Franco-Texan Land Co. v. Bousselet , 70 Tex. 422 ( 1888 )

Walker, Associate Justice.

The charter of the Franco-Texan Land Company, incorporated under the laws of Texas, with the principal office at Weatherford, Texas. Article 7 pro vides:

“That each share of stock issued by said company shall be received in payment for land purchased of the company at prices fixed by the board of directors, so as to procure a pro rata division of the lands, or their values, among the stockholders.”

Of the by laws, article 54, reads;

“Any stockholder shall have the right to exchange his stock for lands of the company at rates determined by the board of directors, according to the schedule made by the executive committee so as to secure a pro rata division of the lands, or their value, among the stockholders.”

Article 56: “Any stockholder shall have the right to exchange his stock for lands of the company at the prices fixed by the schedule described in article 54,” etc.

On the face of the certificate of stock is stipulated: “This certificate is receivable at the office of the company in Texas * * in payment for the company’s lands at prices fixed so as to secure a pro rata division of the lands or of their value among the stockholders.”

Lands were acquired by the company, and schedules of the lands and of rates were made and kept in the office.

A holder of genuine certificates of stock on presenting such certificates at the office of the company and designating from the public schedules of the company the lands desired in exchange for such certificates at the rates specified is entitled to receive such lands and to have title thereto made to him.

On refusal by the officers to convey such lands and to receive a surrender of the stock the holder has a right of action for specific performance. (Leach v. Fobes, 11 Gray, 510.) Such suit is not a suit for partition, and it is not necessary to allege orto prove that such published schedules were so adjusted as to leave with the company an equal pro'rata of lands for the remaining stockholders. As between such stockholders and the company, the schedules made by the directory are binding.

The rights of such stockholders are fixed by his designation and offer of his stock for surrender. The corporation, after such demand, etc., could not affect the rights of such stockholder by altering the values of lands upon the schedules. From which it follows that the demurrer to the petition was properly overruled; the motion in arrest of judgment and the charge asked by the defendants were properly refused; and the alteration in schedules subsequent to the suit were irrelevant. The petition set out the lands demanded, the evidence showed a demand for them. The verdict, considered with reference to the issues submitted, was sufficiently certain.

Touching the recovery of the four hundred dollars declared dividend no assignment of error covers it. The alleged newly discovered testimony is such on its face that it is evident that reasonable diligence on part of the defendant would have led to its discovery.

Opinion delivered April 10, 1888.

There is nothing in the record to show that the corporation: was insolvent and no creditor nor shareholder is complaining. There is no error in the record requiring reversal, and the judgment below is affirmed.

Affirmed.