Vawter v. Franklin College

53 Ind. 88 | Ind. | 1876

Biddle, J.

Certain persons, of whom the appellant was one, formed themselves into a voluntary association, by written articles, for the purpose of organizing a corporation by the name of “ Franklin College,” the object of which was to establish, maintain and operate an institution of learning at Franklin, Johnson county, Indiana. To this association the appellant, amongst others, subscribed five shares of stock of one hundred dollars each. Afterwards, as the complaint alleges, “a majority of the shares of said capital stock met and elected officers and a board of directors, as provided in said articles, and caused said articles to be put on record in the recorder’s office in the said county of Johnson;” that the board of directors met and made an assessment of twenty per cent, on the capital stock so subscribed, including the stock subscribed by the appellant, and ordered the collection of the same, and in July, 1872, notified said defendant that said assessment had b.een made, and that the same would be payable at the expiration of sixty days thereafter, at the office of the secretary, in the city of Franklin; that the sum of one hundred dollars, with interest, was due on the appellant’s subscription, which remained unpaid. Wherefore, etc.

The corporation was organized under the act approved February 20th, 1867, 3 Ind. Stat. 550, the second section of which reads as follows:

“ That any number of persons may voluntarily associate themselves by written articles, to be signed by each person who may be a member at the time of organization, specifying the objects of the same, the corporate name they may adopt to designate such objects pursuant to this act, the names and places of residence of each member or stockholder, with an impression and description of the corporate seal, and in what manner persons shall be appointed or elected to manage the business and prudential concerns of any such- association that may have been or shall hereafter be formed for either of the following purposes.”

Then follow six clauses of the section, specifying the purposes for which any such corporation may be organized.

The appellant answered to the complaint:

1. No such corporation.

2. General denial.

3 and 4. Special denials.

The first, third and fourth paragraphs of answer were rejected on motion. Trial by the court, finding and judgment over the usual motions and exceptions, and appeal to this court.

The appellant objects to the complaint:

1. That the articles of association do not contain a description or impression of the seal. This is true, but the articles as recorded for the purpose of organizing the corporation describe the seal as follows: “ And the corporate seal thereof shall be a circle formed by the letters of Eranklin College, Indiana.”

We think this is sufficient. The articles of association provide for amendments, according to section 3 of the act cited. This amendment was properly made.

2. That the name and residence of each stockholder do not appear. The form of the appellant’s subscription is as follows:

“ Names. Residence. Shares.

“David G. Yawter, Franklin, Ind. 5.”

This is sufficient.

3. That it does not appear that the articles of association were filed in the recorder’s office. The language of the averment is, “And caused said articles” (of association) “ to be put on record in the recorder’s office in said county of Johnson.” This, we think, shows a sufficient filing under the statute.

4. That the appellant had no notice of the time and place of payment sixty days before the commencement of the suit. It appears to us the appellant in this is mistaken. The complaint avers that he was notified in July, 1872; the action was commenced in February, 1873. The complaint is sufficient.

The appellant complains that the court rejected paragraphs 1, 3 and 4 of his answer. There ivas no error in this ruling. Paragraph 2 put in issue every fact alleged in the complaint, and would admit under it all the evidence that could be legitimately given under paragraphs 1, 3 and 4.

The appellant makes the following points under his motion for a new trial:

1. That the court erred in permitting the plaintiff to introduce in evidence, upon the trial, the record of the stockholders’ meeting, because the minutes were made on “ loose sheets of paper,” and kept in a drawer about six months after the meeting, before they were copied in a book called the “record.” It nowhere appears that the minutes so taken did not truly represent the action of the board, or that the “ record ” was not adopted by the board, or that there was anything improper in the transaction. The records of a corporation are competent evidence, on its own behalf, to prove its organization and existence.

2. This point is the same as the first, except that the evidence was applicable to another meeting of the directors, and the same rule must be held with regard to it.

3. That the notice to'the defendant of the amount due on the assessment against him does not specify the place of payment. No notice of place is necessary in such cases. Ross v. The Lafayette, etc., R. R. Co., 6 Ind. 297. The contract subscribed by the appellant specifies no place of payment of his subscription. The place of payment was fixed simply for the convenience of the corporation.

4. That the court erred in permitting evidence to go to the jury of the appellant’s acts and declarations at a certain stockholders’ meeting. ¥e can perceive no error in this ruling. It was not necessary to the case. The obligation of the appellant arose out of his subscription, not out of what he said and did at a stockholders’ meeting. The evidence was, at most, irrelevant. Besides, the appellant cannot complain of his own acts and declarations.

5. That the finding is not sustained by the-evidence. We think it is.

The following cases may be consulted as to the principles governing this case: Ross v. The Lafayette, etc., R. R. Co., 6 Ind. 297; Eakright v. The Logansport, etc., R. R. Co., 13 Ind. 404; Heaston v. The Cincinnati, etc., R. R. Co., 16 Ind. 275; Wert v. The Crawfordsville, etc., Turnpike Co., 19 Ind. 242; Franklin College v. Hurlburt, 28 Ind. 344; The Northwestern Conference, etc., v. Myers, 36 Ind. 375; The Indianapolis Furnace, etc., Co. v. Herkimer, 46 Ind. 142; Nelson v. Blakey, 47 Ind. 38; Ransom v. Priam Lodge, etc., 51 Ind. 60; Instone v. The Frankfort Bridge Co., 2 Bibb, 576; The Chester Glass Co. v. Dewey, 16 Mass. 94; Tar River Nav. Co. v. Neal, 3 Hawks, 520; Rathbone v. Tioga Nav. Co., 2 Watts & S. 74; Elizabeth City Academy v. Lindsey, 6 Ire. 476. See, also, Angell & Ames Corp., secs. 523-526.

The judgment is affirmed, with costs and ten per cent, damages.