
    No. 13,956.
    Silver State Building and Loan Association v. Crump.
    (58 P. [2d] 1221)
    Decided June 15, 1936.
    Messrs. Twitchell, Clark & Burkhardt, for plaintiff in error.
    Mr. Hamlet J. Barry, Mr. Louis C. Gerding, Jr., for defendant in error.
    
      
      In Department.
    
   Mr. Justice Burke, sitting for Mr. Chief Justice Campbell,

delivered the opinion of the court.

Plaintiff in error is hereinafter referred to as the association and defendant in error as Crump.

Crump brought this action to recover on an alleged loan. The association contended he was a mere stockholder. The jury returned a verdict for Crump and to review the judgment entered thereon the association prosecutes this writ and asks that it be made a supersedeas.

The thirteen assignments, so far as they can be considered at all, raise but two questions: (1) The sufficiency of the evidence; (2) an alleged prejudicial statement of counsel.

1. Crump bought stock in the association on monthly payments. Before completing these he became dissatisfied and, on advice of counsel, sought to withdraw, which under his contract he was entitled to do. An authorized agent settled with him for what he termed “a time certificate paying off in a period of one year.” This was evidenced by the following receipt:

“Received from Mr. Guy C. Crump, Pass Book #A 1740, Cash value $1198.18 and in cash $1.82 to be credited bn a fully paid time certificate, am’t $1200.00 to run for one year, expiring June 30,1935.
“Silver State B. & L. Ass’n.
“A. H. Menke.”
Later the agent attempted to substitute other stock by delivering the same to Crump’s wife. This was returned when Crump demanded payment as per his receipt. The association thus claims an acceptance. It also denies the legal right of the agent, or the association, to settle as per the foregoing receipt and relies upon the defense of ultra vires. Crump kept the second certificate too long, but testified fie thought it tfie “time certificate” called for by fiis receipt. In any event tfie matter was fully gone into and tfie question was for tfie jury.

The defense of ultra vires was not pleaded. It must be. 49 C. J., p. 194, §223. Counsel contend it could not be in the instant case. We tfiink otherwise. Moreover, tfie association appears to fiave profited by this transaction and Crump, relying thereon, to fiave changed his position. In such case tfie defense is not available. Denver Fire Ins. Co. v McClelland, 9 Colo. 11, 9 Pac. 771; Arkansas Valley T. & L. Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706.

2. Counsel for Crump, in argument, said tfie association had attempted to “gyp” fiis client. There was a dispute about an alteration in a document and another about tfie association’s alleged attempt to induce Crump to take dividends on disputed stock and thus ratify. These, together with tfie dispute concerning tfie contract itself, were sufficient to support counsel’s argument, however inartistic fiis expression.

This is little more than a case of conflicting evidence and we tfiink tfie verdict amply supported.

The judgment is affirmed.

Mr. Justice Hilliard and Mr. Justice Holland concur.  