International Fair & Exposition Ass'n v. Walker
| Decision Date | 16 October 1891 |
| Citation | 88 Mich. 62,49 N.W. 1086 |
| Parties | INTERNATIONAL FAIR & EXPOSITION ASS'N v. WALKER. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.
Action of assumpsit for a stock subscription by the International Fair & Exposition Association of Detroit against Hiram Walker. Verdict and judgment for plaintiff. Defendant brings error. Reversed. This is the second appeal. For prior report, see 47 N.W. 338.
William Aikman, Jr., (F. A Baker, of counsel,) for appellant.
Marston, Cowles & Jerome, for appellee.
At the first trial of this cause the defendant introduced no testimony, and the court below directed a verdict for the defendant. Upon the review of that record this court reversed the judgment, and directed a new trial. 83 Mich. 386, 47 N.W 338. It has been again tried substantially upon the same testimony upon the part of the plaintiff. The defendant introduced some testimony tending to show that when he subscribed it was represented to him that he should have an opportunity of inspecting the several sites offered before one was accepted, and also the part he took in the meeting held by the subscribers to the paper signed by him, pursuant to the call of the board of directors. He admits that when he subscribed he was told that the site afterwards adopted was one of the sites in contemplation, but he claims that he was not properly treated by the meeting of the 18th of March, because an adjournment to enable him to investigate other sites offered at that meeting was voted down. He admits that he voted, not only the shares represented by his subscription, but also, as proxy, 150 shares which he had subscribed for his sons, and which subscriptions stood in their names. He admits that he requested that one of his sons should be made a director in the corporation to be formed, and that his wish was acceded to, and his son made a director. He admits that he voted against the site which the board of directors recommended as the most available for the purposes of the corporation. He denies that he took any other part thereafter in the proceedings of the corporation, and he denies that he assisted in the organization of the corporation, and testifies that the articles of association were never presented to him to sign, and that he did not sign the articles of association.
The declaration contains two special counts, based upon the agreement which he subscribed, which reads as follows: It appears from the original subscription paper introduced in evidence containing the signatures of the subscribers, and the amount subscribed by each, that at the time the defendant signed the subscription there had been already subscribed the sum of $207,000, and thereafter the further sum of $27,500; which latter subscriptions were upon a separate sheet, and under the date of February 9, 1889. At the time some of these subscriptions were made no act had been passed by the legislature authorizing the formation of corporations for the purpose of constructing, owning, controlling, and acquiring by lease buildings for exposition or exhibition purposes, but such act was passed by the legislature and approved February 13, 1889, and ordered to take immediate effect; and it further appears from the testimony that this subscription was made after the act of incorporation had passed, but before any association had been formed under the authority of such act. It further appears from the testimony that on the 25th day of February, 1889, a notice was mailed to each of the subscribers of the paper above set forth, as follows:
There was no testimony introduced showing that the defendant received this notice, but it appears from the testimony of Mr. Cottrell that he personally notified the defendant of this meeting at his office a day or two previous to the time of meeting, at which time Mr. Walker said he did not know whether he would be there or not; that he would try to come, and, if he did not come, he would like to have one of his sons on the board. The meeting was held pursuant to the notice, and articles of association were presented, discussed, and adopted, and subscribed by a number of those present, representing $100,000 of the stock, and such articles were recorded in the office of the secretary of state on the 12th day of March, 1889. It was also subscribed by E. Chandler Walker, a son of the defendant, to the amount of $5,000, and he was named as one of the directors in the articles of association. The board of directors named in the articles of association proceeded to organize as a board, and elected the officers required by the articles. They afterwards issued and mailed to the subscribers the following notice:
At the time mentioned a meeting was held, to which meeting the directors made a report with reference to the locations which had been brought to their attention, and in which they favored the location known as the "Field Farm," belonging to Mr. McMillan. After discussing the merits of the different locations an adjournment was had for one week, to enable the subscribers to investigate the merits of the respective locations presented, which meeting was held on the 18th day of March, 1889. The defendant did not attend the first meeting, but did attend the adjourned meeting. At this meeting one or two new sites were offered, and he moved an adjournment of the meeting for the purpose of examining the new sites. This was put to a vote upon a stock basis, and he voted the stock which he had subscribed, and also the stock represented by his sons, in all 200 shares. The proposition to adjourn was defeated. A motion was made to determine the preference of stockholders for a site. There were 1,580 shares voted, of which 1,155 were in favor of what was termed the "Field Farm" site, and 425 against the proposal. The defendant, Walker, voted against the Field site. The meeting was then adjourned. The record of the meeting, as kept by its secretary, states that the 425 shares above mentioned were voted for what was known as the "Bressler Site," but defendant, Walker, testifies that he did not vote for the Bressler site, but voted against the Field site. It appears further from the testimony that the board of directors soon thereafter proceeded to purchase the site from Mr. McMillan, and entered into a contract with him by which they agreed to pay for such site $2,000 an acre. The number of acres contained in the site was 69.96. It also entered into contracts for the construction of buildings and other improvements, and made assessments on the stock, not only upon those who had subscribed the articles, but upon the subscribers of the paper heretofore mentioned, from time to time, until they had called for the whole amount so subscribed. The total amount paid in upon subscriptions, up to the time of commencement of suit, was $236,000, for which certificates of stock were issued. The defendant was notified of these calls upon his subscriptions to the stock, but he neglected and refused to pay. Before suit was brought the corporation tendered him a certificate of stock for $5,000 and demanded payment thereof, but he refused to accept the certificate, and also refused payment. The articles of association provide that the whole capital stock of the corporation should consist of $500,000, and the number of shares of 5,000. It is not shown clearly by the record that any subscriptions were made subsequent to the organization of the company, and it is a conceded fact that the whole amount of capital of $500,000 has not been subscribed for. It also appears that the assessments upon the subscriptions were based upon the amounts actually subscribed, and not upon the basis of the entire capital of $500,000. It further appears that the whole amount of the capital stock paid in has been invested in the lands and improvements, and that they still owe Mr. McMillan for the land upon the contract in the neighborhood of $110,000. The corporation held a fair and exposition upon the site purchased by it in the fall of 1889, which appears to have been successful, and they declared a dividend of 5 per cent. upon the subscribed capital. In the following year, 1890, they held another exposition, and netted something like $30,000, which amount they expended in improvements upon the property. One of plaintiff's witnesses testified that the total indebtedness of the company at the time of trial was about $140,000,-from $130,000 to $140,000; that the capital stock has been expended...
To continue reading
Request your trial