
    Iron Railroad Company v. Fink.
    1. If an installment of stock in a railroad company remain unpaid by tbe original subscriber, an assignee of the stock, who is willing to comply with the corporate regulations respecting the issue of stock certificates and the ti'ansfer of stock, may, upon making a proper tender of the unpaid installment, with the interest thereon, maintain an action in equity, against the corporation, to compel it to issue to him a stock certificate.
    2. As against such an action, the statute of limitations will begin to run from the time of such tender.
    Error to the District Court of Lawrence County.
    On the 7th day of March, 1849, the General Assembly of Ohio passed an act incorporating the plaintiff in error, the Iron Railroad Company, with authority to construct a railroad from a point on the Ohio river in Upper Township, in said County of Lawrence, to the south line of. Jackson County, in said state, with an authorized capital stock not exceeding $500,000, with all the powers, and subject to all the restrictions and reservations of the “Act regulating railroad companies,” passed February 11,1848. (46 Ohio L., 40.) By virtue of said act of March 7, 1849, the parties named therein as incorporators, organized, in that year, said railroad company, and caused books to be opened for receiving subscriptions to the capital stock. Henry Blake, on the 23d of April, 1849, subscribed to the capital stock of said company eightjr shares of fifty dollars each, amounting in all to $4,000. Blake died July 28th, 1851, leaving a will, by the provisions of which, after payment of debts and legacies, the entire residue of his property and effects was devised to his son, James Henry Blake. The executors named in the will failed to- qualify, and the administrator with the will annexed, who was thereupon appointed, having subsequently resigned, James 0. Willard was, in April, 1852, appointed administrator de bonis non, with the will annexed. Willard acted as administrator until his death, in May, 1855. In June, 1855, C. G. Hawley was appointed administrator of the estate, with the will annexed, and from that time until March, 1864, when he filed his final account with the probate court, acted as administrator, receiving and disbursing a large amount of money, including over $5,000 paid to said James Henry Blake, as residuary legatee under his father’s will. Between April 23, 1849, and July 1, 1851, inclusive, said company made sixteen calls for installments on said stock subscribed by said Henry Blake, said calls amounting in all to $4,000, of which said Henry Blake paid six, amounting to $1,240, and also made a cash payment in addition to said paid calls, amounting to $264.32. On July 1,1853, Willard, as administrator, made a cash payment upon said stock of the further sum of $1,247.84, making in all, -as paid on the subscription, the sum of $2,752.16. No other payments were made upon said stock, and no legal steps or proceedings were ever taken by said company to enforce the payment of the residue of said subscription by action, or to dispose of said stock by sale, as the means of reaching such payment, during the life' of Henry Blake, or while said Willard and Hawley were administrators of the estate, or at any other time. On the 5th of May, 1870, the said James Henry Blake, as owner and residuary legatee, sold and transferred, for value received, to the said Jacob Fink, the defendant in error, the said eighty shares of stock. There was never any transfer of said shares on the books of said company, either to Henry Blake, or to said residuary legatee. Prior to purchasing this stock, said Fink saw the president of the company, who informed him that if he, Fink, got the stock from said James Henry Blake, he ought to have certificates for what would be paid up. At a meeting of the directors of the company, in the Ironton House, in the spring of 1872, Fink was in attendance and presented the assignment of stock made to him by James Henry Blake. When the meeting was over he was notified in behalf of the directors that the matter of certificates for his stock had been referred to the company’s attorney. The secretary of the company, Samuel R. Richards, testified at the trial* below, that there was a record of the company showing that that matter of Fink’s stock was referred to the attorney of the 'road. After said directors’ meeting the company’s attorney, in the presence of the president of the company, informed Fink that the matter of said certificates would be fixed up at any time, when he brought to the company the amount due on his stock. Fink, accordingly, on the 25th of February, 1873, made good and lawful tender to the proper officers of the company, of the amount of the installments of stock remaining unpaid, with the interest thereon, and demanded his stock certificates, which the company refused to issue.
    Up to the year 1864 the stock of said company was of little value when paid up in full. Hawley, the administrator, in the year-1855, when requested to pay the unpaid installments, declined to appropriate the funds of the estate to that object. James H. Blake became of age July 8th, 1855, but no demand was ever made upon him by said company to pay the unpaid installments. After the year 1864 said stock increased somewhat in value, and cash and stock dividends thereon were declared and paid by the company.
    ' On the 31st day of December, 1873, the original action was commenced in the court of common pleas of Lawrence county, by the said Jacob Fink against the said Iron Railroad Company. At the February term, 1876, the cause was submitted to the court, and the findings and judgment of the court were for said company. Thereupon Jacob Fink appealed the action to the district court, and there filed an amended petition, with a prayer for relief, as follows:
    “ Plaintiff asks that an account shall be taken as to the state and condition of the business and affairs of said company, and especially that the increase and gains of said company since its organization, shall be ascertained and determined. Also, that there maybe a finding as to the disposition of said increase and gains, and in what shape the same is now standing — whether in the shape of investments in the extension and improvement of the property of said company, or in dividends declared and paid over to'stockholders, or applied in any way for their benefit. That the per centum-of increase and gains, made by said company upon each dollar paid to said company by stockholders, upon the shares of stock- subscribed for- by each man, be ascertained and determined. That the amount required to pay the balance remaining unpaid upon said eighty shares of stock subscribed for by the said Blake, together with the interest on the same, accruing thereon since said balance was due and payable, be ascertained and stated; how much, if any part of said increase and gains of said company is applicable- or should be applied to the payment of said balance, remaining unpaid upon said shares of stock, and when such application is made, how much, if anything, shall remain unpaid upon said eighty shares. That upon the ascertainment of said amount so remaining due and payable upon said eighty shares of stock, a reasonable time be fixed for the payment of the same by the plaintiff, and upon the payment of the same bjr him within the time so fixed, that the defendant may be ordered and adjudged to enter upon the books- of said company, among the stockholders, the plaintiff as the owner of said eighty shares of stock subscribed for as aforesaid by the said Blake. That the proper certificates for said shares of stock be issued to the plaintiff, and thereupon and after that he be recognized and treated as a stockholder in said company, and the owner of said eighty shares of stock therein.” Several defenses were set up in the answer to the amended petition, to each of which a demurrer was filed and sustained, except to a plea of the statute of limitations of fifteen years, and to the second defense containing a statement of facts, which, it was averred, showed that Fink was not entitled to the relief prayed for. To said plea and second defense there was a reply, and at the April term, 1881, the district court found the issues joined, in favor of said Fink, and that the matters stated in the amended petition were true, and that the matters stated in the answer thereto were not true, and that said Fink was entitled to an account as prayed for in said amended petition, and to relief as follows, to wit:
    “That upon payment of the residue of the amount unpaid upon said eighty shares of stock in said Company, subscribed for by the said Henry Blake, and assigned to plaintiff with interest on said amounts from the time the said unpaid assessments were called in; he is entitled to be admitted, recognized and treated in said Company as the owner of said 80 shares of stock, and as such owner, is entitled to all of stock and cash dividends that have heretofore been declared thereon, or to which the owner of 80 shares of stock is entitled, or that may hereafter be declared thereon, and to all the profits and increase arising upon said shares, and is entitled also to all the rights and privileges of an original stockholder, owning 80-shares of stock in said Company; and upon payment of said amount he is entitled also to a certificate for said shares, and it is the duty of said Company to issue the same to him. Inasmuch, however, as the court is unadvised as to the amount remaining due upon 80 shares of stock, and as to the cash dividends to which the plaintiff is entitled upon said shares, and that should be ap ■ plied to the payment of said amount so remaining unpaid, and is unadvised also as to the said stock dividends and the number of shares that the plaintiff is entitled to as the owner of said 80 shares, on motion of plaintiff, it is ordered that this cause be and the same is referred to Elias Nigh, Esq., who for that purpose is appointed a special master commissioner to take testimony and report in respect to the following particulars, to-wit:
    1. The amount remaining unpaid upon said 80 shares of stock and the interest, thereon fro in the time the same became due and payable.
    2. The amount of cash dividends to which said 80 shares is entitled, and when payable.
    3. The amount of stock dividends upon said 80 shares so originally subscribed.
    4. The amount of cash dividends, if any, upon said shares of stock dividends to which the plaintiff, as owner of said shares, is entitled.
    5. The amount of profits, if any, arising in any other way upon said 80 shares to which the plaintiff, as owner of said shares, is entitled.”
    A petition in error was filed in this court, to reverse the said findings, orders and judgment, of the district court. At the April term 1882 of the district court, the said master commissioner submitted his report, which, among other findings, embraced the following:
    
      First. The amount remaining unpaid on said 80 shares of stock with interest from the time the same became due and payable not deducting profits arising thprefrom, amounts to.............................. $3,791.94
    
      Second. The amount of cash dividends to which said 80 shares of stock is entitled with interest to April 20, 1882......'.............. $1,138.25
    
      Third. Amount of stock dividends to which said 80 shares is entitled is 182 shares, amounting to $9,100.00.
    . Fourth. The Amount of cash divi dends upon said 182 shares of stock dividends to which said plaintiff is
    
      Brought forward,.............. $1,138.25 $3,791.94 entitled with the interest to April 20, 1882, is...................... $1,972.31
    
      Fifth. There are no other profits arising on said 80 shares of stock except fractions in equalizations and stock dividends, which did not equal one share of stock, amounting with the interest to April 20,1882, to the sum of.......................... $71.47 $3,182.03
    Due Defendants, April 20, 1882.. $ 609.91
    The court, proceeding to compute the interest, found that instead of the amount remaining due and unpaid being $609.91, as found by said master, the true amount, with interest computed to April 20, 1882, was $1,264.50; and with that correction, said master’s report was approved and confirmed.
    And thereupon the court, from said report of the master, and from said finding of the court in correcting said report, and from the evidence taken before said master, found, that said Fink, upon the payment of said sum of $1,264.50, after applying all payments made on said eighty shares of stock, and all cash dividends declared thereon, was entitled to have and hold, as of the date of April 20, 1881, said eighty shares of stock, and in addition thereto, one hundred and eightv-two shares for the stock dividends, declared upon said eighty shares.
    And thereupon the said Iron Railroad Company moved the court to set aside said finding, and grant a new hearing of the case, which motion was heard and overruled, to which ruling the company excepted. It was thereupon ordered and adjudged, that upon the payment within thirty days, to said company by said Fink, of said sum of $1,264.50, with interest thereon from April 20, 1882, the said Fink be declared and adjudged to be the owner of two hundred and sixty-two shares of stock in said company, as of the date of April 20, 1881, with all the rights and privileges of the owner of said number of shares; and that said company be required to recognize and treat the said Fink,'in all respects, as the owner of said shares of stock therein, and upon demand made, after payment of said sum of $1,264.50, so remaining unpaid upon said shares, to issue and deliver to him proper certificates for said two hundred and sixty-two shares of stock in said company.
    To reverse the findings, orders and judgment of the district court at said April- term, 1882, a second petition in error was filed in this court by said company, and docketed as a separate and distinct action.
    
      Neal & Cherrington and W. A. Hutchins, for plaintiff in error.
    
      O. F. Moore and R. Leete, for defendant in error.
   Dickman, J.

It appears from the record, that at the organization of the Iron Railroad Company in the year ■1849, Plenry Blake subscribed for eighty shares of its capital stock, of the par value, of fifty dollars each. Between the 23d of April, 1849, and the 1st of July, 1851, inclusive, sixteen installments of stock, in the aggregate equal to the full amount of his subscription, were called for by the company. At the time of his death, on the 28th of July, 1851, Blake had paid six of these installments as called for —the last being that of March 1st, 1850. He had also made a cash payment in addition to paid' calls, and his administrator made a further cash payment in July, 1853, leaving an unpaid balance on his original stoek subscription. Up to the year 1864, the stock of the company,- when paid up in full,' had but little market value, and in the year 1855 the administrator of Blake declined to pay the unpaid calls.

It is contended in behalf of the company, that the cause of' action of the plaintiff below, accrued at the date of ■this declination by the administrator, and that more than ■fifteen years having thereafter elapsed, prior to the commencement of this action, it is consequently barred by the statute of limitations. The company’s right of action to recover installments of Henry Blake’s subscription, did not accrue until calls were made for the same, and such right of action being upon a promise in writing, the limitation was fifteen years. Gibson v. C. & N. R. Turnpike & Bridge Co., 18 Ohio St., 396; Warner v. Callender, 20 id., 190. The company, within the period of statutory limitation, did not see fit to avail itself of its right, given by statute, to collect by action the unpaid installments on Blake’s subscription, or to sell the stock at public auction, for the payment of such installment. The owner of the eighty shares had thus good reason to conclude, that the company did not intend to enforce payment of the delinquent calls, or to foreclose him by sale of the right to comply with the corporate regulations, pay up the balance due on the stock, and clothe himself with all the rights of a stockholder. Accordingly, on the 25th of February, 1873, the defendant in error, Jacob Fink, as assignee and owner of the eighty shares, tendered to the proper officers of the company, the amount of the installments remaining unpaid, with the interest thereon, and demanded the issue to him of stock certificates, which the company refused. Upon such demand and refusal, a cause of action accrued to Fink, and suit was thereafter begun, on the 31st day of December, 1873. In Railroad Co. v. Robbins, Admr. etc., 35 Ohio St., 483, it was held, that until the transfer of the stock to the holder of the original certificate was refused, the statute of limitations did not begin to run. The rule adopted in that case, applies, we think, with increased force to the case at bar, and we must hold, that the statute did not begin to run against the defendant in error, until he had made his demand on the company for the certificates, and met with a refusal.

It is urged by the plaintiff in error that the contract of subscription was abandoned by Hawley, the administrator, when he declined to pay the unpaid calls, and that such abandonment was acquiesced in by the company. The record, in our judgment, discloses a state of facts which shows that the company, after the assignment 'of the stock on May 5th, 1870, by James H. Blake, the residuary legatee, to Jacob Fink, recognized the contract as still in existence. Where one has once been entitled to repudiate a contract, because it has not been performed in a reasonable time, if he do any act which amounts to an admission of the existence of the contract, he cannot afterwards elect to treat it as void. Brindley v. Tibbets, 7 Greenleaf, 70; Lindsey v. Gordon, 1 Shepley, 60; Barry v. Palmer, 19 Maine, 303. Before purchasing the stock Fink had an interview with the president of the company, and was .informed by him that, if he-obtained the stock in question from James H. Blake, he ought to have certificates for what would be paid up by him. Having 'thereupon purchased the stock, he attended a meeting of the directors of the company in the spring of 1872, presented to them the assignment of stock executed to him by James H. Blake, and made claim to stock certificates for the same. When the meeting was over he was notified, in behalf of the directors, that the matter of the certificates had been referred to the company’s attorney, and a record of the company, as testified by its secretary, shows such to have been the fact. The company’s attorney afterwards, in the presence of its president, told Fink that the matter of his stock certificates would be “ fixed up ” at any time, when he brought to the company the requisite amount of money. Thus encouraged by the chief officer of the company to purchase the stock, and afterwards assured that by paying up all arrears he could obtain the usual stock certificates, he complied with the condition imposed, and on the 25th of February, 1873, tendered to the proper officers of the company the unpaid installments, with the accrued interest. With these facts before us we cannot treat the contract of subscription as abandoned, and no longer in existence for the enforcement of its provisions.

If the company had deemed it expedient that the account of Henry Blake upon its books, in reference to his stock subscription, should be closed, a feasible mode of procedure was provided by law. Before and since the date of the subscription the provisions of section 3253 of the Revised' Statutes have been in force. By that section, if an installment of stock remain unpaid for sixty days after the time it is required to be paid, whether such stock isÉheld by an assignee, transferee, or the original subscriber, the same may be collected by action, or the directors may sell the stock so unpaid at public auction for the installment J:hen due thereon —the prescribed notice being first given; and if any residue of money remain after paying the amount due on the stock, the same shall, on demand, be paid to the owner; and if the whole of the installment be not paid by the sale, the remainder shall be recoverable by an action against the subscriber, assignee, or transferee. Although Hawley, the administrator, had ample assets in his hands, and upon final settlement of the estate transferred ’over five thousand dollars to the residuary legatee, the company took no steps to collect by action the unpaid subscription, or by sale at auction to change the ownership of the stock, and put it in the name of another person than the original subscriber. In the face of these statutory provisions it was not within the power of the company to declare the stock of Henry Blake forfeited, charge back to the estate the amount paid on the subscription by him and his administrator, appropriate and convert that amount to the company’s own use, and thus terminate and destroy his interest, and that of those claiming under him, in the stock subscribed. The statute operates in a spirit of justice both toward the delinquent subscriber and the company, whose success or failure in the object of its creation depends in a large measure upon the prompt payment of stock subscriptions, securing to the one the residuo remaining after paying from the proceeds of sale the amount due on the stock, and giving to the company a right of action against the subscriber for the remainder of the installment, if the proceeds of sale are insufficient to pay the whole. If the subscriber is unable to pay the calls made by the company, the design of the statute is to secure to him an honest disposition of his shares by sale at public auction to the highest bidder. If not thus disposed of, or sold by the subscriber himself, they continue his property. They do not fall back into the general property of the corporation, and become merged therein, so that the corporation is at liberty to issue and sell new shares in their stead. If the corporation elects to waive its rights, and neglects its duty, it cannot complain if the subscriber asks to pay up his subscription in full, receive the certificates of his stock, and to be invested with the privileges of a stockholder. We say “duty,” because, as said by Lord Cranworth in Spackman v. Evans, L. R., 3; H. L., 186, “The shares are, in substance, made a security to the company for the money from time to time becoming due from the shareholder. The duty of the directors, when a call is made, is to compel every shareholder to pay to the company the amount due from him in respect to that call; and they are guilty of a breach of their duty to the company if they do not take all reasonable means for enforcing that payment.” The stock in the name of Henry Blake may have been much depreciated in value when the administrator declined to use money of the estate, in his hands, to pay the overdue calls-; yet, it then became regular and legitimate for the company to sell the stock at public auction for what it would bring, and after applying the proceeds of sale, to hold the estate for the balance unpaid on the installments, and thereby place the stock beyond the reach of the administrator, residuary legatee, or his assignee. But the company failed to adopt the statutory method of foreclosing the interest of the original subscriber. The title to the stock for which he subscribed remained unchanged and unimpaired by any action on the part of the company, with no bar to the right of the subscriber, or those claiming under him, to convert the shares into full paid up stock, and call for certificates.

But, the question arises, had Fink the right to demand the issue to him of certificates for the stock he had purchased from the residuary legatee, and what was his remedy, when the company refused to comply with the demand? Though holding no certificates as indicative of legal ownership, he was doubtless the equitable owner of the shares subscribed by Henry Blake. As such owner, seeking not only a transfer to himself of the specific property — the eighty shares — but other equitable relief in reference thereto, it came within the province of a court of equity to extend to him its aid. It is said however, that courts of equity do not entertain jurisdiction for a specific performance on the sale of stock, where a compensation in damages would furnish a complete and adequate remedy. But courts of equity will not refuse to entertain jurisdiction, when, in connection with the relief of decreeing a transfer of specific property, a further and essential relief is asked, which those courts, by their procedure, are. best adapted to furnish. Fink, as equitable owner, is seeking not only an issue to him of stock certificates, and to be recognized and treated as a stockholder, but he prays for relief by way of account— running through many years — of cash and stock dividends declared, of profits arising in any other manner upon his stock, of the increase and gains of the company since its organization, of the disposition of such increase and gains, and the shape in which they now stand — relief especially equitable in its character, and which he could not adequately obtain through an action at law for the recovery of damages. As far as his remedial rights are concerned, we do not think he should be treated as a delinquent subscriber to stock, and be debarred the privileges of a stockholder, for, although neither Henry Blake, nor his administrator, nor James H. Blake ever fully paid the original subscription, Fink, in that regard, is chargeable with no default, his tender of the full amount due on the subscription having been refused by the company.

The practice of courts in the exercise of chancery powers, to decree the transfer of stock by corporations, is settled by well adjudged cases. In Hill v. Rockingham Bank, 44 N. H., 567, it was held that a bill in equity will lie to compel the delivery of certificates of stock to one who has already an equitable title to such stock, although a suit at law might also be maintained therefor. In Cushman v. Thayer M. Co., 76 N. Y., 365, which was an action to compel the corporation to transfer upon its books certain shares of stock, and to issue a new certificate, the court say: “ The jurisdiction which courts of equity exercise over individuals, extends equally to acts done or omitted to be done by private or municipal corporations. And the power to compel a transfer of specific property is- a salutary one, and should be exercised where such relief alone will work a complete and ample remedy.” The same principle has been recognized in other cases, in which courts in the exercise of a sound discretion, have decreed a transfer of stock by corporations, in connection with other equitable relief.

Apart from the aforegoing considerations, it will, we think, be suggested by the record that the apparent effort of the plaintiff in error to retain, without accounting, the several sums of money paid to the company by Henry Blake and his administrator, does not forcibly commend itself to the equity and good conscience of the court, when asked to refuse all equitable relief, and remand the defendant in error to his action at law for damages.

In our opinion there should be an affirmance of the' judgment of the district court.

Judgment accordingly.  