Opinion
Argued October 5, 1876
Decided November 14, 1876
Moses Ely for the appellants.
Jno. E. Parsons for the respondents.
In the absence of evidence of want of authority in the president to represent and act for the corporation defendant, or any claim upon the trial that he did not represent the corporation, the tender to him of the assessment at the office of the company during business hours must be assumed to have been properly made to him, and his refusal to accept it must he regarded as the act of the corporation. ( Plumb v. Cattaraugus Co. Mutual Ins. Co., 18 N.Y. 392; Dougherty v. Hunter, 54 Penn. St. R., 380; Howland v. Myer, 3 Comst. 290; Bank of Vergennes v. Warren, 7 Hill, 91; Conover v. Mutual Ins. Co. of Albany, 3 Den., 254; Commercial Bank of Buffalo v. Kortright, 22 Wend., 348.) If the defendant intended to challenge the authority of the president to represent and act for the corporation, the question should have been made upon the trial, when it might have been obviated by other evidence. There was no objection to the tender at the time it was made, either as to form or amount, and all objections which might have been taken upon either ground were therefore waived, and the tender must be held to have been sufficient in amount and in proper form. The check of the party not objected to was, for all the purposes of a legal tender, the equivalent of money. ( Duffey v. O'Donovan, 46 N.Y., 223.) A sufficient tender of the amount due for the assessments having been made before the sale, the sale was without legal authority and void. It is now claimed that this is not a case for equitable relief. But the claim is untenable. The testator before the commencement of the action repeatedly offered to the corporation and to Mr. Ely, its president, who was also the purchaser of the stock, the amount of the assessments, and all charges and expenses in making the sale, and the same was refused. By this action the refusal of the parties to recognize the rights of the stockholders, and the assertion of title under color of a sale, gave the party a right of action against the wrongdoers. With this adverse claim his stock had no marketable value, and he was in effect ousted from all the rights of a stockholder. The right to relief is unquestionable.
The court below was not asked to provide in its judgment for a payment of the assessments as a condition of relief, and no error can be alleged in this court by reason of an omission to do so.
The costs were in the discretion of the court below.
The judgment must be affirmed.
All concur.
Judgment affirmed.