Williams v. Taylor
| Decision Date | 23 March 1904 |
| Citation | 57 A. 641,99 Md. 306 |
| Parties | WILLIAMS v. TAYLOR. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; J. Upshur Dennis, Judge.
Action by E.R. Williams, as receiver of the Lexington Development Company, against D.B. Taylor. From a judgment for defendant plaintiff appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, and SCHMUCKER, JJ.
J Hanson Thomas and R.E. Lee Marshall, for appellant.
Randolph Barton and Redmond C. Stewart, for appellee.
This is an action to recover certain installments of unpaid subscriptions to the stock of the Lexington Development Company, a corporation incorporated under the laws of Virginia. David B. Taylor subscribed to 350 shares of the capital stock of this company in October or November, 1890 and signed the following contract: "I hereby subscribe for 350 shares of the capital stock of the Lexington Development Company of the par value of Ten dollars ($10) each, upon the following terms and conditions, as set forth in the prospectus, and agree to pay the same, as follows: One dollar down at the time of subscription, one dollar per share at the call of the Board of Directors and one dollar per share every sixty days thereafter, if needed, until the whole amount is paid." The terms and conditions, as set forth in the prospectus, are these:
The sequel shows that this is only another of the many instances of misplaced confidence. It appears and is conceded that the defendant, Mr. Taylor, paid five of the installments according to his agreement; that is to say, the first was paid at the time of the signing of the agreement, the second on the 20th December, 1890 (the time fixed by the board of directors), the third 60 days thereafter, on the 20th February, and the fourth and fifth, respectively, on the 20th of April and June as provided by the agreement. The five unpaid installments matured respectively August, October, December 20, 1891, and February and April 20, 1892, but were not paid. The reason why they were not paid appears to be that after the payment of the first five installments (50 per cent. of the subscription) the board of directors issued a printed circular to the stockholders, which read as follows: "It is confidently believed that the stock can be paid up by dividends from the earnings of the company, and these dividends will be so declared whenever and as fast as the assets of the company will justify." It is evident, therefore, that on the 20th August, 1891, when the sixth installment became due, and each 60 days thereafter until and including the 20th April, 1892, when the tenth and last installment matured, the subscriber, Taylor, was indebted to the company, and it had a right to sue for and recover the respective installments. The statute of limitations therefore commenced to run in his favor when those installments respectively matured, unless, as was so earnestly contended on behalf of the plaintiff, the defendant did not become liable on his contract until long after the time just indicated. On the 6th of July, 1900, this suit was instituted against the defendant, David B. Taylor, by E.R. Williams, receiver of the Lexington Development Company, to recover the unpaid installments above mentioned. The defendant pleaded the general issue and two pleas of limitations, one relating to the time of the bringing of the original suit, and the other to the time when the amended narr. was filed; the latter being based upon the theory that the amendment made a new case. A motion that the pleas of limitations be not received was overruled, issue was joined, and there was a verdict for the defendant.
During the course of the trial the court granted two prayers of the defendant, the first of which declared that the liability to pay the amount of his subscription accrued more than three years before July 6, 1900, the time of the bringing of this suit. The theory of the second prayer is that the amended narr. filed November 12, 1903, constituted a new cause of action, and that limitations could be pleaded to the declaration as so amended whether it was applicable to the original declaration or not. Both of these prayers were granted, and the exception taken to this action of the court presents the only question involved in this appeal, namely, whether the plea of limitations is a bar to the original suit instituted July 6, 1900. The conclusion we have reached renders unnecessary to discuss the second plea of limitations which goes to the amended narr.
The last installment of subscription having matured on April 20 1892, and this suit not having been brought until more than eight years thereafter, to wit, on the 6th July, 1900, the statute will, of course, be a bar, unless something has occurred to prevent such a result. The only remaining inquiry, therefore, is whether anything, and, if so, what, has intervened to prevent the running of the statute. In the first place, it is contended that the contract of subscription was not an absolute, but only a conditional, contract. As we have already said, it would appear that at the expiration of each period of 60 days the defendant's obligations...
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