Page:Federal Reporter, 1st Series, Volume 7.djvu/799

 FLINN V. BAGLBY. 78I �express prohibition against stock being issued for less thait its par value. But conceding, upon the authority of Hawley v.Upton, 102 U. S. 314, and. Sturgis v. Stetson, 1 Bissell 246, that the directors of a corporation have no right to issue stock at less than its par value, that the subscription was void, and that an action will lie by the assignee of the corporation against the contribu tories to compel a surrender of the stock or payment for the same at its real value when the subscrip- tion was made, does it follow that a court can compel the subscribers to pay. the par value of the shares ? Subscrip- tions to the stock of a corporation are purely a matter of con- tract. . Sturgis v. Stetson, 1 Biss. 248; Parker v. North Cent. Mich. R. Co. 33 Mich. 24. And where there is an express con- tract the law will not permit one to be implied. Cutter v. Powell, 6 T. E. 324. Pittsburgh & Connersvxlle R. Co. v. Stewart, 4I Pa. 54-58. Undoubtedly,when a subscriber orig- inaily agrees to take so many shares, the law will imply that he is to pay at the rate of $25 per share, and no subsequent release or modification of that agreement by the corporation will prevent creditors from insisting upon f ull payment. But the English cases hold that if for any reason the subscription be void at all, it is void in toto, and that the assignee cannot treat it as void to compel a retdrtt bf the stock and valid to obtain the payment of its par value. It follows from this that if the contribu tory agrees only to takepaid-up shares h& cannot be compelled to take unpaid shares. �In Currie's Case, S De G. J. & S. 36Y, directors of a Com- pany took a transfer of paid-up shares from an allottee who' had them allotted to him by the company in part payment of purchase money in respect of certain property purchased by the company. The same directors were also holders of other paid-up shares, taken by them for attendance fees. The validity of the purchase in the one case, and the allow- ance of attendance fees in the other, were impugned. Held,. that the transactions could not be affirmed in part and repu- diatod in part, and that consequently the directors, if treated as shareholders at all, must be treated as paid-up sharehold- ers, and not placed on the list of contributories in either case. ��� �