“Number 245. $1,400.00.
“Convertible Receipt oe the Home Savings and Loan Association, oe St. Louis, Missouri.
“This certifies that Marie M. GTrohmann has deposited with the Home Savings and Loan Association of St. Louis, Missouri, an advance payment of fourteen hundred dollars, on which interest will be payable each July 1 and January 1, at the rate of six per cent per annum; in consideration whereof the holder hereof waives all claims to further participation in the profits*633 of the association. This receipt is convertible into the stock of the association on payment of the regular membership fees therefor. The association reserves the right to call in this certificate at any time. All payments begin to earn interest the first day of the month next following date of receipt. ,
“In witness whereof, the president and secretary have hereunto signed their names and caused the seal of the association to be affixed at St. Louis, Missouri, this seventeenth day of March, 1892.
[seal.] ' “J. R. Hoee, President,
“Geo. B. Eeye, Secretary.”
The receiver allowed the claim but without preference over the claims of stockholders. Nor did he allow her interest thereon, assigning as a reason therefor that he had classed her claim with others based on convertible receipts, as stock of the association and the holders of said convertible receipts as stockholders. The claimant appealed' from the finding and the report of the receiver as to her claim. The matter was tried in the circuit court when there was judgment sustaining the finding and report of the receiver from which the claimant took an appeal here.
The certificate hereinbefore set forth shows upon its face that it was not issued in strict pursuance to the authority conferred by'the section just quoted. It recites that the $1,400 was deposited, etc. The said by-law says that when $10 or more shall be paid, etc. The certificate further recites that the association “reserves the right to call in the certificate at any time.” No such authority is expressly or impliedly conferred by said by-law. Besides this it was proved without objection thereto that the said association had displayed in the front window of its office a sign in white enameled letters stating that it would pay for deposits six per cent interest. It was further proved that a stockholder of the association who knew that the claimant had $1,400 which she desired to loan out, told her that she could loan the same to said association and receive six per cent per annum interest thereon; that thereupon she went to the office of the association where she met its secretary to whom she made known that she had said sum of money which she desired to loan and that he told her the association would borrow it and pay her six per cent interest thereon and that thereupon she let him have the money and for‘which he gave her the said receipt.
The claimant by the deposit of her money did not contract for the issue to her of any of the kinds of stock which the association was authorized to issue. She did not participate in any way in the management of the association. She was in no sense a member of
But notwithstanding this it seems that the association did borrow the claimant’s money, and the question at last is whether it is liable therefor. In Wild v. B. & L. Ass’n, 60 Mo. App. 200, the plaintiff loaned the association a certain sum of money for twenty days at six per cent interest; after maturity repayment was refused. The defense was that the plaintiff had accepted stock of the association for the amount for which suit was brought. The plaintiff replied that the certificate accepted was only intended to represent the amount of the indebtedness due him from the association. The plaintiff had judgment in the circuit court which was upheld by the appellate court. The nonliability of the association was -not placed upon the ground that the act of the association in borrowing plaintiff’s money was ultra vires. The power of the association to render itself liable for borrowed money was not drawn in question in the case. In Winscott v. Investment Co., 63 Mo. App. 367, it was declared that the defense of ultra vires was not open to a corporation where the contract has been fully executed on the part of the other contracting party and is not expressly prohibited by law. And to the same effect is the following. Dairy Co. v. Mooney, 41 Mo. App. 665; Welsh v. Brewing Co., 47 Mo. App. 608; Glass v. Brewing Co., 47 Mo. 641; Drug Co.v. Robinson, 81 Mo. App. 18; Morawetz on Private Corporations, sec. 581; Green’s Brice’s Ultra Vires, p. 729, note A. 784.