Stone v. the Great Western Oil Co..
| Citation | 1866 WL 4542,41 Ill. 85 |
| Parties | ANDROS B. STONEv.THE GREAT WESTERN OIL COMPANY. |
| Decision Date | 30 April 1866 |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago; the Hon. VAN H. HIGGINS, Judge, presiding.
This was an action of assumpsit brought in the court below by the Great Western Oil company against Andros B. Stone, to recover the amount of a call on the subscription of the defendant to the capital stock of the company, in contemplation of its becoming incorporated under the act of February 18, 1857, authorizing “the formation of corporations for manufacturing, mining, mechanical or chemical purposes.”
The defendant pleaded the general issue and nul tiel corporation. The cause was tried before the court without a jury.
The plaintiffs, to support the issue on their part, gave in evidence the contract of subscription, as follows:
“GREAT WESTERN OIL COMPANY, CHICAGO, ILL.
We, the subscribers, agree to take the number of shares of capital stock in the Great Western Oil company set opposite our names, respectively, and to pay the calls upon the same in conformity with the general incorporating law of the State of Illinois, and the by-laws of the company made under the same:
B. F. Pond, fourteen hundred shares, March 15, 1857.
Geo. Griswold, by B. F. Pond, eighty shares.
J. S. Holbrook, five shares.
James M. Mosley, five shares.
Edward Leonard, by N. F. Curryll, five shares.
N. F. Curryll, five shares.
S. L. Foster, ten shares.
James L. Lamb, thirty shares.
J. Condit Smith, by B. F. Pond, forty shares.
Henry Smith, Chicago, forty shares, April 3d, 1857.
A. B. Stone, Chicago, twenty shares.”
Also, a certain certificate filed with the clerk of the Circuit Court of Cook county, as follows:
“These presents certify, that Henry Smith, Andros B. Stone, James L. Lamb, Barrizillia F. Pond, together with others, are desirous of founding an incorporated company under and by virtue of an act of the legislature of Illinois, entitled ‘An act to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes,’ approved February 18, 1857. Said incorporated company to be named the ‘Great Western Oil Company,’ to be engaged in the manufacture of oil, with a capital stock of two hundred thousand dollars, divided into two thousand shares of one hundred dollars each, and to continue in existence for fifty years from the date of this certificate; the operations of the said company to be carried on in the city of Chicago, Cook county, Illinois, and its board of directors to consist of seven members, and for the first year to be composed of the following named persons: Henry Smith, Andros B. Stone, James L. Lamb, John Evans, Benjamin F. Carver, John C. Smith and Barrizillia F. Pond.
The subscribers therefore pray that a license may issue according to law.
CHICAGO, April 2, 1857.
On the second day of April, in the year of our Lord one thousand eight hundred and fifty-seven, personally appeared before me, Gideon W. Davenport, notary public, in and for the city of Chicago, in the county of Cook, and State of Illinois, the above named Henry Smith, Andros B. Stone, James L. Lamb, Barrizillia F. Pond, known to me, and who subscribed the foregoing certificate, and acknowledged that they executed and subscribed the said certificate freely and voluntarily, for the uses and purposes therein set forth.
Witness my hand and notarial seal, the day and year above written.
+-----------------------------+
¦ ¦GIDEON W. DAVENPORT, ¦
+-------+---------------------¦
¦[SEAL.]¦Notary Public. ” ¦
+-----------------------------+
Plaintiff then offered in evidence, and asked to read to the court, a certain paper in writing, purporting to be a license. The circumstances under which this paper was offered in evidence, as stated by the judge who tried the cause, were these:
To this ruling the defendant excepted. Thereupon plaintiff's counsel read said paper, which is in words and figures following, to wit:
“Whereas, in conformity with the provisions of an act of the legislature of Illinois, entitled, ‘An act to authorize the formation of corporations for manufacturing, mining, mechanical, and chemical purposes,’ approved February 18, 1857, a certificate, duly executed and acknowledged by Henry Smith, Barizzillia F. Pond, Andros B. Stone, and James L. Lamb, according to the provisions of said act, has been this day filed in the office of the clerk of the Cook county Circuit Court, and a duplicate thereof filed in the office of the secretary of State:
Now, therefore, under and by virtue of the authority in and by said act granted and conferred, I, William L. Church, clerk of the said Cook county Circuit Court, do hereby by these presents, license and empower the said Henry Smith, Barrizillia F. Pond, Andros B. Stone, James L. Lamb, and others who may be associated with them, to organize an incorporated company in conformity with the provisions of said act, to be named the ‘Great Western Oil Company,’ to be engaged in the manufacture and sale of oil, with a capital stock of two hundred thousand dollars, divided into two thousand shares of one hundred dollars each, and to continue in existence fifty years from the date of said certificate, to wit: the second day of April, in the year one thousand eight hundred and fifty-seven. The operations of said company to be carried on in the city of Chicago, Cook county, Illinois, and its board of directors to consist of seven members, who for the first year shall be, Henry Smith, Andros B. Stone, James L. Lamb, Benjamin F. Carver, John Evans, John C. Smith, and Barrizillia F. Pond.
In testimony whereof, I have hereunto set my hand and the seal of the said Cook county Circuit Court, this third day of April, in the year of our Lord one thousand eight hundred and fifty-seven.”
It was admitted that the file dates marked on said certificate, and on the paper writing last mentioned, are the correct dates on which the said certificate and paper writing were filed.
Matthew Taylor testified on behalf of the plaintiff: Was in the employment of plaintiff since April 2, 1857, down to April 10, 1858, in Chicago, as secretary and treasurer of the company; defendant, Stone, was present at all the meetings of directors and stockholders during the time I was secretary, which were held at the office of the company in Chicago, April 2, 1857, April 3, 1857, April 4, 1857, July 3, 1857, April 7, 1858, April 8, 1858, April 13, 1858; I cannot say what was said by defendant, and refer to the “book of records” for what was done; I cannot say that the defendant, Stone, wrote any letter or letters in respect to his subscription as secretary of the company; I wrote him on the 14th of November, 1857, touching his subscription, a copy of which is as follows:
“14 Nov. 7.
A. B. STONE, Esq.:
Dear Sir--You are hereby notified that the balance of your subscription to the stock of the Great Western Oil company, amounting to fifteen hundred dollars, is past due.
Immediate payment is respectfully requested.
By order of the president.
MATT. TAYLOR, Secretary.” Defendant made payments of money to plaintiff as follows: June 16, 1857, $250; June 22, 1857, $350; and it appears, from the cash book in my handwriting, that defendant made further payments as follows: April 18, 1858, $103.48; May 1, 1850, $200; Oct. 11, 1858, $26.95; all of which sums were paid on account of defendant's subscription to the capital stock of the company; the defendant was kept thoroughly advised by me, either orally or in writing, of the condition of the plaintiff's affairs, and of the action of the board of directors, he being present at all the meetings; I gave notice of calls of stock subscription, both orally and in writing, repeatedly; a preliminary meeting of the proposed stockholders was held April 2, 1857, when a form of application for the license was submitted to the meeting. A meeting of the same persons was held April 3, 1857; a license which had been obtained and submitted, and by-laws adopted and officers elected and resolutions adopted.
I heard conversations with defendant touching his subscription on several occasions at Chicago, during the year 1857, after the organization of the company, April 3, 1857, the substance of which conversations was, that it was necessary that he should pay up his subscription without delay, and he said he would do so as soon as he possibly could.
Defendant acted as vice-president of said company, but I do not now remember any particular or definite act which he did in such capacity.
It was then proven, that, at a regular meeting of the board of directors, the following resolution was adopted:
“ Resolved, That all...
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