Fox v Clifton, Wickey, Levi, Green, Hartlley, Plummer, and Fennell
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 1830 |
| Date | 30 June 1830 |
| Court | Court of Common Pleas |
English Reports Citation: 130 E.R. 1479
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 4. Moo. & P.676; 8 L. J. C. P.(O. S. ) 257. Referred to, North Stafford Street Company v. Ward 1868, L. R. 3 C. P. 170. For subsequent proceedings see 9 Bing.115; 2 Moo. & S. 146.
[776] Fox v. clifton, wiokey, levi, green, hartley, pluhmer, and fennell. June 30, 1830. [S. C. 4 Moo. & P. 676; 8 L. J. C. P. (O. S.) 257. Referred to, North Stafford Street Company v. Ward, 1868, L. R. 3 C. P. 170. For subsequent proceedings see 9 Biug. 115; 2 Moo. &S. 146.] A prospectus was issued for a distillery company with a capital of 600,0001. and 12,000 shares, and to be conducted pursuant to the terms of a deed to be drawn up. All 1480 FOX V. CLIFTON 8 BINCt. 777. person* who did not execute the deed within 30 days after it was ready, were to forfeit all interest in the concern. No more than 7500 shares were ever allotted: only 2300 persons paid the first deposit; only 1106 the second, and only 65 signed the deed; and the directors, after the time for paying the second instalment had elapsed, advertised that persons who bad omitted to pay had forfeited their interest in the concern. Held, that an application for shares, and payment of the first deposit, did not constitute a partner, one, who had not otherwise interfered in the concern, and that the insertion of his name by the secretary of the company in a book containing1 a list of subscribers was not a holding out as partner. Aseumpsit for work and labour, and materials found. The cause was tried before Tindal C. J., London sittings after last Trinity term, when the facts appeared to be as follows :- Early in March 1825, certain persons met together, and resolved that a company should be immediately formed, to be called " The Imperial Distillery Company." After a preliminary announcement of their intention by advertisement, on the 19th March a meeting was held at the London Tavern, at which directors, a clerk, and engineer were appointed; and on the 23d of March a further advertisement appeared in the newspapers as follows :- "Imperial Distillery Company, capital 600,0001., 12,000 shares, at 501. each;"- after a list of names of trustees, directors, auditors, bankers, counsel, solicitors, engineers, and secretary; and an explanation of the merits of the scheme; the advertisement proceeded as follows:-"The affairs of the company are under the management of a board of directors; the capital is 600,0001., in 12,000 shares of 501, each. A deed of settlement will be prepared forthwith, which must be executed within thirty days after the same shall be ready for that purpose; and every person who shall [777] neglect to execute the same within that time will forfeit all share and interest in the company. The deed is to contain all such clauses and conditions as the standing counsel and solicitors to the company shall deem necessary for carrying on the business of the company, and for enforcing the observance and performance of the several rules and regulations to be contained therein, or in any bye-law that shall be from time to time made by the directors. Application is intended to be made to parliament for an act to enable the company to sue and be sued in the name of one of its officers: and the said deed of settlement, when settled and approved by the standing counsel and solicitors, and the act of parliament, when passed, shall be the deed of settlement and act of parliament for managing the affairs of this company. "The share* will be forthwith allotted; and until offices are taken, all communications are requested to be made to the directors, at the City of London Tavern. "(Signed) W. lane, Sec." A meeting wa& held on the 23d of March, at which 7000 shares were appropriated, and letters printed in blank were distributed by the secretary among the intended shareholders, to be addressed by them to Messrs. Fisher and Norcutt solicitors for the concern, as an application for shares, to the following effect:- "Sir,-I request you will insert my name for shares of the Imperial Distillery Company, and I hereby engage to make the payment thereon when requested." To which letters, the secretary replied in the following form :- "Sir,-I am instructed by the directors of this company to inform you, that they have apportioned to you shares of 501. each in the same, and I [778] request you will pay the deposit of 51. per share into the hands of Messrs. Bosanquet, Pitt, and Co., Lombard Street, on or before the 28th inst. " W. lane, Sec." A list of the persons whom the secretary had so addressed was sent to the bankers, Bosanquet and Co. On the 28th of March, the Defendants, or some person on their behalf, appeared at the bankers' with letters as above, paid the sums required, and took a scrip receipt in the following form :- 6 WHO 779. POX V.CLIFTON 1481 "No. 6726 to 6735. "London, 28th March 1825. "Received of the directors of the Imperial Distillery Company the sum of fifty pounds. "For messrs. bosanquet, pitt, anderson, and Co. "50. "P. stainsby." The directors then took a counting-house in Mark Lane, and by the end of May took and fitted up a distillery in Buckinghamshire. This was announced to the subscribers by a letter of the 4th of July, which, after stating the purchase and its objects, proceeded,- " For the purpose of enabling the directors to carry these very desirable objects into effect, they are under the necessity of making a call of 51. upon each share. You will, therefore, have the goodness to pay the sum of 501. (being 51. each on the shares allotted you) any day before the 19th inst, at the office of the company, No. 9 Mark Lane, when the scrip can be exchanged for shares. "It is particularly requested that you will not delay the payment beyond the day above named; the directors being under engagements essential to the interest of this company, which preclude the possibility of further time being allowed. " W. lank, Sec." [779] It did not appear whether the Defendant Clifton had ever received this letter. A book was made up by the secretary, of the names of all who had mads payments upon their shares, including the Defendants, and kept in the counting-house in Mark Lane. A book was also made up, and kept at the same place, of the names of all who had applied for shares, without regard to the fact of their having paid deposits, or otherwise. The names were arranged alphabetically, one leaf being assigned to each letter of the alphabet. The names were upwards of 200. The directors then advertised for tenders in the business undertaken, and the Plaintiff applied to the secretary at the counting-house to know of what persons the company consisted. The secretary assured him they were respectable; and, upon the Plaintiff's begging he would be explicit, adding, that he should be ruined if misled, the secretary opened the book containing the names of the subscribers, and the Plaintiff looked over some of them, but whether he saw the names of the Defendants or not did not appear. On the 18th of July, however, he entered into the contract which was the subject of the present action, and the work was done between the 2d of August 1825, and the 15th of July 1826. The contract waa a tender sent by the plaintiff, addressed to the chairman and directors of the Company, in answer to their advertisement. The partnership deed mentioned in the advertisement bore date the 30th of June, and from that time lay open on the table of the office. It was executed by about sixty-five persons, in the early part of July; but by none of the Defendants except Plummer. [780] Ohly 7490 shares were ever allotted: only 2293 persons paid the first deposit] 1106 the second ; and no more than fifty or sixty the third. The Defendants, Clifton, Wickey, Levi, and Fennell, did not pay the second or the third; and as early as the middle of May, Wickey and Levi had sold their scrip. Whoever brought the scrip receipt, and proposed to pay the second call and to sign the deed, wg permitted to do so, whether the shares had been originally allotted to him, or whether he bad purchased them in the market. On the' }6th of July the following notice was published in the London (gazette, of the deed of ^settlement being ready for execution :- " Imperial Distillery Company, " No. 9 Mark Lane. "Notice is hereby given, that the directors having resolved on making a call of 51. a ahare, to be paid on or before the 18th instant, and also on issuing shares in lieu of scrip receipts, the scrip-holders are therefore requested, either by themselves or their C. P. viii.-47* 1482 FOX V. CLIFTON 6 BINO. 781. authorized agents, to attend at the office of the company, No. 9 Mark Lane, for the purpose of paying to a committee of directors the amount of the shares held : also for the purpose of exchanging scrip for the shares, and of signing the deed of settlement, which has bean approved of by the standing counsel and the directors. Should it be inconvenient for any scrip-holder to attend for the purpose of signing the deed, printed forms of powers of attorney may be procured at the office, empowering persons to execute the deed for them; it being determined by the directors that no scrip-holder can receive shares for scrip until he has first signed the deed of settlement; and no scrip can be exchanged for shares after Monday the 18th instant. "W. lane, Sec." [781] On the 25th of July the following letter was addressed by the secretary to the subscribers:- " Imperial Distillery Company, 9 Mark Lane...
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