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The assessments were made quarterly, and a fixed amount was required to be paid. A certain amount was set apart for an expense fund, and the remainder was designated as the mortuary fund. The articles of association explicitly provide as to the disposition to be made of these several funds, There is not one word in the whole record which by the remotest implication can be construed as authorizing the secretary, or even the board of directors, to use any part of the proceeds of these quarterly payments for such a purpose as paying the death losses of any other insurance company. It is unnecessary to further discuss this question. It appears to us that the undertaking to pay the losses of the Guaranty company is plainly in excess of the power of the appellant or any of its officers. The facts of the case bring it within the rules announced in Lucas v. White Line Transfer Co., 70 Iowa, 542; 59 Am. Rep. 449; Davis v. Old Colony R. R. Co., 131 Mass. 258; 41 Am. Rep. 221. And see, also, 2 Morawetz on Private Corporations, secs.580, 581, 591, 607, 603.

2. But it is claimed in behalf of the appellee that the contract is executed, and that the appellant is estopped from questioning its validity. As we have said, where an ultra vires contract is made and performed on one side, the other party cannot be permitted to enjoy the benefits received, but will be required in a proper action to account; in other words, the doctrine of a want of power to contract cannot be invoked to aid a party to perpetrate wrong and injustice. But this case presents no such features. It is conceded that the Guaranty company was bankrupt when the contract in question 738 was made. Complaint had been made to the state auditor that it was not paying its death losses promptly, and it was unable to obtain a certificate authorizing it to continue in business. It is said by counsel for the appellee, in argument, that for the payment of these death losses the Guaranty had no means whatsoever, except its annual premiums, payable in quarterly installments. It had no certificate authorizing it to do business after March, 1889. The death losses had been such as to require the proceeds of the mortuary calls to meet the claim, and, in addition, had used up the reserve fund. It was in this condition when the insured, David M. Twiss, died, and the claim of the plaintiff accrued.

It is urged with apparent confidence that, as there were Bome five hundred and sixty-seven members of the Guaranty company when it failed, the appellant should be required to

pay ite death losses upon the ground that by the contract it acquired some four hundred new members. We have already said that the appellant was not authorized to buy members in this way, and on any such terms. Let us see whether there is any ground for the alleged estoppel. If there is any reason for such a claim it must be because the appellant, by seeking a transfer of the membership, put it out of the power of the plaintiff to compel payment by the Guaranty company. The wrong and injury to the plaintiff, if any, consists in taking away the membership so that the members did not pay their quarterly dues to the Guaranty company, by the payment of which the plaintiff would have received the amount due on the policy. It appears to us that this is a most unwarranted assumption. It is based upon the theory that, if the contract had not been made, the five hundred and sixty-seven members would have continued to pay quarterly installments to the Guaranty company until all of the death claims were satisfied 739 and all other claims paid. That this would have occurred is not only not probable, but highly improbable. Members of such organizations are not more likely to pay money for nothing than other people. The fact is, the record shows beyond all question that, if the con• tract had not been made between the two companies, the plaintiff's claim was absolutely worthless. That the position of the plaintiff was in any manner changed, to her prejudice, by the contract, not only does not appear, but the face of the transaction shows that it was not. That is about all there is of this case. It was tried by a jury, and the defendant moved that a verdict be directed for the defendant. The motion was overruled. We think it should have been sustained, on the ground that the conceded facts in the case showed that the plaintiff was not entitled to recover. Reversed.

CORPORATIONS–ULTRA VIRES-ACTS IN Excess of Power CONFERRED BY CHARTER.-Acts done in excess of the power conferred by a corporate charter are void in the sense that they can have no effect to divest the corporation of any right in or to any property belonging to it: Franco-Texan Land Co. v. McCormick, 85 Tex. 416; 34 Am. St. Rep. 815, and note.

CORPORATIONS–ULTRA VIRES AGREEMENTS—PARTIAL EXECUTION-AQ COUNTING. - An ultra vires contract will not be specifically enforced in equity, nor will an action at law lie thereon, but if it has been partially or completely executed by either of the parties, he may, by proceeding in the proper court, recover to the extent of the benefit received by the other party: Greenville Compress etc. Co. v. Planters' Compress etc. Co., 70 Miss. 609; 35 Am. St. Rep. 681, and note, with the cases collected.

CASES

IN THE

SUPREME COURT

OJ

MICHIGAN,

HITCHCOCK V. SUPREME TENT OF KNIGHTS OF

MACCABEES.

(100 MICHIGAN, 40.) DAMAGES PURELY SPECULATIVE in character, and dependent on so many

contingencies that they cannot be traced with reasonable certainty to

the breach of the contract, are not allowable. DAMAGES-MEASURE OF—Loss OF PROFITS.--If one party breaks a contract

which the other party has partly performed, and the violater then per. forms and completes the work himself from which he reaps the profits which the other party might have made, he cannot escape liability for damages if the other party can show the profits made while he was executing it, and the benefits received from its subsequent completion. The measure of damages is the profits and benefits remaining after the cost of doing the work has been deducted from the amount agreed to be paid for doing it. Rowland Connor, for the appellant. McDonell & Hall, for the respondent.

41 GRANT, J. The defendant is a corporation organized under the laws of this state, and authorized to issue endowment certificates, payable on the death of members to beneficiaries selected by them, and is operated under the lodge system, the lodges being known as "tente." It was 43 incorporated in 1885 by five incorporators, who constituted the board of trustees. A Mr. Boynton was secretary and one of the trustees, and to him was committed the chief management of the association. The organization appears to have met with great favor, and before the close of the first year was in active operation in many states and in Canada. It had from fifty to seventy-five agents engaged in organizing

tents. These agents were compensated by a part of a membership fee, a certificate fee, and a quarterly per capita tax. No tents could be instituted with less than fifteen members in places of five thousand population or under, or with less than twenty-five members in places of over five thousand population. Plaintiff was a man of considerable experience in organizing associations of this character. Negotiations between him 43 and Mr. Boynton resulted in the execution of a contract dated October 5, 1885, by which plaintiff was given the sole control of instituting and organizing new tents or subordinate bodies in the state of Indiana. The contract fixed the following compensation for his services:

“1. Sixty dollars of the charter fee for each tent he or his deputies may institute in said state of Indiana.

“2. All the membership fee on all over fifteen, and under twenty-five, members put in new tents on organization.

"3. One-half of the membership fee on all members put into new tents on organization, over twenty-five members.

“4. All the per capita tax collected by him from the first fifteen members in each new tent.

“5. One-fourth of the annual per capita tax on the entire membership in the state of Indiana shown to be in good standing on the books of the supreme tent at the close of each quarterly term, the said money to be paid to the said Hitchcock within thirty days thereafter.

44 “6. He shall also receive as compensation for visiting organized tents within the state, with a view of building them up and increasing their membership, all the quarterly per capita tax paid in by new members secured in such work, and also such portion of the membership fee as may be agreed upon between him and the tents. The aforesaid proportion of charter fee, membership fee, per capita tax, etc., shall be full and complete compensation for such services."

It provided, further, that plaintiff should give his full time and services to the work, and execute a good and 45 sufficient bond, in the sum of five hundred dollars for the faith. ful performance of his duties, and the turning over of all moneys belonging to the supreme tent. It also contained the following provisions:

“It is further agreed between the parties hereto that, whenever a great camp is organized in said state, then this agreement shall be null and void, and of no binding force. It is also agreed that, whenever either party to this agreement de

sires to cancel the same, at least thirty days' notice 46 must be given by the party so electing. This agreement cannot be canceled without the consent of all parties to the contract.”

No great camp could be organized in any state until there were at least fifty tents and two thousand members.

Plaintiff furnished his bond, received his commission, and immediately entered upon the work. In thirteen months he had organized ten tents, with a total membership of two hun. dred and sixty-eight. The defendant then broke the contract, early in 1887, and demanded a surrender of plaintiff's original commission, which he refused, and then left its employ. The defendant immediately placed other agents in the state, who established forty more tents, and brought the membership up to a sufficient number to establish a great camp.

Upon the trial the learned circuit judge directed a verdict for the plaintiff, under clause 5, for one-fourth of the annual per capita tax paid in by the members of the ten tents which he organized, and who continued as members, which, with interest, amounted to four hundred and fifty-four dollars and twenty-five cents. As to the other damages claimed, the judge held that they were speculative, that there were no certain data from wbich they could be computed, that they were uncertain of ascertainment, and directed a verdict for the defendant.

All questions arising under this contract, except that of damages, have been determined in favor of plaintiff by the verdict and judgment. From this determination defendant has not appealed. The only question, therefore, before this court is the ruling of the court below as to the measure of the damages. Plaintiff insists that he introduced and offered evidence from which the jury might, with reasonable cer. tainty, determine the profits which he might have made, but which were lost to him by the violation of the contract. He gave evidence tending to show the profits made on the contract while he was engaged in the work. He offered to show that the first labor of 47 starting the enterprise is more expensive than that which follows, and that after the work is fairly started it is easier to organize tents than at first. He also offered a statement taken from the books of the defendant, showing the organization of forty tents after the breach of the contract; one hundred and twenty-five members in new

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