Rankin v. Dexter Butter & Cheese Co.

• Decision Date: 09 February 1894
• Citation: 52 Kan. 693,35 P. 776
• Court: Kansas Supreme Court
• Parties: DAVIS & RANKIN v. THE DEXTER BUTTER AND CHEESE COMPANY

35 P. 776

52 Kan. 693

DAVIS & RANKIN v. THE DEXTER BUTTER AND CHEESE COMPANY

Supreme Court of Kansas

February 9, 1894

Error from Cowley District Court.

THIS action was commenced by Davis & Rankin against the Dexter Butter and Cheese Company, on the 19th of October, 1889, to recover $ 1,553.09, being the balance due for constructing and completing a cheese factory at Dexter, in Cowley county. The plaintiffs entered into a written agreement with a number of persons to furnish everything, including grounds, and equip with all necessary machinery and fixtures a butter and cheese factory, to be located at Dexter in this state, for which they were to receive $ 7,000. By the terms of the agreement, the work was to commence as soon as the $ 7,000 was subscribed, and to be completed within 90 days thereafter. The subscribers agreed to pay their several subscriptions when the factory was completed and accepted. They also agreed that, as soon as the amount of $ 7,000 was subscribed, or in a reasonable time thereafter, they would incorporate under the laws of the state, fixing the capital stock at not less than $ 7,000, to be divided into shares of $ 100 each. The agreement also contained this stipulation "Davis & Rankin agree to hold each subscriber for the amount he subscribed, and no more." The plaintiffs received the sum of $ 5,446.91, and there remains due and unpaid the sum of $ 1,553.09. The plaintiffs, in their amended petition, after setting out the agreement and referring to a copy of the same as exhibit "A," alleged:

"That said butter and cheese factory was, by them, duly completed within the said 90 days from the time said corporation was organized and said subscription was complete; and that pursuant to said agreement said subscribers and promoters duly incorporated, which said corporation was and is known as the Dexter Butter and Cheese Company; and that said butter and cheese factory was duly accepted by the subscribers and by the defendant, after the same was completed and after said corporation had been organized pursuant to said agreement."

They also alleged:

"That said corporation, after having accepted said butter and cheese factory as aforesaid, took possession of the same and assumed control thereof, and has ever since had possession and control thereof, and has owned and still owns said butter and cheese factory, and has operated it and has received the benefits thereof ever since it accepted the same; that said corporation defendant adopted said agreement made by plaintiffs and subscribers and promoters, and has enjoyed and received all of the benefits growing out of the same, and agreed to assume and pay the amounts due plaintiffs on...