not sufficient to bind him, then his oral obligation to purchase the stock is sufficient to hold him for the amount of the subscription. There was no delivery of the stock in whole or in part, nor was there any payment made thereon, nor security given for the purchase. [383] The appellee takes the position that the written instrument claimed to be a subscription for the stock is so indefinite as to be void for the purpose claimed; and, second, that the oral obligation to purchase the stock was void under the statute of frauds. We have fully examined the written instrument claimed to be a subscription by Cohen for the stock in the corporation, and we are convinced that it is not an obligation on the part of Cohen to purchase the stock or anything else. There is so use to quote this instrument, because it is obviously not an agreement to purchase the corporate stock. The paper signed by Cohen is so indefinite and meaningless that it cannot be considered an obligation of any kind whatever. It did not bind Cohen to take and pay for the amount of stock appearing opposite his name thereon. The paper is too indefinite to be aided by oral testimony so as to breathe sufficient life into it to constitute it a written obligation to purchase the stock. The alleged oral subscription or agreement of Cohen to purchase the stock is void, because in violation of our statute of frauds (section 3123, Hemingway’s Code [section 4779, Code 1906]). The corporate stock, represented by share certificates, orally subscribed for and to be delivered to the purchaser, was a species of personal property (see section 1591, Code 1906 [section 1358, Hemingway’s Code]) and was over fifty dollars in value, and, since there was no delivery in whole or in part, nor payment made thereon, nor security given therefor, the contract was void. In view of these conclusions, the judgment of the lower court is affirmed. Affirmed,