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place of business, which on being properly exe- constitute themselves such, preliminary to an cuted shall be filed with the Secretary of State. organization of the corporation, shall become If approved as required by the second section of stockholders and entitled to rights as such. The the act, it shall be recorded and copied as pro- law contemplates such proceedings as will convided by the 2d section of the act of 1852; "and stitute the members of the proposed corporation said persons, when incorporated and having in stockholders, by requiring them to be subscriball respects complied with the provisions of this ers to the stock. By the act of thus becoming a act, are hereby authorized to carry on the busi- stockholder, they acquire an interest in the franness of insurance as named in said certificate of chises and business of the company, and are subincorporation,” &c. By section 4: The persons ject to all the liabilities of stockholders, includnamed in the certificate, or a majority of them, ing the obligation to pay for the stock subscribed. shall be commissioners to open books for the sub- If this obligation is not mutual, and equally scription of stock, * * * and shall keep the binding upon the corporation, the promise to pay same open until the full amount specified in the is not supported by a sufficient consideration. certificate is subscribed. Section 5 provides for The criterion of liability is whether any act has an election of a board of directors after the stock been done by which the corporation is compelled is all taken.

to recognize the promiser as a stockholder. If It is a fact in this case that this note and the corporation was not bound by what took mortgage were taken before the corporation was place, to recognize Mrs. Fanning as a stockholder authorized to elect directors and other officers. neither is she bound to pay for stock. Angel & It also appears that the note and mortgage were Ames on Corporations, chap. XV, et seq; Thompreceived and counted as part of the amount of son on Liability of Stockholders Secs. 105-110 ; stock necessary to make the amount to be ob- Valk v. Crandall, 1 Sandf. ch. 179; Tonica v. Peterstained before holding such an election.

burgh R. R. Co., 21 Ill. 96; The Chelsea Glass Co. Waiving all questions arising out of alleged v. Dewey, 16 Mass. 94; Spear v. Crawford, 14 irregularities in obtaining the requisite amount Wendell, 20; Selma & Tenn. R. R. v. Tipton, 5 of capital stock to authorize the company to or- Ala. 787; Phillips Limerich Academy v. Davis, ganize, or make loans, let us inquire what val- 11 Mass. 113; New Bedford v. Adams, 4 Mass. idity there was in the promise of Mrs. Fanning 138; The Essex Turnpike Co. v. Collins, 4 Mass. to pay for capital stock, based upon a verbal 292; Lake Ontario, A. & N. Y. R. R. Co. v. Maagreement, made with an agent of the company son, 16 N. Y. 451; Vreeland v, The N. J. Stone to take that amount of stock.

Co., 29 N. J. eq. 188; The P. & S. R. R. Co. v. In the manner in which the charge was given Guzzam, 32 Pa. State, 340; The Thames Tunnel on this point, the jury might, and probably did Co. v. Sheldon, 6 B. & C. 341. find in favor of the plaintiff below, independent A careful consideration of the the statutes auof any question of ratification or estoppel. There thorizing the formation of such corporation, as was evidence tending to show that Mrs. Fanning well as of the authorities cited requires us to hold, had by her acts, estopped herself from taking that a mere verbal agreement to take stock in advantage of any defects in the organization, or a company, whose promoters are engaged in seany informalty in the agreement, but this curing the amount of stock required before it can charge, that a verbal agreement to take stock organize, does not constitute the promiser & was sufficient to create an indebtedness, left the member of such corporation, and is without a jury free to find for the plaintiff, without passing sufficient consideration to support it. upon the question of estoppel.

Judgment reversed.
The note was a promise to pay for stock which [This case will appear in 37 0. S.]
the maker had verbaly agreed to take. Had
Mrs. Fanning been a subscriber to the stock, she

SUPREME COURT OF OHIO.
should have been entitled to be treated as a
stockholder. This would have been a sufficient

BACON v. DANIELS. consideration to have supported a promise either

November 22, 1881. express or implied, to pay for the stock. The

1. Where a contract, not required by the Statute of agreement must be mutual, and binding upon Frauds to be in writing, has been reduced to writing and both parties. If the corporation are not bound signed by one contracting party only, it is error to treat to treat her as a stockholder, her promise to pay,

such contrao! as of no validity for the reason that it is

not signed by the party to be charged. is a nudum pactum, for want of a mutual promise 2.. An agreement between the parties to a contract and by the corporation to award her the stock. In a third person, whereby one party is released from the

obligations of the contract and the third person substithe absence of proof that she had received the tuted in his stead, is a novation, and requires no further stock, or of any other consideration to support consideration than such release and substitution. her promise, or of any acts by her, creating an Error to the District Court of Erie County. estoppel, her promise to pay for stock for which The action was originally brought by the deshe has not subscribed, and which the corpora- fendant in error against the plaintiff in error tion is not bound to deliver at the proper time, Bacon, L. U. Hazen, Wm. A. Braman, Edward is without sufficient consideration to support it. F. Webster, Chas. W. Horr and Sidney S.

The constitution of the State provides for the Warner. Of these Bacon and Hazen were the individual liability of stockholders, and the stat- only defendants served with summons. ute prescribes the mode by which those, who The plaintiff alleged in his petition that in

March, 1875, the defendants entered into a con- one of that class which must by law be in writtract with him by which they agreed to pur- | ing, and the fact that the paper given to Hazen chase all the milk which plaintiff should deliver was signed by one party only, or not signed at from his farm during the season of 1875, at one all, would in no way affect the validity of the cent per pound. That in pursuance of said contract. That such an agreement was made is agreement he had delivered to defendants prior undisputed. That Hazen was authorized to to September, 1875, 56715 lbs. of milk, for contract for Braman, Horr & Warner does not which he had received on account $239.19, and appear from the evidence, but is alleged by that defendants then refused to receive any plaintiff in his petition, which declares upon the more milk and to be further bound by their con- contract to which Braman, Horr & Warner were tract. He asked to recover the balance due parties. It cannot be presumed in his favor under the contract.

that his own allegations are untrue. The defendant Bacon answered, denying that Like other contracts the one in question rehe ever made the alleged contract with plaintiff, quires a consideration to support its validity, or any other contract for the purchase of milk. but that consideration appears in the release of Hazen was in default for answer.

one party and the substitution of another. At the trial evidence was introduced tending The existence of the contract being established to show that in the latter part of March, 1875, the consideration is self-evident. As a stateBacon and Hazen came to plaintiff and proposed ment of an abstract proposition the charge of to purchase his milk on the terms stated in his the court was correct, but as applied to the case petition, and that shortly thereafter plaintiff its effect was to instruct the jury that the subcalled on Hazen and notified him of his accept- stitution of the latter for the former contract was ance of the proposition. It was further proved, of no validity. unless accompanied by a considand not disputed, that prior to the middle of eration outside of the release and substitution May, Hazen told plaintiff that Bacon had sold itself. out all his interest in this and other contracts to It is contended that the exceptions to the defendants, Braman, Horr & Warner, and that refusal to give the charges asked, and to the plaintiff

, at the request of Hazen, then signed charge as given being general, this court cannot a written contract thereby agreeing to deliver examine the errors complained of. We regard all his milk during the season of 1875 to Hazen, this proposition as untenable. The whole case Braman, Horr & Warner, and delivered the is before us, and it is apparent that the jury paper to Hazen. It was not pretended by any were misled' by erroneous instructions. See one that Bacon was a party named in this Baker v. Pendigrast, 32 Ohio St. 495. agreement.

Judgment re ersed and cause remanded. The defendant Bacon asked the court to charge [This case will appear in 37 0. S.] the jury that if they found that such a contract was made between plaintiff and Hazen, Braman, Horr & Warner, their verdict must be for the

SUPREME COURT OF OHIO. defendant. This the court refused to do for the reason, among other things, that the contract in

HORNBUCKLE V. THE STATE. evidence was signed by one party only; and did charge the jury that if Bacon did make the

November 22, 1881. original agreement it could not be rescinded BY THE COURT. without a consideration. The jury thereupon A justice of the peace has no jarisdiction of an action found før the plaintiff; a motion for a new trial

on the bond of a constable. was overruled and judgment was rendered upon Error to the District Court of Lawrence the verdict. This judgment was afterwards af- County. firmed in the District Court.

On September 17, 1875, a suit was brought beH. & L. H. Goodwin for plaintiff in error. fore W. O. Woods, a justice of the peace of Perry Taylor & Phinney for defendants in error.

Township, Lawrence County, upon the official LONGWORTH, J.

bond of M. T. Hornbuckle. The bond, dated It might perhaps be enough to say of this April 9, 1875, is in the penal sum of one thoucase that a recovery has been had for breach of a sand dollars, payable to the State of Ohio, recites different contract from that sued upon. It is a the election of Hornbuckle as constable of Upper well established principle, however, that where Township, Lawrence County, is conditioned as parties choose to try their case upon a supposed required by statute (1 S. &. C. 802, $ 184; Rev. issue not in reality raised by the pleadings, and Stats. $ 1516), and is signed by Hornbuckle as the case is fairly tried, submitted and decided principal and James M. Kelley and Thomas Gol. upon such supposed issue, it is too late to urge in den as sureties. The action was in the name of a court of errors that the issue tried was not the State of Ohio for the use of Lewis Smith, and made by the pleadings. See Larimore v. Well's against Hornbuckle, Kelly and Golden, and the Adm'r, 29th Ohio St. 13, 17.

ground of recovery alleged in the bill of particuIf we treat the issue to have been as an- lars was, that Hornbuckle, having in his hands, nounced by the court below, we can see no valid as such constable of Upper Township, an execureason for refusing to charge as requested by the tion in favor of said Smith against Peter Schlosdefendant. The substituted contract was not ser, did, on September 9, 1875, make a false return thereof. The return and its falsity, as well UseA. to stand seised to Use— Equity.A feoffment as the bond, are 'set forth in the bill of particu: to A. and his heirs, to the use of him and his lars. Judgment was rendered in favor of the heirs, gives him the legal estate, under the statplaintiff and against the defendants, for $47.63, ute of uses. An expressed declaration that he and costs, and that judgment was affirmed in the should stand seised to the use of another would district court. This petition in error was filed only have an

only have an equitable operation. in this court, on leave, by Hornbuckle, Kelly 4. Ibid.Rule in Shelly's Case-Equitable Estate and Golden, and the question is whether the jus- -- Power of Appointment. The rule in Shelly's case tice of the peace had jurisdiction of the action. applies to equitable as well as to legal estates. W. S. Forgey, for plaintiff in error.

Where an estate (a second use) is limited to A. 0. S. Collier, for defendant in error.

for life, with power of appointment, and, in deBY THE COURT.

fault of appointment, to his right heirs, the limJustices of the peace have exclusive original itation being an equitable one, the remainder jurisdiction of any sum not exceeding one hun limited to the right heirs will become an exedred dollars, and concurrent jurisdiction with cuted fee in the taker for life, subject to be dithe court of common pleas in any sum over one vested by the exercise of the power. hundred dollars and not exceeding three hun- 5. Ibid.- Equitable, Executed Fee, with power of dred dollars, except as otherwise provided

provided Appointment- Extinguishment of Power.—Where the by statute. 1 S. & C. 770; Rev. Stats. owner of an equitable, executed fee, with power 585. They are vested with jurisdiction, “to pro- of appointment, conveys the property in fee simceed against constables failing to make return, ple, with covenants of general warranty, the making false return, or failing to pay over power is thereby extinguished. money collected on execution issued by such justice.” 70 Ohio L. 180, Rev. Stats. $ 583. On the judgment so rendered, there is no stay. 68

MAINE. Ohio L. 75 ; Rev. Stats. $ 6652. But the statute further provides, that "justices of the peace shall

(Supreme Judicial Court.) not have cognizance * * * in actions against justices of the peace or other officers for miscon- ABBOTT v. 'HOLWAY, ADM'R. June 8, 1881. duct in office, except in the cases provided for in 1. Deed— Feoffment in Futuro.—Where a deed this act” (1 S. & C. 772, $ 10, Rev. Stats. $ 591), contains a provision that it is not to take effect the exception, as a plied to this case, being that and operate as a conveyance until the grantor's above stated. In view of these statutory provis- decease, and not then if the grantee does not surions, a justice of the peace has no jurisdiction of vive him, but if the grantee do survive, it is to an action upon the bonds of a constable.

convey the premises in fee simple, -it will be Judgment reversed.

upheld as creating a feoftment to commence in [This case will appear in 37 0. S.]

futuro, and will give the estate in fee simple to the grantee on the happening of the contingency named; the execution and record of the deed operate in the same manner as a livery seisin at the grantor's decease.

2. ibid— Devise. Such a deed is something MARYLAND.

more than a devise in a will; it conveys to the

grantee a contingent right, which, unlike the in(Court of Appeals.)

terest of a devise in the lifetime of à testator,

cannot be taken from him. BROWN 0. RENSHAW. April Term, 1881.

3. Ibid.- Estate in Remainder-Waste.-Such a

deed negatives the idea of an estate in remainder 1. Uses— Use upon Estate of Bargaince-Equity, for the benefit of the grantee, and a reservation -A use cannot be limited to arise out of the es

of a life estate to the grantor. And the grantee tate of a bargainee to a third person. If A. bar- takes no such an interest in the premises during gains and sells in fee to B. to the use of A., or to the lifetime of the grantor as will enable him to the use of any other person, for life or in fee, the maintain an action on the case in the nature of limitation by way of use is void under the stat

waste against the administrator of the grantor ute of uses; it will, however, be supported as a for acts done by him in his lifetime after giving trust in chancery.

the deed. 2. Ibid.Limitation to Bargainee—To his and their own Proper Use and Behoof.—The words “to his and their proper use and behoof,” follow

CARLTON v. Carlton. March 5, 1881. ing the words of “limitation to the bargainee Contract-Divorce-Action against Husband on and his heirs," in a , ed of bargain and sale, Contract made before Marriage. ---Can a woman who have no particular r -aning or effect in deter- is divorced maintain an action against her formining either the extent of the interest con- mer husband for personal services performed for veyed or the nature or quality of the estate to be him before their marriage? We think she can. vested.

“A woman, having property, is not deprived of 3. Ibid.- Feoffment to A. and his heirs, to his own any part of it by her marriage.” Such is the

Digest of Decisions.

statute law of this State. R. S. c. 61, § 2. The re-married, and at his request plaintiff assigned word "property” includes choses in action as well the policy to the second wife. Held, That upon as choses in possession. It includes money due as the death of H., Chap. 80, Laws of 1840 ceased to well as money possessed. It includes money due operate on the policy and her interest therein for personal services as well as money due for went to her husband who reduced it to possesanything else. In its broadest sense it includes sion by causing its assignment, and that the ineverything which goes to make one's wealth or surance not being made payable to the children estate. We cannot doubt that this is the sense in in any event they could claim no interest in it. which it is used in this statute. It follows, therefore, that a woman, by her marriage, can no more be deprived of money due to her than she

PIER v. HANMORE. October 4, 1881. can be of money actually possessed by her; of Corporations-Trustees.- A false statement in money due from the man she marries, no more the annual report of a manufacturing &c. corpo than of money due

from any one else. It may ration, renders liable only the trustees who be that while the marriage relation subsists no signed the report knowing it to be false. action of any kind can be maintained by her To charge the officer with the penalty imposed against her husband. But when this relation

for such offense, some facts or circumstances must ceases, this impediment is removed, and no rea- be shown indicating that he signed the report son is perceived why she cannot then sue him in bad faith, wilfully or for some fraudulent puras well as any one else. We think she can. pose, and not ignorantly or inadvertently.

A statement in a report that a certain amount JEWELL v. HARDING. March 7, 1881.

of capital has been paid in, must be regarded as a Trust-Deed not under Seal-Ejectment, by Equita- in cash, unless it is specified that such payment

representation that such capital has been paid in, ble Grantor- Mesne Profits— Demand.-1. An in- consists of the issue of stock for property purstrument purporting to be a deed, not under seal, chased. will not operate as a declaration of a dry, naked, or passive trust, such as will prevent a recovery for possession in an action at law by the trustee

LAWRENCE 0. MILLER. October 4, 1881. against the cestui que trust. Such an instrument Contract— Tender.—Where there is a willingis an equitable, but not a legal deed. In equity ness and ability to perform there need be no actthe seller can be made to reform the deed unless ual tender to do so if performance has been sufficient cause is shown to excuse it.

waived or prevented; it may be dispensed with 2. In a real action by the equitable grantor by some positive act or declaration. against his grantee, mesne profits are not recov- A contract for the sale of land provided for the erable, the grantee being in possession by per-payment of $2,000 on the day it was made, but mission of the grantor, without any agreement specified no time for performance of any other or expectation to pay rent.

part of the agreement. The payment was made. 3. The action for possession is maintainable

The parties met and the vendor produced and without a demand for possession. Commencing laid on the table a deed, and told the vendee he the suit is demand enough.

was ready, but at the vendee's request gave him

further time. They again met and the vendor NEW YORK.

again produced the deed, but the vendee was not

ready. Held, That the vendor did all that could (Court of Appeals.)

be required of him to put the vendee in default;

that the oral agreement to meet as they did, and OLMSTED V. KEYES ET AL. ADM'RS. October 4,

the extension of time, could be regarded as an es1881.

sential part of the contract, and that the vendor,

having come rightfully by the money paid on Life Insurance Married Women.- A valid pol- the contract, committed no breach and failed in icy of life insurance is assignable like an ordi- no duty to the vendee, was entitled to retain it. nary chose in action. It is not necessary that the assignee shall have an insurable interest in the life of the insured in order to recover the

HAVEMEYER v. HAVEMEYER ET AL. October 4,

1881. amount of the insurance.

Where one honestly and bona fide takes out a Contract- Agency.—Plaintiff, through her agent, policy on his life, payable to a person who has | H., made an agreement with defendants in no interest in the life or the policy is assigned to relation to selling certain shares of stock which. such person, the beneficiary or assignee may hold they all held, and which constituted a majority and enforce it if it was valid in its inception and of such stock; the agreement providing that the not procured or the assignment made as a con- stock should all be sold together, and no sepatrivance to avoid the statute against wagering rate sale should be made by any of the parties. policies.

H. had previously negotiated with one P., to One K. in 1846 procured a policy on his life to whom on the same day, but before the agreement be issued to plaintiff as trustee for H., the wife was made, he wrote, offering to sell his stock and of K. H. afterwards died leaving children. K. assist P. in getting more, and stating that he de sue the carrier for non-delivery. Bills of lading are quasi negotiable to that extent, and particularly so under the Tennessee Code, 1967.

sired to act in the interest of P. and not in the interest of defendants. This was unknown to defendants when the agreement was made. In an action for a breach of the agreement, Held, that plaintiff was responsible for the acts of H., and chargeable with his bad faith, and that such acts furnished a defense to the action.

WISCONSIN.

(Supreme Court.,

BYRNES v. BAER ET AL. October 4, 1881.

PHENIX MUTUAL LIFE INS. Co. v. WALRATH.-Filed

October 18, 1881. Wills.-A will passes all the real estate the tes

Conversion of personal property-Evidence.-1. In an tator was entitled to devise at the time of his action for the conversion of personal property, the dedeath.

fendant, under a general denial, may put in evidence any A testator directed the residue of his estate to

facts wbich disprove either plaintiff's title or a conver

sion by himself, be invested and the income paid to his wife and 2. Thus, in this action or the conversion of moneys daughter during their lives. The daughter,

collectrd by defendant au plaintiff's agent, defendant claiming that he died intestate as to real estate

was entitled, under a general denial, to show the con

tract of agency existing at the time of such collection acquired by him after making the will, sold the and alleged conversion, for the purpose of showing bis same, which was purchased from her grantees by right to retain the money: plaintiff. In an action for breach of contract of

3. Where competent evidence offered in defence was

rejected on the ground, not that it failed to make out a sale of such lands, Held, That plaintiff could not complete defence, but that it was incompetent, this court, convey a valid title.

on appeal, construes the offer liberally.

4. The circuit court may, in its discretion, permit an

amendment of the answer on the trial, setting up a deUNITED STATES COURTS.

fence not already set up; and where such an amendment has been refused, not in the exercise of discretion, but

on the ground of a want of power in the court to allow ROBINSON, MCLEOD & Co. v. MEMPHIS & CHARLES

it, that may be ground of reversal.

5. Under subdivision 3, § 2856, Rev. St., where the TON R. Co. (,

(Circuit Court, W. D. Tennessee, plaintiff is a non-res.dent, the defendant may set up as a E. D. October 24, 1881.)

counter-claim any cause of action he may have against

such non-resident; and where the action was in tort, for 1. Fraudulent Bill of Lading-Common Carrier

a conversion of monnys collected by defendant as plaint-Negotiable InstrumentsCollateral Security-Fac

iff's agent, held, that it would not be an abuse of discre

tion, under the circumstances of the case, for the trial tor's Advances Innocent Holder— Estoppal-Princi- court to permit an amendment of the answer, setting up pal and Agent.—The freight agent of a railroad A counter-claim for plaintiff's breach of the contract of

agency. company, by the procurement of a cotton buyer, signed å bill of lading for 32 bales of cotton

WHEELER & WILSON MANUFG Co v, TEETZLAFF.-which were not on hand, and were never deliv- Filed October 18, 1881. ered to the railroad company or any agent for it. Contract of sale-Default in payment-Replevin.-1. A. The plaintiff's paid a draft for the price of the delivers to B. a sewing machine under a contract for the cotton on the faith of the bill of lading attached

sale thereof, by which title is not to pass to B. until full to it and

indorsed to them, and never having payment is made in specified instalnents, and on default received the cotton sued the railroad company away at his option. Held: for its non-delivery. Held, that the carrier was

(1) That A., on default in a payment, could not replovy

the machine from B.'s possession without demand or not estopped to show that no cotton was in fact notice of his option, and refusal by B. to surrender_it, delivered for transportation ; that the agent had especially when it had been suffered to remain in B.'s no authority; real or apparent, to sign a receipt possession for several months after the default, plaintiff or bill of lading until actual delivery of the

claiming meanwhile that the payment was due.

(2) That the possession of the machine by B.'s wife, cotton, and the company was not liable.

living with him as such, was B.'s possession. 2. Same Subject-Custom-Commercial Usage ---

(3) That, in the absence of any proof that B. was keep:

ing out of the way to avoid notice and demand, a demand Neither a general nor local custom to use bills

upon his wife, and her refusal to surrender the machine, of lading as collateral security for drafts drawn and claim that it belonged to B., were not a demand upon against the merchandise, can alter the rules of and refusal and claim by B., unless she was especially law governing the contract of the parties. · This fact that she had made all the previous payments is not use of bills of lading is one in which the carrier sufficient to establish such agency. has no interest, and he cannot be charged with 2. To maintain replevin plaintiff must have had the an extraordinary liability dehors the contract for

right of ossession at the commencement of the action;

and where such-action is in justice's court, the Alling of which he receives no compensation or indem- the afidavit (which stands for the complaint) and the depity, merely to assure other parties against loss livery of a warrant thereon by the justice to an officer by the fraudulent dealings of those who so use

or other person, with intent to have it served, is the com

mencement of the action. Rev. $t. 22 3731, 3733, 3739, them. It is not in the interest of commerce to 3742. impose this liability upon the common carriers 3. a replevin for a sewing machine it appeared that, of the country.

at the time of filing his affidavit for a warrant, plaintiff

was in possession of the "head" of the machine, i. e., of 3. Same Subject- Pleading-Actions Who may the whole machine except the stand upon which the apSue IndorseeTennessee Code 8 1967.-The in- parntus for sewing was placed ; though he returned the dorsee of a bill of lading for value may not only

"houd" to defendant's possession before the warrant

was served. Held, that the action would not lie. sue for the goods, but he may, in his own name, 4. A general denial in replevin is not such an

asser

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