
    MEYER v. BLAIR.
    
      N. Y. Supreme Court, First District, Special Term;
    
    
      June, 1885.
    
      Again, First Department, General Term ;
    
      March, 1886.
    1. Subscription to stock; secret advantage to subscriber.] A private agreement with one of several associate subscribers to the capital stock of a corporation, in consideration of and as a part of his-contract of subscription, to repurchase his stock at the price paid within one year, at his option, is fraudulent and void, and incapable of enforcement in his favor; though, it seems, that he remains liable upon his subscription.
    
    2. The same; contract of third parties.] It is immaterial that the-agreement was not made with the corporation or its trustee for the sale of the stock, but with outside parties, who were the projectors and promoters of the enterprise, and represented the company, owning a large part of its stock received in payment of a patent, etc., and being directly interested as principals in securing the subscription to the stock in question sold to raise working capital.
    3. The same.] Nor is it material that some others of the associate subscribers also received a similar agreement to re-purchase their stock, if there were any subscribers who did not, and who knew nothing of the agreement.
    I. Special Term, June, 1885.
    Christopher Meyer brought this action against Thomas-S. Blair and Thomas Struthers, to recover the sum paid by him upon his subscription to 600 shares of the capital stock of the Blair Iron & Steel Company, under an agreement between the parties, dated April 4, 1873, by which, after reciting plaintiff’s purchase of 600 shares of the stock of the company from A. S. Diven, its trustee, the defendants agreed that “ if at the end of one year from this date the said Meyer shall desire to sell the said shares at the price paid for the same by him, we will purchase the same at that price, and pay to him the amount paid by him on the same, with interest at the rate of seven per cent, per annum.”
    The complaint alleged the refusal of defendants to repay the sum paid by plaintiff on account of his subscription, upon request in due time as provided in the contract.
    The answer, among other defenses, set up the illegality of the contract, because made at the time of and in consideration of his subscription to the stock of the company, and in fraud of the other subscribers to the stock, .from whom the fact of plaintiff’s guaranty was concealed.
    The subscription paper and the prospectus preceding ife appear in the opinion at special term.
    The cause was tried at circuit, but at the close of the-testimony^ counsel agreed that the case be taken from the-jury and be considered as a case at special term.
    Other material facts appear in the opinion at special term.
    
      William H. Williams, and A. R. Dyett, for the plaintiff.
    
      Elial F. Hall and Stephen P. Nash, for the defendants.
    
      
       Compare Central Trust Co. v. N. Y. City & Northern R. R. Co., 18 Abb. N. C. 381, as to voidability of contract of corporation made on its behalf by its directors in fact acting under the direction of the other party to the contract.
    
   Lawrence, J.

I am of the opinion, upon the evidence,, that the agreement of April 4, 1873, must be regarded as having been entered into in consideration of and as part of the agreement of the plaintiff to subscribe for the 600 shares of the capital stock of the Blair Iron & Steel Company, the corporation mentioned and referred to in the-pleadings in this action. Such being the case, I am further-of the opinion that the agreement in question, not having: been disclosed to all the parties subscribing for the stock,, was illegal, and cannot be enforced.

In Adams v. Outhouse (45 N. Y. 318, 322), Judge Allen in delivering the opinion of the court in commenting upon the case of Bliss v. Matteson (45 N. Y. 22), states “ that the case is authority for holding that the principles of Russell v. Rogers (10 Wend. 473), and kindred cases, apply to all cases within the reason of the rule, and absolutely disable every one acting with others in a matter of common interest, from securing to himself any particular profit or advantage over his associates, by any secret or undisclosed agreement or understanding.” (See also Blodgett v. Morrill, 20 Verm. 509.) In the case of White Mountain R. R. Co. v. Eastman (34 N. H. 124), it was held that ,a secret agreement entered into between the directors of a railroad corporation and a subscriber for shares in its capital stock, that he may within a specified time reduce flic number of shares thus subscribed for, the subscription being held out as bonajid.6 for the full amount in order to induce others to become subscribers, is void as-a fraud upon the other subscribers, and the original subscription may be enforced for its full amount between the' corporation and subscriber. In that case Sawyer, J., most clearly states the. principles which control cases of this description.

At page 141, he says : “ It is the secret stipulation alone which operates in fraud of others, and upon that the law leaves the parties where they stand, declining to enforce it for the benefit of either; while as to the other part of the contract, to enforce it between the parties, is what is necessary to defeat their fraudulent purpose as to other innocent persons. That the proceeding is a fraud upon third persons is clear from the relation in which subscribers for Stock in a corporation of this kind stand toward each other. In the subscription of each person, every other subscriber '.has a direct interest. Their respective subscriptions are contributions or advancements for a common object. The action of each in liis subscription may be supposed to be influenced by that of the others, and every subscription to be based upon the ground that the others are what upon -their face they purport to be. The fact that one man has bound himself to place a certain amount of his money upon the risk involved in the enterprise, is an inducement to ■others to venture in like manner. Seeing who are his associates, and the extent of the liability which they have assumed, he regulates his own upon that consideration ; and though in form and legal effect the contract of each is "with the corporation, yet among the subscribers themselves it is to be regarded as an agreement with every other subscriber, to bear that proportion of the common burthen to which he proposes to bind himself by the contract which he holds out to them, as his contract with the corporation. . . . . The books abound with cases in which the principle is applied that a secret agreement between the parties to a contract, changing its character from what it ostensibly is, to the prejudice of others collaterally interested, is a fraud on them, and therefore void, even as between the parties themselves (Jackson v. Duchaire, 3 T. R. 551; Wyburd v. Stanton, 4 Esp. 179).”

It seems to me that the reasoning in that case demonstrates, that the agreement upon which this action was brought, was fraudulent as to the other subscribers to the stock in question, and that such agreement was therefore illegal and void. Messrs. Blair and Struthers who made the agreement with the plaintiff, which is the subject of this suit, in the prospectus, which preceded the subscription paper state that, the capital stock of the Blair Iron & ■Steel Company is 25,000 shares of $100 each, $2,500,000. This capital has been paid up by the transfer of the patents for the Blair process and the works at Glenwood, Twenty-third Ward of Pittsburgh, Pa., to the company (the deed for the Glenw'ood property to be made as soon as any empowering act can be obtained from the Pennsylvania Legislature, which we have bound ourselves to secure), and the whole stock of said company, issued to us, in payment therefor. We have agreed to place in the hands of General A. S. Diven, as trustee, 9,000 shares of this stock to be used as working capital for the company, subject to the order of the board of trustees of said company, excepting $50,000 of the proceeds thereof first to be paid to us by the said trustee.”

“ The trustees of the company have with our consent, ordered the sale of 6,000 of said shares for the purpose of raising a present working capital and paying said $50,000, the minimum price to be $50 per share. And said trustee, with the approbation of the board of trustees, now offers said 6,000 shares at said minimum price of $50 per share, to be paid for as follows, viz.: One third part thereof as soon as the whole 6,000 shares shall be subscribed for, and the remainder in such installments as the board of trustees may call for, the same for the purposes-of the business, the certificates to be delivered when the whole shall be paid.”

This subscription paper reads as follows: “ We the-undersigned, hereby subscribe to the number of shares set opposite to our names respectively, to be paid for according to the terms above set forth ; but this subscription not to-be binding until the whole 6,000 shares have been reliably subscribed for.”

This subscription paper was signed by the plaintiff, and by the other parties who subscribed for the 6,000 shares of the capital stock of the company. I do not think that it can be justly contended that the plaintiff can be considered as having been a reliable subscriber within the meaning of the subscription paper. The evidence shows that some of the other subscribers had an agreement with the defendants in this action, similar to that upon which this action is-brought, but it is quite clear that several of the other subscribers did not receive any collateral agreement or guaranty, and that they did not know that such a guaranty had been given to the plaintiff or others. It would therefore appear that the agreement in question, in spirit and effect, stands upon the same principles as those which govern in the construction of composition agreements, and that the cases which hold that every agreement or arrangement, when the composition is made with creditors, by which an advantage is secured to any one of the creditors which is-withheld from the others is a fraud upon the creditors from whom it is concealed, although it has never had, nor can have the effect of depriving them of any portion of the amount which they had agreed to receive, must control this case (See Breck v. Cole, 4 Sandf. 79; Pinneo v. Higgins, 12 Abb. Pr. 334; Lawrence v. Clark, 36 N. Y. 128).

It is contended by the counsel for the plaintiff that this case is not analogous to the cases referred to, because the agreement which is the subject of this action is entirely collateral, and was made with an outside party who was only indirectly interested in having the agreement carried out. I cannot adopt that view of the case. Blair and Struthers in the transaction referred to, represented the' company, and they recited in their prospectus that the whole capital stock had been issued to them and to Poster, in payment of the Blair process and the works at Glenwood.They made the agreement to place 9;000 shares of the stock in the hands of Mr. Diven, the trustee, and the trustees of the company, with their consent, had ordered the sale of the 6,000 shares in question. It seems to me that Blair and Struthers should be regarded in the eye of the law as principals in the transaction, and that each subscriber to a portion of the 6,000 shares had a right to require that each one of his co-subscribers should be a reliable subscriber, that is, an absolute subscriber, not possessing a collateral guaranty from the very parties who had consented to place the 6,000 shares upon the market, that they would at a future time, in case such subscriber was dissatisfied with his purchase, take the same off his hands. At all events, I think that each subscriber was entitled to know that such a guaranty had been given, and that the concealment of such fact from any or all of the subscribers, brings the case within the principles laid down by the authorities-to which I have referred.

It was said too, upon the argument, that there was no analogy between the cases of composition deeds and subscription papers such as that which was signed in this case. The case of the White Mountain Co. v. Eastman, 34 N. H. 124 (already referred to), and the cases of Melvin v. Lamar Ins. Co., 80 Ill. 446 ; Graff v. Pittsburgh R. R. Co., 7 Casey, 489 ; Miller v. Hanover Junction R. R. Co., 6 Norris, 95, I think most clearly show that such analogy does exist.

In Miller v. Hanover Junction, &c., R. R. Co. (6 Norris, 95), the court held that a subscription to joint stock, is not only an undertaking with the company, but with all other subscribers, and that a subscriber cannot be permitted to set up a secret parol arrangement with the agents of the company, by which he may be released from the subscription, while his fellow subscribers continue to be bound. In that case, the court quoted with approbation from the opinion of Woodward, J., in the case of Graff v. Pittsburgh R. R. Co. (7 Casey, 489, 498), in which the learned justice .says that£! subscription to a joint stock is not only an undertaking to the company, but with all other subscribers; and even if fraudulent as between the parties, is to be enforced for the benefit of the others in interest.”

And in Robinson v. Pittsburgh & Connelsville R. R. Co. (8 Casey, 334), the supreme court of Pennsylvania also held, that it is no defense to an action to recover the amount of a subscription to the capital stock of a railroad company, that it was made at the request of the president of the company, with the understanding that the defendant was not to pay for or hold the stock subscribed, and that ■the same was to be canceled ; also, that such an agreement would be a fraud on the company and on all subsequent .subscribers, and whilst the defendant might reap no advantage fi om it, he would be held to all the responsibility of a Iona fide subscriber. On the authority of these cases I think that it must be held that the agreement referred to in the complaint was fraudulent and void, and that while the plaintiff may be liable-upon his subscription, he cannot enforce the agreement between him and the defendants.

See, also, to the same effect, Chandler v. Brown, 77 Ill. 333; Connecticut R. R. Co. v. Bailey, 24 Verm. 465, and Anderson v. Newcastle R. R. Co., 12 Ind. 376.

If I am right in the opinion that the facts disclosed' upon the trial render the agreement of April 4, 1873, incapable of enforcement, it is unnecessary to discuss the other questions which have been so elaborately presented by the respective counsel in their briefs.

The complaint should be dismissed, with costs.

II. General Term ; March, 1886.

The plaintiff having appealed to the General Term* from the judgment, dismissing the complaint, the General Term (Davis, P. J., Brady and Daniels, JJ.) after argument, affirmed the judgment with costs upon the oninion of the court below.  