Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/552

 § 519.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. IX. stock is fixed by the charter, an action does not lie to enforce a subscription until all the stock is taken, does not apply where, from the face of the charter, it is obvious that the whole of the capital stock was not necessary to the organiza- tion of the company, and the subscriber knew, or had reason to know, this at the time of subscribing; nor does it apply where a subscriber takes part in carrying on the business of the company, and votes on his shares ; at least, when the suit is brought by the receiver of the corporation after it has become insolvent. 1 § 519. The antecedent obligation of the corporation to per- form the conditions of the subscription contract w r ill cease if the subscribers waive performance, 2 or by acting as if the conditions had been performed es- top themselves from setting up the non-performance of them. Thus, if a commissioner subscribes for shares in a railroad cor- poration to be organized and then joins in a certificate, sent to the governor of the state, which sets forth the performance of the conditions precedent, he will be estopped, in an action brought to recover his subscription, from pleading the non-per- formance of those conditions. 3 Similarly, when the receiver of "Waiver of condition. Estoppel. 417 ; Burlington and M. R. R. R. Co. v. Boestler, 15 Iowa, 555. A sub- scription may be received by a rail- road company conditioned on a spec- ified location of its road; and cannot be enforced unless the condition is complied with. Nashville and N. W. R. R. Co. ». Jones, 2 Cold. (Tenn.) 574; Missouri Pac. Ry. Co. v. Tygard, 84 Mo. 263, and preceding cases. When on subscribing and paying for shares the subscriber makes a contract with the company's agent, under a mutual mistake as to the agent's powers, and the company re- fuses to perform, the subscriber can recover back his money; the con- tract having been part of the sub- scription agreement. Weeden v. Lake Erie and M. R. R. Co., 14 Ohio, 563. 1 Musgrave v. Morrison, 54 Md. 532 161. Compare Greenbriar Industrial Expo. v. Ocheltree, 44 W. Va. 626. 2 Defendant subscribed for shares, making his subscription payable on certain conditions, one of which was that the road should be built to a certain place by a certain date. Sub- sequently he gave notes for his sub- scription payable on the fulfillment of the conditions, except the one above mentioned. It was held that the omitted condition was thereby waived. Slipher v. Earhart, 83 Ind. 173. See, also, Lee v. Imbrie, 13 Oreg. 510; California Southern Hotel Co. v. Callendar, 94 Cal. 120; Macfar- land v. West Side Imp. Ass'n, 53 Neb. 417; S. C, 56 Neb. 277. 3 Bavington v. Pittsburgh and Steubenville R. R. Co., 34 Pa. St. 358.