By the Court,
Hоwever ungenerous it may seem, (to give the conduct of these defendants no harsher name,) for the defendants to refuse to pay the money which the plaintiffs have paid on their guaranty, we are of opinion that this bill cannot be sustained. The charter of the
We do not think that the facts stated, authоrize any such inference. The complainants were authorized by their charter, and the amendments made to it, to construct their road from Milwaukee to Madison. They had completed the road from Milwaukee as far as Watertown, on the way to Mаdison. Instead of building the road between the last two named places, they (as stated in the bill) “ determined to leave the field west of Watertown, at least temporarily, tо the other company.” That is to say, the complainants signed a guaranty for the purpose of enabling the Watertown & Portland Plankroad Company to borrow monеy with which to construct a road westwardly from Watertown, on a route nearly identicаl with their own, and abandoned, at least temporarily, the construction of the remainder of their road.
It is to be remembered that the bill does not allege that the route of the road which the Watertown & Portland Plankroad Company was to construct, еxtended to Madison, or that the road was in any way intended to connect the last mentioned town with Watertown or Milwaukee. In. our opinion, the signing of the guaranty by the complainants, for the purpose stated in the bill, was clearly without authority, and creatеd
But the counsel for the complainants contends that “the defendаnts have had the money for which the bills and mortgage were given, for a lawful purpose; and it is inequitable and fraudulent for them now to set up the act of the plaintiff in aiding them to get the money or in paying it when it became due to Cramer and Birchard, to defeаt a recovery upon their mortgage.”
We do not think this view of the matter changes thе legal rights of the parties. The plaintiff of course was aware of the extent оf its own power. Those who managed the affairs of the corporation must havе known that it; had no authority to guaranty the payment of the notes or bonds of third persоns, and that if they attempted to do so, no legal obligation could result from such attеmpt
The payment of the money under such circumstances by the plaintiff was a pаyment in their own wrong, for which they cannot charge the defendants. The counsel for thе complainants also claims that this contract of the complainants has bеen executed, and that, as it was not illegal, but at h ast only unauthorized by the charter of the company, the court should not now interfere to set it aside, after the defеndants -have reaped all its benefits, although, perhaps, it could not have been enforced. We cannot view the matter in this light. The contract, so far'as it is relied upon for the purpose of affecting the defendants, is not executed, but executory merely.