Palais Du Costume Company v. Beach
| Decision Date | 06 February 1912 |
| Citation | 143 S.W. 852,163 Mo.App. 499 |
| Parties | PALAIS DU COSTUME COMPANY, Appellant, v. E. F. BEACH, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted October 3, 1911.
Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.
AFFIRMED.
Judgment affirmed.
Sturdevant & Sturdevant for appellant.
(1) The subscription to the capital stock of a corporation in Missouri is an asset of the company, in which, by virtue of the subscription, the company, all individual members thereof, and all creditors, acquire an interest. Such a contract is one that can not be canceled or relinquished without the consent of all interested parties. No officer of the company, not even the entire board of directors, can release a subscriber from this obligation so as to exempt him from his liability, created by such subscription, in favor of all other members of the company and its creditors. Oldsheim v. Thompson, 44 Mo.App. 181; Erskine v Peck, 13 Mo.App. 284; Morawetz on Private Corporations secs. 286, 302; Chandler v. Brown, 77 Ill. 333; Choteau v. Dean, 7 Mo.App. 210; Haskell v. Sells, 14 Mo.App. 91; 26 Cyc., p. 902. (2) When the sale of an article or commodity is consummated by agreement of the parties, the seller has the right to retain the thing sold for the buyer and sue him for the entire purchase price thereof; and it is not within the power of the purchaser to compel the seller to pursue any other course in regard to the same, but so long as the seller holds himself in readiness to make delivery of the thing sold, and is able to do so, he has the right to hold the purchaser liable for the entire purchase price, and to sue for and collect the same. Cook on Corporations, sec. 336; Mohley v. Morgan, 6 A. 694; Dambmann v. Lorenz, 70 Md. 380; Kaddish v. Young, 108 Ill. 170; Roebling v. Lockstitch, 130 Ill. 660; Raw Hide Co. v. Hill, 72 Mo.App. 142; Mfg. Co. v. McCord, 65 Mo.App. 507; Finlayson v. Wiman, 84 Hun 360. (3) Where the capital stock authorized by the incorporation of a company has never been issued and its par value paid to the company, it retains the status of original stock, even though it may have been subscribed before incorporation and surrendered thereafter, and the person subscribing or purchasing same from the company after incorporation, and agreeing to pay to the company the par value thereof, stands in the same relation to the company and to other subscribers that he would had he subscribed for a like amount of its stock prior to the incorporation, as there is no distinction between a purchase of, and subscription for, such stock. Shickle v. Watts, 94 Mo. 419; Pietsch v. Milbrath, 123 Wis. 656. (4) A person may become a member of an incorporated company either by an original contract with the other members, or by substitution in the place of an original member. All persons obligating themselves to the company for the primary subscribtion value of its capital stock, have all the liability of incorporators, whether the obligation was undertaken before or after incorporation. Morawetz on Private Corporations, sec. 45; Pietsch v. Milbrath, 123 Wis. 656.
Lee Sale for respondent.
(1) The paper signed by plaintiff, having been signed by him after all other signatures had been placed thereon, and without any agreement between him and the other signers, it constituted no contract between him and the other subscribers, but was at most an offer to take stock, which he could withdraw at any time prior to its acceptance. Morawetz on Corporations, section 60. (2) The undisputed evidence showing that defendant, at the request of one Miller, signed a paper reciting that he had agreed to purchase certain stock, and also showing that on the day following he instructed said Miller to withdraw his name from that paper, and no further transaction or communication between defendant and anyone acting for plaintiff appearing, there is clearly no right of action on said paper. Cook, Assignee, v. Crittenden, 24 F. 544; Selligman v. Rogers, 113 Mo. 642.
This action came to this court on appeal from the St. Louis Circuit Court, and pursuant to section 3939, Revised Statutes 1909, was transferred by us to the Springfield Court of Appeals, which court affirmed the judgment of the trial court. [See Palais Du Costume Co. v. Beach, 144 Mo.App. 456, 129 S.W. 270.] All proceedings in the Springfield Court of Appeals having been held void under the decision of our Supreme Court in State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon et al., 232 Mo. 496, 134 S.W. 538, the cause came back and has been argued before us.
The substantial facts in the case are set out by Judge GRAY in the above referred to opinion and we are satisfied to accept and adopt that statement and the conclusions of law arrived at by him on those facts, as our own.
In addition to what is there said by Judge GRAY, it is not improper to state that this action does not pretend to be on a subscription to the capital stock of plaintiff. It appears by the certificate of incorporation, which was...
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