North v. Irvin Turnpike Road

6 Ky. Op. 307, 1873 Ky. LEXIS 124

• Court: Court of Appeals of Kentucky
• Decided: January 13, 1873
• Status: Published

Opinions

Opinion by

Judge Peters :

Appellant, by subscribing his name either by himself or agent, to the paper filed, and designated as the subscription, with the amount opposite his name that he would pay, undertook to pay said sum of money to aid in building a turnpike road from .the particular point designated in said writing to another designated point. At the time there was no incorporated company to build the road, but the subscribers, as they state in the writing, had expected to get a charter from the next Legislature, and the road when chartered was to be called the Big Irvin & Brocke Road.

A company was incorporated by the county court of Owen County under Chap. 103 of the R. S., pp. 440-9, 2 Vol., by the name and style of the “Irvin Turnpike Road,” and by that name the company was organized under the charter granted by the county court aforesaid, elected a president and directors, located its road over the lands, and from and to' the points designated in the subscription, let the building of it to the lowest bidders. Calls were made on the subscribers for the stock subscribed by each upon proper and legal notice, and it is alleged and not denied that appellant paid the first call of his subscription. This action was brought for the second call on his subscription, for which a verdict and judgment were rendered against him, and he had appealed.

After a demurrer to the petition had been overruled the appellant filed an answer containing five paragraphs, alleging in the first that at the commencement of this action there was not, nor was there when the answer was filed, any such corporation as the Irvin Turnpike Road; nor the president, directors and company of the Irvin Turnpike Road named as plaintiffs. That the Irvin Turnpike Road named as plaintiff in this action has never been incorporated according to law, and the pretended charter said to have been granted by the Owen County Court is null and void, and the said court had‘no authority to grant the same.

The third paragraph is a plea of non est factum. In this paragraph áppellant merely denies that the charter granted by the Owen County Court is in accordance with the terms,of the subscription. And in the last paragraph he says he never subscribed any stock to the Irvin Turnpike Road, and never authorized any one to subscribe the same for him.

The first and second paragraphs of the answer are attempts to deny the existence of the plaintiff as a corporation, but from the first it is uncertain whether the pleader intended to allege that there never was such a corporation as the one s,et forth in the petition or whether he intended to allege that the corporation had ceased to exist. It was therefore insufficient for uncertainty. It fails to allege that there never was such corporation as the plaintiff, and if its existence had terminated the facts which produced that termination should have been alleged.

The second paragraph was insufficient because it failed to. state the facts from which it would appear that the charter granted by the Owen County Court was void. The whole paragraph is a mere deduction from facts which may exist, but which the pleader failed to state so as to enable the court to determine whether they authorized his deductions.

The third paragraph is a plea of non est factum, forming an issue which was tried by the jury, and their verdict is fully sustained by the evidence. The validity of the charter did not depend upon the question whether it accorded with some one agreement or an agreement or subscription. That paragraph, as must be apparent, was defective because it failed to state facts showing how it differed from the agreement, or subscription, and how appellant was prejudiced thereby.

As to the fifth paragraph, it is sufficient to say that it is alleged in the petition that appellant paid the first call on his subscription, thereby fully recognizing his subscription of stock to appellee, which allegation he does not deny, and instruction No. 3, as asked by appellant, was properly refused, and the other two instructions asked by appellant presented mere abstract propositions not raised by the pleadings, and were properly refused, and no objection - is perceived to the instruction given by the court.

April 25, 1873. Drane, for appellant. Craddock, for appellee.

The judgment must be affirmed.