one creditor would discharge a stockholder to that extent from liability to others; and a payment of the full par value of his stock would, according to the view which has been expressed by this court, be a full discharge: Halsey v. McLean, 12 Allen, 438, 442; 90 Am. Dec. 157; though as to this other courts might hold otherwise: Fowler v. Robinson, 31 Me. 189; Grose v. Hilt, 36 Me. 22. There is no averment in the declaration that the defendant has not been thus discharged from liability, and perhaps this is not necessary, as it would be more properly a matter of defense; but in case of several actions in different states, questions of priority of the claims of creditors might arise, upon which the decisions of the courts of the different states might not be uniform, and thus the defendant might be held liable more than once. The cases cited by the defendant appear to show that in some states the creditor first bringing suit has priority: Ingalls v. Cole, 47 Me. 530; Thebus v. Smiley, 110 Ill. 316. In Missouri, the creditors rank in the order in which they respectively obtained judgment: State Sav. Ass'n v. Kellogg, 63 Mo. 540. In other states no priority among the creditors is recognized: Pfohl v. Simpson, 74 N. Y. 137; Wright v. McCormack, 17 Ohio St. 86; Eames v. Doris, 102 Ill. 350; Chicago v. Hall, 103 Ill. 342. See Thompson on Liability of Stockholders, secs. 420-426; 2 Morawetz on Private Corporations, 2d ed., sec. 897. Even a compulsory payment might not avail to protect him. Moreover, the defendant might, by way of set-off, present claims which he holds either against the corporation in Kansas, or against the creditor who sues him, and different decisions in respect to his right of set-off might be made in different states.

These considerations are suggested to illustrate the practical difficulty of enforcing a liability such as that set forth in the declaration in other states than that where the corporation is established, in such a way as to secure substantial justice. This difficulty is far greater in cases where no steps have been taken in the state where the corporation is established to ascertain and determine the amount of each stockholder's liability. There the whole amount of debts can be ascertained, and the proper proportion assessed upon each stockholder; or his liability can be otherwise determined in a manner which will avoid many of the objections which exist against the maintenance of actions like the present. We remain satisfied with the conclusions heretofore reached by this court, that such an action, under the circumstances which appear here,

Limiting our decis

That a resident of

ought not to be entertained in this state. ion to the facts now before us, it is this: the state of New York cannot maintain in the courts of this state an action against a resident of the state of California to establish his personal liability as a stockholder of a corporation organized in the state of Kansas, and having no place of business in this state, for a debt of that corporation to the plaintiff, under laws of Kansas, such as are set forth in the declaration, providing for a certain special and limited liability on the part of stockholders, when no judicial proceedings have been taken in Kansas to ascertain and establish the liability of the defendant as such stockholder.

Whether the same result might not be reached on the ground that the subsidiary liability of stockholders such as is set forth is matter of remedy only, and does not follow the stockholder outside of the state, there being no averment of a different construction of the statute by the Kansas courts, we need not consider: Brown v. Eastern Slate Co., 134 Mass. 590. Judgment for the defendant affirmed.

CONFLICT OF LAWS-ACTION TO ENFORCE STOCKHOLDER'S LIABILILY IN A FOREIGN CORPORATION. A corporation has a right to be protected by the remedial limitations of its jurisdiction: Wooden v. Western New York etc. R. R. Co., 126 N. Y. 10; 22 Am. St. Rep. 803, and note. A contract made with a foreign corporation, if yoid in the state to which such corporation owes its existence, cannot be enforced elsewhere: Rue v. Missouri Pac. R'y Co., 74 Tex. 474. The contract of a corporation is affected by the law of the state creating it: Attrill v. Huntington, 70 Md. 191; 14 Am. St. Rep. 344, and extended note; Jessup v. Carnegie, 80 N. Y. 441; 36 Am. Rep. 642.

FREELAND V. RITZ.

[154 MASSACHUSETTS, 257.]

STATUTE OF FRAUDS - EXECUTORY CONTRACT. It is no objection to a written contract that some of its terms remain to be fixed by something to be done in the future, if that something is done before an action is brought; and if the contract is then in writing, the statute of frauds is complied with.

STATUTE OF FRAUDS - MEMORANDUM OF LEASE. - A written agreement to sublet rooms, the lease therefor “to be in substantial accordance with the blank form hereunto annexed, and to be made subject, in all respects, to the terms and conditions of "an agreement and lease between the owner of the building and the sublessor, is a sufficient memorandum of the terms of such sublease to satisfy the statute of frauds, after the lease to such sublessor has been executed.

CONTRACT FOR LEASE- EVIDENCE OF COMPLIANCE BY LESSOR AND WAIVER BY LESSEE. In an action to recover for a breach of an agreement to execute a lease, evidence that the lessor wrote to the lessee in regard to the lease, and subsequently sent him a copy of a lease for his signature, which copy he retained without signing and without objection, shows a compliance by the lessor with the agreement to execute a lease, and an un willingness on the part of the lessee to accept a lease in any form, as well ashis waiver of a strict compliance by the lessor with the terms of the agreement. PLEADING.—Where Contract SUED ON IS INCOMPLETE in itself and depends upon another agreement, the terms of such agreement, so far as they are material to complete the contract in suit, should be set forth with appropriate allegations; and if a waiver is also relied upon, it should be pleaded as an excuse for non-performance by the plaintiff.

C. Browne and G. A. O. Ernst, for the plaintiffs.

H. W. Bragg and W. S. Slocum, for the defendants.

LATHROP, J. This is an action of contract brought by the members of the firm of Freeland, Loomis, & Co. against the members of the firm of Ritz and Glines, for the breach of an agreement under seal and signed by the parties, to accept a lease of certain rooms in a building.

The agreement declared on recited that a building was then in process of erection by the Boylston Market Association, on the corner of Washington Street and Boylston Street, in Boston; that Freeland, Loomis, & Co. had entered into an agreement with said association for a lease of said building as soon as the same should be completed; and that Ritz and Glines were desirous of obtaining from Freeland, Loomis, & Co. a lease of part of said building, "to wit, rooms on the sixth floor thereof, as marked on plan of said floor, in the possession of Freeland, Loomis, & Co., containing about twenty-five hundred (2,500) square feet, more or less, and situated in the northeasterly corner of said building, for the purpose of there conducting the photographing business." Freeland, Loomis, & Co. agreed, as soon as the building should be ready for occupancy, and a lease thereof executed and delivered to them, to execute and deliver, and Ritz and Glines agreed to accept, а lease of the rooms aforesaid, to be used solely and exclusively for the business aforesaid, for a period of five (5) years from the date of the completion of said building, at an annual rental of twenty-five hundred dollars ($2,500), payable in equal monthly installments, the lease to be in substantial accordance with the blank form hereunto annexed, and to be made subject in all respects to the terms and conditions of the said agreement

and lease between said Freeland, Loomis, & Co. and said Boylston Market Association."

1. The defendants contend that inasmuch as the agreement provides that the lease is "to be made subject in all respects to . . . . . the said agreement and lease between" the plaintiffs and their lessor, which lease was not then in existence, there is no sufficient agreement or memorandum to satisfy the statute of frauds: Pub. Stats., c. 78, sec. 1, cl. 4.

The agreement declared on is dated April 17, 1888, and it is clear that, considered alone, it is insufficient to satisfy the statute, for some of its terms were then uncertain, and might never be made certain: May v. Ward, 134 Mass. 127; Ashcroft v. Butterworth, 136 Mass. 511. What was then uncertain has, however, since been made certain, as it appears by the report upon which the case comes before us that in January, 1889, before this action was brought, a lease in writing of the entire building was delivered to the plaintiffs by their lessor.

It is a well-settled rule of law, that while the memorandum must express the essential elements of the contract with reasonable certainty, these may be gathered either from the terms of the memorandum itself, or from some other paper or papers therein referred to. If one of a series of papers which appear to have relation to the same contract is signed by the party to be charged, this is enough, as all the papers are to be considered together, as forming one contract or memorandum. There is no doubt, also, that parol evidence is admissible to identify any paper referred to: Atwood v. Cobb, 16 Pick. 227, 230; 26 Am. Dec. 657; Lerned v. Wannemacher, 9 Allen, 412; Rhoades v. Castner, 12 Allen, 130; Beckwith v. Talbot, 95 U. S. 289; Grafton v. Cummings, 99 U. S. 100; Ryan v. United States, 136 U. S. 68, 83; Peck v. Vandemark, 99 N. Y. 29; Louisville Asphalt Varnish Co. v. Lorick, 29 S. C. 533; Ridgway v. Whar ton, 6 H. L. Cas. 238; Fitzmaurice v. Bayley, 9 H. L. Cas. 78, 102; Baumann v. James, L. R. 3 Ch. 508; Shardlow v. Cotterell, L. R. 18 Ch. Div. 280; L. R. 20 Ch. Div. 90; Studds v. Watson, L. R. 28 Ch. Div. 305; Oliver v. Hunting, L. R. 44 Ch. Div. 205; Long v. Millar, L. R. 4 C. P. D. 450; Cave v. Hastings, L. R. 7 Q. B. D. 125.

The defendants, however, contend that these principles apply only to papers already in existence when the instrument signed by the party sought to be charged is executed; and in support of this view, rely upon the case of Wood v. Midgley, 2 Sinale & G. 115; on appeal, 5 De Gex., M. & G. 41.

This was a bill for specific performance of a contract of sale Some of the terms had been reduced to writing, but not signed. The purchaser paid his deposit money to the auctioneer who sold the land, and he signed the following receipt: "Memorandum. Mr. Thomas Midgley has paid to me the sum of fifty pounds as a deposit and in part of payment of one thousand pounds, for the purchase of the Ship and Camel Public House, at Dockhead, the terms to be expressed in an agreement, to be signed as soon as prepared." Vice-Chancellor Stuart overruled a demurrer to the bill, on the ground that the memorandum to be prepared and signed was only the fair copy of the draught as settled and agreed to. On appeal, the demurrer was sustained by Lord Justice Turner and Lord Justice Knight-Bruce, on the ground that the agreement referred to, although it fixed the price, left other points to be determined. "The conditions of sale were to be adapted to a sale by private contract, and were to be subject to a future agreement." The case is therefore one of an agreement incomplete when made, and which never was completed. See also Ridgway v. Wharton, 6 H. L. Cas. 238; Fitzmaurice v. Bayley, 9 H. L. Cas. 78; Rummens v. Robins, 3 De Gex, J. & S. 88.

In Brown v. Bellows, 4 Pick. 179, the plaintiff and the defendant were owners of a water priviledge, with the building thereon, etc. The plaintiff agreed to sell his interest, and the defendant agreed to buy it, "at such prices as shall be agreed on and awarded by three men, one chosen by the plaintiff, one by the defendant, and the third by the two thus chosen, which award shall be final and binding on the parties." After the price had been thus determined in writing, the defendant refused to perform his agreement. The plaintiff brought an action for covenant broken, to which the defendant set up the statute of frauds, contending that the referees were not named in the agreement, and that it depended wholly upon parol evidence to determine who they were. This objection was disposed of by the court saying that the contract had been performed in this respect. The defendant further contended that the price should have been fixed by the agreement, whereas it was to be ascertained by the referees. But this objection was overruled. The last point decided in this case, therefore, is a direct authority for the proposition that it is no objection to a written contract that some of its terms are to be fixed by something to be done in the future, if that something is done