Page:Federal Reporter, 1st Series, Volume 7.djvu/804

 792 7EDEBAL BEPOBTEB. �Hawley y. tJptun, by which the defendant acknowledged the receipt of 10 shares of stock, the par value of whieh was also fixed by law, and, in consideration thereof, promised to pay one-fifth of such par value? The whole contract in each case must be taken together. In the one the promise to pay precedes the statement of the consideration; in the other the acknowledgment of the receipt of the consideration pre- cedes the promise to pay; but in legal effect both are agree- ments to take stock and to pay therefor only a percentageof its par value. In neither case does the party agree to pay no more if the necesaities of the company require, though in the light of these decisions it would seem to make no differ-* ence as against creditors w'hether he did or not. If, as was said by the chief justice in Hawley y. Upton, "all that need be done, so far as creditors are concerned, is that the sub- scriber shall have boand himself to become a contributor to the fund which the capital stock of the company represents," it is difficult to see why the. defendants in this case have not doue all that is necessary to make themselves liable for the payment of the amounta claimed. The statement of the court that the suit was not brought on the special agreement of the defendant to pay 20 per cent., but on his general liability as a subscriber to pay for his stock whenever it was wanted to meet the liabilities of the company, is equally applicable when it is made to appear that the defendants received certificates of stock for which they had paid only two-thirds of its par value. �This case is certainly a hard one upon the defendants. Finding the company embarrassed for the want of funds, they agreed to subscribe a certain sum and take in payment stock at what it was really worth. It is clear that no fraud was intended, and that they must be held liable upon an im- plied agreement to pay more for the benefit of the creditors than they had expressly agreed to pay for the benefit of the corporation. It is a hardship, however, from which I see no way of relieving them consistent with the views of the supreme court in Hawley v. Upton, and a decree must therefore be entered for the complainant. ��� �