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6. STATUTES – BY-LAWS AUTHORIZING A MODE OF VOTING BY PROXY.-A
statute authorizing a corporation to provide in its by-laws for “the
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 rego
ulate the exercise of the right by requiring the authority to be in
writing, properly witnessed, acknowledged, and filed with the records,
eto. 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, alo
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, tako,
hold, sell, convey, lease, rent, and mortgage real estate and personal
property; to loan surplus accommodations; and to carry on and conduct
* general investment business." State v. International Investment Co.,
7. PURPOSES NOT EXTENDED BY GENERAL WORDS OF STATUTE.— Under
statute authorizing the formation of corporations for certain desig.
nated purposes the general words " or for any lawful business or purpose
whatever, except,” etc., extend only to things of a nature kindred to
those specifically mentioned. State v. International Investment Co., 920.
2. 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.
2. IT AN ULTRA VIRES CONTRACT 18 PERFORMED BY ONE SIDE, the othor
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 enforcement. Twiss v. Guaranty Life Assth,
20. 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 electrio-
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 ultra
wires and void as against public policy. Visaliu Gas etc. Co. v. Sims, 105.
11. Void Contract RELIEF — PLEADING - 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 plead.
ing its invalidity. Visalia Gas etc. Co. v. Sim8, 105.
12 ACCOUNTING FOR MONEY OR PROPERTY RECEIVED UNDER VOID Con.
TRACT–LESSE ES. -While a corporation is liable to account for money
or property received by it under a void contract, the rule does not apo
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. Sims, 105.
13. INSOLVENCY_RIGHT OF RECEIVER TO SUB FOR STOCK SUBSCRIPTIONS.
A receiver for an insolvent corporation, appointed at the instance of its
creditors, is clothed with all their rights, and may me to recovor stook
mabscriptions although the corporation could not maintain such suit.
Cole v. Satsop R. R. Co., 858.
14 INSOLVENCY-PREFERENCES. -A creditor, not a director, who has no
interest in an insolvent 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 Tub co ve
National Bank, 558.
16. INSOLVENCY_PREFERENCES IN EQUITY.-A court of equity haring aan
quired jurisdiction of an insolvent corporation for the purpose of adınin-
istering its estate, is bound to respect legal rights and preferences
already acqnired, and to make distribution accordingly. La Grange
Butter T'ub 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 prohibit the disposition of its assets toward the payment of debte
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 time
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. to
National Bank, 558.
17. Trust in Favor or CREDITORS. -Equity regards the property of a cor-
poration as a fund held in trust for its stockholders while it is solventy,
and for the payment of its debts when it becomes insolvent, and it
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 enforco.
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 appoint an agent the penalty so
provided is exclusive of any other. La France Fire Engine Co v. Mh
19. FOREIGN CORPORATIONS — FAILURE TO COMPLY WITH STATUTE — Cor.
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 fixo
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 INSTRO-
MENTS, 1; PARENT AND CHILD, 1, 4; TRADEMARKS, 6, &
800 HOMESTEAD, 9; MARRIAGE AND DIVOROR, 7.
L ADVERSE POSSESSION.- A cotenant who, under color of title, enters into
possession of the land held in common, claiming the whole to himself,
thereby acquires an adverse possession, and sets the statute of limita-
tions in operation. King v. Carmichael, 303.
2 CONVEYANCE BY ONE — ADVERSE POSSESSION.- A cotenant who sells
and conveys the whole of the land held in common and gives pose
session thereby creates in the grantee a title and possession adverse
to the other cotenant or cotenants, and if such grantee continues to
hold for the period of time prescribed by the statute of limitations he
thereby acquires a good title as against them. King v. Carmichael, 303.
& PURCHASE OF Tax Title. — A cotenant in possessior cannot acquire
title as against his cotenant by purchasing a tax title to the common
property. Thompson v. McCorkle, 334.
4. TENDER—WHEN UNNECESSARY.-In an action by one cotenant to set aside
a tax title to the common property acquired by another cotenant, no
tender of taxes is necessary before bringing suit. Thompson v. Mo
8. EJECIMENT AGAINST STRANGER. - A tenant in common is, as against
every person but his cotenant, entitled to the possession of every
part of the common land, and may recover such possession in an action
of ejectment brought against a stranger to the common title. Allen V.
See APPEAL, 4.
THE GENERAL LANGUAGE OF THE OPINION IN A CASE MUST BE CONSTROED
with reference to the particular facts then before the court. Chapman
V. State, 158.
THE ATTEMPT TO COMMIT A Crime has been made when the opportunity
of a knowledge of the custom in the light of which the parties trans-
acted their business. Bowman v. First Nat. Bank, 870.
1. 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. Hitchcock v. Supreme
2 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. Hitchcock v. Supreme Tent, 423.
8. MEASURE OF.—Ax INSTRUCTION TO THE Jury in an action to recover
damages for the death of a railway employee, that they should assess
the damages at whatever sum they should deem just and reason.
able from all the evidence in the case, not exceeding the amount
of the declaration, is not errorreous. The instruction could not have
been understood by the jury to have authorized damages to be assessed
by way of solutium, if there is no claim for such damages made in the
declaration. Chicago etc. R. R. Co. v. Kneirim, 259.
4. MASTER AND SERVANT NEGLIGENCE-MEASURE OF DAMAGES-EARN.
INGS. -In an action by a father to recover for personal injury to his
minor son caused by negligence it is error to charge the jury, without
evidence, that such son was likely to earn more than his present wages
in the near future “by way of promotion." Reese v. Hershey, 795.
8. STATUTES Giving PUNITIVE, DOUBLE, OR TREBLE DAMAGES against one
cutting or otherwise converting to his own use timber growing on the
land of another without his consent are confined to cases where some
element of recklessness, wantonness, willfulness, or evil design enters
into the act. Therefore, if the land is located in a wilderness, far from
human habitation, and there is nothing to indicate that any one actu.
ally asserted ownership of any part of the country thereabout, and there
is nothing to indicate willfulness, wantonness, or recklessness, actual
damages only will be allowed. McDonald v. Montana Wood Co., 616.
6. PENALTY OR LIQUIDATED DAMAGES. — TO DETERMINE WHETHER A SUM
SPECIFIED IN A CONTRACT IS A PENALTY OR LIQUIDATED DAMAGES the
court will consider the language used, the subject matter of the con.
tract, and the intention of the parties. The fact that the parties used
the words “liquidated damages” in their agreement does not always
determine the question. The courts generally lean toward that con.
struction which excludes the idea of liquidated damages, and permits
the party to recover only the damages which he Las actually sustained.
Hennessy v. Metzger, 267.
7. PENALTY OR LIQUIDATED DAMAGES.—If a building contract names the day
at which it is to be completed, and declares that the contractor for each
day's delay beyond that time shall be charged with the sum of fifty
dollars as liquidated damages, and it is difficult to determine what the
actual damages were, the sum named will be treated as liquidated dam-
ages, and the builder held answerable therefor. Hennessy v. Metzger,
& PENALTY OR LIQUIDATED DAMAGES. —Where, from the nature of a contract,
the damages cannot be calculated with any degree of certainty, a stipa.
lated sum will usually be held to be liquidated damages when so desig.
nated in the contract. Hennessy V. Metzger, 267.
Soe BUILDING CONTRACTS; JUDGMENTS, 12; LANDLORD AND TENANT, 4;
NEGLIGENCE; NUISANCE, 4, 5; SLANDER, 3; TRESPASS, 2
Soo DAMAGES, 3; MECHANICS' LIENS, &
DEBTOR AND CREDITOR.
FRAUDULENT CONVEYANCES—WHAT SUFFICIENT TO CREATE RELATION 01.-
The contingent liability of a surety is sufficient to create the relation of
debtor and creditor within the meaning of the statute of frauds against
the fraudulent alienation of property, and a note given for a pre-existo
ing debt and renewed from time to time by the maker and surety con-
tinues the debt in force as originally made. Reel v. Livingston, 202,
See ASSIGNMENT, 4.
See EVIDENCE, 9; WILLS, 9.
TH DEDICATION TO PUBLIC USE OF A RIVER AND THE LAND COVERED
THEREBY, except for the purposes of navigation, will not be presumed
from the fact that the owner made and filed a plat subdividing his lando
into lots and blocks, and on such plat represented the river as between
parallel lines, and in the space between such lines wrote the name of
the river. Chicago v. Van Ingen, 285.
1. DELIVERY IN Escrow.—Delivery of a deed by a grantor to his daugh.
ter for subsequent delivery, upon the happening of a certain event,
to another of his daughters, named as grantee therein, is a good
delivery. Upon the happening of the event named the grantee may
compel the delivery of the deed to her. Brown v. Stulson, 462.
2 A CONVEYANCE OF ALL THE LANDS, TENEMENTS, HEREDITAMENTS, AP.
PURTENANCES OF EVERY DESCRIPTION belonging to the grantors, or either
of them, or in which they have, or either of them has, any interest,
wherever such property, or any part thereof, may be situate, is not
void for want of description, and transfers their title to any and all