Page:Harvard Law Review Volume 10.djvu/464

438 438 HARVARD LAW REVIEW, agreement between two shareholders to vest in a third person, fot a limited time and for no unlawful purpose, the right to vote their shares should be void as against public policy, while, if accom- panied by some additional, substantial consideration, running to the owner of the shares, it would be valid; it being of course elementary that, as an ordinary principle of the law of contracts, mutual promises by themselves do constitute an adequate consid- eration, that is to say, sufficient to make the agreement binding. It would seem, finally, that the State, as such, has no right to complain of these agreements for corporate voting; that they are no affair of the corporation itself, or of shareholders not party to the agreements. Neither the State nor the corporation, nor the other stockholders can or should control the transfer of ownership of shares, and therefore they should have no right to interfere with the transfer of some part of the interest owned, as, for instance, the right to vote upon the shares for a limited time. But if we eliminate the State and the corporation and the other stockholders, there is nothing left of the agreement to distinguish it from any other, or that should make its validity subject to any tests not applicable to every other agreement. I do not believe that any shareholder owes to his fellow shareholders any more of a duty to retain the right to vote upon his own shares, than he does to vote upon them at all, or not to sell, or not to sell them to any one un- worthy; or that agreements given to others than the owners of shares the right to vote on them are illegal, except when their purposes are illegal ; or that the control of the election of direc- tors by itself is an illegal purpose. In the case of mere ** dry trusts," that is to say, trusts not supported by any consideration, it may be that the stockholder should have the right at will to revoke the trust, but in the present state of corporation law I do not see why voting agreements should not be as valid as any other agreements, subject to only the same tests and entitled to the same respect and protection of the law. It has been well said by so distinguished a judge as Sir George Jessel: " It is the para- mount policy not to interfere with the right of contract." Jesse W. LilienthaL San Francisco, 1897.