Taggart v. Western Maryland R. Co.

• Decision Date: 12 May 1866
• Citation: Taggart v. Western Maryland R. Co., 24 Md. 563 (Md. 1866)
• Parties: WILLIAM TAGGART v. THE WESTERN MARYLAND RAIL ROAD COMPANY.
• Court: Maryland Court of Appeals

24 Md. 563

WILLIAM TAGGART v. THE WESTERN MARYLAND RAIL ROAD COMPANY.

Court of Appeals of Maryland

May 12, 1866

Appeal from the Superior Court of Baltimore City:

This action was instituted on the 1st day of February, 1861, by the appellee, to recover from the appellant the amount of his subscription to its stock.

By the Act of 1852, ch. 304, certain persons therein named were appointed commissioners to receive subscriptions to the capital stock of "The Baltimore, Carroll and Frederick Rail Road Company."

The capital was fixed at five hundred thousand dollars, in shares of fifty dollars each; and it was provided that as soon as one thousand shares should be subscribed, the company should be incorporated.It was enacted by the third section, that upon every subscription there should be paid, at the time of subscribing, to the commissioners, or their agents, appointed to receive subscriptions, the sum of one dollar on every share subscribed, and that the residue thereof should be paid in such instalments, and at such times as might be required by the president and directors of said company, or a majority of them.

By a supplement, 1853, ch. 37, the title of the company was changed to its present name.At the same session, (1853, ch 363,) authority was given to extend the said road to Hagerstown.By the Act of 1856, ch. 289, the State expressly waives all causes of forfeiture, by reason of the company's failure to comply with any of the provisions of the Act of incorporation, and allows the period of six years for the commencement, and twelve years for the completion of said road, from the passage of said Act, that is from the 10th of March, 1856.The Acts of 1858, ch. 405 and 420, and 1860, ch. 20, contain no provision material to any of the questions in this case.They were offered in evidence to show the recognition, by the State, of the appellee, from time to time, as a validly existing corporation.

The appellant made his subscription on the 28th of April, 1853.A condition was annexed to the subscription of the appellant and some other subscribers as follows: "Provided the contemplated road shall be built on the present track of the existing branch to Green Spring of the Baltimore and Susquehanna Rail Road."

The plaintiff offered in evidence a small book, containing the following heading and subscription thereto, viz:

"Baltimore Carroll and Frederick Rail Road Company, capital stock 10,000 shares, at $_______, per share.

We whose names are hereunto subscribed, do promise to pay to the president and directors of the Baltimore, Carroll and Frederick Rail Road Company, the sum of fifty dollars for every share of stock set opposite our respective names, in such manner and proportions, and at such times as shall be determined by the president and directors of said company, or a majority of them, in pursuance of an Act of the General Assembly of Maryland, entitled an Act to incorporate the Baltimore, Carroll and Frederick Rail Road Company.Witness our hands this 28th day of April, in the year of our Lord one thousand eight hundred and fifty-three."

And it was admitted by the defendant, that the name of the defendant thereto subscribed, was in his hand writing, and it was also admitted by the plaintiff that the defendant had not, at the time of subscribing or afterwards, paid one dollar for each share so subscribed by him.

The plaintiff further offered in evidence, that the commissioners appointed by the charter, to receive subscriptions to the stock of the plaintiff, after notice duly given as required by the original Acts, opened books, pursuant to such notice and in conformity with the requirements of said Act, and having received subscriptions for more than 1000 shares notified the subscribers, in due form, to meet in Westminster, on the 14th of February, 1853.The plaintiff also proved that the subscribers to said stock, did accordingly meet, at the time and place designated, when the commissioners reported that they had received bona fide subscriptions for 1086 shares of stock, and the subscribers thereupon proceeded to organize the company, by the election of president and directors.

It was further offered in evidence by the plaintiff, that the Act of Assembly of 1853, ch. 37, was duly accepted by the plaintiff, but was not so accepted until after the defendant's subscription had been made, and also, that at meetings of the board, and of the stockholders, held on the _____ day of ________, reports were made of the persons who had previously to that date subscribed for stock; some were ordinary subscriptions, and the whole number of these (including what had been received by commissioners, before organization) did not exceed 1500 shares, others of the subscriptions were conditional and these were less than 600 shares.

The subscription of the defendant was taken and received by William Fell Johnson, at Rockland, in Baltimore County, without any public notice having been given, of the time and place of receiving such subscriptions, and no proof was offered of any authority from the company to said Johnson to receive subscriptions; but it was proved, that J. Henry Huppe, who was a director of said company, was authorized to receive additional subscriptions to the capital stock of said company, in Carroll County, and that said Huppe placed books with the proper headings in the hands of several persons, and as one of said persons in the hands of Mr. Green to receive subscriptions in Baltimore County, by whom one of the said books was placed in the hands of the said Wm. Fell Johnson, who received several subscriptions for stock, besides the defendant's subscription, and the said subscription books were shortly afterwards and before the month of November, 1853, returned to and were, and have thenceforth continued in the possession of the said company, and the name of the defendant and the names of said other subscribers, were reported by said Huppe to said company, and were placed on the list of subscribers to its stock on the books of the said company, and there never was any action by said company refusing to recognize them as subscribers to said stock, so far as the said subscriptions were mentioned, and as conditional subscriptions, so far as the same were conditional.

The plaintiff also offered in evidence a paper, and proved that the same was made, as a report by the president of the plaintiff, to the stockholders of said company, on the 16th day of November, 1853, and that the same on that day was accepted and adopted by the said stockholders; and further proved, that the subscription of the defendant was by the said stockholders, and by the president and directors of said company, considered and counted as a conditional subscription for stock, according to the terms and purport of said subscription of the said defendant; that the said defendant did not, at any time, give notice to the plaintiff, or to any of its officers or agents, that he had withdrawn, or meant to withdraw or repudiate his said subscription; that the plaintiff, the company, although the commencement of the construction was unavoidably delayed, never did, by any act, express any intention to abandon the making of said road.

It was also offered in evidence that the Green Spring branch of the Baltimore and Susquehanna Rail Road was adopted by the plaintiff, for the route of its road, on the 31st of March, 1857, and that the road was put under contract, on that day, for its construction on that route.It was admitted that no work was done until the summer or fall of 1857.And it was also admitted that the road was actually built on the track of the branch to Green Spring, on the Baltimore and Susquehanna Rail Road, as the same existed on the 28th of April, 1853.

It was conceded by the plaintiff, that (except a mere reconnoissance of the route) nothing was done in the execution of the work, until the summer of 1857.It was also proved that no calls were made for payment of subscriptions until the 25th of June, 1857, when the first call was made, payable at the time mentioned in the declaration, others were made from time to time afterwards, as stated in the declaration, and due and proper notice was given of the several calls so made.

Evidence was offered on the part of the defendant that he had never been present at any meeting of the stockholders of the plaintiff, or of the subscribers to its stock.

The plaintiff then offered the three following prayers:

The plaintiff, by its counsel, prays the court to instruct the jury:

1st.That if they shall find from the evidence that the Act of 1853, ch. 37, was duly passed and was duly accepted by the plaintiff, then the change of the corporate name cannot be relied on by the defendant, as a bar to the present suit.

2nd.Even if the jury shall find the facts set forth, as the hypothesis of the defendant's first prayer, but shall also find from the evidence, that said subscription was made in a subscription book, then in the hands of William Fell Johnson, and that said book had been previously placed in the hands of said Johnson by J. Henry Huppe, and that said Huppe at the time he so placed said book in the hands of said Johnson, was one of the directors of said company, and that he was authorized by said company to receive subscriptions to said stock, and that as a mode of receiving subscriptions he placed said book in the hands of said Johnson, and that for the same purpose he placed similar books in the hands of other persons at the same time; and shall further find, that shortly afterwards and before the month of November, 1853, said books were returned to the said Huppe, by said Johnson, and by the other persons respectively, and were by said Huppe reported to, and accepted by...