stock, and the secretary thereupon credited each of such stockholders with the amount remaining unpaid on the face of his stock. The difference between the par value of the stock so subscribed for and the dividends has never been paid, and the liability of the defendants to the plaintiff therefor is the principal question in this case. The defendants contend that they incurred no personal liability by reason of their subscriptions; that it was so understood and agreed between them and the corporation, but that, if otherwise, they were released by the resolution of the company retiring and canceling the stock; while the plaintiff insists that, if the resolution referred to is valid at all, it operated to retire the stock to the extent of the dividend only, and not the difference between such dividend and the face value. The oral testimony would seem to indicate that it was "the understanding" at the time that subscribers for dividend stock should not be liable to pay any money thereon. Their liability, however, cannot be so determined, but must be ascertained from the actual contract which they made. By it they agreed "to take the number of shares of the capital stock in the company set opposite" their names, and "to pay therefor the par value thereof in United States gold coin, at the rate of five dollars per month for each share subscribed, until the same is fully paid"; and the certificates issued to and accepted by them are to the same effect. It would seem clear, therefore, that by their contract the subscribers became bound for the difference between the amount of the dividend and the face value of their stock, and no subsequent action of the corporation or its officers attempting to relieve them from such liability could affect the rights of existing creditors: I Morawetz, Priv. Corp. (2 ed.), §§ 109, 111; Balfour v. Baker City Gas Co., 27 Or. 300 (41 Pac. 164); Bedford R. R. Co. v. Bowser, 48 Pa. 29; Upton v. Tribilcock, 91 U. S. 45.

3. We come next to the alleged subscription of Clark

made in 1894. The evidence shows that the company was at the time financially embarrassed, and that White, its president, and L. L. Hawkins, its treasurer, undertook to increase its capital by soliciting additional subscriptions for stock. A writing of some sort was prepared for the signatures of the stockholders, which was signed by Clark and others. The writing has been lost, and is not in evidence, but all the witnesses agree that it was not to become binding on any of the subscribers unless signed by all, or practically all, of the stockholders of the company. Only a small percentage of them were willing to do so, however, and the scheme to thus increase the capital did not succeed, and was subsequently abandoned, and therefore Clark's subscription never became binding upon him: Beloit & M. R. R. Co. v. Palmer, 19 Wis. 574; Brewers' Ins. Co. v. Burger, 10 Hun, 56. Some time in March, 1895, however, the list was delivered to or came into the hands of the secretary, who entered the names of the signers in the books of the company as subscribers to its capital stock, and a certificate for five shares was issued and delivered to Mr. Clark, who thereafter made several payments thereon, amounting in all to $40; and the contention is that, by accepting such certificate and making payments thereon, he waived the condition on which his subscription was made, and became irrevocably bound as a stockholder. The evidence shows, however, that when the certificate was issued and delivered to him he supposed all the conditions of the contract had been complied with, and the list properly delivered to the company, and, acting on this assumption, accepted such certificate and made the payments on the stock, so there was no ratification or waiver of the conditions: Denny Hotel Co. v. Gilmore, 6 Wash. 152 (32 Pac. 1004); Birge v. Browning, 11 Wash. 249 (39 Pac. 643).

4. In entering the decree against the defendants, the trial court included interest on the unpaid balances due on their subscriptions from the date the last installments be

came due; and this, it is insisted, is error. As already noted, both the subscription contract and the by-laws of the company provided that payments for stock should be made in monthly installments; hence no call was necessary, but the payments became due at stated times, by virtue of the contract of subscription. The statute provides that "all moneys after the same become due" shall bear interest: Hill's Ann. Laws, $3587. And, therefore, as between the corporation and the subscribers, the unpaid installments would clearly bear interest from the date they became due: I Cook, Corp. (4 ed.), § 112; Gould v. Town of Oneonta, 71 N. Y. 298; Rikhoff v. Brown's Machine Co., 68 Ind. 388; Goddard v. Ordway, 94 U. S. 672. And, as the unpaid subscriptions are assets of the corporation which a creditor may subject to the payment of his claim, no sufficient reason appears why he may not also collect such interest.

5. The remaining question is as to the liability of the defendant Gordon for the unpaid balance on stock subscribed by him, which depends upon whether his sale and transfer were prior or subsequent to the incurring of the indebtedness upon which plaintiff's judgment is based. It is admitted that the sale was a voluntary one, and therefore he was liable only to existing, not subsequent, creditors: Hill's Ann. Laws, 3230. The loan for which the Hawkins note was given was made September 19, 1891; and Gordon contends that he sold his stock to Eugene D. White on the first of that month, while the plaintiff insists that the sale was made to one Hart, March 10, 1892. The assignment of the certificate and the transfer on the books of the corporation bear date March 10, 1892. Gordon testifies that on September 1, 1891, he assigned in blank and delivered his stock to White, the president of the corporation, and received from him $225, the amount he had already paid thereon; that he did not turn the stock over to White to find a purchaser, but that White took it and paid him therefor, and he supposed

at the time that he had parted with all his interest therein. White says that, to the best of his recollection, Gordon, late in the summer of 1891, wanted to sell his stock, and that he put the matter "in our hands, and we either purchased it for ourselves or for some one else, but it was purchased”; that the date of the assignment "might not have been the date the property was sold. We frequently bought shares or purchased them for some one else, and didn't transfer the stock for some time. It would lie there before transferred, and frequently we had stock there that was assigned in blank by the party who owned it." The general rule is that the transfer of stock by a shareholder in a corporation does not relieve him of liability to the creditors of the concern until such transfer is perfected by being registered on the books of the corporation: 3 Thompson, Corp., § 3283. This doctrine is based on the theory that one who permits his name to appear and remain upon the books of a corporation as a shareholder is estopped, as between himself and the creditors of the concern, to deny that he is a shareholder. But the defendant Gordon contends that when he assigned his stock in blank and delivered it to White, the president of the corporation, he did all that can be required of him, and such act, in equity, is equivalent to a transfer on the books of the concern. In support of this position he cites Whitney v. Butler, 118 U. S. 655 (7 Sup. Ct. 61). In that case the purchase of the stock of a bank was made by the bank's agent for one of its customers, and the certificate of stock. with a power of attorney attached, was delivered to the president of the bank, with the intention that the transfer should be made on the books. In an action against the original shareholder by the receiver of the bank to recover the amount of the assessment on such stock, it was held that the responsibility of the shareholder ceased upon the surrender of the certificate to the bank, and the delivery to its president of a power of attorney intended to effect the transfer of the stock

on the books of the bank. The doctrine, however, can have no application to a case like the one at bar, where the stock is delivered to the president of the corporation as a vendee, and not for the purpose of having the transfer thereof made on the books of the company. The distinction between the case in hand and the one cited is illustrated and pointed out by the Supreme Court of the United States in the subsequent case of Richmond v. Irons, 121 U. S. 27, 58 (7 Sup. Ct. 788), which, so far as the point involved here is concerned, is substantially on all fours with the case at bar. Finding no error in the record, the decree of the court below is affirmed. AFFIRMED.

Argued 16 January; decided 25 March, 1901.

MILES v. NORTH PACIFIC LUMBER CO.

[64 Pac. 303.]

EVIDENCE OF CONVERSION OF LOGS.

1. In an action for the conversion of saw logs, evidence that the logs. in question were rafted from a boom by defendant is sufficient proof of a wrongful taking to be submitted to the jury, when there is also proof that the logs belonged to the plaintiff, and that he had demanded them of the defendant, which demand had been refused.

SUFFICIENCY OF EVIDENCE OF OWNERSHIP OF CHATTEL.

2. In an action for conversion where plaintiff claimed a special property under a note and mortgage, the production of the mortgage only is sufficient to carry the case to the jury, since the mortgage was secondary evidence that the note was executed and delivered to the plaintiff, and the jury might reasonably infer that he was still the owner thereof.

CONVERSION - IRRELEVANT TESTIMONY.

3. In an action for the conversion of saw logs, where it was shown that defendant took plaintiff's logs without permission, evidence that it sometimes happened that rafts in the boom sticks of the defendant were taken to other mills is irrelevant.

From Multnomah: ALFRED F. SEARS, JR., Judge.