Davis & Rankin Bldg. & Manuf'g Co. v. Hillsboro Creamery Co.

• Decision Date: 18 May 1894
• Parties: DAVIS & RANKIN BLDG. & MANUF'G CO. v. HILLSBORO CREAMERY CO.
• Court: Indiana Appellate Court

10 Ind.App. 42

37 N.E. 549

DAVIS & RANKIN BLDG. & MANUF'G CO.

v.HILLSBORO CREAMERY CO.

Appellate Court of Indiana.

May 18, 1894.

Appeal from circuit court, Fountain county; J. M. Rabb, Judge.

Action by Davis & Rankin Building & Manufacturing Company against the Hillsboro Creamery Company on a contract. From a judgment for defendant, plaintiff appeals. Affirmed.

McCabe & Bingham, for appellant. Nebeker & Simms, for appellee.

LOTZ, J.

It is averred in the complaint that Daniel P. Heffner and 48 other persons were the promoters of a corporation for the manufacture of cheese and butter; that, on the 11th day of August, 1891, Davis & Rankin (a copartnership) and said promoters entered into a contract in writing in which it was agreed that Davis & Rankin, as parties of the first part, should build, complete, and equip for said promoters, as parties of the second part, a “combined butter and cheese factory,” to be located near Hillsboro, Fountain county, Ind. Said written agreement contains the following stipulations: “Said Davis and Rankin agree to erect said butter and cheese factory as set forth in the above specifications for $5,000, payable when factory is completed,-one-half, cash; balance, one-half, 90 days, good notes, 6 per cent. interest. We, the subscribers hereto, agree to pay the above amount for said butter and cheese factory when completed. Said building to be completed within 90 days, or thereabouts, after the above amount of $5,000 is subscribed. Any portion of the amount subscribed not paid according to the contract shall bear legal rate of interest. As soon as the above amount of $5,000 is subscribed, or in a reasonable time thereafter, the subscribers agree to incorporate under the laws of the state as therein provided, fixing the aggregate amount of stock not less than $5,000, to be divided into shares of $100 each. Said share or shares, as above stated, to be issued to the subscribers hereto in proportion to their paid-up interests herein, and it is herein agreed that each stockholder shall be liable only for the amount subscribed by him.” A copy of this agreement is made an exhibit to the complaint, from which it appears that the promoters each signed the article separately, with number of shares and amount of stock subscribed by him set opposite his name. It is further averred that afterwards, on the 17th day of August, 1891, said promoters duly and legally organized a corporation known as the Hillsboro Creamery Company; that thereupon said corporation immediately ratified and approved the action of said promoters in making said contract in behalf of said corporation by selecting an executive committee to act for and on behalf of said corporation, giving it full power to select the site of said factory, and to examine and inspect said factory when completed; that said committee did select the site of said factory, and that said Davis & Rankin did erect, construct, and equip said factory on the site selected by said committee, and that, when said factory was completed, said committee, on behalf of said corporation, did accept the same from said Davis & Rankin, and that said corporation has ever since owned and operated said factory; that said Davis & Rankin fully complied with all the conditions of said contract resting upon them; that said contract was subsequently assigned to the plaintiff, and that there is a balance due on said contract in the sum of $600. This action was brought against the Hillsboro Creamery Company and the subscribers to said contract. The Hillsboro Creamery Company demurred separately for want of facts. This demurrer was sustained, and, the plaintiff electing to stand by its complaint, final judgment was rendered in favor of said defendant. This ruling is assigned as error in this...