Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/798

 § 790.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. XV. § 790. Further, a contract for the sale of shares will be Specific specifically enforced in equity, if it is not uncon- perform- scionable ' or against public policy, when from the scarcity of the shares or other reasons the purchaser cannot go into the market and purchase similar ones. 2 But if shares similar to those which are the subject of the sale, are readily purchasable in the market, equity will not, as a general rule, specifically enforce the contract ; but will leave the parties to their remedies at law. 3 And equity will pursue a similar course when for any reason the contract for the sale of the shares is against public policy. Thus it has been decided in Pennsylvania that, for reasons of public policy, equity will not decree the specific performance of a contract to sell shares in the stock of a national bank, the object of the purchase being to obtain the control of the bank. 4 " "While the legal right of the complainant to buy up sufficient of the stock of this bank to control it in the interest of himself and his friends may be conceded, it is by no means clear that a court of equity will lend its aid to help him. A national bank is a quasi public institution. . . . Were we to affirm this decree, I see no rea- son why we may not be called upon to use the extraordinary powers of a court of equity to assist in miscellaneous stock jobbing operations." 5 purchaser, is an admission of the existence of the corporation. Mann v. Williams, 143 Mass. 394. 1 See Mississippi and M. R. R. Co. v. Cromwell, 91 U. S. 643. 2 Johnson v. Brooks, 93 N. Y. 337; White v. Schuyler, 1 Abb. Pr. N. S. (N. Y.) 300; S. C, 31 How. Pr. (N. Y.) 38; Todd v. Taft, 7 Allen,- 371; Cheale v. Kenward, 3 De G. & J. 27; Duncuft v. Albrecht, 12 Simons, 189; Moses v. Scott, 84 Ala. 608; compare C hater v. San Fran- cisco Sugar Refining Co., 19 Cal. 219; Cushman v. Thayer M'f'g Co., 76 N. Y. 308. Especially will equity specifically enforce a transfer in the course of enforcing a trust. Coles v. Whitman, 10 Conn. 121; Draper v. Stone, 71 Me. 175. Compare Wonson 778 v. Fenno, 129 Mass. 405; Colquhoun v. Courtenay, 43 L. J. Eq. 338; John- son v. Brooks, supra. 8 Ross v. Union Pac. Ry. Co., 1 Woolw. 26. But see Ashe o. John- son, 2 Jones Eq. (N. C.) 149. Like- wise the specific transfer or delivery of particular shares, rather than others, will not be enforced; all being alike. Hardenbergh v. Bacon, 33 Cal. 356; Hubbell v. Urexel (U. S. Cir. Ct. Eastern Dist. of Pa. ), 21 Am. Law Reg. (N. S.) 452. See § 794. 4 Foil's Appeal, 91 Pa. St. 434. Compare Faulds v. Yates, 57 111. 416; §788. 5 Foil's Appeal, 91 Pa. St. 434, 437. Opinion of the court per Pax- son, J. See Gage v. Fisher, 5 North Dakota, 297.