entitled to the same proportion of the capital stock, to-wit, one-fifth. His voice in the corporation would be just as potent. The authorities cited by appellant on this point are not applicable to this case. Thenearest case cited is James v. Cowing, 82 N. Y. 449. In that case, certain railway bonds were secured by mortgage, and the mortgage provided for forclosure, and that the property might be bought in by the trustee for the bondholders, and a new corporation formed as therein provided. The foreclosure was had and the property bid in as provided; but, instead of forming the new corporation, the trustee, at the request of a majority of the bondholders, sold the property at auction, and it was bought by another corporation, of far greater magnitude than the one contemplated in the mortgage. One of the bondholders brought action against the trustee for his share of the property thus wrongfully sold. It was contended that the corporation that purchased the property was substantially the corporation for which provision was made in the mortgage, but the court say: “It is easy to see that the position of the plaintiff in that company might well be something entirely and destructively different from his situation in the new corporation contemplated in the mortgage.” An inspection of the contract and the articles of incorporation show just the reverse to be true in this case. In Lindley, Partn. 408, it is said: “Any article, however express, may be abandoned by consent of all parties; and this consent may be evidenced, not only by express words, but by conduct.” Plaintiff could not have evidenced his consent to the change in the corporation in a more forcible manner than by signing the articles of incorporation in which these changes were embodied.
Under the partnership contract, all the effects of the partnership were to be assigned to the corporation. Granted that plaintiff was a necessary party to a transfer of the legal title to such property, yet equity, looking ever to the substance, regards that as done that ought to be done; and the full and equitable title is in the corporation. The transfer executed by Griggs and Eshelman cannot, in equity, be defeated because plaintiff wrongfully refused to join therein. Nothing remains in the copartnership; and the corporation, by accepting such
