Finding myself unable to *Page 209 assent to the opinion and judgment of the Court I will briefly state the reasons for my dissent.
It is agreed by all that by the arrangement made by Deutschmann with the city he and his associates acquired a property right, which may be conveniently, though inaccurately, termed a franchise. It is conceded that the plaintiff in error has taken that franchise and used it as its own. It may be conceded that the legal title and the beneficial interests of two of the associates have been legally acquired by the company, but I deny that the beneficial interest of Deutschmann, if his account of the transaction is true, has ever passed from him in any other way than by a wrongful conversion. A divestiture of his property is claimed to have flowed from the agreement of April 27, under which the franchise was to be transferred to the corporation and the parties were to subscribe and pay for stock. Had the transfer been made, or had the contract been carried out according to its terms and spirit this might be very true, and it would, likewise, probably be true that this case would not be before us. But all the parties knew, and it was stipulated, that Deutschmann was unable to pay for his stock at once, and that he should have at least a reasonable time in which to do so. At their first meeting and within a day or two after the agreement was made, the board of directors of the newly formed corporation, consisting of those who were the other parties to the agreement and those acting with them, served notice upon Deutschmann, in substance, that subscriptions for stock were to be taken and that no agreements of promoters giving option over stock unsubscribed for at this date were recognized by the company. This was followed at once by a demand for the payment of money for his part of the stock. He very naturally concluded that his former associates, now controlling the corporation, were repudiating their agreement with him, and thereafter he recognized no right of theirs or of the corporation to his interest in the franchise. I shall not stop to inquire whether or not the agreement of April 27 was contrary to the Constitution, as held in the majority opinion, nor whether or not the agreement between the promoters was binding on the corporation. If both of these questions were answered in the negative, I do not see how that would help the corporation to Deutschmann's property. No assignments of his rights had yet taken place, and the agreement under which one was to be made was never carried out, but was repudiated by those now claiming its benefits. Claiming to have acquired the property under the agreement that it should be transferred, how can the corporation be helped by the proposition that the agreement was illegal, or that it was not bound by it? Deutschmann's interest could not have been acquired without his consent, which was only given in an agreement stipulating what his rights should be and those rights were denied him. If that agreement was not binding, the other parties had the right to repudiate it, but had not the right, while repudiating it, to claim the property under it.
Opinion filed December 23, 1908.
Reversed and rendered. *Page 210