Graham & Buckingham v. Firemen's Ins. Co.

claimed by the plaintiffs' counsel, that when an insurance is made in the name of A. B., loss, if any, payable to the

owner," or "to whom it may concern," it may be averred and proven, that the insurance was effected for some other than A. B.

Such proof is not necessarily inconsistent with the policy, for the phrase, "loss, payable to the owner," or "whom it may concern," implies that A. B. may not be concerned as an owner; and if not owner, the parties must be presumed to have had in contemplation some other person. Not so, however, where the policy expressly contains the name of the party insured, without any indication of other ownership. The phrase, "loss, payable to A. B." (being a person other than the party named), does not purport to make him a party to the contract, nor to give him an interest therein, (except to secure the money), after it is broken. It clearly does not authorize him to release the obligation before a breach has occurred, nor to forfeit its benefits by any act of his. To aver such an interest, is to deny the interest of the party whom the policy professes to insure, and thereby contradicts its express provision.

If the averments contained in the petition be true, then either a mistake or fraud has been committed by the defendants, in not causing the indorsement to be made on the policy, in such form as to cause the insurance to be expressed to be for the benefit of the plaintiffs, and the plaintiffs, upon showing such mistake or fraud, will be entitled to have the agreement reformed, and properly enforced. But such is not the scope of the petition, nor the object of the suit. It is to enforce a written contract—not according to its terms, but according to a parol understanding of it, had between the parties at the time of entering into it a thing which is wholly forbidden by the rules of law. The demurrer, therefore, must be sustained.

If the plaintiffs desire to amend, with a view to reform the contract, an amendment will be allowed. Otherwise, judgment for defendants will be rendered.

Elisha Hathaway v. Henry Lewis, Adm'r, etc.

The plaintiffs having declined to amend, with the view to reform the policy, judgment was accordingly entered for the defendants.

Demurrer overruled, and judgment for defendants.

ELISHA HATHAWAY v. HENRY LEWIS, Adm'r, etc.

(No. 9,091.)

1. An action of foreclosure and for the sale of mortgaged premises can be maintained, in case of the death of the mortgagor, before the expiration of the period limited by the 98th section of the act to provide for the settlement of the estates of deceased persons.

2. In some cases the remedy for the debt may be lost or suspended, and yet the right to proceed on a security given for the debt will not be affected.

SPECIAL TERM.-On demurrer to petition.

This is an action brought for a foreclosure and the sale of mortgaged premises, the mortgagor having deceased. The administrator and heirs are the parties defendant. A demurrer has been filed to the petition by the administrator.

Mills & Hoadly for plaintiff.

Flamen Ball for defendants.

GHOLSON, J. Several grounds have been assigned, but all really depend on the same question-whether the action can be maintained until the period limited by the 98th section of the act "to provide for the settlement of the estates of deceased persons" has expired. This is a question of construction, depending upon the consideration whether it was the intention of the legislature to suspend, not only the remedy for the debt, but the remedy upon any security which may have been given by the debtor.

I think it can not be questioned, that in some cases the

Jos. A. James v. Cin., Ham. & Dayton R. R. Co. et al.

remedy for the debt may be lost or suspended, and yet the right to proceed on a security given for the debt will not be affected. Cases of this kind are found in our reports. 4 0. S. 197. Hollister v. Dillon.

It does not, therefore, follow, as claimed by counsel, that it is a necessary consequence of the suspension of a remedy by action on the debt, that the right to proceed, as it were in rem, to subject the thing pledged for the payment of the debt, has been disturbed. This conclusion is strengthened by an expression in the statute, that it is not applicable when the demand is one which would not be affected by the insolvency of the estate. Such is the case of a mortgage security. In the present case no personal judgment is asked, and I am unable to see anything to prevent a proceeding to enforce the specific lien which the creditor has secured.

It is said that a judgment creditor would not be allowed. to proceed; but the lien of a judgment is general, not specific; it arises from the operation of law, and not by the contract or deed of the party, and the same principle does not apply. The demurrer, therefore, will be overruled. Demurrer overruled.

Jos. A. JAMES v. CIN., HAM. & DAYTON R. R. Co. ET AL.

(No. 6,857.)

1. Where subscriptions to stock are made, to be paid in installments, and certificates of stock are to be issued for the several installments, a readiness and willingness to issue the certificates, at the time payment is to be made, is all that can be required.

2. In an action to recover money agreed to be paid for the stock, an averment of a readiness and willingness to issue and deliver the certificates of stock is necessary. The right to enforce payment is not distinct and independent from the ability to issue and deliver the stock. If the subscriber can not get the stock, the payment of money can not be enforced. The acts to be done must be regarded as cotemporaneous.

3. When a party, having the ability to perform an executory contract, on

Jos. A. James v. Cin., Ham. & Dayton R. R. Co. et al.

his part, assigns his interest in such contract, he must be considered as equitably bound to perform it, so as to give the benefit of it to the assignee. He can not be permitted to say he is not ready. If, on the day fixed for performance, he had the ability, he must be considered, so far as the assignee is concerned, as having the willingness.

4. The assignment of a contract, and notice of that assignment, creates no additional burden, nor does it impose any additional duty of active diligence upon the contractor. If the subject-matter of the contract be left within the power and under the control of the assignor, the risk of its being impaired or destroyed, so as to defeat the performance, is assumed by the assignee. There is no principle by which it would be thrown on the other party.

5. Where a foreign law is in dispute, whether there be such a law is a matter of fact for averment and proof. When it is shown in evidence, its construction and effect is for the court.

6. It has been said that the powers of a corporation are only such as the law of its creation gives; but this leads to another question: what powers does its charter, or act of creation, fairly and properly construed, give? It is in such case, a question of construction.

7. Powers conferred upon corporations are of two descriptions; some are general, others special and limited. Some have reference to the mode in which acts are to be done, and are merely directory; others are in the nature of a limitation of power or a condition precedent. Third persons, acting in good faith, are not usually to be affected by an excess or violation of the former, on the part of the company; but of the latter they are. The act itself must be regarded as illegal, and knowledge is presumed.

8. When the organization of a railroad company takes place, which organization is usually formed by the instrumentality of commissioners appointed for that purpose, the authority of the commissioners ceases; and, in the absence of any special provisions to the contrary, all power as to any further subscriptions to the capital stock vest in the corporate body. Its dealing with third persons, as to its stock, must stand upon the footing of ordinary contracts.

9. If the article which the party agrees to supply has a certain and known character, that party has no right to change or alter its character, and still expect it to be received in fulfillment of the contract, unless the change be within the contemplation of the parties. If the acts of one of the parties, after the making of a contract, have so injuriously affected the subject-matter of the contract as to destroy the benefits expected from it by the other party, this would be a defense.

SPECIAL TERM.-On demurrer to answer.

This was an action brought upon an agreement of the Cincinnati, Hamilton & Dayton Railroad Co., to subscribe

Jos. A. James v. Cin., Ham, & Dayton R. R. Co. et al.

to the stock of the Cincinnati, Logansport & Chicago Railway Co. The action is brought by the plaintiff to enforce an assignment, in trust of the money due on the subscription, made by the Cincinnati, Logansport & Chicago Railway Co. The object of the action is to compel a specific execution of the agreement, and thereby relieve the plaintiff from liabilities assumed on the faith of the security given by the assignment. The trustee to whom the assignment was made, it is alleged, refuses to take any steps to carry out the agreement. The petition, therefore, brings all the parties before the court, and asks to have the agreement enforced by a payment of the subscription, and the application of the money to the relief of the plaintiff and of others in a like position; and there is also a prayer for general relief.

To the petition the Cincinnati, Hamilton & Dayton Railroad Co. filed an answer, setting up seven several grounds of defense. To all and each of these there is a demurrer by the plaintiff, on the ground that they do not constitute any defense to the action.

Ferguson & Long for plaintiff.

Worthington & Matthews for defendants.

GHOLSON, J. The questions involved by the demurrer to the grounds of defense are, some of them, of a technical character, and do not affect the merits of the controversy between the parties. I will first dispose of the questions of this character, and then consider those which appear to be connected with the merits.

The first ground of defense is an allegation that none of the shares of the capital stock of the Cincinnati, Logansport & Chicago Railway Co., alleged to have been subscribed, have ever been delivered or tendered to the defendant. Upon looking at the agreement, it clearly appears that an actual delivery or tender of the shares of stock is not a condition precedent to a demand of the subscription. The amount subscribed