40 Mo. 27 | Mo. | 1867
delivered the opinion of the court.
The questions for consideration in this case all arise upon the instructions which were asked by the appellant at the trial in the court below and refused. The plaintiff below (respondent here) commenced an action in the St. Louis
On the 16th of January, 1860, an amendatory act was approved providing for a guaranty fund of not less than twenty-five nor more than fifty thousand dollars, to be subscribed in shares of fifty dollars each. The subscribers were required to execute their notes for the amount subscribed, with security therefor, if required by the directors, and to be assessed for the payment of losses in the same manner as premium notes given to said company. In sec. 4 of this act (Sess. Acts of 1859-60, p. 167) it is expressly provided that “parties subscribing shares in such guaranty fund shall be entitled to claim of said company interest not to exceed ten per cent, per annum on the amount of their respective notes, as the directors may determine, which interest shall be payable semi-annually.” The other provisions need not be referred to, as they are not essential to an understanding of the questions presented here.
The answer contains several grounds of defence, but it is only necessary to consider the two which have been relied upon here as sufficient to defeat the plaintiff’s recovery.
First it is averred that Dobyns had no interest which he could transfer by assignment, and defendant in his first instruction asked the court so to declare the law. The court committed no error in refusing it. For the purpose of considering this point, it may be assumed that there had been an acceptance of the amended charter. He had made his subscription and executed his note for the same in the man
The fourth instruction assumes that in no event was the plaintiff entitled to interest upon the subscription after the assignment of Dobyns. The proof of the assignment shows that it was expressly stated to be a transfer of all claim to the interest then due, or that should thereafter accrue, and was certainly as effective to pass the one as the other.
The second instruction assumes that all of the acts of the directors under the amendatory charter of the company were without authority of law, and should be held to be null and void, because it was not shown that there had ever been an acceptance of it by the members. The third declared
• Whatever may be said in reference to both of these in* structions, we think they were not warranted by the testimony. This company was organized under the act passed in 1859; and the amendatory act of 1860, as shown by the testimony of the acting president at the date of the commencement of this suit, was drawn up by the attorney, and its passage by the Legislature procured upon the application of at least a portion of the directors. The board of directors authorized the opening of the books of subscription to the guaranty fund provided for by the amendment, at different times after the subscription by Dobyns made assessments thereon, and at various times by the by-laws of the company recognized this subscription by regulating the rate o£ interest to be paid upon the same, and the date at which the .computation should commence. So that, as far as their corporation is concerned, it is completely estopped by the acts of its officers, and the acceptance of the amendment may be legitimately presumed. These corporations enter so largely into the general trade and business o£ the country, and are so .essentially necessary to give security to the capital employed in the great variety of commercial pursuits, that their acts must, to a very great extent, carry with them the same legal presumptions that attach to the acts of individuals. It was said by Judge Story, in delivering the opinion of the court in the case of Bank of U. S. v. Dandridge, 12 Wheat. 64, that, in relation to the question of acceptance of a particular charter by an existing corporation, or by corporators already in the exercise of corporate functions, the acts of the corporate officers are admissible evidence from which the fact of acceptance may be inferred
The court below, sitting as a jury, having found for the plaintiff, and judgment being entered accordingly, the same must be affirmed.