6 Wash. 181 | Wash. | 1893
Lead Opinion
The opinion of the court was delivered by
We think there can be no question that the bill of sale of the property of the Mercantile Company was intended as a mortgage to secure the payment of the
‘‘The doctrine of ultra vires as a defense has died so hard that it is well to repeat the proposition which seems to be fully established by the more recent decisions, that where a contract has in good faith been fully performed either by the corporation or the other party, the one who has thus received the benefit will not be permitted to resist its enforcement by the plea of mere want of power. Time and again corporations have been held estopped to plead ultra vires to an action on the contract performed by the other parties where the corporation has received the benefit, although clearly beyond its powers. ’ ’ 2 Beach, Private Corp., §425.
' To the same effect is 2 Morawetz on Private Corporations (2d ed.), §688, and Green’s Brice’s Ultra Vires, p. 729, note a.
The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong. Railway Co. v. McCarthy, 96 U. S. 258. This rule is so well established that it is the work of supererogation to quote authorities to sustain it.
"While it is not shown that the contract to pay this indebtedness was entered into by resolution of the trustees of the bank, it does plainly appear to our minds from the
We think the plaintiffs made out a prwna facie case, and were entitled to a judgment thereon, and that the court erred in sustaining defendant’s motion for judgment. The judgment will, therefore, be reversed, and the cause remanded for a new trial in accordance with this opinion, with costs to appellants.
Stiles, Scott and Anders, JJ., concur.
Dissenting Opinion
(dissenting). — I am unable to find from the record that the respondent has received and retained the goods, or that it received any goods in consideration of its alleged promise to pay the debts of the corporation or partnership. I am, therefore, compelled to dissent. I think that the judgment should be affirmed..