277 Mass. 158 | Mass. | 1931
This is an action of contract. The declara-
tion was in a single count to the effect that the defendant owed the plaintiff for money lent, together with interest. The answer set up various defences but omitted any averment that the loan was ultra vires the corporate powers of the plaintiff. There was evidence to support the allegation of the declaration. The defendant excepted to the refusal of the trial judge to grant a request of this tenor: “If the court finds that the plaintiff did loan the defendant the sum of nine hundred (900) dollars, then this contract was not within the scope of the plaintiff’s charter, was ultra vires, and the plaintiff cannot recover.” The finding was for the plaintiff. Every question of fact, therefore, is now resolved in favor of the plaintiff. It must be taken as established that the plaintiff made the loan to the defendant..
The request was rightly denied. The defence of ultra vires was not open unless set up in the answer. Nowell v. Equitable Trust Co. 249 Mass. 585, 595-596.
At the trial it was admitted that the plaintiff was a Massachusetts business corporation with no power granted under its charter to make loans of money. If it be assumed that the defence of ultra vires was open, the case at bar comes within the principles stated by Mr. Justice Knowlton in Nims v. Mount Hermon Boys’ School, 160 Mass. 177, 179-180, concerning contracts by a corporation outside its charter
Order dismissing report affirmed.