La Fayette County Monument Corp. v. Ryland

LyoN, J. The learned circuit .judge applied the rule that a demurrer to a pleading must be determined against the party who interposed the first defective pleading; hence he did not definitely pass upon the sufficiency of the reply to defendants’counterclaim to which the demurrer was interposed, but held that the counterclaim was insufficient, and thereupon overruled the demurrer. The counterclaim [32] alleges fact's which, it is claimed', demonstrate that certain conditions subsequent, essential to the validity of the judgment in the action of the monument association against ' Magoon. have been broken since that judgment was rendered, and that by reason thereof the judgment has ceased to be valid against Magoon while living, or his estate since his death. Such conditions subsequent are contained in the agreement of April 6, 1887, between the monument corporation and Magoon. While it may well be doubted whether such judgment can be attacked on that ground in this collateral action, which certainly is not the procedure indicated in the opinion in the original case, yet, inasmuch as the circuit court decided the demurrer on the merits of the counterclaim, without regard to the regularity or irregularity of the procedure, the same course will be pursued here. It will be assumed that the defendants, who are sureties for the payment of such judgment, may attack its present validity and binding force in the same manner and to the same extent that Magoon when living, or his representatives since his decease, might have done. The question is, therefore, Was it competent-for the monument corporation, without the consent of the county, to impose upon itself conditions subsequent, a breach of which would relieve Magoon from the obligation of his agreement with the county, or rather from liability on the judgment recovered against him' on such agreement before such breaches occurred? The proposition of January 8, 1885, made by Magoon to the board of supervisors of La Fayette county, and accepted by the board, constituted a valid contract between Magoon and the county. It contained conditions precedent to be performed by the county, which were afterwards performed by it in every particular. It may be that before such performance Magoon might have disaffirmed the contract, but he did not do so, and the performance of the [33] conditions by the county constituted a valid,' executed consideration for Magoon’s promise therein contained to pay the $1,000 to the corporation. The county has never consented that any other conditions might be inserted in the contract. TJnder this contract the monument corporation became the trustee of the parties thereto to receive the money which each should pay to aid in the erection of the monument, and to erect the same. The power of the trustee to locate 'the monument, and to determine the plans and specifications thereof, and the time and manner of its erection, may fairly be implied-. But the parties did npt confer upon it, either expressly or by reasonable implication, authority to create conditions subsequent, without the consent of the county, to be performed by the trustee, a breach of which would relieve Magoon from the obligation of his contract with the county, or from liability upon the judgment recovered against hirp. for nonperformance thereof. Magoon was a subscriber to the monument fund in the sum' of $1,000, which he was legally liable to pay, and Avhich the county had the right to insist he should pay. The directors or managers of the monument corporation had no general power, without the consent of the county, to release him from the payment of his subscription, or to make any arrangement with him by which the benefits of his subscription would be lost. This- is a well-settled limitation on the general powers of directors of'stock corporations, enforced as well for the protection of the stockholders who have paid their subscriptions on the faith of the subscriptions of others, as upon considerations of public policy. Ang. & A. Corp. sec. 523; Boone, Corp. § 141; Beach, Priv. Corp. § 229. The principle upon which such limitation rests is peculiarly applicable here. It must be held, therefore, that the agreement of April 6, 1887, is ultra vires, and that the alleged breaches thereof do not invalidate or affect the judgment against Magoon [34] wbicb the defendants, by their undertaking, became liable to pay. It follows that the counterclaim is insufficient, and that the demurrer to the repiy thereto was properly overruled for that reason, if for no other. The foregoing views are decisive of the case, and render • it unnecessary to consider other points raised and argued by counsel. By the Court.— The order overruling the demurrer is affirmed.