Maryland Agricultural College ex rel. Skinner v. Baltimore & Potomac Railroad

Alvey, J., delivered the opinion of the Court. The controlling question in this case arises upon the construction of the contract between the appellees and Robert Bowie, as evidenced by the resolutions passed on the 26th of August, 1858, and the 6th of April, 1859. By the first of these resolutions, Robert Bowie was appointed agent to canvass for and receive subscriptions to the capital stock of the Company, then unorganized, his ⁴³⁶ compensation to be one dollar per share, on all subscriptions obtained by him, to be paid out of the cash instalment of two dollars required b^y the charter to be paid by the subscriber at the time of subscription ; “ and the further sum of three per cent, upon the ivhole amount of subscriptions which he may be instrumental in obtaining, to be paid as the subscriptions to the capital stock shall be paid in.” And by the second of the resolutions referred to, this agent was authorized to obtain subscriptions to the capital stock of the Company, from citizens of Prince George’s, Anne Arundel, Charles, St. Mary’s and Calvert counties, and of any other persons whom he could induce' to subscribe, upon the terms theretofore agreed on between the agent and the Company; and by that resolution he was required to give bond in such sum, and with such security as should be approved, for the due performance of his duty, and the payment over of any moneys that he might receive. Under the authority delegated by these resolutions, the agent, Bowie, prior to January, 1860, procured to be subscribed by persons, residing in the city of Baltimore, Anne Arundel, Prince George’s and Charles counties, 1946 shares of the capital stock of the Company, of the par or nominal value of $50 per share, and which subscriptions were accepted by the Company.

On these 1946 shares, it is agreed that Bowie has been paid the one dollar per share, and also three per cent, on 180 shares of the stock, for which certificates have been issued, and also the further sum of three per cent, on seven dollars per share, paid on the residue of the 1946 shares ; and that the claim now insisted on, as being subject to condemnation under the attachment, is three per cent, on the balance unpaid on the subscriptions obtained, that is to say, a balance of $43 per share on 1766 shares of stock. By the Act of incorporation, 1853, ch. 194, under which this stock was subscribed, it is provided, in the third sec ⁴³⁷ tion, that upon every subscription of stock there shall be paid at the time of subscribing two dollars on each and every share subscribed ; “and the remainder shall be paid in such instalments, and at such times as may be required by the president and directors of the said company ; pro-’ vided, no payment shall be demanded until at least thirty days public notice of said demand shall have been given by the said president and directors, and if any subscribers shall fail or neglect to pay any instalment, or part of subscription thus demanded, for the space of sixty days after the same shall he due, the stock on which it is payable shall be forfeited to the company, and may be sold by the said president and directors, for the benefit of the said company ; hut the president and directors may, in their discretion, remit any such forfeiture, and institute and sustain, in the name of the company, action or actions before any tribunal in this State, having jurisdiction of the subject-matter, to recover from any subscriber thus making default, any instalment or part of subscription so as aforesaid demanded.” It was in proof that demand was duly made of the subscribers for tlio balance due on the stock, and that they failed or neglected to make payment; and that on the 4th of September, 1872, the appellees, by resolution regularly passed, forfeited the stock procured by Bowie to be subscribed, with the exception of 182 shares. It was also in proof that the forfeitures had not been remitted by the appellees, nor have they sold, or attempted to sell, any part of the stock so forfeited ; and they