Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/94

 § 97.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VI. performance of the condition, 1 unless it is the promisors them- selves who, as a matter of fact, prevent the fulfillment of the condition in order to invalidate their own promises. 2 In the last case the promisor who is concerned in preventing the ful- fillment of the condition may take no advantage of its non-ful- fillment ; and this on general principles of good faith and equity, and in accordance with the law relating to the performance of conditions o-enerallv. 3 1 Effect should be given to condi- tions in a letter accepting a position as provisional committee-man, and agreeing to take shares. Robert's Case, 3 De Gex & S. 205; affirmed, 2 Mac. & G. 192; see Wood's Case, 3 De G. & J. 85; Burrows v. Smith, 10 N. Y. 550; Union Hotel Co. v. Hersee, 15 Hun, 371. It has been held, where persons acting as agents for a contem- plated turnpike company obtained subscriptions on certain conditions as to the location of the road, that the corporation cannot afterwards recover on those subscriptions with- out complying with the conditions; and that on the definite failure of the corporation to comply with them pay- ments already made may be recovered back. Frankfort and Shelbyville Turnpike Co. v. Churchill, 6 T. B. Monroe (Ky.), 427. The agreement in this case was separate from the subscription, but was formally drawn in writing, and contained a covenant to return the moneys received unless the road was run as agreed. On the other hand, it has also been held, where a general turnpike act conferred no power on the commis- sioners to acceptconditional subscrip- tions, that asubscription conditioned on the laying of the road through a specified place is contrary to public policy and void. Butternuts, etc., Turnpike Co. v. North, 1 Hill, 518; Fort Edward, etc., Plank Road Co. v. 74 Payne, 15 N. Y. 583. Parol declara- tions made by officers of the company can only avail a subscriber seeking to invalidate his subscription for shares where they amount to fraud. Vicksburg, etc., R. R. Co. v. McKean, 12 La. Ann. 638; Martin v. Pensacola, etc., R. R. Co., 8 Fla. 370; Missis- sippi, etc., R. R. Co. v. Cross. 20 Ark. 443. So parol declarations made by promoters as to route will not, unless they amount to fraud, avail the sub- scriber. Braddock v. Philadelphia M. & M. R. R. Co., 45 N. J. L. 363. And parol agreements made at the time of subscribing for shares, and inconsistent with the written terms of the subscription, are void. Con- necticut and Passumsic Rivers R. R. Co. v. Bailey, 24 Vt. 465; Whitehall, etc., R. R. Co. v. Myers, 16 Abb. Pr. (N. S.) 34; Haskell v. Sells, 14 Mo. App. 91; Galena & S. W. R. R. Co. v. Ennor, 116 111. 55. It is a defence to an action upon asubscription that the corporation has already issued all the stock which it was authorized to issue. Railroad v. Knoxville, 98 Tenn. '_'; Newport Cotton Mill Co. v. Mims, 103 Tenn. 465. See §521. 2 See Upton v. Hansbrough, 3 Bis- sell, 417, 423. 3 See Raynay v. Alexander, Yelv. 66; Hotham v. East India Co., 1 T. R. 638.