The Tell City Furniture Co. v. Nees.

plaintiff as a member and stockholder of said corporation, under said articles of association, in and about the business of the defendant; that the treasurer of the defendant, from time to time, pays to its employees and laborers their wages, most of whom are members and stockholders of said corporation, such sums of money as may be in the treasury of defendant, paying to each employee his pro rata part of all the moneys in the treasury; that, owing to the pressure of the times, there is not now, nor was there at the commencement of this action, nor for a long time before, any money in the treasury of the defendant to pay plaintiff or the other stockholders and members his and their claims for wages, and for that reason alone the treasurer has for some months failed to pay this plaintiff and the other members, though said corporation is solvent and able to pay all its indebtedness; that the money to pay said wages must be obtained and received from the sale of furniture manufactured by the company, that being its exclusive business; that the corporation has now, and for eight months past has had, a large amount of first class furniture in store, and is still manufacturing large amounts, and is now, and has been for many months, making every effort to sell said furniture in different parts of the country; that defendant has a trade for the sale of furniture of its manufacture in all the States bordering on the Ohio and Mississippi rivers, from Tell City, Indiana, to New Orleans, Louisiana, extending into the State of Texas, and various other parts, and will be able, with the revival of business in the Southern States, to sell sufficient furniture now manufactured to pay off all its debts; that the plaintiff is unpaid for the reason expressed in said 7th section of the articles of association, that the "treasury would not allow it," which said section is still in full force and effect, and was signed by all the stockholders, being eighteen in number, including the plaintiff.

The Tell City Furniture Co. v. Nees.

Wherefore defendant says, it is not now liable to pay said claim for wages, and therefore prays judgment for costs, and all proper relief."

COPY OF THE SEVENTH SECTION OF THE ARTICLES OF Asso

CIATION.

"Section 7. Every member shall receive his wages in cash, if demanded, and the treasury will allow it. If a member has a balance of one hundred dollars, he shall receive six per cent. interest for the same, from date.” (Signed),

"And thirteen others.”

"JOHN A. HARRER,

"HENRI AHLF,

"PHILIP GRIMMERSIN,

"ERNEST NEES,

"CHARLES REICH,

Demurrer to this paragraph of answer, for want of facts, was sustained, and exception taken.

The defendant refused to answer further, and the court, having heard the proof adduced by the plaintiff, rendered judgment in his favor, for the amount of the account sued upon, and costs.

The defendant appealed to this court, and assigned for error the sustaining of the demurrer of the appellee to the appellant's answer.

Parties who voluntarily form themselves into business corporations, under statutes, may bind themselves by reasonable provisions in their articles of association or bylaws, the statutes not prohibiting it. Field Corporations, sec. 294.

They must not be in violation of the constitution and laws of the State, nor of the particular law under which the association is organized. The provision in the articles of organization of the appellant, that "Every member shall receive his wages in cash, if demanded, and the treasury

The Tell City Furniture Co. v. Nees.

will allow it," and that, when the balance due a member is one hundred dollars, he shall receive six per cent. interest thereon, is not in violation of the common law, as to the power to make contracts. Contracts between individuals, to pay when a party is able, are valid. 1 Daniel Negotiable Instruments, 34; Nunez v. Dautel, 19 Wal. 560; Veasey v. Recres, 6 Ind. 406; Cox v. Wallace, 5 Blackf. 199; Barnett v. Bullett, 11 Ind. 310.

The above cases differ somewhat, in their facts, from that at bar. In it, payment is to be made upon the existence of two specified facts, viz., cash in the treasury of the corporation, applicable to the payment of the claim of a member, and a demand, by the member, of payment out of such cash to him, on a just claim against the corpora

tion.

We have an authority much in point in the case before us. In Toram v. The Howard, etc., Association, 4 Pa. State, 519, it is decided, as applicable to that case, which is identical in principle with the one in judgment, that:

"The corporation is bound by the fundamental articles, to pay only when it is in funds; and it has determined that it is not. As the plaintiff, in becoming a corporator, assented to its acts prospectively to be done, according to the charter of its constitution, he is concluded by the decision of his own forum."

As, in the present case, no decision of any corporate forum appears, we hold that it may be shown, on the trial of this cause, that the condition of the treasury would have allowed cash payment of the claim sued on, the question being raised by issue. Counsel for the appellee do not insist that the provision in question, in the charter, is void, but they insist that the allegations of the answer do not show that the plaintiff's claim is embraced by it. We think they do; and, such being the fact, the answer also shows conditions precedent to the plaintiff's right to

Wagner v. The State.

recover, which have not been fulfilled. The Board, etc., v. Mason, 9 Ind. 97.

It shows that the plaintiff performed the work, to recover for which he sues, under a provision of the charter, as we may call it, amounting to a contract, as to compensation for it, that he was only to be paid in cash on special demand therefor, and when the treasury of the corporation was in cash funds wherewith to pay. When it was not in cash funds, he would necessarily give credit to the corporation, receiving interest on his dues according to the articles of organization, or take his pay in manufactured or other specific articles. It could only be known to the corporation that the plaintiff wished for cash by a demand.

It is objected to the answer, that it contained matter in abatement, and was not sworn to. It was objected to only by a demurrer for want of facts.

Judgment reversed, with costs, and the cause remanded for further proceedings, in accordance with this opinion.

WAGNER . THE STATE.

CRIMINAL LAW.-Practice.-New Trial.-Assignment of Error.—Supreme Court.-Instructions.-Evidence.-Error in giving or refusing instructions to the jury, or in admitting or excluding evidence, is cause for a new trial, but can not be properly assigned as error on appeal to the Supreme Court.

SAME.—Betting on Election.—Indictment.-An indictment, charging the defendant with losing money by betting on an election, which alleges the purchase, by the defendant, of a chattel, at its alleged value, to be paid for, at that price, only in the event of the election of a candidate named, to a particular office, at a certain election, is insufficient

From the Jennings Circuit Court.

Wagner v. The State.

T. C. Batchelor, for appellant.

T. W. Woollen, Attorney General, for the State. Howк, C. J.-The indictment in this case charged, in substance, that the appellant, on the 10th day of October, 1876, at Jennings county, Indiana, "did then and there unlawfully lose to John B. Reiley ten dollars, of the value of ten dollars, by then and there unlawfully betting and wagering one gold finger-ring with the said John B. Reiley, of the value of ten dollars, as follows, to wit: The said Elmer Wagner then and there bought of the said John B. Reiley one gold finger-ring, of the value of ten dollars, to be paid for at that price, when James D. Williams should be elected Governor of the State of Indiana, otherwise not to be paid for at all, which finger-ring was then and there delivered to the said Elmer Wagner; the said event to be determined by the result of an election held on the 10th day of October, A. D. 1876, in the said State of Indiana, for the election of a Governor for said State, and for which office the said James D. Williams was then and there a candidate."

The appellant moved the court to quash the indictment, which motion was overruled, and to this ruling he excepted. He waived an arraignment and, for plea to the indictment said that he was not guilty as therein charged. The issues joined were tried by a jury, and a verdict was returned, finding the appellant guilty as charged, and assessing his fine in the sum of ten dollars. The appellant's written motion for a new trial was overruled, and to this ruling he excepted; and his motion in arrest of judgment having been overruled, and his exception saved to this ruling, judgment was rendered on the verdict.

In this court, the appellant has assigned, as errors, the following decisions of the circuit court:

1. In overruling his motion to quash the indictment; 2. In giving the jury certain specified instructions: