Holmes & Griggs Manufacturing Co. v. Holmes & Wessel Metal Co.

This is an action on a promissory-note bearing date December, 1884, for $2,500, made by the defendant, The Holmes and Wessel Metal Co., payable to the order of Frederick Shounard, one of the defendants, and endorsed by the defendants, Shounard, Morse and Wessel, and delivered to the plaintiffs. The defenses were ultra vires, failure of or no consideration and non-tender of certain stock, for the purchase price of which the note in suit was given. The case was tried before a referee, and upon his report a judgment was entered in favor of the plaintiff, from which this appeal is taken.

In view of the role of law applicable to the facts developed upon the trial, it may be entirely unnecessary to recite many of the facts found by the referee, but it may be best to do so in order that the whole transaction may be understanding^ set forth.

The plaintiff was organized in July, 1869, under the manufacturing act of 1848, the objects of the corporation being the manufacture and sale of sheet and roll brass, wire and other articles composed wholly or in part of metal. In July, 1881, one Holmes, the president, and one Edwards, the secretary of the plaintiff, entered into an agreement with the defendants, Morse, Shounard and Wessel, by which they agreed to organize a new company under the manufacturing act, to be known as the Holmes and Wessel Metal Co., with a capital stock of $100,000, three-fourths thereof to be subscribed and paid for by said Holmes & Edwards, and the remaining one-fourth by the other parties to the agreement.

The agreement further provided that the new company should buy from the plaintiff its plant at the price of $50,000. In pursuance of this agreement the parties signed and acknowledged the certificate incorporating the Holmes & Wessel Metal Co., which certificate was duly filed, and in which were named the said Holmes, Edwards, Shounard and Wessel as trustees.

On the 20th of July, 1881, a meeting of the plaintiff’s

On the 1st of September, 1881, the plaintiff company, transferred to the defendant company its entire plant and machinery, etc , at the agreed price; $75,000 of that amount was in payment of stock subscribed for in the names of Holmes & Edwards, and the balance, $6,333.96, was paid in cash by the defendant company. After the transfer of its plant the plaintiff discontinued its business, and has not carried on the same since that time.

The note in suit was made in pursuance of an agreement dated December 1st, 1884, executed by the plaintiff and the defendants, Morse, Shounard and one Charles Wessel. In that agreement the plaintiff agrees to sell to the other parties thereto 1,440 shares of the stock of the defendant company standing on the books of said company in the name of Edwards as trustee, for the sum oi* $30,000, payable $5,000 in cash on signing the agreement, and the balance by certain promissory notes, of which the note in suit is-one, being a note given by the defendant company and en dorsed by Shounard and others.

The agreement provided that the stock should remain in the name of Edwards, or some other officer of the plaintiff, as trustee, and might be voted on by him until delivered; also that the stock should be delivered as follows : On payment of notes 1 and 2, $6,000 of the par value thereof, and as each of said other notes was paid at maturity, $2,500 to the maker thereof, except that for the notes of said defendant company the stock was to be delivered to said Shounard.

None of the stock represented by the note in suit, which was a note made by the defendant company, and indorsed

Upon this state of facts the defendant claimed that the plaintiff, being a domestic manufacturing corporation, could not acquire any ownership in, or title to, the stock, either by original subscription in its own name, or in the name of its officers assuming to act as trustees ; and in considering this proposition, it is conceded that the plaintiff company were the real owners of this stock, and the persons in whose name the stock stood were simply acting as its trustees. And the case is to be determined upon the assumption that the plaintiff was the real owner of the stock, and that the stock was being held for it.

Our attention has been called to numerous authorities, going to show that the acquirement of this stock was contrary to law, and, therefore, void. Conceding that the plaintiff corporation was prohibited by its charter from entering into such an arrangement, or dealing in such securities as the stock of the defendant company, the validity of that transaction is not the subject of investigation in this action. If the plaintiff company has violated its charter by this transaction, upon a proper action brought by the people, its franchise may be forfeited, the corporation dissolved, and its business wound up. But the action now before the court is not upon any illegal contract which the plaintiff company has made for the purpose of acquiring the stock of the defendant corporation; but is to recover upon a promissory note given in payment of stock, the title to which was vested in the plaintiff.

That this is the true situation is distinctly held by the court of appeals in the case of Sistare v. Best, 88 N. Y., 527 . In that case the plaintiff was employed as a broker to sell certain stock, the title to which the bank of which the defendant was receiver, had acquired, in violation of the' provisions of its charter, and the plaintiff was held entitled to recover, because in accepting the employment he was not bound to inquire in respect to the title of the bank to the stock. In that case it was held that although the transaction by which the bank acquired possession of the stock in question, was in violation of its charter, that the title of the stock was vested in the bank as pledged, and that it was not void, but at most was voidable only. Whether under such circumstances the pledgors could reclaim the stock without paying the lien, the court declined to consider. In the case

The position of the defendants might be well taken, if the plaintiff were suing to compel the defendants to deliver the stock in pursuance of an agreement so to do. It might very well be then held that the contract for the sale of the stock was an illegal one, and that an action to enforce an illegal contract could not be maintained. But in the case at bar, the contract had been completed, the title to the stock had passed to the plaintiff; it had a right to sell it as was held in the case of Sistare v. Best (supra), and having the right to sell, it had a right to take as a part of the purchase price, such securities as they saw fit, provided it acted in good faith.

Questions of public policy as to the right of one corporation to invest ■ in the shares of another, are not questions which need to be considered in the determination of this ■appeal, because the contract under which the corporation acquired the title, is not now under consideration; and whatever may have been the decision in other states, it is clear that contracts of this kind are not absolutely void, but, at most, are voidable only.

Our attention is called to the case of Crocker v. Whitney ( 71 N. Y., 161 ) where it was held that a mortgage given to a national bank, to secure future advances, was void, and could not be enforced for advances which were subsequently made, because the. act, under which such banks are incorporated, prohibited them from taking a mortgage on real estate,.except to secure a preexisting indebtedness. In that case there was an attempt to enforce an illegal contract. So in the case of Pratt v. Short ( 79 N. Y., 437 ), and all the other cases cited on this point were cases where an attempt was made to enforce a contract which was illegal. There was no illegality in the contract of the plaintiff, be-' ing the owner of the stock, to sell the same in the manner in which it was proposed to do, and which it attempted to do by the agreement of December, 1884.

The only other question which it is necessary to consider is the necessity of a tender of the stock in question. The ordinary rule in reference to the payment of promissory notes is that where,-by the form of the note, stock or merchandise is to be delivered, or where collaterals have been deposited for the note, a tender of the collateral or stock and merchandise, at' the time of the demand of payment of the note, is necessary in order to make a complete default. But in all these cases it would appear that the maker of the note,- upon payment, was to be entitled to the

But in the case at bar, the stock was to be delivered to a third party, not the maker of the note. The plaintiff, therefore could not, upon demanding the payment of the note, deliver the stock because it was not to be delivered to the maker, but, as already said, to a third party; and, therefore, it must have been the intention of the parties that, after the payment of the note, then the claim to a delivery of the stock should become vested in the third person, and it could not have been the intention, in that case, that the delivery of the stock and the payment of the note should be simultaneous acts.

We think, therefore, for the reasons above stated, that there was a good consideration for the note in question, and that there was no failure thereof, and that a tender of the stock was not necessary before claiming payment of the note.

The judgment must be affirmed, with costs.

Macomber and Brady, JJ., concur.