The opinion
ON PETITION FOR REHEARING
*614 King, Miller, Anderson, Nash & Yerke and Fredric A. Yerke, Jr., and Jean P. Bowman, Portland, for the petition.
Edward M. Murphy and Gordon G. Carlson, Rose-burg, contra.
Before McAllister, Chief Justice, and Perry, Sloan, O’Connell, Goodwin, Denecke and Holman, Justices.
HOLMAN, J.
Defendants Kring and Huston have filed a petition for rehearing raising the sole question of the propriety of the court’s decision (Doyle v. Chladek, 240 Or 598 , 401 P2d 18 ), in assessing interest on the amounts of the judgments from November 16, 1960, the day the subscription agreements for stock were signed.
Defendant Kring contends that the proper date for the commencement of interest on the amount of the judgment against him would be May 16, 1961, which was the due date on the note he gave for payment of the balance he owed for the purchase of the stock. *615 As Kring’s obligation to pay did not mature until tbe note was due and as tbe plaintiff sued him upon tbe stock subscription rather than the note, petitioner is correct. Interest is assessed upon the amount of the judgment against Kring from May 16, 1961, only.
Defendant Huston contends the proper date for the commencement of interest on the judgment against him is March 5, 1963, the date the court authorized the receiver to sue. Huston originally agreed to pay for the stock by the transfer of real property to the corporation. Huston and the corporation could not agree upon a valuation of the property and the transfer was never made. It is true that for a time the books of the corporation showed the property as having been transferred, but the books were not famous for their accuracy; and in fact the transfer did not take place. The date in the subscription agreement for payment by the subscribers is not in evidence.
ORS 57.090(2) provides as follows:
“Unless otherwise provided in the subscription agreement, subscriptions for shares, whether made before or after the organization of a corporation, shall be paid in full at such time, or in such instalments and at such times, as shall be determined by the board of directors. * * *”
The Articles of Incorporation provided:
“Subscriptions for shares of this corporation * * * if made after November 1, 1960 shall be paid in full at the time of making the subscription or in such installments and at such times as shall be determined by the Board of Directors; this corporation shall not be permitted more than ten subscribers.”
In the absence of knowledge as to the provisions for date of payment in the subscription agree *616 ment, the statute would not require payment until a call was made. The Articles would require payment at the time of making the subscription unless the board of directors determined otherwise. The board consented to payment by Huston by the transfer of property which did not mature. This necessarily contemplated a delayed payment as no agreement for valuation had been reached at the time of the subscription. After the transaction fell through—of which the Board must have had knowledge, despite what was shown on the books—they made no demand or call upon Huston. A delayed payment having been contemplated for which no actual date was set, we do not believe Huston was required to pay, after the intended means of payment failed, until a call was made upon him. The order of the court authorizing the receiver to sue upon the unpaid subscription acted as an automatic call: Fletcher, Cyclopedia of the Law of Private Corporations (1961 Rev.) Vol. 13, § 6089, page 758. Interest is assessed on the amount of the judgment against Huston from March 5, 1963, only.