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Minneapolis and St. Louis Railway Co. v. Bassett.

interlineations and additions cannot be upheld, it follows, upon the principles above laid down, that the erasures must fall also, notwithstanding they might operate as a pro tanto revocation if they stood alone. 1 Redf. on Wills, 326–7, § 44 and note.

The result of all this is, that the original will, as originally written, is entitled to probate. Doane v. Hadlock, 42 Me. 74. The judgment of the District Court is accordingly reversed.

Judgment reversed.

NOTE. In Quinn v. Quinn, 1 N. Y. Sup. 437, the testator, after he had duly executed his will, made, in his own handwriting, various alterations. Some legacies he erased and some he directed to go to other persons. He also changed one of the executors. Held, that the will as originally executed should be upheld, and also that a testator cannot by obliterations partially revoke a will duly executed. In McPherson v. Clark, 3 Bradf. 92, where a testator obliterated a devise and changed the residuary clause, the will was held good as it existed before the erasures. — REP.

MINNEAPOLIS AND ST. LOUIS RAILWAY COMPany v. Bassett, appellant.

(20 Minn. 585.)

Corporation-construction of charter — validity of subscription for stock.

The charter of a corporation provided that its capital stock should be “divided into shares of $100 each, and five dollars on each share shall be paid at the time of subscribing." Held, that the payment of five dollars, at the time of subscribing, was not essential to the validity of a subscription for stock.

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CTION against Joel B. Bassett, to recover the price of shares of plaintiff's stock subscribed for by defendant. The facts are stated in the opinion. The appeal is from an order overruling a demurrer to the complaint.

Lochren, McNair & Gilfillan, for appellant.

Atwater & Babcock, for respondent.

BERRY, J. This action is brought to recover the subscription price of ten shares of the capital stock of the Minneapolis and St.

Minneapolis and St. Louis Railway Co. v. Bassett.

Louis Railway Co., which were subscribed for by defendant after the incorporation and organization of said company.

Section 3 of plaintiff's charter (Laws 1853, chap. 10, Col. Stat., p. 143) enacts that "the capital stock of said corporation shall be two million of dollars, and shall be divided into shares of one hundred dollars each, and five dollars on each share shall be paid at the time of subscribing." The defendant has paid nothing upon his subscription, and it is contended that this fact is a complete defense to this action. In support of his defense, the defendant cites Jenkins v. Union Turnpike Co., 1 Caine's Cases in Error, 86; Highland Turnpike Co. v. McKean, 11 Johns. 98; Crocker v. Crane, 21 Wend. 211; Beach v. Smith, 30 N. Y. 116; Black River and U. R. R. Co. v. Clarke, 25 id. 208; Hibernia Turnpike Co. v. Henderson, 8 S. & R. 219; Charlotte and S. C. R. Co. v. Blakely, 3 Strobh. 245; Barrington v. Miss. Central R. Co., 32 Miss. 370.

Highland Turnpike Co. v. McKean, and Crocker v. Crane, follow and rest upon Jenkins v. Union Turnpike Co., as to which case it is said, in Highland Turnpike Co. v. McKean, to be "a little difficult to ascertain the point upon which the Court of Errors grounded their decision ;" while in the Rensselaer and Washington Plankroad Co. v. Barton, 16 N. Y. 457, SELDEN, J., remarks that "it may well be doubted whether the reasoning upon which it was based is sound, and whether, were the question to be again directly presented, this court would feel bound to follow it. The case is also mentioned with disapproval in Piscataqua Ferry Co. v. Jones, 39 N. H. 491; Vt. Central R. Co. v. Clayes, 21 Vt. 35, and in 1 Redf. on Railways, 3d ed., 189, and note. See also Angell & Ames on Corporations, § 529.

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In all of these cases, Jenkins v. Union Turnpike Co., Crocker v. Crane, Highland Turnpike Co. v. McKean, the payment not made, was required by statute to be made, before, and, as in said Crocker v. Crane, as a condition precedent of, corporate existence; while in Beach v. Smith, 30 N. Y. 132, MULLIN, J., observes that the opinion of the chancellor in Jenkins v. Union Turnpike Co. was, that if in that case the subscription, though unaccompanied by any payment, had been made after the organization of the corporation, it would have been valid.

In Beach v. Smith, and in Black River & Utica R. Co. v. Clarke, the statute expressly forbade a subscription to be taken without payment of ten per cent. In Charlotte & S. C. R. Co. v. Blakely VOL. XVIII. - 48

Minneapolis and St. Louis Railway Co. v Bassett.

a subscriber was required to pay to the commissioners receiving subscriptions, as a basis of corporate organization, an installment of five dollars on each share, and the statute distinctly provides that "on non-payment of said installment, the subscription shall be void," and a similar state of facts is presented by Mc Rea v. Russel, 12 Ired. Law, 224.

* *

In Hibernia Turnpike Co. v. Henderson, commissioners were appointed by an act of assembly, to take subscriptions, before, and as the ground upon which, letters patent were to be issued by the governor, erecting the subscribers into a body politic and corporate. The act contained this proviso, "Provided always that every person offering to subscribe, shall previously pay to the attending commissioners the sum of five dollars for each and every share to be subscribed." The court held that the commissioners were ministerial officers, acting under a limited authority, that the payment of five dollars on the share was a condition precedent to subscription, that "it was flying in the face of the law, under which they drew their breath," for the commissioners to receive a subscription without the payment, and that therefore the contract of subscription was illegal and could not be enforced. In Everhart v. Westchester & Philadelphia R. Co., 28 Penn. St. 339 (in which the requirement as to payment was like that in Hibernia Turnpike Co. v. Henderson), it is held that a subscriber who transfers his stock to another, and treats it as valid, is estopped from denying that the payment necessary to give his subscription validity, was made. is difficult to see how this conclusion could be supported, if it was the intention to adhere to and sanction all that is said, arguendo and otherwise (of which we have quoted but little), in Hibernia Turnpike Co. v. Henderson. On the contrary, it seems to us that the case of Erie and Waterford Plank R. Co. v. Brown, 25 Penn. St. 158, favors the doctrine that a subscription of the kind then before the court is voidable rather than void, irregular rather than illegal. And a like remark is applicable, in our opinion, to the cases of Center, etc., Turnpike Co. v. McConaby, 16 S. & R. 140; Greenville, etc., R. Co. v. Woodsides, 5 Rich. Law, 148.

As to Barrington v. Miss. C. R. Co., the last case cited by defendant, the point raised here was not there considered or passed upon.

From this brief review, we think it will appear that the authori ties cited by defendant hardly sustain his position.

Minneapolis and St. Louis Railway Co. v. Bassett.

In this case, the subscription was made, as is alleged in the complaint and admitted by the demurrer, after the plaintiff's incorporation and organization. The plaintiff's charter does not forbid the taking of subscriptions without concurrent payment of five dollars upon each share, nor does the charter declare that subscriptions made without such payment shall be void. In our opinion, the plaintiff's charter, in providing that "five dollars on each share shall be paid at the time of subscribing," while it confers upon plaintiff the right to insist upon the payment, does not make the successful exercise of this right indispensable to the validity of a subscription. The provision is a privilege for the benefit of the company, and, whatever may be imagined, there is no satisfactory reason for supposing that the legislature had any other object in enacting it.

If it were necessary to account for the purpose of the legislature in granting this privilege, it might be said that one purpose was, to enable the company to collect small installments upon the stock (enough, perhaps, for some preliminary expenses), without the necessity of making a formal call, upon thirty days' notice, as required by section 6 of the charter.

If we are right in the opinion that this provision was made for the plaintiff's benefit, we can conceive of no reason why, in accordance with the familiar maxim, the plaintiff may not waive the privilege thus conferred upon it. If the plaintiff sees fit to accept the subscription, without requiring the concurrent payment which it is authorized to require, this is a waiver of its right to insist upon such payment, a waiver to which the subscriber assents and agrees by the very act of subscription without concurrent payment. In the absence of any rule of law or provision of statute, forbidding a waiver, or invalidating any subscription made upon a waiver, this indulgence upon the part of the company cannot be turned against it, as a defense to an action to recover the subscription price of shares.

These views are sustained by the following authorities: Haywood and Pittsboro Plank Road Co. v. Bryan, 6 Jones (Law), 82; Piscataqua Ferry Co. v. Jones, 39 N. H. 491; Wright v. Shelby R. Co., 16 B. Monr. 4; Henry v. Vermillion, etc., Co., 17 Ohio, 187; Vicksburg R. Co. v. McKean, 12 La. Ann. 638; Vt. Central R. Co v. Clayes, 21 Vt. 35; Mitchell v. Rome R. Co., 17 Ga. 591; Redf on Railways (3d ed.), 189 and note.

Gove v. Blethen.

If the subscription is not void for the subscribers' failure to pay five dollars per share at the time of subscribing, but it is competent for the company to waive such payment, it further follows that there is no want of mutuality to support the subscription. The subscription would in such case, so far as the point of mutuality is concerned, stand upon the same footing as if such payment were not provided for in the statute at all. The subscriber would, by his subscription, become a stockholder, and a member of the company. The interest thereby acquired by him would be a sufficient consideration to support an action against him for the price of his shares. And on the other hand, by becoming such stockholder, the subscriber would acquire a right to the shares, which the company would be under an obligation to give him. Vt. Central R. Co v. Clayes, 21 Vt. 34; 1 Pars. on Cont. 453.

Order affirmed.

GOVE V. BLETHEN, appellant.

21 Minn. 80.)

Slander - words charging violation of official duty actionable per se.

Defendant, in speaking about G., a justice of the peace, who had decided a case tried before him against defendant, said "G. perjured himself in deciding the suit against me, contrary to all law and evidence, etc. It is the damndest erroneous decision I ever saw any justice give; it was a damned outrage, and was done for spite." Held, that the words imported that plaintiff violated his official oath in deciding the case, and were actionable per se.

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CTION by R. H. Gove against H. K. Blethen, for slander. The opinion states the facts. The appeal is from an order overruling a demurrer to the complaint.

P. M. Talbot and R. A. Jones, for appellant.

Charles M. Stuart, for respondent.

MCMILLAN, C. J. This is an action for slander. The defendant demurred to the complaint, upon the ground that it does not state

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