106 Ky. 424 | Ky. Ct. App. | 1899
delivered the opinion of the court.
Friendship Lodge, No. 5, I. O. O. F., of Lexington, Ky., instituted this action against P. A. Tate and the appellants, L. Royalty, and B. D. Wood, seeking to recover judgment against the defendants for a certain sum of money alleged to be due from Tate, as former treasurer of the appellee. The following is the commencement of the petition: “The plaintiff, Friendship Lodge, No. 5, I. O. O. F., of Lexington, Ky., a corporation created by, and under the laws of Kentucky, by its attorneys comes and states that on or about the 6th day of July, 1894, the defendant P. A. Tate was elected treasurer of the widows’ and orphans’ fund of said lodge, and accepted the office, and was about to enter upon the discharge of the duties thereof, when said defendants P. A. Tate, L. Royalty, and B. D. Wood, all members of the order of Odd Fellows, in consideration that said Tate should be allowed to act as said treasurer, executed and delivered to plaintiff their bond in writing, sub
the motion of the defendants Wood and Royalty, to require plaintiff td make its- petition more definite and certain, whs overruled, and we think properly. Afterwards appellants, Wood and Royalty, filed their answer. The first paragraph of said answer denied that the plaintiff was a corporation, and denied that said Tate received money belonging to the fund mentioned in the petition during his continuance in office, amounting to $464,90, or other sum, except as hereinafter set out, and denied that he failed to pay over to his successor or to the plaintiff the sum of $185.18, or any other sum, received as treasurer of said fund. The second paragraph pleads that the plaintiff is an association organized for the mutual benefit of its members, having a constitution and certain rules under Avhich it acts; and it is substantially alleged that section 52 of the by-laws requires the appointment of a committée on widows and orphans of three persons, who shall be annually elected, and whose duty it shall be to receive semiannually from the treasurer such money as may have accrued during the term, and invest the same in accordance Avith the directions of the lodge; and that the plaintiff did on the 29th of June, 1884, elect a committee, consisting of Tate, etc.; and that upon the 6th of July, 1894, these defendants together with said Tate, did execute the bond filed with the petition, and Tate did proceed to act as treasurer, under the provisions of said section; that said Tate, as treasurer, and said committee, were elected for' a period of one year from said date, and on the 28th of June, 1895,
Plaintiff’s demurrer to the entire answer was sustained, with leave to amend. The amended answer specifically sets out the election of Tate as before indicated, and charges that he turned over to himself, as his successor in office, $119.68, which he held at the time of his election, in 1895.
A demurrer to the answer as amended was overruled. The reply of plaintiff is a specific -traverse of all the averments that Tate turned over any part of the $119.68 to himself as his own successor. The second paragraph of -the reply denies -that Tate was elected for one year only,
The rejoinder is a denial of the allegation that Tate was elected treasurer for one year, and until his successor should be elected and enter upon the discharge of his duties, and denies that said Tate remained treasurer until he received $469.90, or any other sum, except as set out in the answer.
At the close of the plaintiff’s testimony appellants moved for a peremptory instruction to the jury to find for the appellants, which was overruled, with exceptions. Tate made no defense. At the close of all the testimony, the court, upon motion of plaintiff, instructed the jury to find for appellee $119.68, which was accordingly done, and judgment rendered therefor; and, appellants’ motion for a new trial having been overruled, .they prosecute this appeal.
The grounds relied on for a new trial are, in substance: First, because the verdict is not sustained by sufficient evidence and is contrary to law; second, for error of law occurring at the trial and excepted to by the defendants; third, that the court peremptorily instructed the jury to And for the plaintiff, to which instruction defendants objected and excepted at the time.
It is provided in section 566, Kentucky Statutes, that no corporation organized under chapter 32 of Kentucky Statutes shall be permitted to set up or rely upon the want of legal organization as a defense to any action against it; nor shall any person transacting business with such corporation, or sued for injury done to its property, be permitted to rely upon such want of legal organization as a defense.
If, howe'ver, the statute supra does not preclude the appellants from denying the plaintiff was a corporation, we think the pleading in that respeGt was insufficient; or, in other words, that it was a plea in abatement, and not available as a plea in bar.
This court, in the case of Woodson, etc., v. The Bank of Gallipolis, 4 B. Mon., 203, in discussing similar questions, said: “It may be further observed that the matter of the plea, that there was no such corporation in existence, being essentially a matter in abatement, and not in bar, and having been pleaded in bar, could not, in strictness, operate either in bar or abatement.”'
In Jones v. Bank of Tennessee, 3 B. Mon., 123 [46 Am. Dec., 540], the court, in discussing the same question, in substance, said: By executing a note payable to the corporation, the defendants are estopped' to deny its existence at that time. If its existence had terminated before the commencement of the suit, the plea should have averred the facts which produced its termination, to have enabled the court to determine whether or not it had this
In Lail v. Mt. Sterling Coal Road Co., 13 Bush, 34, the court, in considering this same question, said, in substance: The appellant has admitted, by his own undertaking, the existence of the corporation and its organization; and if the corporation has ceased to exist, or the company was never incorporated, the defense, to make it available, must be made by an appropriate pleading. A note executed to one as administrator disposes of the necessity of producing letters of administration, or a note payable to the Bank of Kentucky is an admission by the obligee that said bank exists. . . . The court, in further considering the petition, in the case supra, said, in substance: “The petition is not only good on demurrer, but a general traverse, by plea, that no such corporation existed, would be bad on demurrer, as such a plea is a denial of a fact that the obligee has already admitted.”
It seems clear to us that the denial that plaintiff was a corporation could not, in this case, operate to defeat the cause of action.
It is, however, insisted with ability, and by citation of numerous authorities, which it is contended sustain appellants’ contention, that the evidence shows that <the appellants were not bound for the $119.68, the amount of the judgment, and which sum it is evident that Tate had either used or had on hand at the time of his second selection as treasurer. It may be conceded that, if Tate had the $119.68 in his hands at the time of his second election and qualification, it was his duty to turn same over to himself as treasurer; but it seems to us that there is no evidence tending to establish that he did so, nor do we think that