belong to the same parties who furnished the firm capital, and in the same proportion, it was competent for said corporation to assess its capital stock for an amount sufficient to pay the debts incurred by the firm in procuring the property that was transferred to the corporation, so long as such assessment was less than the amount that each party was originally required to furnish under the copartnership articles, none of said parties having actually paid in their firm capital, and said parties would not be entitled to said stock without paying such assessment: and plaintiff H. would not be entitled to paid-up non-assessable stock unless he had paid in the full amount as required by the copartnership articles.
(Opinion Filed April 1, 1890.)
APPEAL from district court, Grand Forks county; Hon. C. F. Templeton, Judge.
Action in equity by Thomas Hennessy against Alexander Griggs, Jacob S. Eshelman, and the Dakota Gas & Fuel Company. The decree dismissed plaintiff's complaint, and he appeals.
Bosard & Corliss, R. E. Noyes, W. P. Langdon and P. J. McLaughlin, for the appellant, argued that the corporation formed was not the company contemplated in the articles of partnership; citing, Jones v. Cowing, 82 N. Y. 449; Bellows v. President, etc., 3 Mason, 31; The Georgia Co. v. Casselberry, 43 Ga. 187; White v. Newport Co., 1 Pick. 215; Matthews v. Stanford 17 Ga. 543; Thrasher v. Pike Co. R. R. Co., 25 Ill. 393; Childs v. Smith, 55 Barb. 45.
The transfer of the partnership property to the corporation was not made in manner provided in articles of partnership; the ratification of it by the court was equivalent to decree for specific performance, which should be refused in such a case because it would be unfair if the stock is assessable. Keen v. Hamilton, 4 Peters, 311; Cathcart v. Robinson, 5 id. 264; Jackson v. Ashton, 11 id. 229.
The instruments are too vague to justify a decree tantamount to a decree for specific performance. Stanton v. Miller, 58 N. Y. 192; Shakespeare v. Markham, 72 N. Y. 400; Pomeroy on Spec. Perf. 222.
The plaintiff is not estopped by his conduct, 7 Am. & Eng. Encyc. Law, 12-17; Ins. Co. v. Mowry, 96 U. S. 544; White v. Ashton, 51 N. Y. 280.
