Wright v. Floyd

• Decision Date: 14 January 1909
• Docket Number: No. 6,242.,6,242.
• Citation: 86 N.E. 971,43 Ind.App. 546
• Parties: WRIGHT et al. v. FLOYD et al.
• Court: Indiana Appellate Court

43 Ind.App. 546

86 N.E. 971

WRIGHT et al.

v.FLOYD et al.

No. 6,242.

Appellate Court of Indiana, Division No. 1.

Jan. 14, 1909.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Milton Wright and others against Halleck W. Floyd and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

M. L. Spencer, W. A. Branyan, and C. W. Watkins, for appellants. S. M. Sayler and Lesh & Lesh, for appellees.

HADLEY, J.

Appellants sued appellees to set aside a judgment against the United Brethren Publishing Establishment, a corporation, and in favor of the Local EndowmentBoard for Central Church of the United Brethren in Christ of Rohrersville, Md., which, it is averred, was based upon a fraudulent claim and a fraudulent confession of judgment, all to the knowledge of all of the parties interested. It is averred: “That appellants, together with appellees Floyd, Barnaby, Tharp, and Montgomery, constitute the board of trustees of the appellee, the United Brethren Publishing Establishment, and have the management of its affairs; that said above-named appellees constitute the majority of the board of trustees of said corporation, and over the protests of appellants did and performed the acts complained of, and appellants bring said action for the use and benefit of said publishing establishment. It is nowhere averred that appellants are members either of the corporation or of the church, for whose benefit the printing establishment was operated, or that they have any interest whatever in the controversy either as shareholder, stockholder, member, or beneficiary. Moreover, it is apparent from the averments of the complaint that appellants seek to bring the action as minority trustees and in their trust capacity for the benefit of the corporation.

The question we are called upon to decide is whether they thereby show sufficient interest to prosecute this suit. It cannot be said that the corporation is prosecuting the suit, since the corporation only acts by a majority of its board of trustees, or at least a majority of a quorum present. Price v. Railroad Co., 13 Ind. 58; Cook on Corp. § 712. And it is well settled that one or more members and less than such majority of a board cannot bind the corporation to any action. Cook on Corp., supra; Noblesville, etc., Co. v. Loehr, 124 Ind. 79, 24 N. E. 579;Allemong et al. v. Simmons et al., 124 Ind. 199, 23 N. E. 768. In Cook on Corporations, supra, the learned author says: “All contracts of a corporation are to be made by or under the direction of its board of directors. The board of directors make corporate contracts by a regular vote of the board. *** The board of directors have the widest of powers. All of the various acts and contracts which a corporation may enter into are entered into by and through the board of directors. The board of directors make or authorize the making of the notes, bills, mortgages, sales, deeds, liens, and contracts generally of the corporation. They appoint the agents, direct the business, and govern the policy and plans of the corporation. *** They institute, prosecute, compromise, or appeal suits at law and in equity which the corporation brings or has...