
    
      J. N. Riley v. Masonic Joint Stock Company of Owenton.
    Corporation — Donation of Stock.
    A majority even of the members of a corporation have no power to make donations of its capital stock unless sanctioned by its charter.
    Sufficiency of Petition.
    The absence of a promise to pay renders a petition, in a quantum meruit count in assumpsit, bad.
    APPEAL FROM OWEN CIRCUIT COURT.
    September 28, 1877.
   Opinion by

Judge Pryor:

The proof conduces to establish the fact that the appellant undertook to perform the services by way of contributing to the success of the corporation, and with the express understanding that he was to have no compensation. All the testimony with reference to this part of the controversj'' is in direct conflict with that of the appellant ; and there is no mode of reconciling the various statements.

That the appellant expected to receive compensation, but left the manner of paying and the amount to be paid to the members of the organization, cannot be maintained, as the entire current of the testimony is to the effect that no charge was to be made, and that the services were to be rendered for the reason that the pecuniary condition of the appellant prevented him from making a monied contribution. It is manifest from the proof that no recovery can be had by reason of the services rendered, and therefore the donation of the stock of the company, if it is to be designated such, whether by the president or the members, was without authority and void. A majority even of the members of the corporation had no power to make donations, of stock unless sanctioned by the charter, and we find nothing in the act of incorporation conferring the right.

Strother & Orr, for appellant.

J. D. Lillard, for appellee.

As to the claim for services as secretary of the company, although undenied by the answer, we must adjudge that the petition is not good either as a quantum valebant or quantum meruit count in assumpsit. The absence of a promise or undertaking to pay renders the count defective, and if not we find no breach of the promise to pay. The petition lacks two of the essential elements of an action of assumpsit, viz.: the promise to pay and the failure to pay or breach of promise, and upon general demurrer, if regarded as an action for work and labor or services performed, would be held bad. The action was evidently framed with a view of enforcing appellant’s claim to the stock, and, as we have already seen, the right of recovery on this branch of the case was properly refused. The judgment below is affirmed.  