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Soo CONTRACTS, 13; WILLS, 14
See FRAUDULENT CONVEYANCES.
CONFLICT OF LAWS.
Boo BXBOUTION, 1; EXECUTORS AND ADMINISTRATORS, 8-11, MARRIAGE
AND DIVORCE, 3.
See CONTRACTS, 5.
1. “DUB PROCESS OF LAW” requires an orderly proceeding adapted to the
nature of the case, in which the citizen has an opportunity to be heard,
and to defend, enforce, and protect his rights. A hearing, or an opportu.
nity to be heard, prior to judgment, is absolutely essential. State v.
1 Dux PROCESS Or Law-RESTRICTING POWER TO CONTRACT.—The right
to contract necessarily includes the right to fix the price at which labor
will be performed and the mode and time of payment; and a statuto
which restricts a person as to either of these essential elements of the
right to contract to a mode different from that enjoyed by the commu.
nity at large deprives him of liberty and property without “due process
of law." Low v. Rees Printing Co., 670.
Seo INSANE PERSONS; LEGISLATURE; STATUTES, 1-4; WITNESSES, 47.
See Contracts, 7; STATUTES,
RETUSAL TO ANSWER QUESTIONS_HABEAS CORPUS. -A witness who refuses
to answer questions propounded to him concerning violations of the
Purity of Election Law by other persons with whom he has co-operated
may be lawfully committed for contempt until he shall answer, and
is not entitled to discharge upon habeas, corpus, if so committed. Bas
parte Cohen, 127.
L WHEN PERFECT THOUGH THE Parties CONTEMPLATE ITS BEING RE-
DUCED TO A MORE Formal WRITING.-If the correspondence and tel.
egrams between the parties contain all the details of a contract it is
enforceable though they intended that their agreement should be for.
mally expressed in a single paper, which, when signed, should be the
evidence of what already had been agreed upon. Neither party has the
right to insist that such agreement should contain terms not stated in
the correspondence and telegrams, and if he does so insist, and refuses
to sign the agreement or perform the contract without such additional
terms, he is answerable for the damages sustained by his withdrawal
from his contract. Sanders v. Pottlitzer Bros. Fruit Co., 757.
I A CONTRACT TO MAKE AND EXECUTE A CERTAIN WRITTEN AGREEMENT,
the terms of which are mutually understood and agreed upon, is in all
AU. ST. REP., VOL. XLIII.-61
respects as valid and obligatory, where no statutory objection inter-
poses, as the written contract itself would be if executed. Neither
party is at liberty to refuse to perform or to enter into the agreement
as stipulated. Sanders v. Pottlitzer Bros. Fruit Co., 757.
8. TIME AS ESSENCE OF.-In equity time is not regarded as of the essence of
a contract unless expressly stated to be so. Chabot v. Winter Park
TIME, When ESSENCE OF.-If a party to a contract for the sale of
lands is guilty of laches and negligence in performing, and the time
for performance has passed, the other party may, by giving notice, fix
a reasonable time for the performance of the contract, and has a right
to treat it as abandoned if performance is not completed in such rea-
sonable time. Chabol v. Winter Park Co., 192.
8. CONSIDERATION OF LEASE-DETRIMENT TO LESSOR.—The consideration for
a lease may as well consist in detriment due the lessor as in profit due
the lessee. Hence, if the possession of a company's electric light and
gas plant, and the use thereof, are transferred by a lease for two years,
under which the lessee is to take possession, manage, control, and oper-
ate the property, and to pay the company every three months during
the term all the receipts of the business, less all necessary charges and
expenses, the contract is supported by a sufficient consideration, though
the lessee is not benefited by the contract. Visalia Gas etc. Co. F.
6. AMBIGUITY. - If a written order for the purchase of a chattel contains
the words “note for one hundred and ten dollars; three fall payments
at eight per cent,” the time of payment is uncertain and ambiguous,
and the order is incomplete on its face. Aultman v. Clifford, 478.
7. WRITTEN INSTRUMENTS-RULE OF CONSTRUCTION-ABSURDITY OR Rs-
PUGNANCE.— If the ordinary meaning of the words employed in a writ-
ten instrument leails to a manifest absurdity or repugnance they may,
if the instrument as a whole will permit it, be varied or modified so 29
to avoid such inconvenience, but no further. Kentzler v. American etc.
Accident Assn., 934.
8. STATUTE OF FRAUDS—Promise To Pay DEBT OF ANOTHER.–An agree-
ment by a creditor to forbear the enforcement of his debt is not a suffi-
cient consideration to support an oral promise of a third person to pay
that debt, although such third person makes the promise for the purpose
of subserving and promoting his own pecuniary interests. McKenzie ,
Puget Sound Nat. Bank, 844.
9. STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER.-A considerze
tion to support an oral promise to pay the debt of another to be valid
must be of a peculiar character, and must operate to the advantage of
the promisor, and place him under a pecuniary obligation to the prom-
isee independent of the original debt, which obligation is to be dis-
charged by the payment of that debt. McKenzie v. Puget Sound Nat.
10. Tort, BREACH or Contract WHEN MAY AMOUNT TO.-If one person
owes another a duty the breach of which is a tort, the fact that the
former has expressly contracted with the latter for the performance of
such duty does not render its breach any the less a tort, but, if the duty
is imposed or created by the contract and otherwise did not exist, its
breach is not a torto Russell y. Polk County dbstract Co., 381.
11. EVIDENCE, CONTRACT TO PROCURE.- A contract is void as against publio
policy if by it one of the parties agrees to secure such testimony as will
enable the other to win an existing or contemplated suit. It is not nec-
sary that the contract should contemplate the production of perjured
testimony. It is void because its tendency is to proinote unlawful
acts. Quirk v. Muller, 647.
12. CONTEST OF WILL-CONTRACT NOT TO CONTEST, How ArfecTED BY PUB-
LIC POLICY-ENFORCEMENT OF CONTRACTS.-An heir's covenant not to
contest the will of his ancestor is not void as against public policy, or tho
policy of the law that an invalid will shall not be established as a valid
will; but is in harmony with the paramount public policy that parties
of full age and competent understanding shall have liberty to contract,
and that their contracts, when entered into freely and voluntarily, shall
be held sacred, and shall be enforced by courts of justice. In re Estate
of Garcelon, 134.
18. A CONTRACT NOT TO CONTEST A WILL Is One That Concerns PRIVATE
PARTIES ALONE. - It is not against public policy, and is as much entitled
to be enforced as a valid compromise of the contest of a will, which,
when fairly made, is always enforced. In re Estate of Garcelon, 134.
Boo ADMIRALTY; CONSTITUTIONAL LAW; LIMITATIONS OF ACTIONS, 63
MUNICIPAL CORPORATIONS, 2-4; STATES, 2-5; STATUTES, 2, 3.
See DeeDS; MORTGAGES.
1. STOCKHOLDERS-LIABILITY ON Srock SUBSCRIPTIONS.—The fact that part
of the stock of a corporation has been illegally subscribed by another
corporation, all of the remaining subscribers for stock having taken
with knowledge of that fact, and having paid part of their subscrip.
tion to enable the corporation to commence business, cannot be success-
fully asserted by thein to escape liability on their stock subscriptions in
an action against them by the creditors of the corporation. Cole v
Satsop R. R. Co., 858.
2 STOCKHOLDERS-LIABILITY FOR STOCK SUBSCRIPTIONS MADE BY THEM
THROUGH TRUSTEES. --Under a complaint alleging that stock in a cor.
poration has been subscribed for by a party as “trustee,” who, in mak.
ing such subscriptions, has acted as agent for certain subscribers at
their request, and for the benefit of each of them in proportion to his
individual subscription, the creditors of the corporation may maintain
an action against the real parties in interest to recover the amount of
their subscriptions, and, without alleging fraud, may show by parol
evidence that the subscription is in fact other than what upon its face
it appears to be. Cole v. Sutsop R. R. Co., 858.
2. BY-LAWS-PROXIES. – If the statute allows stockholders of a corporation
to be represeuted at all elections by proxies of their own selection, a
by-law of a banking corporation, providing that no proxy shall be
voted by any one not a stockholder of the corporation, is void, as being
an infringement upon the statute. People's Home Sav. Bank v. Supos
rior Court, 147.
LIMITATION UPON BY-LAWS.—A by-law cannot take away, or even abridge,
the substantial rights of a stockholder of a corporation. People's Homo
Sav. Bank v. Superior Court, 147.
6. STATUTES – BY-LAWS AUTHORIZING A MODE OF VOTING BY PROST.-A
statute authorizing a corporation to provide in its by-laws for “tho
mode of voting by proxy” refers to the preliminary requirements to be
followed in order that the proxy may be entitled to vote, and does not
authorize the curtailing of the right to vote by proxy, but only to reg.
alate the exercise of the right by requiring the authority to be in
writing, properly witnessed, acknowledged, and filed with the records
oto People's Home Sav. Bank v. Superior Court, 147.
What Have no ValIDITY.-A corporation whose primary object is
without statutory authority can have no lawful existence, although
some of its declared purposes may be lawful. Hence, if its primary
object is to obtain money from its members, it is unauthorized, ale
though its declared purposes are "to encourage frugality and economy
in its members; to create, husband, and distribute funds from monthly
installments, dues, or investments from its members; to purchase, tak,
hold, sell, convey, lease, rent, and mortgage real estate and personal
property; to loan surplus accommodations; and to carry on and conduct
a general investment business." Slale v. International Investment Co.,
7. PURPOSES NOT EXTENDED BY GENERAL Words of STATUTE.- Under
statute authorizing the forination of corporations for certain desig.
nated purposes the general words “or for any lawful business or purpose
whatever, exçept," etc., extend only to things of a nature kindred to
those specifically mentioned. State v. International Investment Co., 920.
& ULTRA VIRES.- A CONTRACT, WHEREBY A GUARANTY LIFE ASSOCIATION
UNDERTAKES to pay losses which may accrue against another and sim.
ilar association, is an attempt to divert the funds to objects not author.
ized by its charter, and is therefore ultra vires and void. Twiss v.
Guaranty Life Assn., 418.
h IT AN ULTRA VIRES CONTRACT 18 PERFORMED BY ONE SIDE, the other
contracting party cannot be permitted to enjoy the benefits received,
and will be required in a proper action to account; but one whose
condition has not changed or been prejudiced by the ultra vires con.
tract cannot compel its enforcernent. Twiss v. Guaranty Life Assta,
10. Contract Ultra Vires-PUBLIC POLICY.-If a municipal corporation
grants to an electric light and gas company a franchise to operate its
works, and to supply the inhabitants of the city with gas and electric
ity, it is bound to operate its works, and has no power to lease them to
a third party for a period of years. Such a contract, if 'made, is uitra
vires and void as against public policy. Visaliu Gas etc. Co. v. Sime, 105,
11. Void ContraCT - Relief Pl.EADING – ESTOPPEL. - A court will not
relieve either party to a contract with a corporation, which is not only
ultra vires, but also void as against public policy, and performance of
the contract by one of the parties will not estop the other from pleado
ing its invalidity. Visalia Gas etc. Co. v. Sims, 105.
12 ACCOUNTING FOR MONEY OR PROPERTY RECEIVED UNDER VOID Cox.
TRACT-LESSEES. — While a corporation is liable to account for money
or property received by it under a void contract, the rule does not ape
ply to a lessee of the corporation whose lease is void, and who is found
to have made nothing from the lease. Visalia Gas etc. Co. v. Sime, 105.
18. INSOLVENCY_RIGHT OF RECEIVER TO SOE FOR STOOK SUBSCRIPTIONS
A receivor for an insolvent corporation, appointed at the instanoo of its
creditors, I clothed with all their rights, and may so to recovor stook
mabscriptions although the corporation could not maintain saob muito
Cole v. Satsop R. R. Co., 858.
14 INSOLVENCY_PREFERENCES. -A creditor, not a director, who has do
interest in an insolvens corporation other than that of its creditor, is
not a trustee, and has the right to sue by attachment, and thus acquire
a superior lien to any and all other creditors, although advised to ato
tach by a director of the corporation. La Grange Butler T'ub Co. v.
National Bank, 558.
18. INSOLVENCY_PREFERENCES IN EQUITY.-A court of equity haring ao
quired jurisdiction of an insolvent corporation for the purpose of admin.
istering its estate, is bound to respect legal rights and preferences
already acqnired, and to make distribution accordingly. La Grange
Butter Tub Co. v. National Bank, 558.
16. INSOLVENCY-ASSETS AS Trust FUND.-The assets of an insolvent cor-
poration are trust funds for the benefit of all its creditors in so far as
to probibit the disposition of its assets toward the payment of debts
due its officers, or by securing such debts by creating liens so as to
thereby give them a preference over other creditors, or from the timo
when a court of equity acquires jurisdiction over it for the purpose of
winding up its affairs and distributing the proceeds arising from a sale of
the assets equitably among the creditors. La Grange Butter Tub Co. v.
National Bank, 558.
17. TRUST IN FAVOR OF CREDITORS. -Equity regards the property of a cor-
poration as a fund held in trust for its stockholders while it is solvent,
and for the payment of its debts when it becomes insolvent, and if
others than bona fide creditors possess themselves of it, then in case the
corporation becomes insolvent, they hold it charged with a trust in
favor of its creditors, and such trust a court of equity will enforce.
Atlas Nat. Bank v. More, 274.
18 FOREIGN CORPORATIONS-FAILURE TO COMPLY WITA STATUTE-Pen.
ALTY.-If a statute imposes a penalty on a foreign corporation for fail.
are to file a copy of its charter and to aproint an agent the penalty so
provided is exclusive of any other. La France Fire Engine Co. V. M.
19. FOREIGN CORPORATIONS — FAILURE TO COMPLY WITH STATUTE - Con.
TRACTS WITH–ESTOPPEL.–Under a statute failing to provide that con.
tracts made by foreign corporations doing business within the state with.
out complying with the provisions of such statute shall be void, but fix.
ing a special penalty for such violation, a party contracting with such
corporation is estopped from pleading its want of compliance with the
statute. La France Fire Engine Co. v. Mt. Vernon, 827.
Soo ASSIGNMENT FOR THE BENEFIT OF CREDITORS; NEGOTIABLE INSTRU.
VENTS, 1; PARENT AND CHILD, 1, 4; TRADEMARKS, 6, &
Seo HOMESTEAD, 9; MARRIAGE AND DIVOROR, 7.
L ADVERSE POSSESSION.-A cotenant who, under color of title, onters into
possession of the land held in common, claiming the whole to himself,