Dupee v. Chicago Horse Shoe Co.

GROSSCUP, Circuit Judge, after the foregoing statement, delivered the opinion of the court. The verdict being general, it is not apparent on the record upon which alleged subscription the finding of the jury was predicated. Error, therefore, in respect to the trial of either of the issues thus presented, would be fatal to the judgment of the Circuit Court. We are of the opinion, however, that there was no such error. There is nothing in the statute of Indiana (i Horner’s Rev. St. §§ 3851-3869) which calls for or contemplates that subscriptions to the stock of a company about to be incorporated shall be embodied in the certificate of incorporation; nor is there anything in the statute forbidding the embedding of a subscription in the articles of incorporation. The liability of the defendant in error, in that respect, iherefore, is to be governed, not by any Indiana statute, but by the general rule relating to such contracts. The general rule is that in contracts of this character, as in others, the paper submitted to the court and jury is to be interpreted according to its intent. No particular formality is requisite. A signature to the articles of incorporation required by statute, with' the number of shares placed opposite to the signature, may be a sufficient subscription to bind both the corporation and the subscriber. The real question is, Was such paper intended and accepted as a subscription ? Cook, Stock & S. (3d Ed.) § 52; Nulton v. Clayton, 54 Iowa, 425, 6 N. W. 685, 37 Am. Rep. 213; Warehousing Co. v. Badger, 67 N. Y. 294. In the case last cited, the subscription was contained in the certificate of incorporation and was embodied wholly in the words “250 Shares” placed opposite to the party’s signature. It was held to be sufficient in form and substance and to take effect simultaneously with the filing of the certificate. In this view of the law the issue made upon the original declaration was properly submitted to the jury. The instructions submitted to the jurors the question, Whether the plaintiff in error intended thereby to subscribe for the stock; and there is no reason why the verdict of the jury upon such submission should be disturbed. Upon the issue raised by the second paper, it is insisted, principally, that the court erred in admitting secondary evidence of the contents of the original subscription, there being no sufficient proof of the loss or destruction of the original. In this contention we cannot concur. There was evidence sufficient to go to the jury, tending to show the execution of the original, and there was evidence of sufficient search through both the papers of the company in the custody of the treasurer and the papers of the attorney into whose possession it had originally come. The proof [44] of search would,' unquestionably, be regarded as sufficient, were it not for two items of evidence cropping out on the trial, viz: (x) that in the attorney’s opinion the paper had been transferred to the general manager, and the general manager’s denial of having ever received it; and (2) the statement of the president that he had seen the papers in the hands of the former secretary, such former secretary not being called as a witness. The first of these occurrences is clearly of no force. The attorney did not testify that the paper was turned over to the general manager. Such was his guess or opinion only. The expression of such guess, followed by the denial of the general manager, can have no effect upon the competency of the other testimony, or upon the adequacy of the search, except as it may affect the credibility or accuracy of the attorney’s testimony. Nor is the second of the occurrences fatal to the verdict. The papers of a corporation are presumably in the possession of the officer presently charged with their custody. But, had it been known that this particular paper was not to be found, though it had once been in the possession of Shields, a former custodian, and were Shields within reach of the parties, it might very reasonably have been incumbent upon the defendant in error, before introducing the secondary evidence, to have exhausted Shields’ memory of the whereabouts of the original and required him to make such search a's would have satisfied the court that it was no longer in his possession. But Shields’ possession of the paper was only disclosed on the trial and in a cross examination. The witness was not then within the reach of the court; and his whereabouts was not known. Under such circumstances there was no duty to arrest the progress of the trial until the testimony of Shields could be procured. The incident is one of those that occur frequently in trials and. must be dealt with only according to the exigencies of the situation. We see in neither of these •occurrences any substantial reason why the secondary evidence should not have been admitted and the whole question, as one of fact, submitted to the jury, as it was. Other exceptions, relating to the admissibility of the resolution of the board of directors of October 30, 1898, and the record of the minutes of the stockholders’ meeting of September 28, 1899, have been brought to our attention, but may be disposed of with the statement that, in our judgment, there was in those respects no error. The judgment will be affirmed. Footnotes [¶] See Corporations, vol. 12, Cent. Dig. §§ 197, 201.