Ferrochem Co. of Pennsylvania v. Danziger

[585]

CONREY, P. J.

The complaint alleges that the defendant is indebted: to the pl-aintiif in the sum of six hundred dollars, balance due upon an account for one thousand shares of the capital stock of plaintiff company, sold and delivered by plaintiff to defendant at defendant’s special instance and re-request ; that defendant agreed to pay for said property so delivered the sum of one thousand dollars-, no part -of which has been paid, save and except the sum of four hundred dollars. The answer and the cross-complaint of the defendant stated some affirmative matters which will be -disregarded, as the defendant did not introduce any evidence at the trial of the ease. The answer contains denials of all of the allegations of the complaint, except these: That defendant does not deny that the stock was delivered to defendant, nor that he agreed to pay therefor one thousand dollars, nor that he has paid four hundred dollars and no more.

The evidence introduced by plaintiff shows that the plaintiff was incorporated on August 12, 1911; that in July, 1911, the defendant and thirteen others entered into mutual subscription agreement with respect to the proposed corporation, and therein the defendant agreed to pay for his stock, on demand and on call of the board of directors, certain sums amounting to said sum of one thousand dollars; and agreed that his subscription, like that of the others, was made for the use and benefit of said company and might be enforced by said corporation. The corporation having been duly organized and said first forty per cent of the stock subscription having been paid, one thousand shares of the stock were delivered to and accepted by the defendant. Afterward, the corporation having called for the remaining sixty per cent, made demand on the defendant for the remaining six hundred dollars provided for in his agreement, and on his failure to make such payment brought this action to recover the amount alleged to be due.

Upon the facts thus shown, the court rendered judgment in favor of the defendant. The court found that the defendant did not become indebted to the plaintiff for any balance due upon an aec-oount for shares- of stock of plaintiff corporation; that plaintiff did not sell and deliver to the defendant, at defendant’s special instance and request at any time, one thousand shares of the capital stock of plaintiff; and that there