Opinion of the Court.

do not say that the court found correctly, from the evidence, but the error, if there was any, was in favor of appellants, and they can not be heard to complain.

For the reasons indicated, the judgment must be affirmed.

Judgment affirmed.

JAMES MCCABE

V.

AMASA CROSIER.

1. SPECIFIC PERFORMANCE--matter of discretion. It is the settled doctrine of this court that a party can not, as a matter of right, have a contract specifically enforced in equity, but that the exercise of this power rests in the sound discretion of the court in view of the terms of the contract and the surrounding circumstances.

2. SAME-party asking must not be guilty of default or laches. Where a party asking the specific performance of a contract has not performed his part of the contract, or shown any readiness to perform, and after great delay, unexplained by equitable circumstances, there will be no error in refusing him relief.

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

Mr. D. P. JONES, and Messrs. DICKEY, BOYLE & RICHOLSON, for the appellant.

Mr. CHARLES HARVEY, and Messrs. BUSHNELL & BULL, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was a bill by appellant for specific performance of a contract, made by him with appellee, for the purchase of a small parcel of land of little value, and on which no improvements, beyond a short line of fence, had been made.

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69 501

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69 501

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Syllabus.

It is the settled doctrine of this court, as of most other courts of equitable cognizance, that a party can not call, as of right, upon a court of equity to exercise that branch of its jurisdiction; that its exercise rests in the sound discretion of the court, in view of the terms of the contract of the parties and the surrounding circumstances. A party demanding its exercise is bound to show that he himself has always been ready, willing and eager to perform on his part, even when the contract does not make time of the essence of the contract. Phillips v. Ill. Cen. R. R. Co. 63 Ill. 468.

There is not the slightest basis in the evidence in this case for an inference that this appellant has at any time been ready, willing or eager to perform the contract in question. He did not perform, and his position was, that he could do just as he pleased in that regard. Under these circumstances, and after great laches, unexplained by equitable circumstances, it would be against the established principles of the court to decree specific performance. Nor do we perceive any error in the decree in other respects.

It will, therefore, be affirmed.

Decree affirmed.

NATHAN CORWITH et al.

v.

BELDEN F. CULVER.

1. CORPORATION-facts sufficient to show a party to be a stockholder. In a suit to charge one as a stockholder, under section 9 of the act of Feb. 18, 1857, it appeared that no certificate of stock was ever issued to the defendant; that at the first meeting of the company he signed a paper, with others, by which he agreed to take $5000 stock; that he acted as president of the company, and, while so acting, admitted to several persons that he had an interest in the company to the extent of $4000 or $5000: Held, that the facts showed the defendant to be a stockholder, so far as the rights of

Opinion of the Court.

creditors were concerned, and that a certificate of stock was not necessary to constitute him a stockholder.

2. SUBSCRIPTION-delivery. Where the defendant, who had signed a paper agreeing to take a certain sum in the stock of a private corporation, retained the same in his possession, but it was produced frequently at the meetings of the directors, and treated as a subscription, the defendant being the president of the company, it was held, that such retention by him, as the chief officer of the company, could not have the effect to show that he never became a stockholder, as against a creditor of the company.

3. EVIDENCE-parol, to vary written subscription. Where a subscription of a party to the capital stock of a private corporation is absolute on its face, parol evidence is inadmissible to show that the subscription depended upon a condition. Such a condition would be a fraud upon the other subscribers.

4. ESTOPPEL-to deny power of corporation to act. Where a party acted as the president of a private corporation, and held it out to the world as legally organized and acting, although, in fact, the whole of its capital stock was never subscribed, it was held, that when sought to be charged as a stockholder by a creditor of the company, he was estopped from setting up such fact for the purpose of showing that the company could not exercise the functions of a corporation, or enter into contracts on which he could be made liable.

APPEAL from the Superior Court of Cook county; the Hon. CHARLES H. WOOD, Judge, presiding.

This was an action of assumpsit, brought by Nathan Corwith and John E. Corwith, partners, against Belden F. Culver, to charge the defendant as a stockholder of the Balbac Smelting and Refining Company, for the payment of a judgment recovered by the plaintiffs against the company. The material facts of the case are stated in the opinion of the

court.

Mr. DAVID FALES, for the appellants.

Mr. J. B. LEAKE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action brought by the plaintiffs, as creditors of a corporation named the Balbac Smelting and Refining

Opinion of the Court.

Company, organized under the act of February 18, 1857, laws of 1857, p. 161, against the defendant, as a stockholder in the company, under the 9th section of the act, which provides that "all stockholders of every such company shall be severally, individually liable to the creditors of the company, to an amount equal to the amount of stock held by them, respectively, for all debts and contracts made by such company prior to the time when the whole amount of its capital stock shall have been paid in, and a certificate thereof made and filed as hereinafter required." Judgment in the court below was rendered for the defendant, and the plaintiffs appealed.

The question presented by the record is, whether the defendant was a stockholder of the company.

The company was organized August 15, 1871, in the county of Cook, and had its principal place of business there.

The certificate of incorporation filed in the circuit clerk's office of Cook county, and in the office of the Secretary of State, was signed by the defendant, and it also designated the defendant as one of the directors. The license provided for by the act was issued to the defendant and others, and under this license the company held its first meeting, August 15, 1871, at which meeting the defendant was present, and was elected president of the company. Soon after the organization, the following paper writing was signed by the defendant and others: "We, the undersigned subscribers, agree to take the sums set opposite our names, respectively, as stock in the Balbac Smelting and Refining Company," to which the name of the defendant was subscribed, for $5000. The defendant continued to act as president up to March 29, 1872, when he resigned his position, both as director and president. Whilst he so acted, defendant was generally present at the meetings of the company, and presided as president, the records of the company showing that he was present at twenty-three meetings of the company, up to Feb 19, 1872. During the time he was acting as above, defendant admitted to several persons

Opinion of the Court.

that he had an interest in the company to the extent of $4000 or $5000.

The plaintiffs' debt against the corporation was contracted March 8, 1872, upon which judgment was rendered against the company December 4, 1872, for $1039.33. No certificates of stock were ever issued to the defendant.

The act provides that all subscriptions to the stock of such company shall be payable in such sums and at such times as the board of directors may require, etc. The 4th section of the act provides, that the affairs of such company shall be managed by a board, of not less than three nor more than seven directors, who shall be stockholders therein; and provides that, during the first year, the persons named in the certificate aforesaid as directors, shall act as such.

We do not think it necessary, in order to constitute the defendant a stockholder, that he should have had any certificate of stock. Spear v. Crawford, 14 Wend. 20; Chaffin v. Cummings, 37 Me. 83.

In the case first cited, under a similar statute, a person was held to be liable to a creditor as a stockholder, although he had never paid anything on his stock, had never attended a meeting of the stockholders, or done any act to make him a stockholder, other than the signing of the subscription paper for stock. It was held, that such subscription puts it in the power of the subscriber to become a stockholder, by compelling the corporation to give him the legal evidence of his being a stockholder, upon his complying with the terms of the subscription, and, on the other hand, that it puts it in the power of the corporation to compel him to pay for the stock subscribed, and thereby to become a stockholder to that amount. And it was considered that such a state of things was sufficient to constitute the subscribers to stock stockholders, within the meaning of the term as used in the act, where the rights of third persons were concerned.

A deceptive provision, indeed, the legislature would have made for the security of the creditors of such corporations, by