Davis & Rankin Bldg. & Mfg. Co. v. Caigle

• Decision Date: 20 May 1899
• Court: Tennessee Supreme Court
• Parties: DAVIS & RANKIN BLDG. & MFG. CO. v. CAIGLE.

53 S.W. 240

DAVIS & RANKIN BLDG. & MFG. CO. v. CAIGLE.

Court of Chancery Appeals of Tennessee.

May 20, 1899.

Appeal from chancery court, McMinn county; T. M. McConnell, Chancellor.

Bill by the Davis & Rankin Building & Manufacturing Company, for the use of Chicago Building & Manufacturing Company, against E. Caigle. There was a decree for plaintiff, and defendant appeals. Reversed.

W. T. Lane and Gaston & Madison, for appellant. Young Bros., for appellee.

NEIL, J.

The bill in this case was filed on a contract or undertaking to pay to Davis & Rankin Building & Manufacturing Company the sum of $100 towards the erection of a butter and cheese factory at Grady, in McMinn county, this state. The bill alleges that the contract had been assigned to the Chicago Building & Manufacturing Company, and the suit is therefore instituted in the name of the former for the use of the latter. The defenses contained in the answer are as follows: First, a general denial of all liability; second, that no demand for payment has been made of the defendant; third, that the Davis & Rankin Building & Manufacturing Company has not complied with the condition of the contract, upon which the money was to be paid in, that no stock was ever issued or tendered to the defendant; fourth, an averment that the Chicago Building & Manufacturing Company has no interest in the obligation sued on; fifth, that there was no consideration for the contract; sixth, that both the complainants are foreign corporations, and have not complied with the statute authorizing them, or either of them, to do business in this state, or in McMinn county. The chancellor adjudged that the complainant owed the defendant nothing, and dismissed the bill. The complainant has appealed and assigned errors.

The contract sued upon is entitled as follows: "Contract and specifications for a combined butter and cheese factory on the co-operative and farmers' protective system." It then proceeds: "The Davis & Rankin Building & Manufacturing Company, of Chicago, Illinois, party of the first part, hereby agrees with the undersigned subscribers hereto party of the second part, to build, erect, complete, and equip for said party of the second part a combined butter and cheese factory at or near Grady, Tenn., as follows, to wit." Here follow the dimensions of the factory building and a list of the machinery, with a reference to specifications upon the next page. The instrument then continues: "Said building shall be constructed and finished in substantial accordance with the specifications hereon, in a workmanlike manner. The engine and boiler and all other machinery and fixtures shall be properly set up and in good running order before the party of the second part shall be required to pay for said factory. The party of the second part hereby agrees to select and furnish suitable and reasonably level lands for said building, together with well, spring, or reservoir on said lot for the use of the building; and it is further understood that, in case said second party shall fail to furnish said land and water within ten days after the execution of this contract, the Davis & Rankin Building & Manufacturing Company, at its option, may select and furnish land and water in behalf and at the expense of the subscribers. The Davis & Rankin Building & Manufacturing Company further agrees to provide and keep hired at the expense of the stockholders an experienced butter and cheese maker for one year, if desired. The Davis & Rankin Building & Manufacturing Company agrees to erect said butter and cheese factory, as set forth by the above specifications, for forty-nine hundred and fifty dollars, payable in cash when the factory is completed. We, the subscribers hereto, agree to pay the above amount for said cheese and butter factory when completed. Said building to be completed within ninety days, or thereabouts, after the above amount ($4,950) is subscribed. Any portion of the amount subscribed not paid according to contract shall bear legal rate of interest. As soon as the above amount ($4,950) is subscribed, or in a reasonable time thereafter, the said subscribers agree to incorporate under the laws of the state, as therein provided, fixing the aggregate amount of stock at not less than the amount subscribed, to be divided in shares of $100 each. Said share or shares, as above stated, to be issued to the subscribers hereto in proportion to their paid-up interest herein; and it is herein agreed that each stockholder shall be liable only for the amount subscribed by him. All money that shall be paid in or collected upon this contract in excess of the contract price of the plant shall belong to the party of the second part. It is hereby understood that the Davis & Rankin Building & Manufacturing Company will not be responsible for any pledges or promises made by its agents or representatives that do not appear in this contract, and made a part thereof, either in print or writing. For the faithful and full performance of our respective parts of the above contract, we bind ourselves, our heirs, executors, administrators, and assigns."

The paper on which the contract was written consisted of two sheets. The first sheet contained what we have written above, and was signed by the Davis & Rankin Building & Manufacturing Company as the first party, a blank being left on that page only for that signature. On the back of that sheet were the specifications already referred to, and then followed, on the next sheet, — being the third sheet, — a blank form for subscriptions as follows:

                                                    Amount of
                 Names of        Number            Stock After
                Subscribers.    of Shares.         Incorporation
                

On this paper, among others, the name of the defendant Caigle was signed as follows:

                                                    Amount of
                 Names of        Number            Stock After
                Subscribers.    of Shares.         Incorporation
                 F. Caigle          1                  100
                

This contract was dated on the 4th day of October, 1894. On the 2d day of November. 1894, the Davis & Rankin Building & Manufacturing Company transferred it to the Lake Street Manufacturing Block, and the latter company transferred it on the 1st of December, 1894, to the Chicago Building & Manufacturing Company. The Davis & Rankin Building & Manufacturing Company completed the factory according to the terms of the contract, but the defendant, Caigle, refused to pay, and relies in his answer on the defenses we have above mentioned....