Randidge v. Lyman, 124 Mass. 361. Richardson v. Bricker, 7 Colo. 58, 60. Van Buskirk v. Kuhns, 164 Cal. 472. Walter Denney Co. v. Wm. D. Wheelwright Co. 60 Miss. 733. Western Wheel Scraper Co. v. Spitcaufsky, 199 Mo. App. 513. Flather v. Economy Slugging Machine Co. 71 N.H. 398. Tebo v. Robinson, 100 N.Y. 27. Williston on Contracts (Rev. ed.) § 804. 94 A.L.R. 721. 99 A.L.R. 1523. The case at bar closely resembles Booth v. Booth Bayliss Commercial School, Inc. 120 Conn. 221.
Upon the occurrence of the condition, liability to pay eventuates and is not removed by subsequent changes and developments, and designed prevention of the happening of the condition — as by expenditures made or obligations incurred for that purpose — may excuse the promisee from proving that it has occurred. 2 Williston, Contracts, § 804; Denney Co. v. Wheelwright Co., 60 Miss. 733; Flather v. Economy Slugging Machine Co., 71 N. H. 398, 52 A. 454; Chadwick v. Hopkins, 4 Wyo. 379, 34 P. 899. A further assignment claims a fatal variance between the allegation in the special defense of an agreement that the salaries should be drawn "as the financial condition of the defendant corporation permitted out of profits of the defendant's business," and the proof that they should be paid as receipts or earning permitted.
As the liability the statute imposes on stockholders is that of guaranteeing the performance of all the contractual liabilities of the corporation until the whole of the capital has been paid in, their liability in a case of this kind attaches when and as the corporate liability accrues, even though at that time no action could be maintained against the corporation. Chesley v. Pierce, 32 N.H. 388, 403; Flather v. Company, 71 N.H. 398; White v. Green, 105 Ia. 176. The test, therefore, to determine whether the plaintiffs or any one of them can recover is to inquire whether they did any work for the club on or before May 8, 1906, which has not been paid for. Case discharged.