Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/95

 CHAP. VI.] AGREEMENTS TO TAKE STOCK. [§ 100. When de- posits may be with- drawn. § 98. It may be said, as incidental to the preceding discussion, that where a number of persons intending to form a corporation and through that means carry on some business, raise a common fund, eventually to be in- creased, but beginning with deposits placed in the hands of a committee with authority to do certain acts, it is not competent for any one of such subscribers to withdraw his funds so deposited until it has become evident that the carrying out of the scheme is impracticable. 1 § 99. If a person agrees to pay a deposit, and the considera- tion of that agreement fails, he need not perform ; 2 but, nevertheless, should he agree to pay deposits by SSSnces. a certain day, he cannot plead to an action for not paying them on or before that day that the projected company has become abortive since that day ; for that might not have happened had he paid his deposits as agreed, and circumstances intervening after he broke his promise are no excuse for such breach. 3 Where, however, a person subscribes for stock in a future corporation, as the contract does not purport to be with an existing corporation, the subscriber is not estopped, in a suit to enforce his subscription, from denying that the corporation ever came into existence. 4 § 100. Having considered the general question of the valid- ity and construction of an agreement to take shares L ega i reia,. in the stock of a future corporation, there remain j^"^.*^ for consideration the legal relations arising- from such valid agree- TTlPTlt to an agreement. Prima facie these relations are such take as may be inferred from the terms of the instrument ; s ares ' for the courts ordinarily, as among the parties to the instru- ment, will enforce its provisions according to their tenor and import. Such agreements differ much from each other. One might readily be drawn so as to constitute the parties thereto partners, at least in regard to the scheme of incorporation ; as, i Baird v. Ross, 2 Macqueen, 51 ; compare Kent v. Jackson, 14 Beav. 367; Kidwelly Canal Co. v. Raby, 2 Price, 93. 2 See Duke v. Andrews, 2 Ex. 290. 3 Duke v. Dire, 1 Ex. 36; Oldham v. Brown, 7 Ellis & B. 163; S. C, 2 Ellis & E. 398. 4 Rikhoff v. Brown's Sewing Ma- chine Co., 68 Ind. 388; Indianapolis Furnace, etc., Co. v. Herkimer, 46 Ind. 142; see Reed v. Richmond Street R. R. Co., 50 Ind. 342; §§ 537, 538. 75