
    (47 South. 606.)
    No. 17,239.
    KEYSTONE LIFE INS. CO. OF LOUISIANA v. VON SCHLEMMER. In re VON SCHLEMMER.
    (Nov. 4, 1908.
    On Rehearing, Nov. 30, 1908.)
    1. Corporations (§ 388*) — Subscription to Stock — Actions—Estoppel to Contest Validity.
    Where a person subscribes to the capital stock of a corporation after he has acted as one of the corporate directors and for the purpose of qualifying as director, he is estopped from contesting his subscription on the ground that its terms of payment were violative of the corporate charter.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1562-1564; Dec. Dig. § 388.*]
    On Rehearing.
    2. Estoppel (§ 114*) — Pleading in Avoidance oe Defense — Necessity — Statutory Provisions. ■
    Replications not being permitted in Louisiana, the answer is open to every objection of law or fact as if specially pleaded, and hence it is not necessary to plead an estoppel in avoidance of a defense alleged by answer.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 304; Dec. Dig. § 114.*]
    Action by the Keystone Life Insurance Company of Louisiana against Bernard Von Sehlemmer. Judgment for plaintiff was affirmed in the Court of Appeal, and defendant applies for certiorari or writ of review.
    Judgment affirmed.
    E. Howard McCaleb, for applicant. Buck, Walshe & Buck and Robert John Maloney, for respondent.
   PROVOSTY, J.

Sued by the plaintiff company on his subscription to 50 shares of its capital stock, the defendant seeks to escape liability by pleading an alleged fatal variance between the charter of the company and the terms of his subscription; the charter requiring subscriptions of stock to be “paid in cash,” and the terms of his subscription being “25 per cent, per month until full payment”

The district court and also the Court of Appeal (the case is here on writ of review) were of the opinion that hy payment “in cash” the charter means no more than that payment shall not be in anything hut money, and that, moreover, defendant is estopped from contesting the subscription; he having made it after he had acted as one of the directors of the plaintiff company, and in order to qualify as such.

We prefer to rest our decision on the es-toppel. 10 Cyc. 531, 536; 26 A. & E. E. of L. 847; Wormser v. Metropolitan St. R. Co., 184 N. Y. 83, 76 N. E. 1036, 112 Am. St. Rep. 596; 6 A. & E. Annotated Cases, 123, 126.

Judgment affirmed, at relator’s cost.

On Rehearing.

PER CURIAM.

Defendant calls attention to the fact that the estoppel upon which the court based its opinion was not pleaded. It did not need to be, since the answer of a defendant is open to every objection of law or fact as if specially pleaded, replication not being allowed under our law. Hen. Dig. 1155, No. 1.

Rehearing refused.  