portant engagements; and that, by reason of exposure, his heaith was greatly impaired, to his damage a named sum. Held, that the petition was bad on demurrer, the damage being too remote, conjectural, and not in contemplation of the parties in case of a breach of the contract."
The only question remaining is whether or not the complaint states a of action for nominal damages, and the penalty provided in section 2209, Civ. Code Cal. This section is as follows:
"Sec. 2209. Every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his: actual damages, and fifty dollars in addition thereto."
To this section the commissioners have appended the following note:
"This new provision is needed to protect the l'ights of parties who are seriously annoyed by delays which, nevertheless, cannot be shown to have caused them pecuniary damage."
In the case at bar each count of the complaint alleges a valid contract between plaintiff and defendant, and its breach by the latter. These allegations, if proven, would, at least, entitle the plaintiff to nominal damages,-the amount paid for the transmission of the message,-if no more, and the statutory penalty of $50. Alexander v. Telegraph Co., 66 Miss. 161, 5 South. 397; Telegraph Co. v. Allen (Miss.) 6 South. 461. 'l'he foregoing views render it unnecessary for me to pass upon the question, argued in defendant's brief, whether or not mental suf· fering is, in California, under any circumstances, a proper element of damages. Demurrer overruled.
GLENN v. POnTER.
(Circuit Court of Appeals, Second Circuit. :\Iarch 12, 1896.)
CORPORATIONS-"GNPAID STOCK-LIABILITY OF TRANSFEREE.
One who takes an assignment of stock, accompanied by a transfer to his name on the books, and receives a certificate from the corporation, issued to him in his own name, reciting that he is entitled to so many shares, on each of '''hlch a certain sum has been paid, leaving a specified amount "to be paid when called for," is liable, as a SUbscriber, for the balance due on the stock.
In Error to the Circuit Court of the United States for the South· ern District of Kew York. This was an action at law by John Glenn, as trustee of the creditors of the National Express & Transportation Company, against Horace Porter, to recover a balance alleged to be due on stock of the corporation held by defendant. The circuit court directed a ver'diet for defendant, and entered judgment accordingly. Plaintiff brings error. Burton N. Harrison (Arthur H. Masten, of counsel), for plaintiff in error. George Zabriskie, for defendant in error.
:Qef.9rePECKHAM, Circuit Justice, and WALLACE and SHIPMAN, CirQuit Judges. WALLACE, Circuit Judge. The court below directed a verdict for the defendant upon the ground that there was no proof of the cause of action set forth ill the complaint. The complaint alleges that the defendant "subscribed for fifty shares of the par value of $100 each of the capital stock of the National Express & Transportation Company, a corporation in the state of Virginia, and thereby, for valuable consideration, agreed to be liable to said corporation, and undertook and promised to pay to said corporation, for each and every share so subscribed for bv said defendant the sum of $100, said defendant should lawin such installments. and as and fully from time to time be called upon and required to pay the same; whereby and by force of which said subscription said defendant became and was received and admitted to be a stockholder in and a member of said corporation." It was proved upon the trial that the defendant became the holder of a certificate issued to him, and in his name, by the corporation, reciting that he was entitled to "fifty shares of the capital stock of the National Express & Transportation Company, on each share of which has been paid $5 in cash, leaving $95 to be paid when called for." The defendant's acceptance of this certificate, and the fact that the shares had been transferred to him upon the books of the corporation, were shown by an assignment of the shares in writing, signed by him. The ruling at the trial is sought to be upheld upon the theory that, although the evidence was sufficient to show that the defendant became a stockholder in the corporation, the cause of action set forth in the complaint was founded, not upon that fact, but upon the fact that he was a subscriber for the stock, and the proof failed to establish the averment. Assuming that the complaint should receive the strict construction thul'; .placed lipon it, ,ve think the case made was suffieient to charge the defendant as a subscriber for the fifty shares. Whether he was an original subscriber fol' the shares, or became a subscriber by substitution, is immaterial. It suffices if be assumed towards the corporation the obligation of a subscriber. He did this by the acceptance of the certificate containing the promise to pay for the shares upon call. "When an original subscriber to the stock of an incorporated company, who is bound to pay the installments on his subscription from time to time as they are called in by the compan;Y,transfers his stock to another person, such other person is SUbstituted. not only to the rights, but to the obligations, of the original subscriber; and he is bound to pay up the installments called for after the transfer to him. The liability to pay up installments is shifted from the outgoing to the incoming shareholder." Ang.. & A .. Corp. § 534. This statement should ..be understood with the qualification that the substitution, to become complete, should be recognized by the as the transfer is acknowledged by registrJ upon the books. Webster v. Upton, 91 fT,
SPARKS V. NATIONAl, MASONIC Ace. ASS'N.
S. 65. As was said in Upton v. Tribilcock, Id. 45, 48: "A promise to take shares of stock means a promise to pay for them. The same effect results from the acceptance and holding of a certificate." The judgment is reversed.
SPARKS v. NATIONAL MASONIC ACC. ASS'N. (Circuit Court, S. D. Iowa, C. D. February 6, 18D6.) 1.
\Vhen, by the statute of a state, an insurance company, transacting business in such state, is required to file with a designated officer of that state a written appointment of such officer as the person upon WI10llI process, directed against such company, may be served, such becomes. from the fact of its so transacting business therein, the representative of the company with regard to the service of such process, irrespective of whether such appointnient has been so filed or not.
A statute of Missouri (Rev. St. 18R9, § ;'912) provides that any insurance company, not incorporated by that state, desiring to transact business by any agent or agents in the state, shall first file with the superintendent of the insurance department a power of attorney, authorizing him to receive service of process for the company; that service of process upon such superintendent shall be valid and binding, so long as the company shall have any policies outstanding in the state; and that, if such company shall fail to make such appointment, it shall forfeit the right to do business in the state. The general agent and a soliciting agent of the M. Association, an Iowa insurance company, during the months of April and May, 18lJ2, solicited insurance for that company in several towns in :\1issouri. They forwarded to the company 6(; applications for policies, all dated in :Mis· souri, stating the residences of applicants and beneficiaries as in Missouri. and all accompanied by fees, receipts for which, dated in Missouri, and containing an agreement to refund if no policies were issued, were given to the applicants. The policies were mailed by the company from Iowa to the applicants in :\Iissouri, and, from the time of the issue of the policies until 1895, the dues thereon were collected by local collectors, in the various Missouri towns, who gave receipts for such dues, dated in ;\1issouri, on forms furnished by the company. The M. association had never authorized the soliciting of insurance in Missouri, nor tiled the power of attorney required by the :\Iissouri statute; but the records of the company gave full knowledge to the board of directors, of whom the general agent who solicited the insurance was one, of the solicitation of such insurance and the issue of the policies in Missouri. Plaintiff brought an action against the 1\1. Association, on one of the policies so issued, in a Missouri court. ProcesR was served on the superintendent of insurllllce, and judgment was obtained by defaUlt, on which plaintiff afterwards brought suit in a federal court in Iowa. 'L'he defendant pleaded that the Missouri court had no jurisdiction. Held, that the M. Association was doing business in Missouri, within the meaning of the statute, and having thereby asserted a compliance with thp laws of the state permitting it to do so. was estopped to set up that it had not authorized the superintendent of insurance to receive sen'ice of process, in order to defeat the jurisdiction of the court by which the judgment waR rendered, and, that the service on the superintendent was sufficient.
Cummins & WI'ight, fOl' plaintiff. Clark Varnum, for defendant. WOOLSON, District .Judge. The plaintiff, a citizen of the state of Missouri, brings this action against defendant, a corporation organized under the laws of the state of Iowa, upon a judgment re-