Proctor v. Reif. 4. "If you find that in the month of October, 1878, the defendant John Reif sold or traded to the defendant Joseph McCoid one of the horses in controversy herein; that at the time of such transaction said horse was affected with a disease called glanders; that said defendant Reif then knew that said horse was thus affected with said disease; that while said horse was thus affected with said disease said defendant McCoid sold said horse to the plaintiff; that said disease was by said horse communicated to another horse owned by plaintiff, without any fault on his part, said other horse also being described in the petition herein, and that by reason of said disease said other horse has since died or been killed, then plaintiff is entitled to recover from the defendant Reif such sum as the evidence before you shows said horse to have been worth when he thus contracted said disease." The court refused to give these instructions, to which the plaintiff excepted. The court thereupon instructed the jury as follows: 1. "In regard to the plaintiff's claim against the defendant Reif you are instructed that the evidence does not show that any sale, trade or negotiation of any kind occurred between plaintiff and said defendant Reif in relation to the horses in question, hence no recovery can be had by plaintiff against said defendant Reif. 5. "Your verdict as between plaintiff and defendant Reif will be in the following form, and you are instructed to sign and return this verdict. "We find for the defendant Reif as against the plaintiff." To the giving of these instructions the plaintiff excepted. The appellant says that the court below acted upon the theory that this is an action only for a breach of contract, and that since there was no privity of contract between the appellant and the appellee there can be no recovery by appellant against appellee. It is claimed that the instructions asked by appellant, and the evidence on which they are based, present no question of contract. It is urged that the instructions asked present the question of the extent of appellec's liability for the commission of an unlawful act, a crime against the Proctor v. Reif. laws of the state, an indictable offense under section 4056 of the Code. It may be conceded that the instructions asked present such question. But the petition of plaintiff does not tender any such issue, nor base the plaintiff's right to recover upon any such state of facts. The petition alleged that the defendants John Reif and Joseph McCoid were the owners of the horse in question, and that they sold him to the plaintiff, warranting him sound, at the same time knowing that he had the glanders. The right to recover is clearly based upon the fact of a sale of the horse by the defendant Reif to the plaintiff. It is not competent for the plaintiff to allege in his petition one cause of action and to have the jury instructed that he may recover upon another and an entirely different cause of action. By the petition the defendant was advised that he must be prepared to defend against a charge of knowingly selling a glandered horse to the plaintiff. Ile was not required to defend against a sale of such a horse to Joseph McCoid or to any other person. It is true evidence was introduced, as the bill of exceptions states, tending to prove that the defendant sold a glandered horse to McCoid. Such evidence was competent and admissible upon the issue between McCoid and the defendant Reif. It is probable that the evidence was admitted upon that issue. It was clearly inadmissible upon the issue joined between the plaintiff and the defendant Reif. The plaintiff must recover, if at all, upon his own pleadings. He cannot recover upon the issue joined between the defendants. Because the instructions asked were not pertinent to the issue, they were properly refused. Under the issue joined, the instructions given were proper. II. The appellee filed an amended abstract setting forth a part of the evidence on the part of the defendant. The plaintiff filed a motion that no costs be taxed for this amended abstract. This motion was submitted with the case. No question is made as to the sufficiency of the evidence. The only question submitted pertains to the instructions given and refused. It is necessary to set forth only so much of the evidence as shows the pertinency of the instructions to the Larson v. Dayton. case; the abstract of the appellant does this. The amended abstract was unnecessary, and no costs will be taxed therefor. AFFIRMED. LARSON ET AL. V. DAYTON ET AL. 1. Corporation: STOCKHOLDERS: PERSONAL LIABILITY. Facts considered and held not to establish a personal liability on the part of certain stockholders in a corporation, to indemnily other stockholders for the signing of certain notes as surety for the corporation. Appeal from Allamakee District Court. WEDNESDAY, DECEMBER 10. It is averred in the petition that on the 21st day of January, 1865, the Village Creek Wool Manufacturing Company was duly organized under the laws of this State, and that the plaintiffs and defendants were stockholders of said corporation; that said corporation issued forty shares of stock of $500 each; that on the 25th day of February, 1867, said corporation, by its president, II. O. Dayton, executed and delivered to Edward Brownell its promissory note for $400, payable in twelve months, and at the request of the stockholders the plaintiff Ole Larson became surety thereon, and was obliged to pay thereon the sum of $378; that at the date of the execution of said note the defendants were stockholders of said corporation. It is further averred that other notes of said corporation, to other parties, were signed by other of the plaintiffs as sureties, and that such signatures were made at the request of the stockholders, and that plaintiffs have been compelled to pay off and discharge said notes. All of the notes are particularly described in separate paragraphs of the petition. In an amendment to the petition it is averred that the sureties signing said notes were at the time stockholders in said corporation. "That they signed said notes for the purpose of raising additional capital for said corporation, and for the mutual benefit of all Larson v. Dayton. the stockholders thereof; and that all of said notes were signed as aforesaid with full knowledge, approbation, assent, and at the request of said stockholders." The articles of incorporation of said company were exhibited with, and made a part of, the petition. The object of the action is to compel the members of the corporation to contribute their proportion of what the plaintiffs have been compelled to pay. The defendants by their answer, in addition to a general denial of the allegations of the petition, denied that they were in any manner liable to the action of the plaintiffs, or responsible to the creditors of said corporation. Upon these issues the cause was referred to a referee, who upon a full hearing found that the plaintiffs were not entitled to recover. A motion was made to set aside the report of the referee, which was overruled, and a judgment was rendered in accord therewith. Plaintiff's appeal. John T. Clark & Co., for appellants. Dayton & Dayton and L. E. Fellows, for appellee. TION: Stock holders: por sonal liabil ity. ROTHROCK, J.-I. The petition was filed on the 24 day of June, 1873. A motion has been filed by appellee to affirm the 1. CORPORA judgment of the court below upon the ground that it did not appear that there would be an issue of fact to try until the 19th day of November, 1873, and after the taking effect of the Code, and no motion nor order was made to try upon written evidence. The record is involved in some obscurity as to whether the appearance term was before the taking effect of the Code, and in view of the fact that the petition was filed on the 2d day of June, 1873, and it appears from an amended abstract that there was a term of court commencing on the 16th day of that month, the motion will be overruled. It is urged by the appellee that the original abstract does not purport to contain all the evidence. We think that the certificate of the referee found on page 30 of the abstract is a suflicient statement to that effect. II. We have been somewhat particular in stating the issues which appear of record, for the reason that counsel for appel Larson v. Dayton. lant claim that there should be a recovery against the defendants, upon grounds other than those presented in the petition. The averments of the petition are that the corporation was duly organized, and that the defendants as stockholders are liable to contribution because they requested the plaintiffs to become sureties for the corporation. The articles of incorporation provide that, "The private property of the members shall in no case be holden for the liabilities of the company beyond the amount of his subscription." Such a provision may be made in articles of incorporation of this character, and the private property may thus be exempt from liability for corporate debts, beyond the amount of the subscription. Code, section 1059. The plaintiffs do not seek to recover because the defendants are indebted upon their subscription, nor because of any failure to comply with the law providing for the organization of corporations. The sole ground of recovery is that the defendants were stockholders and requested the plaintiff's to become sureties for the corporation. That this does not create a liability, certainly is apparrent. It involves no promise of indemnity, and no undertaking of any kind. It is argued that the liability of these stockholders is the same as the liability of members of a partnership. The rights of the parties are totally different. The individual members of a partnership are jointly and severally liable for the debts of the firm. In a corporation there is no liability of the individual stockholder, where the articles of incorporation so provide. Evidence was introduced that the notes in question were made and executed at certain meetings of the stockholders, and that it was agreed at such meetings that each stockholder should bear his share of the obligations assumed by those who executed the notes. No record was made of any such agreement, and no distinct and personal promise to indemnify those signing the notes appears to have been made. This evidence is strongly contradicted by evidence that no such agreement was made, and if it were a question in issue we would be inclined to hold that such agreement is not shown by a preponderance of evidence. But, as we have seen, no such agree |