Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/93

 CHAP. VI.] AGREEMENTS TO TAKE STOCK. [§97. pany is agreed to be taken. 1 Such a condition would be more apt to be present where the parties to the agreement sign at different times; in which case, as beforepointed out, a con- sideration shoulabe T^xpr^i^^o mcfvefrom' the representatives of all other parties to each party upon his signing the instru- ment. If this were done, the promises would be binding con- ditionally as soon as made ; and upon the fulfillment of the con- dition, that is, upon promises to take the requisite number of shares being made, they would become absolute. Should this condition, however, relate to the performance of the promises, the promises might amount to no more than offers, which could be withdrawn at any time before the fulfillment of the condi- tion, for it may be said that until then they never had any even conditionally binding quality, except as above pointed out. 2 § 97. If the condition be one to be performed by the corpora- tion when organized, then generally the agreement to subscribe made prior to its organization cannot be enforced before the 1 When the amount of the capital stock is inserted in the subscription^ agree m ent, subscribers may refuse to pa y auy part of their subscription s until the full amount is subscribe d for. Cabot and West Springfield Bridge v. Chapin, 6 Cush. 50; Salem Mill Dam Co. v. Ropes, 6 Pick. 23. See Norwich, etc., Navigation Co. v. Theobald, 1 Moo. & M. 151; Water- ford, etc., R. Co. v. Dalbiac, 6 Ex. 443; Penobscot R. R. Co. v. Dum- mer, 40 Me. 172; Penobscot, etc., R. R. Co. v. Bartlett, 12 Gray, 244; Burt v. Farrar, 24 Barb. 518; Hughes v. MTg Co., 34 Md. 316; Boston, Barre, etc., R. R. Co. v. Wellington, 113 Mass. 79; Erie, etc., R. R. v. Owen, 32 Barb. 616; Pierce v. Jer- sey Water Works Co., L. R. 5 Ex. 209; Elder v. New Zealand Land Improvement Co., 30 L. T. N. S. 285; California Southern Hotel Co. v. Russell, 88 Cal. 277; Fair Assn. v. Walker, 88 Mich. 62; Hards v. Platte Valley Imp. Co., 35 Neb. 263; Macfarland u. West Side Imp't Assn. 53 Neb. 417; but see Rensselaer, etc., Plank Road Co. v. Wetzel. 21 Barb. 56; McDougall v. Jersey Im- perial Hotel Co., 10 Jur. N. S. 1043. See §§ 517-521. The_ £rospectus of a c ompany -to be forme d__s tated that the proposed capital stockjwas_to_consist of tan thousand shares of twenty-five pounds each. Only fourteen_lmn^ died of these shares were taken. Held, that the agreement of a person subscribing for shares was condi- tional on the fulfillment of the terms of flie prospectus. PitchforcL- v. Davis, 5 Mees. & W. 2; Acc^ Fox v. CTTTton, 6 Bing. 779; but see Hutt v. Giles, 12 Mees. & W. 492. When the subscription-contract is part oi the prospectus, the terms of the latter are conditions. Norwick ,. Lock. MTg Co. v. Hockaday, 89 Va. 557. 2 See § 93. 73