Easun v. Buckeye Brewing Co.

• Decision Date: 21 July 1892
• Citation: 51 F. 156
• Parties: EASUN v. BUCKEYE BREWING CO. et al.
• Court: U.S. District Court — Northern District of Ohio

51 F. 156

EASUN v. BUCKEYE BREWING CO. et al.

United States Circuit Court, N.D. Ohio, Western Division.

July 21, 1892

Hurd &amp Scribner and E. W. Tollerton, for plaintiff.

R Waite and Doyle, Scott & Lewis, for defendants.

Before TAFT, Circuit Judge, and RICKS, District Judge.

RICKS District Judge.

This is an action instituted by the plaintiff to recover $250,000 damages for the failure of the defendants to comply with the provisions of a contract for the sale of the defendants' property to the plaintiff, which contract was made between the parties on the 27th day of July, 1891. By the provisions of this contract of sale, the vendor, the Buckeye Brewing Company, obligated itself to sell to the vendee certain brewing property in the city of Toledo, known as the 'Buckeye Brewing Company.' The purchaser, on his part, as a consideration for said sale, agreed to pay the vendor the sum of $860,000 whereof 'the sum of $10,000 shall be paid in cash by way of deposit; the further sum of $334,000 shall be paid in cash on or before the completion of the purchase; the further sum of $258,000 by issue to the vendors, or as they may appoint, of six per cent. debenture bonds of an English joint-stock company, proposed to be formed by the purchaser, hereinafter referred to as the 'Company,' provided the total amount of such debenture bonds shall not exceed ninety thousand pounds; and the balance of $258,000 by the allotment to the vendors of ordinary shares of the Company of that equivalent, nominal value, such shares to be deemed fully paid. ' The contract further provided that the vendor should deposit muniments of its title with the Second National Bank of Toledo, and that Dennis Coghlin and George E. Pomeroy, officers of the Buckeye Brewing Company, were to render certain services to the vendee, or its successor, after the completion of the sale. The petition avers that the defendant the Buckeye Brewing Company failed to deposit its muniments of title, and that Dennis Coghlin and George E. Pomeroy by written instruments notified the plaintiff that they would not render the service provided for in said contract to the vendee; and by reason of such breaches of contract the sale was not completed, to the damage of the plaintiff in the sum above stated. Demurrers were interposed by the defendants Coghlin, Kountz, Pomeroy, Jacobi, and William Coghlin, which it is admitted were well taken, and may therefore be sustained.

The case stands, then, upon the demurrer of the defendant the Buckeye Brewing Company to the petition. Several grounds are set forth in argument why the demurrer should be sustained; First. That the case was prematurely brought. Second. That the only allegations of performance by the plaintiff are the general allegations that 'from the aforesaid date of the execution of said agreement he has in all respects performed each and every condition of the contract on his part to be performed,' while in a later part of the petition he was prevented, as he says, from performing. Third. That the only allegations of breach of contract by the Buckeye Brewing Company are (a) that if failed to deposit the muniments of title of the brewing company with the bank, to be held to the joint order of the plaintiff and the defendant, and the only injury alleged by the plaintiff because of said failure is that thereby 'he has been, and is now, unable to ascertain whether or not the said defendant brewing company has a good and perfect title to the property;' (b) that Dennis Coghlin refuses to have any connection with the English company proposed to be organized for the management of the brewery. Fourth. That the contract sued upon, as made by the Buckeye Brewing Company, was ultra vires.

In the view which we take of this case, it is only necessary to consider the question of whether or not this contract sued upon was ultra vires.

It is well settled in Ohio that corporations have such powers, and such only, as the act creating them confers; and are confined to the exercise of those expressly granted, and such incidental powers as are necessary to carry into effect those specifically conferred. Under this construction of the statute, it was clearly settled in the case...