Planters' & Merchants' Independent Packet Co. v. Webb

• Decision Date: 23 November 1905
• Citation: 144 Ala. 666,39 So. 562
• Court: Alabama Supreme Court
• Parties: PLANTERS' & MERCHANTS' INDEPENDENT PACKET CO. v. WEBB.

39 So. 562

144 Ala. 666

PLANTERS' & MERCHANTS' INDEPENDENT PACKET CO. v. WEBB.

Supreme Court of Alabama

November 23, 1905

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by the Planters' & Merchants' Independent Packet Company against B. A. Webb. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action on subscription to stock of appellant corporation. The complaint originally filed was as follows: The plaintiff which is a corporation, claims of the defendant the sum of $1,000, due from him by account, on to wit the 1st day of November, 1904, together with interest since said date, which sum of money is still due and unpaid. (2) And plaintiff claims of the defendant the said sum of $1,000, in this that the defendant subscribed one thousand dollars to the capital stock of the plaintiff, while said corporation was being organized; that said subscription was made in 1904, prior to November 1st.; that the same is due and unpaid, and plaintiff claims interest on said sum of money since November 1, 1904.

Demurrers were interposed and sustained to this complaint, and plaintiff amended by adding the following: (a) "Plaintiff, which is a corporation claims of the defendant the sum of one thousand dollars ($1,000.00), in this, that prior to the organization of said corporation, and while its organization was in contemplation, the defendant subscribed for the stock of said corporation to the amount of one thousand dollars, by writing his name, and the number of shares, and the amount to be paid for the same to a subscription list, which the said defendant understood was for the purpose of obtaining a sufficient number of subscribers and a sufficient amount of money subscribed to justify the formation of an independent packet company having a capital stock of twenty thousand dollars. Plaintiff avers that the full name of said packet company had not been agreed upon at the time the subscription was made, but that the defendant understood that said company should be organized as an independent packet company. Plaintiff further alleges that it, the plaintiff, is the same company which was in contemplation at the time the said defendant subscribed for stock of the same as aforesaid. Plaintiff further alleges that the defendant subscribed for said stock as aforesaid prior to the 1st day of November, 1904, and during the year 1904; that said subscription was due by the defendant, on to wit, November 1, 1904, but was not paid by him, and that it is still due and unpaid. And plaintiff also claims interest on said subscription since, to wit November 1, 1904." (b) "And the plaintiff, which is a corporation, claims of the defendant the sum of one thousand dollars, in this that the defendant subscribed in writing for ten shares of the capital stock of the plaintiff, of the nominal value of one thousand dollars, prior to the organization of said corporation; that said subscription was made in 1904, prior to the 1st day of November, 1904; that the amount of said subscription is due and unpaid, and plaintiff claims interest on said sum of money since to wit November 1, 1904."

Demurrers were sustained to this complaint, and plaintiff amended his complaint by adding count "c," which is substantially counts "a" and "b." Demurrers were sustained to count "c." Plaintiff amended them by striking out count first (1), and adding the following: "(d) The plaintiff, which is a corporation claims of the defendant the sum of one thousand dollars in this that during the year 1904, prior to October 1, 1904, the exact date being unknown to plaintiff, the defendant subscribed for stock of the said corporation to the amount of one thousand dollars, by writing his name and the number of shares which he desired, and the amount of money to be paid for the same, to a subscription agreement, the substance of which agreement was that the persons signing the same were subscribing for the stock of the proposed corporation in the amount set opposite their names, but provided no time for the payment of said subscriptions and which agreement subscription was for the purpose, and which defendant knew was for the purpose, of obtaining a sufficient number of subscribers and a sufficient amount of money subscribed to justify the formation of an independent packet company having a capital of twenty thousand dollars. Plaintiff avers that the full name of said packet company had not been agreed upon at the time said subscription was made, but that it was understood and agreed by the defendant and the other subscribers that said company should be organized for business and should operate as an independent packet company. Plaintiff further alleges that it, the plaintiff, is the company which was in contemplation of defendant at the time the defendant subscribed for stock, as aforesaid and that it organized and is doing business as an independent packet company, and that at the time when said subscription was made, the defendant agreed and promised to pay the amount of said subscription at the time he was notified by the persons who were organizing said corporation that the amount of said subscription was needed. Plaintiff further alleges that after said subscription was made and after the agreement aforesaid two of the persons organizing said corporation, to wit, P. R Tunstall and J. T. Speith, on dates which are unknown to plaintiff but before the bringing of this suit, and after the incorporation of plaintiff, notified the...