The charter of a corporation providing that "no stockholder in said corporation shall have the right to transfer his shares therein, without first giving ten days' notice in writing of such intention, and ten days' refusal thereof to said corporation, at the lowest price at which he will sell to any other person; and if in such case said corporation elect to purchase said shares at said lowest price, such stockholder shall, on the price being offered to him, convey said shares to said corporation:" — A stockholder offered to the corporation a certain number of shares at a gross price, and subsequently sold to a third party a smaller number of shares at a given price per share: — Held, that the offer to the corporation did not comply with the provisions of the charter, and that the corporation could not be compelled to transfer upon its books the stock sold.
DURFEE, C.J.
The shares should not have been sold to the complainant until the opportunity was first offered the respondent to buy them at the same or a less price. The complainant claims that this opportunity was offered. We think it was not. The offer to the respondent was an offer of 162 shares for $60,588. The respondent could not have accepted the offer unless it was prepared to buy 162 shares at the price named. But the complainant has bought six shares at $374 per share. He has done what the respondent could not do under the offer made to it. The offer under which he bought was an offer to sell the shares in lots of not less than five. If this offer had been made to the respondent, it may be that it would have bought a part of the shares. The shares cannot be said to have been offered to the respondent at the price at which they were sold to the complainant, unless they were so offered that the respondent could have bought them without paying any more than the complainant paid. This was not done; for the only price named in the offer was $60,588, and the respondent could not have bought the six shares under the offer without paying that price, though by paying that price it could have gotten the six shares and 156 shares besides.
Plea sustained.