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owner of the land, conveyed the same to the Fort Wayne and Southern Railroad Company, by deed, duly executed and delivered.

This conveyance was made on account of a stock subscription. Afterward, in November, 1855, the railroad company, for a valuable consideration, conveyed the premises to the defendant.

The Fort Wayne and Southern Railroad Company was chartered by act of the legislature, passed in 1849; and it appears that the corporators named in the act in question met in the town of Bluffton, in said county of Wells, on the 19th day of November, 1851, and then and there accepted the act of incorporation, and organized the company pursuant to the provisions of said act.

If the corporation was not created before the 1st of November, 1851, when the new constitution took effect, it could have no existence at all, as that instrument prohibits the creation of corporations other than banking, by special act. The State v. Dawson, 16 Ind. 40. Harriman v. Southam, 16 Ind. 190.

The plaintiff claims that, inasmuch as there was no acceptance of the charter, or organization under it, until after the adoption of the constitution of 1851, there was no such corporation as The Fort Wayne and Southern Railroad Company at the time he executed the conveyance, and, hence, that no title passed from him. But is he in a condition to dispute the existence of the corporation at the time he made his conveyance to it?

It has been held, in numerous cases in this state, that a party who has contracted with a corporation, as such, is, as a general proposition, estopped by his contract to dispute the existence of the corporation at the time of the contract. The following cases may be cited, though there are, perhaps, others reported and some not reported as yet: Judah v. The American Live Stock Insurance Company, 4 Ind. 333; The Brookville and Greensburg Turnpike Company v. McCarty, 8 Ind. 392; Ensey v. The Cleveland and St. Louis Railroad Company, 10 Ind. 178; Fort Wayne and Bluffton Turnpike Company v. Deam, 10 Ind. 563; Jones v. The Cincinnati Type Foundry Company, 14 Ind. 89; Hubbard v. Chappell, 14 Ind. 601; The Evansville, etc., Railroad Company v. The City of Evansville, 15 Ind. 395; Meikel v. The German Savings Fund Society, 16 Ind. 181; Heaston v. The Cincinnati and Fort Wayne Railroad Company, 16 Ind. 275.

The doctrine is by no means confined to the state, but prevails elsewhere. The Dutchess Cotton Manufactory v. Davis, 14 Johns. 238; All Saints' Church v. Lovett, 1 Hall 191; Palmer v. Lawrence, 3 Sand. Sup. C. R. 161; Eaton v. Aspinwall, 6 Duer 176; Jones v. Bank of Tennessee, 8 B. Mon. 122; Worcester Medical Institution v. Harding, 11 Cush. 285; The Congregational Society v. Perry, 6 N. H. 164; People's Savings Bank, etc., v. Collins, 27 Čonn. 142; West Winsted Savings Bank v. Ford, 27 Conn. 282; Angell and Ames on Corp., § 94.

The estoppel arises upon matter of fact only, and not upon matter of law. Hence, if there be no law which authorized the supposed

corporation, or if the statute authorizing it be unconstitutional and void, the contract does not estop the party making it to dispute the existence of the corporation. But if, on the other hand, there be a law which authorized the corporation, then, whether the corporators have complied with it, so as to become duly incorporated, is a question of fact, and the party making the contract is estopped to dispute the organization or the legal existence of the corporation. This proposition is substantially stated in the cases of Jones v. The Cincinnati Type Foundry Company, Meikel v. The German Savings Fund Society, and Heaston v. The Cincinnati and Fort Wayne Railroad Company, supra.

Let us apply the doctrine to the case before us. The corporators named in the act to establish the Fort Wayne and Southern Railroad Company had a right, at any time before the offer of the franchises was withdrawn, that is, before the constitution of 1851 was adopted, to accept the charter, and organize under it. If they did so accept the charter, and organize, the corporation was legitimately created, and the new constitution did not destroy it.

Whether they did so accept the charter, and organize, was a question of fact, and the plaintiff, by his conveyance, is estopped to deny such acceptance and organization.

That the corporators accepted the charter, and organized under it, within the time when it was competent to do so, was as fully admitted by the contract as was any other step necessary to an organization.

The conclusion necessarily follows that the plaintiff is estopped to dispute the existence of the corporation at the time of his conveyance

to it.

This point was ruled the other way in the case of Harriman v. Southam, 16 Ind. 190; but, upon more mature reflection, we are satisfied that the decision upon this point was wrong, and should be overruled.

We may remark, also, that the doctrine of estoppel was erroneously applied in the case of The Evansville, etc.,. Railroad Co. v. The City of Evansville, 15 Ind. 395. There the point made was that the law under which the corporation was organized was unconstitutional and void. A party, we have seen, does not, by his contract, estop himself to deny that there is any law, or any valid law, by which the corporation was authorized.

Some further observation, in respect to the case before us, will not be out of place. The doctrine of estoppel, as applied to the case, does not rest upon a mere technical rule of law. It has its foundation in the clearest equity, and the principles of natural justice. The doctrine of estoppel in pais is of comparatively recent growth, but is firmly and clearly established. "The recent decisions of the courts, both in this country and in England, appear to have given a much broader sweep to the doctrine of estoppel in pais than that which formerly existed, and to have established that, in all cases where an act is done, or a statement made, by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, there

the character of an estoppel will be given to what would otherwise be mere matter of evidence, and it will, therefore, become binding upon a jury, even in the presence of proof of a contrary nature." Smith Lead. Cas., p. 531, 1 Am. ed. See, also, upon this subject, Kinney v. Farnsworth, 17 Conn. 355; Middleton Bank v. Jerome, 18 Conn. 443; Laney v. Laney, 4 Ind. 149. In Doe ex dem. Richardson v. Baldwin, 1 Zabriskie, 397, it was said that "The doctrine of estoppel rests upon the principle, that when one has done an act, or made a statement, which it would be a fraud, on his part, to controvert or impair, and such act or statement has so influenced any one that it has been acted upon, the party making it will be cut off from the power of retraction. It must appear, 1. That he has done some act, or made some admission inconsistent with his claim; 2. That the other party has acted upon such conduct or admission; 3. That such party will be injured by allowing the conduct or admission to be withdrawn." Here the plaintiff, by his conveyance to the corporation, admitted that it had an existence, and could receive the title. Upon this act and admission of the plaintiff the defendant has acted in purchasing the land of the company. If the plaintiff had not conveyed to the corporation, the defendant would not have purchased from it. The law will not now permit the plaintiff to withdraw the admission made by him in conveying to the corporation and deprive the defendant of the land which he purchased on the faith of such admission. In our opinion the judgment below is right, and must be affirmed. Per Curiam.-The judgment is affirmed, with costs.

Note. See following cases, and those cited to Cochran v. Arnold, supra, p. 629.

Sec. 167.

(3) Estoppel applies only in cases where there is at least a de facto existence.

JONES v. THE ASPEN HARDWARE COMPANY.

1895. IN THE SUPREME COURT OF COLORAdo. 263-271, 52 Am. St. Rep. 220.

21 Colo. Rep.

The Aspen Hardware Company instituted this suit in the court below for the purpose of recovering a stock of goods seized by the United States marshal under a writ of attachment issued out of the circuit court of the United States at the suit of Joseph A. Thatcher, plaintiff, against one Ą. B. Eads. The only question in the case has reference to the corporate capacity of defendant in error, it not having filed, prior to the attachment levy, its certificate of incorporation with the secretary of state, as required by the statute. Session Laws of 1887, p. 406. In the district court judgment was entered in favor of the company. The statute reads as follows: "Every corporation, joint-stock company or association incorporated

by or under any general or special law of this state, or by or under any general or special law of any foreign state or kingdom, or of any state or territory of the United States beyond the limits of this state, having capital stock divided into shares, shall pay to the secretary of state for the use of the state a fee of ten dollars, in case the capital stock which said corporation, joint-stock company or association, is authorized to have, does not exceed one hundred thousand dollars; but, in case the capital stock thereof is in excess of one hundred thousand dollars, the secretary of state shall collect the further sum of ten (10) cents on each and every thousand dollars of such excess, and a like fee of ten cents on each thousand of the amount of each subsequent increase of stock. The said fee shall be due and payable upon the filing of the certificate of incorporation, articles of association or charter of said corporation, joint-stock company or association, in the office of the secretary of state; and no such corporation, joint-stock company or association shall have or exercise any corporate powers or be permitted to do business in this state until the said fee shall have been paid; and the secretary of state shall not file any certificate of incorporation, articles of association, charter or certificate of the increase of capital stock, or certify or give any certificate to any such corporation, joint-stock company or association, until said fee shall have been paid to him. But this act shall not apply to corporations not for pecuniary profit, or corporations organized for religious, educational or benevolent purposes. Section 1, Acts of 1887, p. 406.

CHIEF JUSTICE HAYT delivered the opinion of the court.

In November, A. D. 1889, Shepard & Bowles, as co-partners, were doing a general hardware business in the city of Aspen, and, during that month made a sale of their business, stock in trade, good-will, etc., to A. B. Eads, the consideration for this transfer being certain real estate and the assumption of certain indebtedness of the firm of Shepard & Bowles. Eads being unable to comply with the terms of the agreement, a new arrangement was made between the parties, and an organization known as the Aspen Hardware Company was formed by Bowles, Eads and one Kettler. The articles of incorporation provided that the affairs of the company should be managed by a board of three directors, naming Bowles, Eads and Kettler as such directors for the first year. It was the evident intention of the parties that the company should be duly and legally incorporated, and to this end they caused to be executed articles of incorporation on the 16th day of November, 1889, in due form, and immediately filed the same with the clerk and recorder of Pitkin county. For some reasons not explained by the evidence, the articles were not filed in the office of the secretary of state until after the levy of the writ of attachment hereinafter referred to, and not until the day upon which this suit in replevin was instituted, but whether before or after the commencement of this action does not clearly appear from the evidence.

After the articles were filed with the county clerk, the board of directors held a meeting, elected officers, caused capital stock to be issued, etc., Eads being present and participating in this meeting, at

which Bowles was elected president, Eads vice-president, and Kettler secretary and treasurer. Thereupon, Eads, for a valuable consideration, sold and transferred the property to the new organization, and Mr. Bowles, from that time forward, conducted the business for the Aspen Hardware Company, selling goods and purchasing new goods in the corporate name. Eads, soon after the sale, left the town of Aspen and did not return, nor personally take part in the business at that point, but continued as a director and vice-president of the company, and retained a portion of his stock, although he had sold a part of it prior to the levy of the writ of attachment.

The business was thus continued until July 31, 1890, when a suit was commenced by Thatcher, plaintiff, against A. B. Eads, and the property in question levied upon as the property of the defendant in that suit, and this action of replevin was immediately instituted to recover possession of the property, or its value.

The controversy in this case is narrowed to the single question of the capacity of defendant in error to take title to the property in controversy as a corporation at the time of the attempted transfer by Eads, it not having at that time filed its articles of incorporation with the secretary of state, or paid the fee for such a filing, as provided by the statute of 1887, p. 406.

This is the first time the effect of this statute has been before this court for consideration, although in Edwards v. D. & R. G. R. Co., 13 Colo. 59, the constitutionality of a somewhat similar act was under review. That act was attacked upon several grounds, among which was that it was void because the subject was not clearly expressed in the title, the title being "An act to provide for the formation of corporations," and it was held that this title was sufficient to cover legislation requiring a fee to be paid for filing the certificate of incorporation, under the principle that the same was germane to the general subject expressed in the title, and that legislation fixing the amount of such fee, time of payment, etc., was not obnoxious to the constitutional provision with reference to titles. The act of 1887, now under consideration, is entitled "An act to fix the fees to be collected by the secretary of state for incorporation and certain other privileges." The body of the act, however, relates entirely to the fee to be charged and collected for filing certificates of incorporation, articles of association, charters, or increase of capital stock of joint-stock companies, and in addition thereto provides that no such corporation, joint-stock company or association "shall have or exercise any corporate powers or be permitted to do any business in this state until the said fee shall have been paid." This provision is so closely allied to the general subject, which is the fixing of fees for filing certificates of incorporation, etc., that under the uniform rule of decisions in this state it must be held to be a proper matter for legislation under the title selected. Golden Canal Co. v. Bright, 8 Colo. 144; People, ex rel. Thomas, v. Goddard, 8 Colo. 432; People, ex rel. Thomas, v. Scott, Colo. 422; Dallas v. Redman, 10 Colo. 297; Edwards v. D. & R. G. R., supra; In re, Pratt, 19 Colo. 138.

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