H. L. Cas. 52S, the dismissal of .bill WaB affirmed, on the grouoo that it had beelilguilty ef misrepresentation in usiDgupon goods the words "Crockett & Co.,.Tannoo.Leatfter Cloth, Patented/'and "J. R. & C. C. CrockMahtllfaobuteIs," a.llof which was untrue.!. ' But a' distihotion was pointed out by Lord WESTBURY, .. Suppose," said he, .. a partnellship 'to formed acenbury ago, under a style or firm composed,of the names of the' theJi .partners, and that the partnership has been continuec}' by the "admission of'.new'partners in an unbroken series of 'successiv.e,partnerships, trading under the :same original sty Ie, although the names of the present partners are WhollY' different from those In the original (ii-m. ,Isitianimposltion pn the public that such partners should continue to usetbestyl8' or firm of .tIle originalpartnership?:lrhis question must be answered, without any;doubt, in the negative. ! , suppose Itnind1vidual ora 'firm to have gained credit for a particular manufactu'oo, and thaUlic'g-O"6dsilwa:maTked or stampedih such a way as to denote that they are made by such person or firm, andithat the name has ,gained currency and ,ere6it in ,the market, (there being no secret process or invention.)' 'Gould such'verson or firm, on 'ooasing to Cai'l'Y on business, sell and assign. the to use '8uchname andmatk to another firm, carrying .on the same business in a different place? Suppose a firm of A.; B. & Co. to have ,been" clothiers' in, Wiltshke. fur 50 years;) and..that broadcloth marked "A., B. &; Oo.",Makers,Wilts.,!'.has'obtailled a/great-reputation in the market, and that ,A" Co.,'on discontinuing transfer: the right to useltheir name and mark to the: firm oll'C., D. & Co., who are clothiers in Yorkshire. Would the be proteclJec!i by "court of equityin. their claim to an exclu& Co.?t' r am of opinion. that ,sive riglit.to':usethe no such protection ought to be given. Where any symbol or label claimed as attll;(le.,IIiark is so con9tJ.'tlcted or· worded as 'to make or contain a distinct' assertioll, whic.h.:is false. Iithink nOpl'op.ellty can be claimed for it; or, in other words,therigbt,to the exclusive use'of; ilJ.cannot be maintained." Leather ClothOa., Lim. v· ..4.me1·' LIO. 00. Lim.4'De Ge:x,J.,& S. 143.
Receiver, etc., v.
(Oz'rcuit Oourt, E. D. Wisconsin.
L 8'!iocx Cm'lPANIll:s--SUBSCl,UY.!'ION-How ATTACEQtS. A persoll cannot be held liable as of 8 company until his n8ll).e has signe4 by himSelf or his authorized agentitl the stock-book oftlle company, kept forth8t purpose. 0.zte's naqle in the private memoran'dum-book.of ,8 partysoIiQiting subscriptioD!} the stoc.k of the company is not of itself authority to such person to sign: aJstibscrlption for stock.
'2. SAME";,,,PRon-RATIFltATION OF uNAuTHolnzED ACTS.
The deferidant agreed to subscribe to the stock of' 8· company., providing a . cert81happointment WfiS secured for him, but declaring at the same time that he could not then subscribe for the stock. He subsequently authorized the
party soliciting for subscriptiqnto, the stock' to appeal' fOl"Mm!>y: proiy at the meeting of the of h\s future suj)scdptioll to:tJ1e stock, which was·never matie.,HBld, that such pro:xywas not a,ratiftcatiol). PYf the defendant of the act' of the one to whom it was given in having defendant's name on the stock-book oi the iCompany 8S a subscriber: withbut hi;<j' knowledgl;l or consent.
S SAME-RATIFIOATION OF ACTS Es8E;NTlAL TO. ' The ratification of an act of an agen,t unlluthprized in order to bind the principal, be with a full knowledge of all the matel'iaJ.llWWl. Owinga v. HuEt, 9 Pet. 607, followed. '
Jenkins, Elliott II Winkler, for plaintiff. Fisk <t Dodge, for defendant. DYER, J. The plaintiff in this action' sues to recover nponan alleged subscription by the defen'dant of $2,000 to the capital, stock of a corporation, now dissolved, known as the Chicago PublishiDgi Company, incbiporated and 'organized in 1877, under the laws 'of Dlinois. One O. A. Willard, since deceased,was the largest stockholder, and the president and business manager of the company. In July, 1878, the Rock River Paper Company, acreditorof.eald oorporation, filed its bill against the publishing company, and aU alleged stock subscribers of that company, in the superior court of Cook county, Illinois, to wind up the affairs of the company, and to compel the payment of all subscriptions to stock, for the benefit af creditors. The defendant herein was made a party to that bill. As he was a resident of Wisconsin, no personal service of process could be made upon him, but jurisdiction of him was attempted to be ob· tained by publication in a manner said to be authorized by the laws of Illinois. In that suit the plaintiff herein was appointed receiver of the property and effects of the publishing company, and subsequently a decree was entered by which it was, among other things, decreed that all of the solvent stockholders or subscribers to the capital stock of said corporation, including the defendant herein; pay, or cause to be paid, to the plaintiff receiver, the' several sum.s of money alleged to be due from them respectively on account of their SUbscriptions to the stock of the company. Subsequently, the Illi· noiS' court made a further order authorizing and directing the receiver to prosecute suit against the defendant herein to recover the amount of his alleged subscription, and it is understand that the various proceedings in ·the Illinois case were in accordance with the statutes of that state authorizing ,the same. The case at bar was submitted to the court without the interven· tionof a jury, and upon the argument it was contended by the coun-
sel for the defendant that the right or capacity of the reoeiver to sue was limited to the jurisdiotion of tM conrt that' appointed him, and thathecbuld riot come intothisjilrisdiction arid, as receiver, prosecute this suit· against the that the receiver cannot maintain this action, because he shows no judgment ,of the court appointing him, which iEi conclusive against the defendant. In the view which the court takes of the merits of the case,it is unnecessary to pass up OIl these questions. .' . Since the superior court of Cook county did not get jurisdiction of the defendant by ofprocess upon him, and as, therefore, its decree was not conclusive as to him, it cannot be denied; and indeedit is that he here the same defense upon the merits that he could hav,e ma.d.e, in the Illinois suit had he appea!edtherein and contested question of liability· . Tl:le IJ,laterial qnestion for determination then is, did the defendant, upon. the facts heresQ,pwn. incur liability as a stock subscriber of the company? If 11e did" then he ought to contribute with other f3tockholders to the of the debts of the corporation. The stocksupscription-bookis .mevidence, and the name of the defendant ap'pears therein as representing a subscription for 20 shares, amounting to $2,000. It is satisfactorily shown, howev,er, and this was conceded by, counsel. for the plaintiff after the proofs were in, that the defendant'.s signature on,the l'Itock-book was not in his handwriting, and was not. his genuine sigqa.ture. 'l'hat it was written in imitl;ttion his sig:nature is apparent. E:nough is disclosed by the evidence to,show that in January, 1878, Willard, who had al.lthority tOl'olicit 'stock subscriptions, came to Racine, where the defendant resided, and requested to become a subsQriber. ,The defendant told him he was not in a situation to engage ina,jpint.stock enterprise. This is shown by the testimony of the plaintifj;, Who testifies to fltatements made to him by the defendant concerning the .defendant's interview with Willard. Further conversation on the subject was hltd between Willard and the de. fendant, but precisely what was said is not ,directly proven, for the reason that Willard is deceased, and therefore, under the statute, the defendant was not a competent witness to testify to conversations between the parties. The answer l;Llleges that, as the result of the negotiatiops, the defendq,nt told Willard that if he could secure trw appointment of United States consul at Bradford, England, he would be able to take and pay for stock to the amount of $2,000. But, notwithstandi,ng this hiatus ,in the proofs, enough appears to quite
ll'OLELLAND V. WHITELEY.
clearly indicate that the defendant was not then prepared to make a subscription, but that in certain contingencies he would be willing to do so. Thereupon Willard presented to the defendant bOOk, and the defendant wrote" therein, "Simeon Whiteley-2,00020;" the figures evidently me'aning $2,000'-..:20 shares. U is satisfactorily shown that this book was Willard's personal memora.ndumi. book and not the stock-book of the company. There was one other signature on the page upon which the defendant thus wrote his name, but nothing was written on the' pages which preceded these signatures. The fact is not clearly proven, but the whole 'evidence and the circumstance's of the transaction, I think, warrant the inference that the wrote his signatnre in the manner sta.ted, not a present subscription, but as :indicative of what he wotlld be Willing to subscribe 'in a certain event; for it is clearly demonstratted that' he never subscribed for stock in the subscription-bookoftheoompany, .and llehas testified unqualifiedly that he never authorized Willard or any other person to subscribe for him, or to place. his name on the company's stock-book, and his testimony is not !iIllIo peached. ' After the death of Willard,' the book which contained the' defend· ant's signature was found by his wife among his personal effects, and on the leaves which preceded the page on which the defendant signed bis name, there had been written >.list of the stock subscribers of the company, with the amount and number of shares subscribed by each, insubstantially the same order in which the names of sub. scribers appear'on the genuine stock subscriptioll-bookQfthe co'mpany. At the top of each 'page were'.also written in appropriate places the words "names" ..:- "amount" "sharl:1l3."'; On the handwriting of first page of the first leaf was written, in 'IChicago Publishing Company. Capital stock, $150,000;" and on the second page of the same leaf was written, also in the handwriting of Willard, a form of subscription for stock, which if! in fact a copy of the subscription signed by actual subscribers. These leaves were removed from the bookwhich contained them by ;Mrs. Willard after her husband's death, for reasons stated in her testimony, and are here produced in evidence; and the witness Harriet Dewey, who was in the' employment of the publishing company as a clerk, testifies that by Willard's direction she wrote the list of signatures on the pages which preceded the defendant's name after his signature was written therein, thus corroborating the defendant's statement that nothing was written on those pages'atthe time of his interVIew Willard.
After Willard's and on thethirteel1th day of May, 1878, 11r5. Willard, who was then the business. manager and treasurer of the publishing company, finding the defendant's name on the stock subscription-book, undoubtedly him to be Bstock subscriber, sent him by mail a certificate for 20 shares of stock, but he immediately returned it and made no payment on account thereof. It further appea,rs, as a fact in the case, that on or about the eighteenth day of February, 1878, Willard sent to the defendant a blank proxy to vote on stock at a stockholders' meeting thereafter to be held. This proxy the defendant. filled up, signed, and returned, and thereby in terms constituted Willard attorney and agent for him, and in his name. and stead, to vote as proxy at any and all meet. ings of the stockholders of the publishing company, according to the number of votes he should be entitled to vote if personally present. The defendant testifies that the letter in which the proxy in blank was sent to him, did not, according to his recollection, contain any notice of a stockholders,' meeting; that he did not then know that his name appeared on the company's stock-book as a subscriber for stock, and that he signed the proxy for the reason that whenever the anticipated time arrived when he should take stock in the company, he desired Willard to have entire control of it. It appears from the secretary's records that subsequently a stockholders' meeting was held, and that Willard voted or appeared at such mEleting, not only for himself, but as the defendant's proxy. .There is, however, no proof that the defendant at the time, or subsequently, had any knowledge of those proceedings. There is nothing in the evidence tending to show that the act of Willard, in causing the list of stock subscribers and the form of a subscription to be placed on the leaves in his memorandum-book, which preceded the page on which the defendant's signature was written, was done with the authority, consent, or even the knowledge of the defendant, and to the point in the history of this transaction when that event occurred, the proofs are wholly inadequate to show that t4e defendant became a subscriber to the stock of thecorporation. He had not made flo SUbscription on the stock-book of the company. He had told Willard he was not in a situation then to engage in the enterprise. He had written his name on a blank page of Willard's private memorandum-book and placed $2,000 opposite his signature. The heading; the list of actnal subscribers, and the wads "amount" and "shares" were written there afterwards without
M'CL'ElLLAND V. 'WHITELEY.
his authority or knowledge': He' gave WilllttdM8.uthority to place his name upon the'stock-subscription-bo6k ortha' com.pany, andhtl executed the proxy under: tlte slatell!' , ' Argtltilentis hot needed'Ttl stipport of the proposition that, 'to entitle the'iplaintiff to recovet, it must beestab1ished by the: that 'subscribed contract to take stock in',the pablish, .·. " ' , ' ,'f ,'.' , _.. _,' ,: ing company, or that some person to sign such acdntract for him, or that inthe absence' of such;origlftal authority, with knowledge that a subscription hatl in his name, he r.atified the act. 'rhe ?f tnese.l>ropositiolls fact are not only not proved;bu'tare affirmatrvely'disptoved., The only, quesat all in doubt:is that whioh retion about wliib1}f'hhecohrt has IIHes to' 'the upon the' rights of' the in interest of the proxy givi:Jn by the defendant ito Willard, February 18; 1878. It is true that that proxy enabled to represent the defendant at a stockholders' m.eeting an'dto vote 'as his ptbx.Y'aocoMing to the numbel.' the defendant wOlild if himself present. not yet subscribed for anystoek,and But in fac,t the defet;ldant was, thetetore, not entitlM'to vote at such meeting by'\'irtue of any actual subscription. The nwst', thatfcah be claimed as the legal effect of the proxy is that the defendant thereby ratified the act of Willard in: placing his nahle 'oil the stocksubsciiption-book of the in antilJi· eompany. But it is in proOf that the pl\.tion of a future subscnptionwhich was never'made,and that ,the Ilefend!tut "had no knowledge that 'Willard had placed name on the company"s'stock subs'crij'ltibri.book:· On 'the sUbject of ratification "no doctrine is better settled," said the court in Owings v. Hull, \) Pet. 607, "both upon principle and authority, than this: that the ratification of an act of an agent, previously unauthorized, must" in of all the mateorder to bind the principal, rial facts." To tne same effect' ate Combs v. Scott, 12 Allen, 493, and Pittsburgh ct SteubenvilleR. 32):>a. St. 340. In order, therefore, to treat the execution of the proxy as a ratification of the act of Willard in placing thederendant's coinpants8ubscrIption-book, it 'should appear that'the defendallt had of Willard's act. And since it is affirmatively'shown that he. had. no such and never authorized that act: done, and further had given no that he had not one any authority to subscribe for'hin:i,'it seems to follow as a necessary conclusion that the, gjving of the proxy cannot hll.ve ,the legal effect claimed by the plaintiff.
The case has bej:ln argued by plaintiff's counsel upon the theory agreed to subscribe for stock. This throughout thllot. the is not proven, and the allegation of the auswer on the subject does not sustain Buch theorY. That allegation is that the defendant told Willard that if he secured a certain appointment he would be able to take and pay for $2,000.of stock, and that as a meJIlorandumof such proposition he wrote his name in Willard's memorandum.book. The case is not one of' a signature to a contract of subscription with amount, number of shares, and the like left in blank, and the blank to be filled by the representative of the company. It is not the case of an actual signing of a c-ontract of subscription, with an oral understanding making it conditional. It is a case where the party did not subscri):le, !lid, not authorize anyone to subscribe for him, did not make I'vlegaLratification of an unauthorized act, and, according to the proofs allegations of, rthe,'answer, did not even agree unqualifiedly to take stqck in the future. In such a case it is plain that creditors of. the oOJ;poration have no greater rights or equities, so far as the,,defendant is concerned, than the company had. I have carefully examined the Cl'j.se of Jewell v. Rock River Paper Co. 101 Ill. 57, and find nothinK therein in conflict with the con· elusions arrived at in the case at bar. In Union Mut. L. Ins. Co. v. Frear Stone Manuf'g Co. 97 Ill. 537, the parties SouKht to be charged were actual subscribers for stock, aJild it was held that as such subscribers they could not limit their lin lility agreement between themselves and the company. Judgment must be entered in favor of the defendant.
TOWN Oll' SPRINGPORT. 1883.)
(Circud Court, N. 'D. NfItD York.
Unless the answer contains such a special g.enial the plaintifi need give no proof of citizenship.