Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/303

 PART in.] ACTS BEYOND THE CORPORATE POWERS. [§ 312. applied. 1 Thus, in Burges and Stock's Case 2 the holders of marine insurance policies, which the company was not author- ized to issue, were allowed on winding up the company to re- cover the premiums paid by them on such policies ; but were not allowed to recover the value of the policies, Page-Wood, V. C, saying : " They have had no consideration for the pre- miums they paid. The directors, it is true, had no power to issue marine policies ; but they had power to receive money and apply it to the benefit of the company. It is proved that they did so receive and apply these premiums, and the amount might have been recovered even at law as money had and re- ceived." 3 § 312. The liability of a corporation to account for benefits received by it under an ultra vires transaction, does Basis of the not rest on the circumstance that the other party has liaDlllt y- rendered services or parted with property, 4 nor on that circum- stance combined with the further circumstance that the prop- erty of the corporation has received a benefit. The still further circumstance must exist that the benefit itself was appropriated to the uses of the corporation through some cor- porate agency acting within the scope of its express or implied authority. 5 j^o more than an individual can a corporation be compelled to account for money, property, or benefits thrust upon it without its consent. In such case the only remedy of the owner is to recover the identical property or its proceeds, if one or the other can be traced. Moreover, from the mere retention and use of a benefit, where there is no freedom of 1 German Nat. Bk. v. Butcher's, etc., Co., 97 Ky. 34 ; Union Hard- ware Co. v. Plume, etc., Co., 58 Conn. 219. A corporation cannot repudi- ate a mortgage, made in disregard of statutory provisions, without re- turning the money. Williams v. Bank, 71 Miss. 858 ; So. B. &. L. Ass'n v. Casa Grande Stable Co., 128 Ala. 624. 2 2 J. & H. 441. 8 See, also, White v. Franklin Bank, 22 Pick. 181 ; Hawken v. Bourne, 8 M. & W. 703 ; Port of Lond. Assur. Co.'s Case, 5 De G. M. & G. 465 ; S. C, sub nom. Ernest v. Xicholls, 6 H. L. C. 401; Hall v. Mayor, etc., of Swansea, 5 Q. B. 526; In re Cork, etc., R'y Co., L. R. 4 Ch. 748, 760 ; Humphrey v. Patrons' Mercantile Ass'n, 50 Iowa, 607. 4 Except where a specific piece of property may be handed back. 6 Franco-Texan Land Co. r. McCor- mick, 85 Tex. 417; Hawtayne v. Bourne, 7 M. & W. 595 ; Ex parte Cropper, 1 De G. M. & G. 147. 283