dissenting. The case is here on exceptions to the judgment sustaining the general demurrer to the petition, in which the plaintiff sought to have canceled his contract for the purchase of certain stock of the defendant corporation, and to recover an amount which he had paid thereon, on grounds which are substantially stated as follows: (1) That the contract was apart of the promotion and organization of a corporation in disregard of the Georgia securities law. (2) That payments were made in the mistaken belief which had been induced by defendant’s false representation that it was the corporation for the purchase of stock in which he had agreed.’ (3) That an express condition of the subscription contract had not been fulfilled, to wit, that it “should *610become valid and binding only when actual bona tide subscriptions for” $500,000 had been subscribed, and that otherwise any amount paid thereon should be returned. A majority of the court are of the opinion that the judgment excepted to is erroneous for the reasons fully set forth and discussed in the majority opinion. I am constrained to dissent from this opinion, under my construction of the sections of the Georgia securities law which are directly controlling in this case, after giving careful and painstaking consideration to that act as a whole and to its manifest purpose.
The Georgia securities law is to be found in an act entitled. “An act to create and establish the Securities Commission,” etc., approved August 17, 1920 (Ga. L. 1920, p. 250), as amended by an act approved August 21, 1922 (Ga. L. 1922, p. 156). I will refer to the two acts as the act of 1920 and the amendatory act of 1922. In the first section of the act of 1920 it is declared that it shall be known as “The Georgia Securities Law,” and that it shall repeal and supersede the act approved August 19, 1913, known as the “Georgia Blue Sky Law.” Sections 2, 3, and 4 of this act provide for the creation of a Securities Commission, the employment of an examiner, clerks, etc., and for the location and maintenance of its office. Section 5 contains definitions of words and phrases used in the act, and as amended reads as follows: “The words and phrases used herein shall, unless the context otherwise indicates, have the following meaning: The word 'securities’ shall include stocks, bonds, debentures, notes, certificates of participation, certificates of shares of interest, preorganization certificates and subscriptions, certificates evidencing shares in trust estates or associations, and profit-sharing certificates. For the purposes of this act, the word 'securities’ shall further include all contracts for the sale of territorial rights for which a consideration is paid or to be paid, and all contracts which entitle the purchaser thereof to receive from the vendor compensation, whether the same be for services to be performed, for discounts or special rates not afforded the general public on goods to be purchased, or any other compensation whatever accruing to the purchaser solely by virtue of the purchase of such contract. The word 'issuer’ shall include every person and every company, trust, partnership, or association incorporated or unincorporated heretofore or hereafter formed for any lawful purpose, and organized under the laws *611of this State or any foreign State or country, which shall have issued any security sold or offered for sale to any person or persons in this State. The term or word ‘ dealer ’ shall be deemed to include any person, company, trust, partnership or association, incorporated or unincorporated, selling or disposing of or offering to sell or dispose of any such securities through agents or otherwise, or engaged in the marketing or quotation of securities either directly or indirectly or through agents or underwriters, or any stock promotion scheme whatever.”
Section 6 declares that no dealer shall, except as otherwise provided in the act, “dispose or offer to dispose of” any securities “without first being licensed to do so as hereinafter provided.” Section 7 divides securities into four classes, “A,” “B,” “C,” and “D.” It is not necessary to give descriptions of the securities designated as being within classes “A,” “B,” and “C;” but paragraph 4 of section 7 is as follows: “Securities based on prospective incomes which shall be known as securities in class ‘D,’” and to this class the alleged securities, the character of which is involved in this controversy, belong. Sections 8, 9, 10, and 11 relate to securities in classes “A,” “B,” and “C,” and need not be set forth here. Section 12 declares that all securities other than those falling within classes “A,” “B,” and “C,” respectively, shall be known as securities in class “D.” Section 13 provides that no securities in class “D” shall be sold or offered for sale until there shall have been filed in the office of the commission “statements and documents as follows:” Then follow sixteen paragraphs relating to the character, contents, and essentials of these “statements and documents.” Section 14 relates to the appointment of an attorney in certain cases and service of process upon him. Sections 15, 16, and 17 relate to fees, license, time of taking license, form and contents of license. Sections 18, 19, 20, 21 and 22 relate to revocation of license, relicensing, violation of provisions of the act, prosecution, notice to be given before revocation, petition to reverse action of the commission, “escrow agreement,” and certain supplemental statements. Section 23 requires that all advertisements published, etc., for the purpose of effecting sales of securities in class “D” shall contain certain specified matter, and that copies shall be filed with the commission. Section 24 relates to dealing in any interest in real estate not located in Georgia. Sec*612tion 25 to the examination of issuers of securities. Section 26 imposes liabilities additional to that now imposed by law upon any person, company, etc., falling within the terms of that section, and to the actions based upon such liability. Section 27 confers upon the commission authority to investigate the business and affairs of every licensee. Section 28 relates to the seal of the commission, and the report to be furnished by it to the Governor. Sections 29, 33, 36, and 37 denounce as crimes certain acts of dealers, solicitors, etc. Sections 30, 31, and 32 relate to relief from registration, fees, and certified copies of licenses. And in section 34 it is declared that “It shall be unlawful for any agent, broker, solicitor, officer, director, or other person to sell or offer for sale any securities in class ‘ D ’ as described in this act, in any other manner or form than as specifically set forth in this act; and any offer or sale upon any other terms or conditions other than as set forth in this act shall be prima facie evidence that such agent, broker, solicitor, officer, director, or other person offered or sold such securities for the purpose of defrauding the purchaser to whom such securities were offered or sold.” Section 35 relates to unlawful sales in violation of the provisions of the act, and is in the following language: “Every sale and contract of sale made in violation of any of the provisions of this act shall be void at the instance of the purchaser at any time within twelve (12) months from the date of such purchase, or contract of purchase; and the seller of the securities so sold in violation of any of the provisions of this act, and each and every solicitor, agent, or broker of or for such seller, who shall have knowingly performed any act or in any way furthered such sale, shall be jointly and severally liable, upon tender to the seller or in court of the securities sold, to the purchaser for the amount paid, together with his reasonable attorney’s fees in any action brought to recover such amount.” Section 38 contains a provision, if any part of the act is declared invalid, to uphold the remainder of the act. Section 39 declares that the act shall be effective on approval, etc. And section 40 repeals conflicting laws. The amendatory act approved August 21, 1922, is also quite lengthy and makes many changes in the original act. Such of them as are essential to this decision will be hereinafter referred to.
After carefully considering the entire act section by section, 1 *613have reached the conclusion that in view of the character of the defendant corporation and the purposes of its organization and the methods by which subscriptions to its stock were obtained that were essential to its organization, it was not under any necessity or legal duty to take out the license required in the act of 1930, or under the changes made by the amendatory act of 1933, or under any of the new sections added to the original act by the last act. Section 15 of the act of 1930 required that the commission, when satisfied of the good repute in business of an applicant for a lisense, etc., should register the applicant as a licensed dealer in the securities referred to, and issue to him a license, etc. This section in the original'act was stricken by the amendatory act and a new section substituted therefor, but so far as relates to the question here involved the changes made by the new section 15 are not material. Both the old and new section 15 requires that the commission, when satisfied of the showing made, etc., shall register the applicant as a licensed dealer, and the balance of this new section 15 merely relates to fees and the renewal of the license. And the new section 16 of the amendatory act, striking section 16 of the original act, makes it the duty of the commission to-license agents of the issuers of securities and of dealers and brokers therein on written application of their principal. If neither under the provisions of the act of 1930 nor the act of 1933 the defendant in this case was required to take out a license and to file in the office of the commission, as preliminary to the issuance of the license, the statements and documents provided for in section 13 of the original act, then the contract to purchase the shares of stock specified in the contract was not illegal under the provisions of section 35 of the original act, and the purchaser of the shares would not be entitled, upon tendering to the seller the securities sold, or in court, to recover of the seller the amounts paid upon the purchase money of the stock.
It is essential to consider the nature of the enterprise to be carried into effect by the organization of the defendant corporation, and which could only be carried into effect by the organization of that corporation; and this must be ascertained from the petition filed by the plaintiff. From that petition we are informed that certain persons residing in and about the City of Macon “organized themselves into a voluntary association for the *614purpose of promoting the building of a tourist hotel in or near the said city, and said association instituted what was known as a ‘Hotel Executive Committee/ having a chairman, a sales-manager, a treasurer, and a secretary.” And this organization entered into a contract with the Iiockenbury System Incorporated, and in this contract it was recited that in pursuance of such purpose it had been determined “to proceed with the sale of stock for the purpose of financing such proposed hotel;” and in the contract it was agreed by the Hockenbury System that it should “direct and manage the fund-raising movement or sale of stock in the City of Macon and vicinity to obtain the necessary capital,” etc. It would seem from the character of the enterprise and the association formed to carry it out that that association and the corporation into which it matured after organization, relatively to the stock in question in this case, were rather issuers of such stock than dealers in the same, and that the corporation employed to manage the campaign for the raising of funds and the securing of subscriptions to stock were the agents of such issuers. In the case of Smith v. State, 161 Ga. 103, 105 (supra), it was said: “It is true that one person may be both an issuer and a dealer; but this fact does not make an issuer a dealer or a dealer an issuer. The capacities of dealers and issuers are separate and distinct. The fact that one individual may act in the dual capacity of issuer and dealer does not destroy his separate character of issuer and dealer, although by acting in such dual capacity he may subject himself to liabilities and penalties imposed by law upon both of such characters. Issuer does not mean dealer. A dealer is not an issuer. Both of these acts undertook to define certain terms used therein. The act of 1920 declared that ‘The word “issues” shall include every person and every company, trust, partnership, or association incorporated or unincorporated heretofore or heretofore formed for any lawful purpose and organized under the laws of this State or any foreign State or country, which shall have issued any security sold or offered for sale to any person or persons in this State.’ This act likewise defines the word ‘dealer.’ The act of 1922 defines the words ‘issuer’ and ‘dealer.’ By this act issuer is given the same meaning as that given to ‘issues’ [issuers] in the act of 1920. By both acts ‘The term or word “dealer” shall be deemed to include any person, company, trust, *615partnership, or association, incorporated or unincorporated, selling or disposing of or offering to sell or dispose of any such securities through agents or otherwise, or engaged in the marketing or quotation of securities either directly or indirectly, or through agents or underwriters, or any stock promotion scheme whatever.’ Both acts declare that the above words and phrases shall, unless the context otherwise indicates, have the above meanings. As these two acts undertake to define the meaning of the words ‘issuer’ and ‘dealer,’ and as there is nothing in the context to indicate that they are used with a different meaning, we can not construe the word ‘dealers,’ used in the caption of the first act, to mean and include issuers.” And it was also said in the same decision: “The title of the act of 1922 declares that one of its purposes is ‘to provide for the license of all dealers, otherwise than the issuers of such securities, and of their agents.’ By the express terms of this title, no provision is made for the licensing of issuers. Only dealers and their agents are required to take out licenses. In the body of the act, in spite of this provision of the title, issuers of securities falling within class D are required to procure licenses to sell or to offer to sell the same; and it is made a felony for issuers of these securities to sell or offer to sell the same without such licenses. So it seems clear that the body of the amended act contains matter not only not referred to in the caption, but matter contrary to and in direct opposition to the matter referred to in its title.” And it was then ruled in that case that “So much of section 36 of the ‘Georgia securities law’ as makes it a felony for an issuer of securities falling within class D to sell or offer to sell the same without first obtaining a license so to do, is unconstitutional and void, because it contains matter different from and contrary to that expressed in the title of this statute.”
I have said that the organizers of this movement or association, which finally resulted in the formation of the corporation Highlands Hotel Co., bore rather the character of issuers than of dealers. I have used^ the expression “bore the character of,” rather than holding directly that they were issuers, because no corporation at the time the stock was subscribed for had been actually formed. It was inchoate. No securities were in existence which could be issued so as to make the proposed corporation an *616issuer; but it was an issuer in embryo. At any rate, partaking of the nature of an issuer, it should not be held to be a dealer so as to bring it and its agents under the highly penal provisions of this act, which denounces as felons those who fail to take out a license and to file the documents and information required before the license is taken out. The men who brought about the co-operation among the people of Macon and Bibb County for the purpose of having them act on a plan to create a corporation were not dealers in securities in the sense in which the expression “dealers” is used in the act under consideration. And the fact that some of the original promoters of the scheme and first subscribers to the stock may have had a design of selling a tract of land upon which the future hotel should be built and thereby to “unload real estate” upon the corporation, would not make the association or corporation dealers in securities so as to bring them within the operation of the act.
It is claimed by petitioner that the subscription contract is void for uncertainty and indefiniteness. This contention can not be upheld in view of the terms of the contract thus criticized. See Fletcher, Cy. Corp, 1177, § 535 et seq., and cit.
Having reached the conclusion that under the allegations of the petition the defendants were not guilty of any act in violation of the Georgia securities law in obtaining the stock subscription, petitioner, the subscriber, is estopped from attacking the contract made by him as void upon the grounds set forth in the petition. Whether the contract into which he entered would be binding upon him because the full amount of $500„000 of stock had not been taken by bona fide subscribers, and because of alleged irregularities in the organization of the corporation under the laws of the State of Delaware, nevertheless, by making the payments on his subscription, petitioner has ratified the transaction and made it valid as to him. He subscribed on June 25, 1925. The corporation was organized on August 5, 1925, and became incorporated under the laws of the State of Delaware and became a Delaware corporation, as contemplated in the contract of subscription, by the name of Highlands Hotel Company, the corporation with which the plaintiff contracted. The plaintiff could not, after making a substantial payment several months after organization of the corporation, claim that the corporation because of the irregularities was *617not the corporation for whose stock he had subscribed, and would be estopped from asserting that the full amount of $500,000 of stock had not been taken. Some 700 of the subscribers had made payments upon their stock. These subscribers were making payments upon the faith of the subscription of this petitioner and of the fact that without making any attack upon the contract he had paid a substantial portion of the subscription. Before this suit was filed the petitioner, who had subscribed for $2,000 of the stock, had paid $1,000, having made the payments aggregating that sum on October 1, 1925, December 1, 1925, and February and April 1, 1926. Iiis first payment was $400, and the other payments were $200 each. Not only were other subscribers to the stock under the same contract and same condition making payments upon their stock subscriptions, but it will be assumed that upon the faith of the subscriptions and the payments that were made the corporation was proceeding with this enterprise. Under such circumstances this petitioner is estopped from setting up the defense here sought to be set up against the unpaid subscription, and from recovering that which had been paid. May v. Memphis Branch R. Co., 48 Ga. 109; Memphis Branch R. Co. v. Sullivan, 57 Ga. 240; Midland City Hotel Co. v. Palace Market Co., 17 Ga. App. 704 (87 S. E. 1100).
I am authorized by Mr. Justice Atkinson to say that he concurs in this dissent.