Adams, J.
l. pleading: statcment.1;fle prejudice. I. The agreement set up in the first part of the said paragraph would, if proven, establish no right or liahility different from that established by the arfieles of incorporation and the subscription. It seems to us, therefore, that the averment in relation to such agreement might have been stricken out as surplusage. If so it cannot be said that the plaintiff was prejudiced by the overruling of the motion that the defendant be required to state specifically whether the agreement was in writing or oral.
_._. corporation. II. As to the alleged agreement that the money expended for the company by defendant should be applied in payment of defendant’s assessments, we think that the defenciant was properly called upon to show whether the agreement was in writing or not. The fact of such agreement was a material one. The expenditure of money for the company would not operate as a payment, unless there was an agreement that it should. The averment of the agreement, therefore, tendered a material issue distinct from the averment of the expenditure, and we think that the plaintiff had a right to know in advance whether he was called upon to defend against a written or oral agreement. This seems to us to be more especially so, as the agreement is alleged to have [210]*210been made with a corporation, wbicb can contract only by its lawfully authorized agents, and in the manner allowed by the articles of incorporation.
3__.__. • III. We are of the opinion, too, that the defendant should have been required to set out the dates and amounts of the money expended. He avers that this was done “from time to time, as was necessary in carrying on the affairs of the company.” We can conceive that a proper itemized statement of the expenditures might be highly necessary to the proper preparation and trial oí' the case. The judgment of the District Court is therefore
Reversed.
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