Frantz v. Idaho Artesian Well & Drilling Co.

HUSTON, J. This is an appeal from a judgment of the district court for Bannock county. The facts are substantially as follows, as shown by the record: In August, 1891, the defendant was, and for some time previous to that date, had been, a corporation organized under the laws of Idaho, and doing business in this state. Being in need of money to carry on the business in which they were engaged, and not being able to procure the same upon the credit of the corporation, at a stockholder meeting, held on the fifth day of August, 1891, the following record was made: “Meeting called to devise means to raise money to satisfy a judgment rendered in district court against the Artesian Well and .Drilling Company in favor of the Carlisle Manufacturing Company df Carlisle, Pennsylvania. It was moved and seconded that a note payable at the First Na 75 tional Bank be made to satisfy said judgment, and tbat a mortgage be executed to protect the signers of said note, covering the entire, plant 'of the concern. Carried.” It is contended that this action of what was said to be a stockholders’ meeting was void, it not having .been held in conformity with law or the ■charter or by-laws of the companjL Nevertheless, in pursuance ■of the same, it being ascertained that no money could be procured upon the credit of the company, the plaintiff and three ■others, members and stockholders in the company, procured from the First National Bank of Pocatello the sum of $1,700, giving their personal note therefor, and which said sum of $1,700 was by them paid into the treasury of said company for the purpose of meeting the exigency aforesaid; said company at the same time executing and delivering to said parties, to secure to them the payment of said sum of $1,700, the note and mortgage heretofore mentioned. When the note given to the bank by the plaintiff and his comakers became due, its payment was extended; another note, being signed by four additional parties, was given. In the meantime the amount of the first note given “had been reduced to about $1,300 by payments made by*the defendant corporation, and for this latter amount the note of the four original makers and four additional'parties was given. In ■the language of plaintiff (testifying) : “When that note became ■due, we ail split up, and gave an individual note, except West, and he gave his note, and we signed with him.” The transaction last mentioned occurred on April 10, 1894, and the notes so given have been paid by the parties who gave them. This action is brought by plaintiff to recover from the defendant ■corporation the amount of money so paid by him, alleged in his complaint to be some $868. The cause was tried before the ■court without a jury, and judgment rendered for plaintiff, from which defendant takes this appeal. It is claimed by appellant that the findings and judgment of the court are not supported by the evidence, because: First. The plaintiff and three other persons made their note to the First National Bank of Pocatello for a certain sum of money, which they procured and loaned to the defendant corporation. That there was no privity or contractual relation between the plaintiff 76 and bis comakers of the first note, and the defendant. We cannot accept this contention. The record shows conclusively — in*, fact, there is no disagreement between parties as tó the facts— that the corporation defendant required a certain sum of money-to protect them from a sale of their property upon execution.. Not being able to raise the money upon the credit of the corporation, they say to the plaintiff and his comakers of the first, note, “You raise the money for us, and we will secure you by a note and chattel mortgage upon the property of the company.”" The money being raised and paid over to and accepted by the-defendant, the defendant executes its note and mortgage to the? makers of the note to secure them (as stated in the resolution; of the stockholders’ meeting) against the payment of the note? to the bank. That this was the understanding of all parties-, is shown by the fact that the defendant corporation paid several hundred dollars to the bank upon the note before it became due*. With these facts admitted, how can it for a moment be contended that there was no privity or contractual relation existing; between the makers of the note and the defendant ? The plaintiff’s right of action accrued upon the payment by him of his-. note, given for the benefit and behoof of the defendant corporation, and he was not required to resort to an attempted enforcement of the mortgage of doubtful validity. The complaint, stated a good cause of action under our statutes. As the causa of action did not accrue until April, 1894, the statute of limitations could not avail the defendant, even had it been interposed* which it was not. The statute of limitations is a personal privilege, and must, to be made available, be pleaded directly. It cannot be interposed by argument or inference. The complaint is entirely sufficient. It states a cause of action which is fully-made out by the proofs. The judgment of the district court is affirmed, with costs. Morgan, C. J., and Sullivan, J., concur.