Brady v. Elliott , 181 Pa. 259 ( 1897 )

Opinion by

Mr. Justice Fell,

Unless shown to be erroneous, the finding that not all the solvent stockholders had signed the agreement of August 29, 1885, is conclusive of the plaintiffs’ right to recover. The claim was based wholly upon this agreement, which was not binding unless signed by all the solvent stockholders. The condition was a 'valid one, and unless it was complied with no one was bound. We see no reason to doubt the correctness of the finding of the learned judge that two of the stockholders who did not sign were solvent. The contention that Varnum was not a stockholder cannot be sustained. True, he had not paid for his stock, and it may be that as between him and the transferror the equitable ownership was in the latter, but the transfer had been made with his knowledge and consent six years before. He considered himself a stockholder, and was' so considered by all parties in interest, and at the time of the assignment for the'benefit of creditors he was acting as secretary of the company and as a member of the board of directors. It i however unimportant whether he was a stockholder or not, as the failure to procure the signature of Catherine Stephen to the agreement was fatal.

The allegation that the parties agreed at the time as to which of the stockholders were solvent, and thus absolved the assignee from the duty of further inquiry is not sustained by the evidence. There was a general conversation among some of those who signed in relation to the solvency of the stockholders, but there was no express agreement, and nothing was said from which an agreement on the subject can be implied. Nor was there any ground of estoppel. Voluntary payments made by some of those who signed the agreement in anticipation of its becoming binding, or in discharge of their liability under the act of incorporation, do not estop them from now asserting that the agreement has no binding force. No one was misled to his injury or induced to change his position or to waive any right or remedy.

The decree is affirmed at the cost of the appellants.