74 Mo. App. 200 | Mo. Ct. App. | 1898
— The petition purports to state a cause of action for equitable relief. The substance of its allegations is that the bank was under the control of a board of directors elected by the majority of its stock owned by the president and cashier, and on the twenty-seventh of July, 1896, its stock was reduced by the board of directors, while worth its par value, from $25,000 to $12,500; and that on the same day the bank, through its cashier, paid its stockholders $17 on each $100 of their respective shares of stock, and exeecuted its deposit tickets for a like amount to the various stockholders of the bank, payable January 1, 1897. Plaintiff sues on one of these tickets, made out in his favor, for $306, and also on one for $170 issued to Ida L. Shipley, and assigned to the plaintiff. Plaintiff further charges in his petition that the reduction of the stock of the bank resulting as above stated, was had in violation of the statutes of this state, and at a time when the bank was solvent. He further
The demurrer to this petition for failure to state a cause of action for the relief prayed should have been sustained. According to the theory of the petition, the certificates sued upon were issued in consequence and as a part of the alleged illegal reduction of the stock of the bank. If this be true, the certificates were, not supported by any valid consideration and afford no basis for a recovery.
Again, plaintiff seeks to recover upon the certificates and at the same time attacks the transaction upon which they were issued for illegality, and asks for equitable relief against it and the appointment of a receiver to wind up the business of the bank. These two positions are repugnant. Plaintiff can not recover the fruits of an illegal transaction, and in the same suit obtain the benefits of a decree annulling the transaction. It is well settled that parties can not take inconsistent positions in the same action, and the demurrer to plaintiff’s petition might well have been sustained on this ground.
Moreover, according to the finding and judgment of the court, plaintiff was only entitled to recover upon the two certificates sued upon. These presented mat
It is clear, therefore, that the demurrer to the petition in this ease was well taken, on the ground that plaintiff had a complete and adequate remedy at law for the matters and things found in his favor in the judgment of the court. The result is that the judgment- herein rendered will be reversed and the cause remanded with directions to the trial court to sustain the demurrer to the petition, and to permit plaintiff to amend his petition, if he is so advised.
