| Ind. | Nov 15, 1868
Suit by "Wherritt against Ridenour, Roots, and Claypool, for a breach of duty as trustees, in surrendering and allowing to bo canceled certain bonds executed by the Junction Railroad Company, hold by them for the use of, and in trust, for, the plaintiff’s assignor, to secure the repayment ofeertain sums advanced to the railroad company. A demurrer to the complaint was overruled, and this is assigned for error.
It is objected to the complaint,that the railroad company was not made a party defendant. There is no force in this objection. The liability of the trustees to the plaintiff, as assignee of the town of Connersvillo, for the breach of duty complained of, was disconnected with any liability of the railroad company.
It is claimed that the contract with the town of Connersvillo under which the money was advanced is void, on the ground that the town had no power under its charter to loan money. The contract is not prohibited by any statute. The mere lack of power in the town to loan money could not bo taken advantage of by the borrower, nor could it avail these defendants. The case is not within the rule, that contracts prohibited by statute will not be enforced by the courts.
It is urged that, as there was no acceptance of the trust in writing, there is no liability on the trustees to answer for
It is claimed that the complaint is defective, for not showing. that the debt from the railroad company was due, and a failure to pay. The complaint does show that the railroad company was in default by a violation of its agreement to apply the net earnings of the road to the liquidation of the debt. And, moreover, it is shown that the plaintiff was injured by the wrongful act of the defendants to the amount of recovery.
The next question arises on the action of the court below in sustaining a demurrer to certain paragraphs of the answer.
The plaintiff purchased the claim sued on with his own money, but was acting at the time as the agent of the railroad company. The paragraphs demurred to do not show an offer to pay the agent. There is a paragraph, upon which an issue was formed and found against the appellants, in which the agency is averred and a tender of the amount paid. We hold. that the issue tried fairly presented the question of agency. If the plaintiff used his own money in the purchase, the railroad company cannot have the benefit thereof without an offer to pay.
It is immaterial in what light the town council regarded the transaction. The assignment was in writing and made to the plaintiff.
The judgment is affirmed, with costs.