103 Ind. 520 | Ind. | 1885
The error assigned by the appellant Railway Company, the plaintiff below, upon the record of this cause, is this: “ The court erred in sustaining the demurrer of appellees to the first, second, fifth, sixth, seventh and eighth paragraphs of appellant’s complaint, and to each of such paragraphs separately and severally.”
As to each of such paragraphs of complaint, the only ground of demurrer assigned by the appellees was that it did not state facts sufficient to constitute a cause of action. After-wards, and before the filing of the subsequent paragraphs, the record shows that the appellant dismissed its third and fourth paragraphs of complaint.
The suit was against the appellee Derkes, and thirty-two other defendants, all of whom are named as appellees in this court. Each of the paragraphs of complaint, remaining in
“ In consideration of the benefits that will accrue to jis in the location and construction of the Chicago and Atlantic Railway through the county of Adams, in the State of Indiana, by way of and through the town of Decatur, in said Adams county, in the State of Indiana, we whose names are hereto attached, hereby acknowledge ourselves bound unto the Chicago and Atlantic Railroad Company in a sum sufficient to pay for the right of way across said Adams county, as mentioned aforesaid, this bond to include the right of way already contracted for and that hereafter to be contracted for, or appropriated; this bond, however, not to include switches or depot grounds, for all of which we jointly bind ourselves: Provided, always, that this instrument is not to be binding, unless signed by at least thirty responsible citizens of said Adams county.
“ In witness whereof we have hereunto set our hands and seals this 11th day of August, 1881.”
In the first paragraph of its complaint the appellant alleged that it was a corporation, organized under the laws of this State, and that on the 11th day of August, 1881, and prior thereto, it was contemplating the construction of a railroad through the State of Indiana to Marion, in the State of Ohio, but had not then determined whether or not the line so contemplated should pass through the town of Decatur, in Adams county, Indiana, or some point south thereof; that for the-purpose of securing the location, construction and operation of such railroad through Adams county, and to and through the town of Decatur, so that it would become a station on such line, the appellees then and since citizens of such county,
We learn from the briefs of counsel that the appellees’ demurrers to the several paragraphs of complaint, remaining in the record, were sustained by the circuit court upon two grounds, namely:
First. Because of the apparent want of mutuality in the contract or bond sued on; and,
Second. Because the bond or contract in suit was not such an one as the appellant was lawfully empowered to make, but was ultra vires, and void.
The first of these objections to the contract or bond sued upon, namely, the want of mutuality therein, is certainly not well taken as to any one of the paragraphs of appellant’s complaint, upon the facts therein stated. The contract or bond, when it was first executed, was what is sometimes called an unilateral contract, or a proposition merely from the appellees to the appellant. But when, as shown by the facts stated in each paragraph of complaint, such contract, bond or proposition, after its delivery by the appellees, was accepted by the appellant, and the affirmative acts on its part, called for and constituting the consideration of such contract, bond or proposition, were fully done, kept and performed by appellant, the appellees can not be heard to claim there is any want of mutuality in the instrument. So far as that question is concerned, the affirmative acts of the appellant done and performed, as alleged, upon the faith of such contract or bond, made it thenceforward the mutual, valid and binding contract of each and all of the contracting parties. This is settled by many decisions of this court. Street v. Chapman, 29
Under the facts stated in each of the paragraphs of complaint, admitted to be true as the case is now presented, the appellees can. not say that the contract or bond in suit is not supported by a sufficient consideration. The bond itself recites the consideration upon which the appellees bind themselves to pay for appellant’s right of way across Adams county; and the averments of each paragraph of complaint show that the appellant had done and performed every act and thing stipulated for, in such bond, by the appellees, in order to secure to them the benefits in consideration of which they executed the bond. It is shown in each paragraph of the complaint, that, by and through the affirmative acts of the appellant upon its faith in the bond sued on, the appellees received all the consideration they stipulated for; and, in such case, they are in no position to successfully claim either that they received no consideration, or that the consideration was inadequate to support the bond. Where parties get all the consideration they voluntarily and knowingly contract for, it is well settled that they will not be allowed to say they received no consideration. Baker v. Roberts, 14 Ind. 552; Smock v. Pierson, 68 Ind. 405 (34 Am. R. 269); Williamson v. Hitner, 79 Ind. 233; Shade v. Creviston, 93 Ind. 591. The rule is almost elementary, thát where parties get all the consideration they bargained for, they can not be heard to complain of the want or inadequacy of the consideration.
2. But it is claimed that the contract or bond in suit was not such an one as the appellant railway company was authorized by law to accept and become a party to, but that it was ultra vires and void. Upon the facts stated in each paragraph of complaint, and admitted to be true by appellees’ demurrers, we are not favorably impi’essed with their position. The appellees admit, as the case is presented here, that they executed to the appellant the bond or contract sued
In Whitney Arms Co. v. Barlow, 63 N. Y. 62 (20 Am. R. 504), the court say: “ The plea of ultra vires should not as a ■general rule prevail, whether interposed for or against a corporation, when' it would not advance justice, but on the contrary would accomplish a legal wrong. * * * One who has received from a corporation the full consideration of his engagement to pay money, either in services or property, can not avail himself of the objection that the contract thus fully performed by the corporation was ultra vires, or not within its chartered privileges and powers. It would be contrary to the first principles of equity to allow such a defence to prevail in an action by the corporation.” This language, we think, is forcibly applicable to the case in hand, and meets our full approval. See, also, Pierce Railroads, p. 515, et seq., and Green’s Brice’s Ultra Vires, p. 729, n. a.
Our conclusion is, that the court erred in sustaining appellees’ demurrers to each of the paragraphs of appellant’s complaint.
The judgment is reversed with costs, and the cause is remanded with instructions to overrule the demurrers to each paragraph of complaint, and for further proceedings not inconsistent with this opinion.