84 Ind. 230 | Ind. | 1882
This action was brought by the appellee against the appellant upon a bond executed by him and one S. H. 'Bryan as his surety, on the 4th day of June, 1857, payable to the Northwestern Christian University.
The bond accompanying the complaint recited the fact that the appellant had subscribed for one share of the capital stock ■of the Northwestern Christian University, held by him under original certificate of stock No. —, and that $66.67, two-thirds ■ of his subscription to the endowment fund of the University, was retained by him as a loan.
A demurrer for the want of facts was overruled to the complaint, and an answer of eight paragraphs was filed. A demurrer was sustained to the second, fourth and fifth paragraphs and a reply was filed to the first, third and sixth. The seventh was a general denial. The issues thus formed were tried by a jury, and a general verdict, with answers to interrogatories, was returned for the appellee. Over a motion for a new trial and a motion for judgment upon the answers of the jury to the interrogatories, notwithstanding the general verdict, judgment was rendered for the appellee.
The appellant assigns as error the orders of the court in overruling the demurrer to the complaint,-in sustaining the demurrer to the second, fourth and fifth paragraphs of the answer, in overruling the motion for a new trial, and in re
These several assignments of error will be considered in the-order of their statement.
The appellant insists that the act of March 9th, 1875, in. pursuance of which the appellee changed its name, is unconstitutional, and for that reason the complaint was insufficient..
That act provides that “Any university or college organized and incorporated under the provisions of any special charter granted by the General Assembly of this State, may,, by a vote of a majority of its board of directors, * * * change the name thereof: Provided, That such change shall be-made before the 1st day of July, 1879."
The first objection urged to this act is that it contravenes-the 22d section of the 4th article of the constitution, which provides that the General Assembly shall not pass local or special laws, changing the names of persons. No authority is-cited in support of this proposition, and we know of none. The act is general, and operates alike and uniformly throughout the State upon like facts. It is, therefore, neither local nor special. Hymes v. Aydelott, 26 Ind. 431; State, ex rel., v. Reitz, 62 Ind. 159.
The fact that the act limits the-time within which such institutions of learning may change their names does not; affect its validity. Clare v. State, 68 Ind. 17.
It is insisted that the act in question amends the appellee'scharter, and as the charter as amended is not set out the-act is void. The act does not purport to nor does it amend the charter, but simply authorizes a change of name. There-is nothing, we think, in this objection.
It is also insisted that the act creates a new corporation, with all the powers of the old, and, therefore, is in violation of the 13th section of the 11th article of the constitution.
What we have said already as to the effect and scope of the-act disposes of this objection.
Finally it is insisted that the facts alleged are not sufficient-
The first paragraph' of the answer, which remained on file, alleged substantially the same facts in defence of the action as were alleged in the second paragraph of the answer. The ruling of the court in sustaining the demurrer to the second paragraph was, therefore, harmless if erroneous, as all the facts averred in it were admissible under the first- paragraph. There is, therefore, no available error in this ruling.
The fourth and fifth paragraphs of the answer alleged facts which the appellant insists shows a total failure of the consideration of the bond sued upon. These paragraphs are very long and need not be fully copied in this opinion. The substance of the fourth is that the, appellant subscribed for one share of the capital stock of the Northwestern Christian University; and at the time paid $17.50, made a note for an equal amount and executed the bond sued upon for the residue and for no other or different consideration; that at the time he had sons and daughters between the ages of five and sixteen years of age, and that his object in making the subscription was to make provision for the education of his children ; that, after interest had accrued upon the bond, he elected to pay the principal sum, called upon the treasurer of the appellee and offered to pay the principal and accrued interest; that the appellee claimed to conduct an excellent school for young persons of both sexes, and that appellant then offered to place his daughter, who was then with him, as a pupil in said school, and pay all charges for tuition over and above six per cent, interest upon one share of stock, but that the appellee refused to receive said money or to allow
The above paragraph is not good as a plea of tender before .suit brought, and is not so regarded by the appellant. He insists that the facts averred show that he was entitled to the privileges of a stockholder in the university, and that its refusal to accord to him these privileges shows that the consideration of his bond has wholly failed. This paragraph is in •confession and avoidance, and must be construed in connection with the facts averred in the complaint, recited in the bond, and in the light of the law which authorized the subscription and fixed the rights and liabilities of the subscribers to the endowment fund of the Northwestern Christian University. The bond recites that the appellant has subscribed for one share of stock of said university, which, by law, was $100; and that he has retained $66.67 as a loan, for which the bond was executed. The act of January 15th, 1850, which authorized the incorporation of the appellee, fixed its capital stock at not less than $75,000 nor more than $500,000, and fixed its shares at $100 each, for which any person was authorized to subscribe. It further provided that after $75,000 should be subscribed the subscribers should be incorporated as the Northwestern Christian University; that directors should be chosen, and that the board of directors were empowered to expend any amount which might be necessary, not exceeding one-third of the capital stock, to purchase a site, erect buildings and to procure proper fixtures, apparatus, furniture, library, etc., for the use of said institution, “ the balance of said capital stock, not so expended and applied shall be kept and retained as a permanent fund for the endowment of the said institution, and may be loaned out by said board, upon good and ample security.”
The seventh section provides that “ for so much and such
This section conferred the rights and privileges of which the appellant alleged he was deprived, and the deprivation of .which, he insists, works a total failure of the consideration of his bond. These rights and privileges were not to be enjoyed until “from and after the opening of the institution,” and it will be observed that it is not averred that the institution had been opened when appellant demanded the admission of his daughter, but the averment is that the appellee “ claimed to conduct an excellent school.” This was not equivalent to an averment that the institution had been opened. There is, however, another and a more radical objection to the paragraph in question. By the terms of the charter the appellant, as soon as he subscribed and paid or secured his subscription, became a stockholder in the corporation, entitled to all the rights and privileges of one, among which was the right to interest upon his stock at six per cent, in tuition after the opening of the institution. This was one of his rights as a stockholder, but not the only one, nor can we say the more important or valuable one. The averment
The substance of the fifth paragraph of the answer is that the bond was executed in consideration of one certificate of stock in the Northwestern Christian University, and that said University, before the commeiicement of this suit, upon demand, refused to issue said certificate.
This paragraph was insufficient for the same reasons given why the failure to furnish tuition constituted no defence to the action. The failure or refusal -of a- corporation to issue certificates of stock to a stockholder constitutes no defence to an action by the corporation against the stockholder for borrowed money. The demurrer was also properly sustained to this paragraph of the answer.
All the questions embraced in the motion for a new trial arise upon instructions or depend upon the evidence, and as
The remaining assignment is that the court erred in refusing to render judgment for appellant upon the special findings of the jury. The jury found, in answer to interrogatories, that the appellant had offered to pay the appellee, in 1863, the full amount then due; that the offer was refused; that, on thé trial, the appellant tendered appellee $80; that the appellee, on the trial, refused to receive the amount due at the time the uppellant was at the office of the appellee’s treasurer, and that no money was ever brought into court for the appellee.
This ruling was clearly right. The tender made was not followed up by bringing the money into court for the appellee, us should have been done. Clark v. Mullenix, 11 Ind. 532; Sowle v. Holdridge, 25 Ind. 119.
This was necessary so that the appellee could take the money. If the motion had prevailed the appellant would 'have succeeded upon this issue without, in fact, having paid anything, and the appellee would have been defeated by a plea which confesses that the amount tendered is due. This result the law will not tolerate. The motion was properly overruled.
This disposes of all the questions raised, and, as there is no ■error in the record, the judgment should be affirmed.
Per Curiam. — It. is therefore ordered, upon the foregoing ■opinion, that the judgment be and it is hereby in all things .affirmed, at the appellant’s costs.