Exposition Railway And Improvement Co. v. Canal Street Exposition Railway Co.

• Court: Louisiana Supreme Court
• Writing for the Court: BERMUDEZ, C.J.
• Citation: Exposition Railway And Improvement Co. v. Canal Street Exposition Railway Co., 7 So. 627, 42 La.Ann. 370 (La. 1890)
• Decision Date: 21 April 1890
• Docket Number: 10,500
• Parties: THE EXPOSITION RAILWAY AND IMPROVEMENT COMPANY v. CANAL STREET EXPOSITION RAILWAY COMPANY. JOSEPH L. HARRIS, GARNISHEE

7 So. 627

42 La.Ann. 370

THE EXPOSITION RAILWAY AND IMPROVEMENT COMPANY v. CANAL STREET EXPOSITION RAILWAY COMPANY. JOSEPH L. HARRIS, GARNISHEE

No. 10,500

Supreme Court of Louisiana

April 21, 1890

APPEAL from the Civil District Court for the Parish of Orleans Ellis, J.

W. S Benedict and Frank N. Butler, for Plaintiff in Rule and Appellant.

T. J Semmes & Legendre, for Defendant and Appellee.

OPINION

BERMUDEZ, C.J.

This is an appeal from a judgment dismissing a rule traversing the answers of a garnishee and releasing the latter from liability.

The plaintiff, having obtained a judgment for $ 12,500 against the defendant company, issued execution and under it garnished Joseph L. Harris, propounding interrogatories on facts and articles.

In his answer to the fourth interrogatory, the object of which was to ascertain from him the amount of his subscription for shares of stock in the defendant company and how much he had paid for them, the garnishee says that he never subscribed for the stock of the company, nor took any shares therein that it is true he signed a paper purporting to be an agreement to subscribe for stock; said paper was presented to him for signature by Mr. Minnegerode, but it was distinctly agreed and understood at the time this respondent signed the paper, that said paper was not to be delivered to the defendant, nor was it to become an operative agreement to take stock in the defendant company, unless and until other persons should subscribe the same on a similar paper, so as to make the subscription to the enterprise a subscription for $ 40,000 to be paid in cash, and also unless and until a contract should be entered into with Rogers, Balentine & Co., responsible contractors, to build the road, and take in part payment $ 25,000 in stock of the company, which amount of stock, with the cash subscription, would make up the total amount of the capital stock fixed by the charter, to-wit: $ 65,000.

The respondent says that the conditions above mentioned were never fulfilled, and on the 4th of December, 1884, Mr. Minnegerode, by letter of that date addressed to this respondent, informed him that he was at liberty to rescind his subscription, which this respondent did by letter of the 8th of December, 1884, a copy of which is annexed. And this respondent not only never participated in the affairs of the defendant company, but was really ignorant that it had organized or done any business under its charter.

The respondent says that the capital of the company was fixed by the charter at $ 65,000, and that in law it had no power to commence operations, or to bind by its acts any subscriber for stock, until and unless the whole amount of the capital stock had been subscribed, and this respondent avers that, at no time, was one-third of the capital stock of the defendant company taken or subscribed for, conditionally or otherwise.

The letter referred to in the answer is as follows:

NEW ORLEANS, December 8, 1884.

C. Minnegerode, Jr., Esq., DEAR SIR: On my return, after a short absence from the city, I found your favor of 4th inst., and in reply beg to say that besides your own identification with the enterprise you have on hand, I was mainly induced to subscribe to same owing to Mr. Rogers' connection with the undertaking; therefore, in view of his withdrawal, coupled with the misfortune of yesterday's newspapers publishing the failure of the concern, together with the fact of so short a time remaining in which to put the work through, I beg to accept your offer, and accordingly to cancel my subscription to the stock of your company, and remain, etc.,

J. L. HARRIS

The charter of the company is dated 19th November, 1884, and recorded 20th of that month. Article 9 is as follows:

"The capital stock of the said association is hereby fixed at $ 65,000, divided into 650 shares of $ 100 each. All stock subscribed shall be paid for at such time and on such terms as the Board of Directors may determine, provided that all such stock subscribed shall be fully paid for by the 1st of February, 1885."

The subscription paper signed by Harris is as follows:

We, the undersigned, hereby agree to subscribe the amounts set opposite our names to the capital stock of the Canal Street and Exposition Railway Company -- 25...