Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/91

 CHAP. VI.] AGREEMENTS TO TAKE STOCK. [§ 94. ise, or, more strictly speaking, un with drawn offer, 1 to take shares, B., C, D., etc., have actually taken shares themselves, they have thereby accepted A.'s unwithdrawn offer, by per- forming that act, which was intended to be, when performed, a valid consideration, which should convert A.'s unwithdrawn offer into a binding promise ; and in truth, therefore, they have thus transformed A.'s unwithdrawn offer into a binding promise, the performance of which may be enforced by the parties who have themselves performed, or by the corporation if such was the intention. 2 § 94. The foregoing discussion has proceeded on the assump-. tion that the agreement to take shares was entered into by all the parties thereto at the same time ; that it was, properly speaking, one agreement. AVhere, however, as is frequently the case, a subscription-agreement is signed by different persons at different times, or where " books are open for subscribers," who subscribe at different times, the foregoing remarks will be hardly applicable. For instance, in the case above conceived, where the making of the respective promises was plainly in- tended to be the consideration of the agreement, if we suppose that A., B., and C. sign together, and that some days after- wards D. signs, while A., B., and C. may be bound, yet as to D., if the consideration of his promise was the making of the promises of A., B., and C, it will be but a past consideration. It might be said that all parties are to be presumed to sign at the same time ; but when several days intervene between the times of actual signing, and especially where dates are an- nexed to the different signatures, such a presumption becomes too glaringly contrary to fact to exist even in legal contempla- tion. In such a ease further consideration should be found for D.'s promise. Here, as we must presume all the parties to act x This unwithdrawn offer is not even a conditional promise, because it may be withdrawn at any time be- fore the performance of the consid- 2 If the paper were so drawn that the consideration of each promise was the performance of all the other promises, the paper would practically eration ; and a true conditional prom- amount to very little ; as it would not ise may not be withdrawn, because become enforceable against any one founded on a consideration when made; although it may not be en- forced until the condition has been performed. subscriber until all the rest had vol- untarily taken their shares. 71