York Park Bldg. Ass'n v. Barnes

• Decision Date: 21 March 1894
• Citation: 39 Neb. 834,58 N.W. 440
• Parties: YORK PARK BLDG. ASS'N v. BARNES.
• Court: Nebraska Supreme Court

39 Neb. 834

58 N.W. 440

YORK PARK BLDG. ASS'N

v.BARNES.

Supreme Court of Nebraska.

March 21, 1894.

Syllabus by the Court.

1. It is the duty of a trial judge to instruct the jury upon the law of the case, whether requested by counsel to do so or not; and where the judge has failed to instruct the jury, and it is apparent from the record that the jury probably took a wrong view of the law, a new trial will be awarded.

2. A corporation which has for its object the purchase of land and the construction of houses thereon (the funds being realized from the capital stock paid in by subscribers in installments), and finally the allotment of the lots and houses among the stockholders in satisfaction of their stock, is one organized for the purpose of carrying on a lawful business, and authorized by the general incorporation laws.

3. In pleading a contract which need not, by common law, be in writing, but where a writing is required by a positive statute, it is not necessary to plead that the contract was written, at least where no objection is made, by motion, to the certainty of the pleading.

4. One to whom stock in a corporation is issued, who pays assessments on such stock, acts as an officer of the corporation, and takes part in its management, is estopped to deny his subscription.

5. An agreement, made between promoters of a corporation and a subscriber to its stock, that such subscriber is to have the stock for the sake of the influence of his name, and that he will not be required to pay his subscription therefor, is void, and the corporation may enforce payment of such subscription notwithstanding such agreement.

Error to district court, York county; Cochran, Judge.

Action by the York Park Building Association against J. W. Barnes to recover on a subscription for stock. Defendant had judgment, and plaintiff brings error. Reversed.Sedgwick & Power, for plaintiff in error.

George B. France, for defendant in error.

IRVINE, C.

This was an action by the plaintiff in error against the defendant in error to recover on a stock subscription. In instructing the jury the court, in the first place, stated at considerable length the issues raised by the pleadings, and submitted the pleadings to the jury with the instructions. The court next stated to the jury that the plaintiff, in order to recover, must establish the material allegations of its petition by a preponderance of evidence. Then an instruction was given as to what constituted a preponderance of evidence, and this was followed by the usual instruction submitting to the jury the credibility of witnesses and the weight to be attached to evidence. No other instructions were given. One of the assignments in the motion for a new trial and the petition in error is that the court erred in not instructing the jury as to the law of the case. In Manufacturing Co. v. Shiley, 15 Neb. 109, 17 N. W. 267, it was said: “It is undoubtedly the duty of the judge presiding at a trial to instruct the jury upon the law of the case which is to be observed by them; and, should a case arise in which it shall appear from the record that the jury has taken a wrong view of the law applicable to the case, and where the judge has failed to instruct them, whether requested by the counsel or not, this court would not hesitate to grant a new trial.” The same principle was substantially announced in C. Aultman & Co. v. Martin (Neb.) 56 N. W. 622. An entire failure to instruct the jury in regard to the law of the case is very different from an omission to instruct in regard to some particular phase of the case, or some particular question arising upon the trial. In the latter case a proper instruction upon the subject must be requested before error can be predicated upon a failure to instruct; but the law imposes upon the court the duty of stating to the jury the law applicable to the case, and an entire failure to state the law to the jury has the effect of submitting to the jury the determination, not only of facts, but of the law. In this case there was a total failure to instruct the jury upon the law of the case. This would not be prejudicially erroneous if it were apparent that the jury had come to a correct conclusion (Manufacturing Co. v. Shiley, supra); but the error is prejudicial if it is apparent that the jury has taken a wrong view of the law. We must therefore examine the record, in order to determine that question.

The petition alleges the corporate existence of the plaintiff since August 6, 1887, and the articles of incorporation and by-laws are made a part of the petition. It then alleges that on the 3d day of August, 1887, the entire amount of capital stock was subscribed; that the defendant subscribed for one share thereof, and paid upon said share the sum of $108.65. The petition then alleges that further payments to the amount of $190 are due and unpaid, and that in addition thereto,the defendant is indebted upon his share for certain fines, interest, and penalties. The answer is quite long. In effect, it denies the corporate existence of the plaintiff; denies the power of the plaintiff to make assessments or impose fines. It alleges that, at the time of the pretended incorporation of the plaintiff, its officers and stockholders represented to the defendant that they would put one share of stock in his name for the sake of his influence, and that he should not at any time be required to pay therefor; that it was represented to him that street cars should be run through the property owned by plaintiff near defendant's residence, and that commodious and beautiful residences would be built near defendant's property; and that such promises had not been fulfilled. The defendant further alleged that he had acted as president of such pretended corporation for one year, and that his services in that behalf were worth $1,000, for which he asks judgment. It was further averred that defendant had never at any time subscribed for stock of the plaintiff, but simply permitted, under the circumstances stated, stock to be...