16 Mo. 359 | Mo. | 1852
delivered the opinion of the court.
The judgment below having been rendered upon the petition and answer, upon the motion of the plaintiff, the'only ques
The act of the 27th of February, 1851, “ allows persons to form themselves into a corporation for the purpose of constructing a plank road, by complying with the requirements of the act.” In order to create the corporation, articles of association are to be signed, setting forth the “ name which they assume, the beginning, termination and route of the road they purpose to construct, and its general plan ; the amount of the capital stock of the company; the amount of each share; the names and residence of the subscribers ; and the amount of stock taken by each ; the term of years to which the existence of the association shall be limited, which shall not exceed thirty; and the number of directors proposed to be elected, which shall not be less than three nor more than nine.” It is next provided that “ whenever the stock subscribed amounts to one thousand dollars per mile of the proposed road, a copy of the articles of association, sworn to by at least two of the subscribers thereto, shall be filed in the office of the recorder of each county through which the road passes.” The thirty-third section provides that “associations, framed under the provisions of the act, shall, from the filing of said articles with the recorder, be corporations known by the name they may assume in their articles of association.”
The petition states the facts which, under this act, would constitute the association to which the defendant belonged, a corporation.
The defendant’s original answer admits the existence of the facts which constituted the plaintiff a corporation, and alleged, by way of defence to the action, that the president and directors had located the road in such manner as very materially to depart from the route mentioned in the articles of association, and that such departure was without any necessity, but was made from an improper subserviency to the wishes of individ
The three grounds of defence stated in the answer, naturally take this order : 1st, that the amount of stock required by law to be subscribed before the articles of association were filed in the Recorder’s office, was not subscribed; 2d, that there was not legal notice given of the election of the officers, and, 3d, that the president and directors, after they were elected, had caused the road to be located on a route different from that proposed in the articles of association.
But what is the effect of the fact here alleged-, and how can it avail the defendant? The act of the general assembly provides a mode by which the subscribers for stock in a company, which proposes to make a plank road, may obtain the name and privileges of a corporation. When the act is complied with,, and a copy of the articles of association filed in the recorder’s office, the incorporation is complete. It is undoubtedly true, that a defendant, in an action commenced by such corporation, may put the plaintiff to the proof of the facts
In the present case, as it stands admitted upon the record, that the defendant has assisted in the organization of this company, he will not be permitted to escape the duty he assumed when he subscribed for the stock, upon the ground that the company was not organized in strict conformity to the law.