Whatever might be the legal rights of the parties if the plaintiffs had made a demand for certificates of the stock for which they subscribed, and the defendants had refused to comply therewith, these actions cannot be maintained in the absence of a demand. Swazey v. Company, 48 N.H. 200. If the certificates are delivered on demand before full payment is made, the plaintiffs cannot complain. It would be neither equitable nor legal that they should recover judgments payable in cash for their labor, for which they are entitled to payment in stock only, if they can have the stock without making further payments. The company's refusal or inability to employ the plaintiffs, or to accept payment in full for the stock, is unimportant, provided the stock is delivered to them upon demand. A vendor's refusal to accept full payment for the article sold, accompanied with its delivery to the vendee, does not authorize the latter to rescind the contract and recover back the partial payments he may have made.
It is claimed that the statutory prohibition of a sale or disposal of shares of stock by the company at a price below par (P. S., c. 149, s. 9) makes it impossible for it to comply with a demand. But the company is not in any proper sense the owner of its stock. The entire capital was furnished in cash by the persons composing the board of directors, to whom the money paid by the plaintiffs equitably belongs. They had a right to hold the plaintiffs' certificates until they were fully paid for. This right they have surrendered by filing with the clerk the certificates, which he holds subject to the plaintiffs' order. The directors have no claim against the company for the balances due and unpaid by the plaintiffs, and the surrender of their right to hold the stock is not a sale or disposal of stock by the company.
Judgment for the defendants.
WALLACE, J., did not sit: the others concurred. *Page 262