In the year 1901 certain persons, living in and near the town of Lost Nation, undertook to organize a company or association for the purpose of establishing and operating a creamery. To that end a paper was prepared in the following form: “We the undersigned hereby agreed to give our notes for the amount set opposite our names for the purpose of building and equipping a creamery in or near Lost Nation, Iowa. This agreement to be null and void unless four thousand dollars are subscribed.” Whether this subscription was ever completed in accordance with its terms is the principal question of fact here in controversy. The scheme seems to have been for each individual subscriber to give his individual note for the amount of his subscription, without interest, for a period of five years, the paper thus accumulated to be used as a basis of credit for a corporation, which was to
I. assessmentof stockholders: equitable jurisdiction. I. Error is alleged upon the denial of the defendant’s motion for a transfer of the cause to the law calendar. The exception, can not be sustained. If the action were brought by a single creditor of the corporation to enforce the statutory liability • . _ of an individual stockholder, as was the case in Water Power Company v. Hopkins, 79 Iowa, 653, and Bayliss v. Swift, 40 Iowa, 648, it may well be that an action at law would be sustained. Here, however, the suit is in effect a proceeding to wind up the affairs of the corporation, to which end it is necessary to ascertain what, if any, corporate assets have come into the hands of the assignee, whether the same have been applied to the payment of corporate debts, the amount of such indebtedness remaining unprovided for, and to what extent, if any, an assessment is required upon the unpaid stock subscription to meet such demands. That this is a subject of equitable jurisdiction is too clear to require argument or discussion. 6 Pomeroy’s Equity Jurisprudence, section 910. If the liability of the delinquent stockholders were absolute, and each was liable upon the face
2. Same subscription agreement: validity. II. It is next said the subscription agreement is void for uncertainty, in that no payee is named, and there is no reference therein to any corporation to he formed. If this paper were all to which we have to look, the objection would be well taken, but it is shown without any dispute that it was made and subscribed as a preliminary step to the organization of
3. Same oral stock estoppel. III. Most of the other points made by the appellants may be grouped under the general proposition that the subscription never became effective because of the alleged failure to -secure subscriptions to the full amount of $4,000. This is largely a question of fact, and the material circumstances are involved in radical dispute between the witness. The testimony on the part of plaintiff tends to show that about the time the corporation began business it applied to the Hirst National Bank of Lost Nation for a loan of $2,500. The subscription paper, at that time showed but thirty-six signers for $100 each, and but few, if any, of these had yet given their notes. The bank objected to making the loan, on the ground that the subscription was incomplete, not aggregating $4,000, thus rendering doubtful the liability of the subscribers already obtained. To avoid this objection three of the subscribers, TIohn, Hill, and Busch, orally agreed to take the unsubscribed stock to the ¿mount necessary to make up the required sum, and thereupon the loan was made. The unpaid balance of the debt thus contracted constituted a large proportion of the liabilities, for the payment of which -an assessment upon the subscribers is sought in this proceeding. These three persons, Hohn, Hill and Busch, admit their oral undertaking in this respect, and concede their liability thereon as subscribers to that extent to-' the stock of the corporation. On the other hand, this oral subscription or agreement is denied by the appellants, who claim that whatever agreement may have been entered into on the part of Hohn, Hill and Busch was made long after the corporation had been or
But counsel contend that in any event, the subscription or agreement not being in writing, it did not satisfy the condition of the written subscriptions. The fair and reasonable interpretation to be put upon said condition is that none of the subscribers were to be bound by said agreement until all the valid and enforceable agreements of like character should aggregate $1,000. It had no reference to the manner in which the subscriptions were to be made, but to their aggregate amount and Aralidity. If, then, the oral agreement of Hohn, Hill and Busch to subscribe or take stock to the amount required to perfect the organization and to validate all the subscriptions was a legal and binding obligation on their part, then the condition was fulfilled, and the contract is enforceable as to such subscriber. That an oral subscription to stock is a valid contract has been affirmed by this court. Hotel Co. v. Lyon, 69 Iowa, 687.
While the strict definition of the word “subscribe” or “subscription” involves the idea of a written' signature, yet by common usage it is often employed to include an agreement, written or oral, to give or pay some amount to a designated purpose, more usually, perhaps, to some purpose for the promotion of which numerous persons are uniting their means and their efforts. An actual taking
Even if under ordinary circumstances a subscription to stock must be in muting to be of any validity, tbe circumstances of this case would in our judgment except it from tbe operation of that rule. It will be remembered that .at the' time of making tbe oral agreement, and upon strength thereof, the bank made tbe loan which constitutes the bulk of tbe corporate indebtedness, and tbe corporation incurred tbe obligation of its repayment, whereby tbe said Hobn, TIill and Busch became effectually estopped from denying their personal liability to tbe amount of such subscription. This liability they have consistently recognized, and have paid to tbe assignee tbe sum for which they thus became chargeable. Tbe sufficiency of tbe subscription can not be successfully challenged.
4. Same acceptance of subscription Nor is counsel’s thought that tbe subscription is invalid for want of acceptance by tbe corporation any more tenable. ‘This subscription was necessary to tbe validity of tbe organization. Tbe executive officers of the corporation made use of it as a basis for tbe procurement of the loan. Upon tbe assurance of it money was procured, and all tbe corporate business thereafter transacted; If any acceptance was needed, it may be conclusively implied from the conduct of tbe parties.
An attempt is made in argument to show that one of tbe thirty-six names subscribed to tbe original written
The several propositions we have considered include all the really debatable propositions raised by the appeal. We have examined the record with reference thereto, and find nothing calling for a reversal of the decree below. It is therefore affirmed.