Rice v. Pacific Railroad

Napton, Judge, delivered the opinion of the court. This was an application for a mandamus to compel the Pacific E. E. Co. to issue certificates of stock to plaintiff for seven shares of the capital stock of said company. The petition was filed in December, 1871. There is no dispute that this subscription was fully paid up in 1859, either to the company or its authorized agents. The defendant pleaded the statute of limitations. On the trial it appeared, and was so found by the court, that plaintiff had fully paid up on all calls for his seven shares of stock; [148] ■ and the records of the defendant, which were offered in evidence, clearly showed that he was admitted to have paid all but about 70 dollars. The evidence established clearly, that ■ this 70 dollars was paid to Col. Grover, an agent of the company, who died shortly after the payment. Then on Sept. 28, 1870, the Board of Directors of said company passed a resolution, declaring the plaintiff’s stock to be forfeited for the reason that this last call for $70 had not been paid. Various instructions were asked concerning the statute of limitations, which the court refused to give. It is useless to copy these instructions. We are of the opinion, that the statute did not run in favor of defendant until 1870, when the trust was repudiated, and the defendant’s stock declared forfeited. This suit was commenced in 1871. The plaintiff was in fact, assuming the court to have correctly found a full payment of the slock in 1859, a member of the company and a stockholder. No attempt was made until 1870 to debar him of this position. Then a resolution was passed, declaring his stock forfeited by reason of a failure to pay a small sum charged against him in the books of the company. Up to this date the plaintiff had no right to assume, that his position as a stockholder would be disputed, and he had no right of action. The defense of the statute of limitations is of no avail, since previous to 1870 the plaintiff’s position as stockholder was never denied, and the court properly refused all instructions or declarations of law on that point. • The judgment of the Circuit Court is affirmed, the other judges concurring. Judges Wagner and Sherwood absent.