Rochester, N. Y., as to whether any further payments were due on said stock, at the same time informing said officers and directors that defendant contemplated purchasing said stock; that, in reply to said inquiries, said officers and directors stated to this defendant that said shares of stock had been paid for in full, and that no further calls or demands would or could be made thereon; that, relying upon said statements and representations, this defendant purchased said shares of stock with the understanding that the stock had been paid for in full, and was therefore free from calls or demands, and this defendant did not understand the term 'assessable,' printed upon said shares of stock, to mean that the stock had not been paid for in full."

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

Charles Roe, for appellant.

James G. Greene, for respondent.

HARDIN, P. J. In Seymour v. Sturgess, 26 N. Y. 141, Allen, J.. in speaking of the liability of a stockholder upon an original subscription, or as transferee of stock, said, viz.:

"Without a promise, proved in one way or the other, a party cannot be charged in assumpsit. If the circumstances negative all presumption of a promise, there is no rule of law applicable to any class of cases which compels courts to disregard the circumstances, and adjudge a promise to have been made against the evidence. In the class of cases referred to [actions upon unpaid subscriptions for stock and against assignees of stock not fully paid for], courts have had respect to the terms of the contract and certificate, and the circumstances of the case, leaving it for other tribunals, in applying the same principles, to observe and give effect to different circumstances as they may arise, and declare what, in each case, is the contract or agreement of the parties. The company was here incorporated, not to accomplish a great public object, but for the immediate profit and advantage of its projectors, and to enable them to dispose of their land and mines, and with a view to a development of their resources by those who should associate together in the corporation."

In that case no formal subscription was made for the stock. None is found in the appeal book before us. In the course of the opinion in that case it is further said:

"But if there be no such agreement, the sole remedy for the corporation is by the sale of the shares of the delinquent members,"-citing numerous cases.

And the learned judge further added:

"There was no express contract by the defendant Sturgess, or by any one to whose rights and liabilities he has succeeded, to take and pay for the stock, and no implied contract or promise is made out by the evidence. On the contrary, every circumstance shows that no such promise was made, or intended to be made, or understood to have been made; and it follows that there is no personal liability which can be enforced by the corporation, or in behalf of and for the benefit of a creditor of the corporation."

That case was referred to with approval in Wintringham v. Rosenthal, 25 Hun, 580, in which case it appeared that Brown had subscribed for 500 shares of the capital stock of a bank, and transferred 50 shares of them to the defendant, and, in an action brought by the receiver of the bank to recover the unpaid calls upon the stock, it was held that the defendant was not liable for the same. And near the close of the opinion in that case Barnard, P. J., said:

"It is only where there is an express agreement to pay that an action will lie by the corporation, 'but if there be no such agreement, the sole remedy for the corporation is by the sale of the shares of the delinquent members.'

In Billings v. Robinson, 94 N. Y. 415, near the close of the opinion, Finch, J., said:

"It was said in Seymour v. Sturgess, 26 N. Y. 141, that in actions upon unpaid subscriptions for stock, and against assignees of stock not fully paid for, courts have had respect to the terms of the contract and certificate, and the circumstances of the case."

In Fifth Ave. Bank v. Forty-Second St. & G. St. F. R. Co., 137 N. Y. 231, 33 N. E. 378, a secretary and treasurer of a company forged certain certificates, and caused the same to be issued against the corporation in which he was acting with apparent authority, and innocent parties relied upon the representations made by him and the instruments issued, and the corporation of which he was an officer was held to be liable. That case is commented upon extensively by Van Brunt, P. J., in Mutual Life Ins. Co. v. FortySecond St. & G. St. F. R. Co., 74 Hun, 509, 26 N. Y. Supp. 547.

To support the defense interposed by the defendant, he was sworn as a witness, and he was interrogated as to what Reynolds said at the time he (the defendant) purchased the stock of him, and after the referee had excluded the conversation held with Reynolds, in which the defendant claimed that he had represented the stock was fully paid up, he testified that, before purchasing the stock, he had a talk with the directors or managers of the company about the stock. He says:

"I had a talk at that time before I purchased the stock of Mr. Reynolds. I talked with Mr. Aris and with Mr. Ranger at the company's office."

When asked for what purpose, an objection was interposed by the plaintiff on the ground that it was incompetent, and the objection was sustained, and an exception was taken. Thereupon the further question was propounded to the witness: "Q. What office did Mr. Aris hold at that time?" This was objected to by the plaintiff's counsel, and thereupon the following questions were propounded:

"Q. Did you know at that time that Mr. Aris was an officer in the company? A. I do not know whether I knew it before or not. I went there, and inquired if Mr. Aris and Mr. Ranger were officers of the company. Mr. Aris stated that he was the manager. Q. What was your conversation with Mr. Aris about the stock? A. I inquired as to the value of the stock and the advisability of purchasing stock of the company. Q. That was with Mr. Aris? A. Yes. Q. What did he say? A. He said that the stock was valuable stock, and advised me to buy it at a reasonable figure. I inquired of him about the liability of the stock, and as to the value of the stock, and he said it was valuable stock, and he said that the stock was fully paid. He told me that the stock of the company that had been issued was paid up stock." The witness stated that, at the time he made the inquiries of Aris, he did not have the certificates, and on being interrogated, in the course of his cross-examination, he says:

*

*

"He [Aris] said that it was paid-up stock. * I went to Mr. Aris as an officer of the company. I went to the company, and found Mr. Aris was the officer. * * * I was led to believe, by the officers of the company, that the stock was fully paid up, and I did not examine the stock critically."

Subsequently Ranger was called as a witness for the plaintiff, and he testified that he

"Never told the defendant that all the stock of the Kettle Falls Land Company was full-paid stock. Mr. Aris also had his headquarters at the office of the company. I never heard Mr. Aris tell defendant that the stock was full paid."

Aris was not called as a witness, and no reason appears in the appeal book why his testimony was not offered by the plaintiff. In the certificate of incorporation both Aris and Ranger appear as incorporators, and as directors named in the certificate to manage the affairs for the first year, and they executed the certificate of incorporation on the 22d of September, 1890.

If the witness Roe had been permitted to testify that Reynolds, at the time of the negotiation of the stock, represented to him that it was fully paid-up stock, that fact would have borne to some extent upon the question of whether he relied upon the assumption that it was paid-up stock when he purchased the same, and in connection with the evidence that he did give would have been corroborative of the position he took that the defendant's officers represented to him that the stock was paid up; and in furtherance of that same idea the referee might properly have allowed the witness to answer the question for what purpose he went to the company's office to inquire about the stock. The important inquiry was whether the defendant ever agreed to purchase any shares other than those that were fully paid up. If the referee, after receiving all the evidence offered, had given full force and effect to that which bore upon the question, he might have found that the defendant inquired of the corporation, and was by it informed that the stock was paid up, and that he relied upon such information, and therefore ought not to be held liable as having made either an implied or express promise to pay future calls upon the stock. Cook, Stock, Stockh. & Corp. Law, § 418; Van Cott v. Van Brunt, 82 N. Y. 535; Barr v. Railroad Co., 125 N. Y. 263, 26 N. E. 145; Holmes v. Willard, 125 N. Y. 75, 80, 25 N. E. 1083.

There does not seem to be any laches on the part of the defendant that would prevent him from availing himself of the doctrine of estoppel if the facts are as claimed in his testimony. differs from Banking Co. v. Duncan, 86 N. Y. 221.

This case

Upon another trial, the facts in respect to the representations made to the defendant by Reynolds and by the plaintiff's officers may more fully appear, and a more intelligent conclusion be formed upon the evidence relating to the question of the representations made by the plaintiff's officers to the defendant before he became a purchaser of the stock. We are therefore of the opinion that, under the rule laid down in Guernsey v. Miller, 80 N. Y. 181, we should order a new trial, instead of dismissing the plaintiff's complaint. See Foot v. Insurance Co., 61 N. Y. 571.

The foregoing views lead to the conclusion that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.

(17 Misc. Rep. 386.)

MARBURY v. BARNET.

(Supreme Court, Appellate Term, First Department. June 22, 1896.) 1. CONTRACTS-INTERPRETATION-AGREEMENT FOR EXTENSION.

Defendant appointed plaintiff his agent to represent him in the production of a play for which he had a contract with the owner, agreeing to pay plaintiff for her services 8 per cent. of the amount which defendant might be entitled to under the agreement with the owner, which agreement was for a period of three years. Held, that a subsequent extension of the agreement between defendant and the owner of the play did not extend plaintiff's employment for a like period.

2. PRINCIPAL AND AGENT-REVOCATION OF AGENCY.

In such case defendant had the power at any time to revoke plaintiff's agency.

Appeal from Sixth district court.

Action by Elizabeth Marbury against Robert A. Barnet to recover for services alleged to have been rendered by plaintiff for defendant. The complaint was dismissed, and plaintiff appeals. Affirmed.

Argued before MCADAM and BISCHOFF, JJ.

Charles Fox, for appellant.

Mitchell L. Erlanger, for respondent.

MCADAM, J. The action was to recover for services alleged to have been rendered by the plaintiff to the defendant under what upon their face are entitled "Articles of Agreement," made and entered into August 3, 1892. By these so-called "articles," the defendant appoints the plaintiff his sole agent and attorney to represent his interests in the production and representation of an extravaganza called "1492," under an agreement between the defendant and one Edward E. Rice, dated July 26, 1892, and to collect and receive the royalties thereunder. For the services to be rendered, the defendant agrees to pay the plaintiff 8 per cent. of the sum or sums which the defendant may be entitled to under the agreement with Rice. The last-mentioned agreement was for three years from July 26, 1892, thus terminating, by its terms, July 26, 1895. On July 20, 1893, the contract between the defendant and Rice was extended for two years from July 26, 1895; and the plaintiff claims that such extension operated to extend the agree ment between her and the defendant for a like period. It is con ceded that the defendant paid the plaintiff all the commissions earned under the so-called "articles" during the lifetime of the first agreement between the defendant and Rice. The suit was really to recover the commissions which would have accrued from August 3, 1895, to January 11, 1896, if the plaintiff's agreement had embraced that period. But it did not cover that period. It contemplated, at most, the existence of the agreement between the defendant and Rice to which it particularly refers, and terminated by "efflux of time and performance of the condition" (Dunl. Paley, Ag. 184); or, in other words, by the expiration of the period during which it was to exist and to have effect (Story, Ag. § 480). The

minds of the plaintiff and defendant never met respecting the extended term, and it could not have been within their contemplation at the time, because it came into existence long after the power was given, and as the result of a new understanding, with which the plaintiff has no concern. But, apart from this, the power seems one capable of revocation at any time by the donor. A letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will; yet if he binds himself for a consideration in terms, or by the nature of his contract, not to change his will, or if the power be coupled with an interest, the law will not permit him to change it. Hunt v. Rousmanier's Adm'rs, 8 Wheat., at page 202; Story, Ag. § 463. To make the power irrevocable, there must be an interest in the subject of the agency itself, and not a mere interest in the result of the execution of the authority, such as arises from compensation for executing the power. Mansfield v. Mansfield, 6 Conn. 559; 1 Am. & Eng. Enc. Law (2d Ed.) p. 1216; Stier v. Insurance Co., 58 Fed. 843; Missouri v. Walker, 125 U. S. 339, 8 Sup. Ct. 929. So that, whether the plaintiff's power comprehended the extended agreement or not, the defendant had a right to revoke it, and effectually exercised the privilege before the period for which compensation is claimed by the plaintiff.

The "articles of agreement" upon which the plaintiff sues express no consideration, and the plaintiff in no manner obligates herself to serve thereunder for any specified time, unless it is to be inferred from the mere fact that the contract under which she was to collect the royalties extended to July 26, 1895. Even indulging this inference, which is the most favorable the plaintiff can demand, there is not the slightest ground for holding that her obligation extended beyond that period. If her duties ended at that time, so did the obligations of the defendant, and there is no theory upon which the alleged right of action can be sustained. If the plaintiff's rights attached to the extension granted, they would continue to attach to every extension thereafter made, and cease only when the defendant and Rice severed their relations.

The action, though in form for services rendered, is in fact founded on readiness to perform, and in the nature of wrongful discharge. In whatever light the matter may be viewed, it is apparent that the complaint was properly dismissed, and, as a necessary sequence, the judgment must be affirmed.

(7 App. Div. 232.)

WILSON v. TAILER.

(Supreme Court, Appellate Division, First Department. June 29, 1896.) CONTRACTS-INTERPRETATION.

Under a contract by which defendant employed plaintiff to superintend the erection of buildings on defendant's land, and agreed to pay plaintiff therefor one-half the net profits of any sale of the property before a certain day, an exchange of the property, within the time limited, for other real property, is a sale, within the meaning of the contract, and plaintiff