Walter A. Wood Harvester Co. v. Jefferson
| Decision Date | 12 June 1894 |
| Docket Number | 8669 |
| Citation | 59 N.W. 532,57 Minn. 456 |
| Parties | Walter A. Wood Harvester Co. v. Rufus C. Jefferson et al |
| Court | Minnesota Supreme Court |
Appeal by defendants, Rufus C. Jefferson and James Kasson, from an order of the District Court of Ramsey County, Wm. Louis Kelly, J., made October 7, 1893, overruling their demurrer to the complaint.
The plaintiff, the Walter A. Wood Harvester Company, is a corporation organized in January, 1892, under the laws of this state, with a capital of $ 2,500,000 divided into shares of $ 100 each. The defendants are partners in business and on January 22, 1892, subscribed for and agreed to take and pay for at par fifty shares of the stock. They signed the stock subscription and paid five per cent. upon their shares. The balance was to be paid in installments as called for by the board of directors, and by the terms of the subscription agreement, they were to receive their stock when paid for. The board made calls payable as follows: July 5, 1892, five per cent; August 5, 1892, five per cent; September 20, 1892 ten per cent; October 20, 1892, ten per cent; November 20 1892, ten per cent; December 20, 1892, ten per cent; January 20, 1893, ten per cent; February 10, 1893, ten per cent March 10, 1893, ten per cent; April 10, 1893, five per cent May 10, 1893, five per cent; and June 10, 1893, five per cent. None of these calls were paid by defendants and this action was brought to recover the $ 4,750 remaining unpaid. Each call was set forth in the complaint as a several and separate cause of action. It nowhere stated that the shares of stock had been offered to defendants or that the plaintiff was able, ready or willing to deliver the stock on receiving payment.
The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer and gave defendants leave to answer in twenty days on payment of ten dollars costs, citing Marson v. Deither, 49 Minn. 423. Defendants appeal from the order.
Order reversed.
Owen Morris, for appellants.
The promise of plaintiff to deliver the stock and the promise of defendants to pay for it were concurrent and dependent, and neither party could require the other to perform without performing or offering to perform the promise on its or their part. As plaintiff has neither issued the stock nor offered to issue or deliver it, the action is prematurely brought. James v. Cincinnati, H. & D. R. Co., 2 Disney 261.
Marson v. Deither, 49 Minn. 427, cited by the lower court is inapplicable, for this court there says, it is also undoubtedly true that parties may contract that the stock shall not be paid for until the certificate therefor has been issued and delivered or tendered. Clark v. Continental Imp. Co., 57 Ind. 135; Pittsburg & C. R. Co. v. Stewart, 41 Pa. St. 54; Chase v. Sycamore & C. R. Co., 38 Ill. 215.
Munn, Boyeson & Thygeson, for respondents.
Was a tender of the shares necessary? The case of Marson v. Deither, 49 Minn. 423, answers the question in the negative. The fact that plaintiff alleges in its complaint that it agreed to deliver the said shares so subscribed for by defendants to them when paid for, does not render the case of Marson v. Deither inapplicable. From the language of the allegation it appears that the shares were not to be delivered until they had been paid for. Payment of the subscription was to precede the delivery of the shares subscribed for. Walter A. Wood Harvester Co. v. Robbins, 56 Minn. 48.
Canty, J. Gilfillan, C. J., absent on account of sickness, took no part.
This was an action brought upon the stock subscription under consideration in the same plaintiff against Robbins, 56 Minn. 48, (57 N.W. 317;) the main difference being that the attempted recovery here was for the entire amount subscribed, less five per cent. paid on the first call, instead of for a single installment. We need not discuss all of the points made upon the appeal, which is from an order overruling a general demurrer to an amended complaint.
There is one allegation in this complaint which was not found in that considered in the Robbins Case, namely that, after signing said agreement, the defendants delivered the same to plaintiff, and plaintiff then and there accepted said subscription agreement, and agreed to deliver said shares so subscribed for by defendants to them when paid for. It is contended that by this allegation the transaction set forth in the complaint was a purchase of the stock shares, as distinguished from a subscription for shares, and that the complaint is therefore defective and insufficient, because there is no allegation that plaintiff has tendered the shares, and none that it is able and willing so to do.
In Columbia Electric Co. v. Dixon, 46 Minn 463, (49 N.W. 244,) the rule was laid down that it was no defense to an action on a subscription for stock shares to allege in the answer that the corporation had not delivered or tendered the certificate to which the subscriber was entitled. Citing that case, and also referring to the earlier one of St. Paul S. & T. F. R. Co. v. Robbins, 23 Minn. 439,...
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