Page:Federal Reporter, 1st Series, Volume 5.djvu/755

 KENTON FUENACE BAILROAD & MFG. CO. V, M'aLPIN. 74:3 �pay the f uU amount of their capital stock, or the balance of 50 per cent. On the other hand, it is oontended by the plaintifE that the stockholders, directors, and officers of the companyhad no power, under any circumstances, of the charaeter set forth in these resolutions, to pass any such resolutions, and that the whole action, therefore, of the resolutions and of the issue of the stock is a mare nuUity. If that be so, then, as a matter of course, the plaintiff in this case has a right to recover from each pne of these defendants the fuU amount of the unpaid balance of their subscriptions to this stock. �There is a recital in this resolution that the property has greatly increased in value ; that the real estate is worth at least $60,000, and that there was at least $15,000 of accu- mulated profits which were undistributed, and that for the reason of this increase in value of the real estate, and these accumulated profits which belonged to the stockholders, that they (ail the stockholders) agreed among themselves that the company should retain these accumulated profits to which they were entitled, and that in addition to that, the value of the real estate having increased from $25,000 to $60,000, that would make the fuU amount of the unpaid 60 per cent, of the capital stock of the several subscribers. �It will be borne in mind that this transaction, as I am now speaking of it, was a transaction purely between the corpora- tion and its stockholders. I have no doubt that the stock- holders, where there were undistributed profits to which they were entitled, might agree to surrender to the corporation such accumulated profits, and, in consideration of such sur- render and the increased value of its real estate, agree among themselves to treat the stock as f ully paid up ; and that the corporation, separate and distinct from the stockholders, would have a perfect right to accede to that agreement and to issue such stock. If it were between themselves only, I have no doubt that such a transaction would be entirely binding, if ail the requirements of the law had been fulfilled. A cor- poration without any indebtedness, aeting in good faith as between itself and its stockholders, could make such an ar- rangement. It was a matter wholly of their own concem; ����