16 Iowa 163 | Iowa | 1864
I. It is conceded that the Congress of the United States never confirmed or approved the act of the Territorial Legislature which chartered the Bank of Nebraska ; and one question which lies at the basis of this controversy, and which meets us at the outset is: Was such approval and confirmation necessary? On the 1st day of July, 1886 (U. S. Stat. at Large, vol. 5, p. 61), it was enacted by Congress: “Sec. 1. That no act of the Territorial Legislature of any of the United States incorporating any bank or any institution with banking powers or privileges, hereafter to be passed, shall have any force or effect whatever until approved and confirmed by Congress.” There has been no express repeal of this act, and it remains in force, unless it is impliedly repealed by the organic act for the Territory of Nebraska. Section six (6) of this organic act declares: “That the legislative power of the territory shall extend to all rightful subjects of legislation, consistent with' the Constitution of the United -States and this act,” &c. (U. S. Stat. at Large, vol. 10, p. 279; Brightley’s Digest, p. 682.) The act then proceeds to declare that “No law shall be passed interfering with the primary disposal of the soil,” &c., but contains no inhibition to legislate on the subject of banks. The 15th section of the organic act declares: “That the Constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within said Territory of Nebraska as elsewhere in the United States, except the 8th section of the act, preparatory to the admission of Missouri into the Union, approved March 6th, 1820,” &c. “It being the true intent and meaning of this act not to legislate slavery into,” &c., “but to leave the people thereof free to form and regulate their domestic institutions in théir own way, subject,” &c., &c. '
Upon the various statutory provisions above quoted, the first question which arises is: Does the act of Congress
The next question is: Is the act of 1836 impliedly repealed by the provisions of section six (6) of the organic act? A majority of the Court are of the opinion that this question should be answered negatively. And the ground for this opinion is, that repeals by implication are not favored (Casey v. Harned, 5 Iowa, 1; Ament v. Humphreys, 3 G. Greene, 255; Harriman v. The State, 2 Id., 270); and the two acts are' not so inconsistent but that both may reasonably stand and have effect. One member of the court inclines to the opinion that by the legislation of 1854, it was the intention of Congress to invest the Territory of Nebraska with full legislative powers “ over all rightful subjects of legislation” not inconsistent with the Constitution of the United States or the provisions of the organic act; that the subject of banks, being-a matter of local and domestic concern, is a rightful subject of legislation, and that the act creating the bank in question, not contravening any provision of the organic act, was -in force from and after its passage, approval and publication, without the sanction of a confirmatory act of Congress. In other words, that the Constitution and the organic act are the solé standards by which to test 'the validity of any act of the Territorial Legislature.
II. A large number of the instructions which were given for the defendant, and of which the plaintiff complains, related to the defense of illegality of consideration. As exhibiting the view of the District Court on this subject, we quote instruction No. 3, which was given to the jury at the defendant’s instance: “ No. 31 That all that part of the contract sued on which requires Pegram to redeem and cancel the bills of the Bank of Nebraska is void, and the said Pegram never has been bound by said contract to redeem or cancel said bills; and so far as the agreement binds Pegram to redeem and cancel the $9,000, and the other issues of the bank, he is not bound thereby.” To which the court added: “Said issues being without authority of law and therefore of no value.” Other instructions, and particularly those numbered 4, 5, 12 and 13, lay down, in substance, the same doctrine, and some of them expressly declare the contract in suit to be illegal. We cannot concur in the correctness of these directions to the jury, under the circumstances of the case. Their incorrectness can, it seems to us, be shown in a few words. Whether the bank was legally in existence or not, Allen being a stockholder in it and hav
III. Other instructions related to the defense of want of consideration. Without setting these out in full, as the judgment must be reversed, for the reasons above given, we will briefly indicate our views as to this defense. From the undisputed facts in the case, Pegram had a consideration, and a sufficient consideration, at least this far: 1st. He received the possession of the personal property, including the safe, if it was not a fixture, and has since
“Benjamin P. Allen, Pres’t.”
It is possible, even if the corporation was in all respects a legal one, that the form of these covenants are such as to bind Moffitt and Allen as individuals; but it is not necessary to express an opinion on this point. In executing this deed, Allen and Moffitt purported to act as the officers and agents of the bank. The bank, owing to non-approval by Congress of the act creating it, would not be bound as a corporation. The well settled and familiar rule of law would then apply, that where there is no principal who can be made legally responsible, the agent who undertakes to act for and bind such a principal will himself be personally chargeable. One ground for this rule, and a sufficient one, is that, otherwise the party contracted with would have no remedy. Winter, Adm'r, v. Hite, 3 Iowa, 142, 143; Stone v. Wood, 7 Cow., 453; 1 Am. L. C., 602, 604; Dunlap’s Paley’s Agency, 374, and notes; Barrett v. Jones, 5 B. & Ald., 47; and Thatcher v. Dinsmore, 5 Mass., 299.
It is perhaps desirable that we should indicate our views on other questions which will most probably arise on a new trial. We do this with some reluctance, because some of them have not been discussed by counsel. What follows is to be regarded as the prima facie impressions, rather than the settled opinion of the Court. On the new trial, a question of the first importance will be the subject matter of the sale and purchase. It seems, from the testimony of the defendant, that the original contract in this respect was in writing, but it is not made part of the record, and is not before us. We can, therefore, express no opinion concern
Bank stock is in the nature of choses in action as distinguished from choses in possession, and is personal property as distinguished from real property. 2 Parsons on Cont., 316; Angell & Ames on Corp., §§ 557, 558, 561; Redf. on Railways, p. 38, § 40; Story’s Confl. Laws, § 383. Mr. Williams treats of shares in corporations as 11 incorporeal personal property,” a very neat and accurate designation. Will, on Pers. Prop., 155. Being personal property, where it it is sold, and where there is nothing in the contract or in the circumstances of the case to repel the presumption, the vendor would be considered to warrant its title, and that it was legally what it purported to be in fact, but not its quality or its value. If no fraud was practiced, and the real contract was an agreement on the part of the defendant to buy the plaintiff’s interest at his own risk as to title and value, and in a lump, whatever that interest might be, then the defendant’s defense will wholly fail. Peck v. Boggess, 1 Scam., 284. If the defendant is, however, to be considered as a purchaser, inter alia, of the stock, and the consideration has thus far failed, whether this will be a defense pro tanto wdll depend upon other considerations.
If the contract is severable (which we cannot determine), then if the defendant, with reasonable diligence, upon ascer
IY. The defense as to fraud was submitted to the jury under instructions, which, as far as we have examined them, correctly state the law in this respect. If the jury found against the plaintiff on that issue, we have no hesitation in saying, having all the evidence before us, that the Court ought to have set aside their verdict. Indeed, if we read the testimony aright, the Court might very properly have refused to allow that issue to be submitted to the jury; for whenever essential or integral elements of a cause of action
For the reasons above given, but chiefly because of the misdirection to the jury in regard to illegality of consideration, the judgment of the District Court is reversed, and the cause remanded.
Beversed.