Wright v. Agelasto

• Decision Date: 15 June 1905
• Citation: 51 S.E. 191,104 Va. 159
• Court: Virginia Supreme Court
• Parties: WRIGHT. v. AGELASTO.

104 Va. 159

51 S.E. 191

WRIGHT.

v.AGELASTO.

Supreme Court of Appeals of Virginia.

June 15, 1905.

1. Corporations — Stock Subscriptions — Conditions.

A condition attached to a corporate stock subscription, that $15,000 bona fide subscriptions should be obtained, could be waived by the subscriber.

2. Same—Actions—Instructions.

In an action on a corporate stock subscription, conditioned on the corporation obtaining $15,000 bona fide subscriptions, which it had not obtained, an instruction that, though defendant applied for a charter for the corporation, was named as one of the incorporators, participated in the proceedings and acted as a director, yet if at the time he did so he did not know that bona fide valid subscriptions to such amount had not be obtained, his acts would not constitute a waiver of the condition, was properly refused without a qualifying requirement that defendant did not intend by such acts to waive the condition.

3. Same — New Trial — Newly Discovered Evidence.

Where defendant had knowledge of certain testimony before the trial which became material during the trial, when he caused a summons to be issued for the witness, and, on his being reported absent from the city for the day, defendant made no request to the court to delay the trial, the evidence of such witness was not newly discovered so as to justify a new trial.

Error to Law and Chancery Court of City of Norfolk.

Action by P. A. Agelasto, as trustee in bankruptcy of the Chesapeake Furniture & Woodworking Company, against Peter Wright. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

White, Tunstall & Thorn (J. W. Willcox, of counsel), for plaintiff in error.

Edward R. Baird, Jr., for defendant in error.

KEITH, P. The defendant in error, Agelasto, as trustee in bankruptcy of the Chesa peake Furniture & Woodworking Company, sued Peter Wright in the court of law and chancery of the city of Norfolk to recover a subscription to 15 shares of stock of the Norfolk Furniture Company, of the par value of $100 per share, subscribed to upon the condition "that $15,000 bona fide subscriptions are gotten."

The defendant pleaded non assumpsit, and a jury, being impaneled, found a verdict for the plaintiff, and assessed his damages at $1,500. The defendant moved the court to set aside the verdict and grant a new trial, on the ground that it was contrary to the law and the evidence, that the jury bad been misdirected by the court, and of after-discovered evidence. The court refused the motion to set aside the verdict, entered judgment for the plaintiff, and thereupon Peter Wright obtained a writ of error from this court.

During the progress of the trial exceptions were taken to the admission of certain testimony, but this exception has been very properly abandoned in this court

The first assignment of error upon which reliance is placed is that with respect to the refusal of the court to give the following instruction:

"The court instructs the jury that, even though they may believe from the evidence that the defendant applied for a charter for the Chesapeake Furniture & Woodworking Company, was named as one of the incorporators thereof, participated in the proceedings of its stockholders, and acted as a director of the company, yet if they further believe from the evidence that at the time of such action and participation in said meetings he did not know that bona fide, valid subscriptions to the amount of $15,000 had not been obtained, such action and participation cannot be construed as a waiver of the condition on which his subscription was made, and they must find for the defendant."

It is certain that the plaintiff in error, having subscribed to the stock conditionally, was not bound by the contract of subscription until the condition upon which it was entered into had been performed, or been waived by him, or be had by his conduct placed himself in a position which estopped him from relying upon the condition. It is equally certain that such conditions may...