8 Ind. 392 | Ind. | 1856
On the 15th of January, 1849, was approved “an act to incorporate the G-reensburg and Brookville Turnpike Company ” the first section of which
Ey an act of February 4, 1851, the corporation was recognized as existing, and directors were appointed by the legislature.
Books for stock subscriptions were opened and, on the 17th day of June, 1851, the defendants in this suit subscribed five shares of 50 dollars each, making 250 dollars, to recover which this suit was instituted.
The defendants answered denying the existence of the corporation generally, and, also, setting up other grounds of defense.
The plaintiff, to the denial of the corporate existence, replied that the defendants were estopped by their contract to deny such existence.
The defendants demurred to the reply, and the Court sustained the demurrer. Trial of other issues. Judgment for the defendants.
Touching corporations and contracts with them, three points seem to be established by the decisions of this Court.
1. That a person is estopped (if the corporation could exist constitutionally) to deny the existence of a corporation at the time, he contracted with it as such. Judal v. The American Live Stock Co., 4 Ind. R. 333, and cases cited. — Ryan v. Vanlandingham, 7 Ind. R. 416.
2. That he may show that it has subsequently ceased to be a corporation. Id.
3. That a pleading averring such cessation of corporate powers, must show how they came to a termination. 2 Blackf. 367. — The State v. Vincennes University, 5 Ind. R. 77.
The paragraph in the answer now under consideration, therefore, is bad so far as it denies the existence of
The denial of the corporate existence in this case, we discover from the foregoing statement of the law, should more properly, perhaps, have been met by a demurrer.
4. Rut fourthly, the law is settled that if by the charter, or by contract, a condition precedent exists to the right to exercise powers or perform acts by the corporation, that condition must be performed or waived by the opposite party before such right may be exercised.
It is insisted that such conditions are shown by the evidence given on the trial of issues made, to have existed in this case — that a certain amount of stock was to be procured, officers elected, orders made, and notices given, before suits could be brought — which were not performed. At the same time, it is claimed that if the Court should regard the evidence as showing a performance of all conditions precedent by the plaintiffs to be performed, or a waiver of them by the defendants, then the Court should reject the evidence as not before it, because the bill of exceptions is not properly a part of the record.
Should this turn out to be the fact, we shall, never
The judgment is reversed with costs. Cause remanded for further proceedings, with leave to both parties to amend and make up issues anew.
Fifth ed. a. 636.