through their representative, the trustee in bankruptcy, and the defendants, and the court could apply an effective remedy, which it did. The judgment of the Appellate Court is affirmed. Judgment affirmed. FARMER, C. J., and COOKE, and VICKERS, JJ., dissent. pra, that a stockholder, when sued, could, if he desired, file a cross-bill and bring in other stockholders and enforce contribution, and upon that suggestion counsel found an argument that this suit ought to have been brought in Missouri, so that the defendants could bring in other stockholders. Inasmuch as the Missouri court would have no jurisdiction of the defendants, and they could not be brought into that court, there would be no occasion for their filing any cross-bill to bring in some one else, and, of course, it would be desirable for them to have the suit in a court that could render no decree against WALLNER v. CHICAGO CONSOL. TRACthem. But wherever the suit might be brought, it would be of no avail to the defendants to bring in the other three stockholders who are insolvent and from whom 1. RELEASE (§ 29*)-JOINT TORT-FEASORS. nothing could be recovered in the way of contribution. Much is said about this suit relating to the internal affairs of a Missouri corporation, and that because it relates to internal affairs the courts of this state have no jurisdiction to set aside the fraudulent scheme TION CO. (245 Ill. 148) (Supreme Court of Illinois. April 21, 1910. Rehearing Denied June 8, 1910.) A release of one of several tort-feasors releases all. [Ed. Note.-For other cases. see Release, Cent. Dig. §§ 64-70; Dec. Dig. § 29.*] 2. ACCORD AND SATISFACTION (§ 3*) JOINT An accord and satisfaction by one joint tort-feasor is an accord and satisfaction as to all. [Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. § 25; Dec. Dig. § 3.*] 3. ACCORD AND SATISFACTION (§ 10*)-UNLIQUIDATED DEMAND-PAYMENT AND ACCEPTANCE OF MONEY. in Payment and acceptance of a sum of money satisfaction of an unliquidated demand is a good accord and satisfaction. 4. RELEASE (§ 1*) JOINT TORT-FEASORS EVIDENCE "ON ACCOUnt of." by which the balance of the unpaid subscriptions was nominally satisfied. The term "internal affairs" has no very definite or fixed meaning; but we do not think that it extends to cheating creditors, and it must be confined to relations affecting only the stockholders and the corporation among themselves. A contract of a corporation limiting the liability of its stockholders to a portion of the par value of their stock is void both as to creditors and the assignee in bankruptcy (Upton v. Tribilcock, 99 U. S. 45, 23 L. Ed. 203), and the scheme in this case is admitted by the demurrer to have been a fraud. The relation of a stockholder, who has not paid for his stock, to the corporation, is the ordinary one of debtor. Parmelee v. Price, 208 Ill. 544, 70 N. E. 725. If it was necessary that the corporation should be represented in the litigation, it was present in this case by the trustee in bankruptcy, who by the law represents and stands in the place of the corporation. The bankrupt corporation was in legal contemplation a party, and all the stockholders except those who are insolvent were defendants. The stockholders, except the defendants, were not necessary parties by reason of their insolvency, and, as the trustee represents both the creditors and the corporation (Branden-5 TRIAL (§ 174*)—VERDICT-MOTION TO DIburg on Bankruptcy, 737; Collier on Bankruptcy, 389), all the parties whose presence could in any manner affect the litigation were subject to the jurisdiction of the court. There was no lack of jurisdiction in the court to hear and determine the case, nor Plaintiff, having sued two corporations jointly for injuries alleged to have occurred in a collision between a street car of defendant traction company and a train belonging to defendant railroad company, received from the railroad company, $1,000 "on account of" his injury, and dismissed the suit as to it, testifyrailroad company. ing that he had no further claims against the Held, that the words "on account of" should be construed to mean "because of the accident," and did not indicate a partial payment rather than a full settlement, and that the proof, therefore, showed a full payment and release of one of two joint tortfeasors. [Ed. Note.-For other cases, see Release, Cent. Dig. § 6; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 6, p. 4968.] RECT-GROUNDS. dict on the ground that the evidence does not A party making a motion to direct a versupport it is not required to state in the motion the particular defect of proof claimed to exist. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 398; Dec. Dig. § 174.*] 6. TRIAL ($ 178*)-DIRECTION OF VERDICTMOTION-FAILURE OF PROOF. any reason for declining to assume jurisdiction. The courts of Missouri could not obtain jurisdiction of the defendants, and the On a motion to direct a verdict for failure courts of this state alone could grant relief. of proof, the question is not necessarily whether The controversy was between creditors the evidence tends to support the declaration, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes but whether there is evidence legally tending to sustain a verdict against the moving party. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 401-403; Dec. Dig. § 178.*] 7. TRIAL (§ 169*)-MOTION TO DIRECT VERDICT-AFFIRMATIVE DEFENSES. Where there is evidence of an affirmative defense, a verdict may be directed for the defendant, though all the averments of the declaration are proved, if the evidence is not contradicted or explained. DUNN, J. The defendant in error, while a passenger upon a street car of the Chicago Consolidated Traction Company, the plaintiff in error, was injured by a collision with a train of the Chicago, Milwaukee & St. Paul Railroad Company. He sued both corporations in an action on the case. The plaintiff in error appeared, and filed the general issue. The railroad company did not appear, and the cause, on the motion of the de [Ed. Note. For other cases, see Trial, Dec. fendant in error, was discontinued as to it. Dig. § 169.*] On a trial the defendant in error recovered a judgment against the plaintiff in error, which the Appellate Court affirmed. The only question presented on this appeal is whether there was an accord and satisfaction between the defendant in error and the railroad company, which was charged as a joint tort-feasor with the plaintiff in error. The only evidence on the question of an accord and satisfaction was the following testimony of the defendant in error himself: 9. RELEASE (§ 29*)-JOINT TORT-FEASORS. Where, in an action for injuries to a pas-"Q. You have received from the railroad senger in a collision between a railroad train and a street car, the railroad company and the traction company were jointly sued and charg ed as joint tort-feasors, and the uncontradicted evidence was that the railroad company was running its train at the time at a prohibited speed, and that the employés of the street car were backing the car off the crossing when it was struck, the court properly regarded the defendants as joint tort-feasors, so that a release to one discharged the other. company a thousand dollars on account of this accident, haven't you? A. I believe so. Q. On account of your injury? A. Yes, sir. Q. So you don't have any claims against it A. No, sir. * * * now? I made this arrangement-got the money from the St. Paul road-about October of last year. Q. They were sued jointly with the street car company in this case? When you started the suit [Ed. Note.-For other cases, see Release, Cent. you started it against both of them? Mr. Dig. $$ 64-70; Dec. Dig. § 29.*] 10. APPEAL AND ERROR (§ 884*)-ESTOPPEL TO ALLEGE ERROR-WAIVER OF DEFENSE. Where defendant traction company, jointly sued with a railroad company for injuries, pleaded a settlement and discharge of the railroad company as a bar, and duly excepted to the court's adverse ruling on such question, such defense was not waived, so it could not be raised on appeal, by thereafter procuring an instruction submitting to the jury, as a question of fact, whether plaintiff received the money from the railroad company in settlement of its liability, and stating that, if defendant traction company was found guilty, only such an amount should be allowed plaintiff as, together with what he had received from the railroad company, would compensate him for his injury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3612-3616; Dec. Dig. 8 884.*] Vickers, C. J., and Carter, J., dissenting. Error to Appellate Court, First District, on Appeal from Cook County Court; R. W. Clifford, Judge. Action by George P. Wallner against the Chicago Consolidated Traction Company. Judgment for plaintiff affirmed by the Appellate Court, and defendant brings error. Reversed and remanded. John A. Rose and Frank L. Kriete (W. W. Gurley, of counsel), for plaintiff in error. James G. Condon and Thomas J. Condon (Irvin I. Livingston, of counsel), for defendant in error. Condon: When I started it? A. Yes, sir. Mr. Baily: When your lawyer started it; yes, that is the better way to put it. A. Yes, sir." There is no doubt that a release of one of several joint tort-feasors releases all, and that an accord and satisfaction by one joint tort-feasor has the same effect as to all. City of Chicago v. Babcock, 143 Ill. 35S, 32 N. E. 271; West Chicago Street Railroad Co. v. Piper, 165 Ill. 325, 46 N. E. 186. It is equally certain that payment and acceptance of a sum of money in satisfaction of an unliquidated demand is a good accord and satisfaction. Ennis v. Pullman Palace Car Co., 165 Ill. 161, 46 N. E. 439. The evidence here is meager, but it is uncontradicted. After bringing suit against both corporations jointly, the defendant in error received of the railroad company $1,000 on account of his injury, and dismissed his suit as to it; having no further claim against it. This evidence indicates that the payment of $1,000 was received in satisfaction of the liability relieved of all further liability on account of of the railroad company, which was thereby the injury. If the facts of the payment and acceptance of this sum, the dismissal of the suit against the railroad company, and the statement of the defendant in error that he had no further claim against it, are capable of another construction, the burden of furnishing the explanation or qualification which would give them a different effect was upon absence of a showing in the bill of exceptions the defendant in error. to the contrary. It is further insisted that it does not appear that the plaintiff in error and the railroad company were joint tort-feasors, and that the payment of money by one who is not in fact a joint tort-feasor and his release does not discharge others who may be liable. Without deciding the correctness of this legal proposition, it is sufficient to say that the declaration charges the plaintiff in error and the railroad company as joint tortfeasors, that the uncontradicted evidence shows that at the time of the collision the railroad company was running its train at a speed in excess of that allowed by the ordinance of the city, and that the street car was backing off of the crossing when it was struck. The question of accord and satisfaction was raised by motions made at the close of the plaintiff's evidence and at the close of all the evidence to direct a verdict for the defendant. It is insisted on behalf of the defendant in error that these motions did not preserve the question for review, because they were general, and did not set forth the grounds upon which they were made. The only grounds upon which such a motion can be made are that the declaration does not state a cause of action, or that the evidence, with all reasonable inferences to be drawn therefrom, taken most strongly against the maker of the motion, does not fairly tend to support a verdict for the plaintiff; and it is not necessary to set out in such motion the particular defect of proof claimed to exist. The party making the motion may rely upon the failure of proof in any respect necessary to sustain a verdict. The question presented by such a motion is not necessarily, as insisted upon by defendant in error, whether the evidence tends to supporting that if defendant was found guilty only the allegations of the declaration, but is whether there is evidence legally tending to sustain a verdict against the party making the motion. Wolf v. Chicago Sign Printing Co., 233 Ill. 501, 84 N. E. 614. The question, therefore, depends upon the character of the issue. Where evidence of an affirmative defense is offered, as in this case, it is proper to direct a verdict for the defendant, even though all the averments of the declaration are proved, if the evidence of the affirmative defense is not contradicted or explained. It is contended in behalf of defendant in error that the use of the words "on account of," in connection with the payment, indicates a partial payment rather than a full settlement. The fact that the effect of the payment was to extinguish the claim of the defendant in error answers this position. A payment "on account of the accident" means a payment because of the accident, and may be either on account or in full settlement. The defendant in error stated that he had no claim, and the legitimate inference is that the payment was a full settlement. No explanation of the language being offered, it must be given its ordinary meaning. It is insisted that the defense arising out of the release of a joint tort-feasor was not made or argued in the trial court on the motion to direct the verdict. On this question we can look only to the record. Such defense was within the scope of the motion. The defendant had a right to rely upon it, and we must presume that it did so, in the It is contended that the plaintiff in error, having requested instructions, which were given, submitting to the jury, as a question of fact, whether the defendant in error received $1,000 from the railroad company in settlement of its liability, and stat such amount should be allowed plaintiff in the assessment of damages as, together with what he had already received from the railroad company, would compensate him for his injury, thereby conceded that the evidence was subject to more than one interpretation, and cannot now insist that it is subject only to the one interpretation, which required a verdict in its favor, but is bound by the theory of the case indicated by these instructions. These instructions were not requested by the plaintiff in error until after the adverse decision of its motion to direct a verdict. The court having refused, on this motion, to adopt the theory of the plaintiff in error, it was not obliged to abandon its defense on penalty of waiving its right to question on appeal this decision of the court. If it proceeded further it must do so according to the court's view of the law, and did not thereby waive its right to question that view in the Appellate Court through its exception taken to the decision of its motion. North Chicago Electric Railway Co. v. Peuser, 190 Ill. 67, 60 N. E. 78; Illinois Central Railroad Co. v. Swift, 213 Ill. 307, 72 N. E. 737; Chicago Terminal Railroad Co. v. Schiavone, 216 Ill. 275, 74 N. E. 1048. The judgment of the Appellate Court and of the circuit court will be reversed, and the cause remanded to the latter court for a new trial. Reversed and remanded. VICKERS, C. J., and CARTER, J., dis sent. (245 Ill. 256) VOORHEES v. MASON et al. (Supreme Court of Illinois. April 21, 1910. Rehearing Denied June 9, 1910.) fendants, complainant brings error. Reversed and remanded. Borman & McGrath, for plaintiff in error. C. E. Antram and J. L. O'Donnell, for defend 1. CORPORATIONS (§ 307*)-OFFICERS-LIABIL-ants in error. ITIES TO CORPORATION-CORPORATE PROP ERTY-MISAPPROPRIATION. The directors of a corporation are trustees for its stockholders, and cannot appropriate its assets to their own use. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1350, 1351; Dec. Dig. § 307.*] 2. CORPORATIONS (§ 308*)-OFFICERS LIABILITIES AS TO CORPORATION-COMPENSATION. The compensation voted to an officer of a corporation is illegal if the resolution fixing it is carried by his own vote. [Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1334-1349; Dec. Dig. § 308.*] HAND, J. This was a bill in chancery filed by the plaintiff in error, Leslie P. Voorhees, against the defendants in error, the Joliet Tropical Plantation Company and six of the seven directors of said corporation, namely, T. A. Mason, J. O. Barrett, George B. Carey, J. F. Skeel, J. J. Allison, and C. E. Antram, in behalf of himself and all other stock and income certificate holders in said corporation, to require the said directors to pay to the corporation the full value of 180 shares of capital stock and 180 income cer 3. CORPORATIONS (§ 308*)-OFFICERS LIABIL-tificates of the said corporation issued by ITIES AS TO CORPORATION-COMPENSATION. A resolution adopted by directors fixing their compensation for selling stock binds them by way of estoppel, though it is hot binding on the corporation, and they can only recover reasonable compensation not exceeding the amount fixed. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1334-1349; Dec. Dig. § 308.*] 4. CORPORATIONS (§ 320*)-OFFICERS-LIABILITIES TO CORPORATION-ACTIONS BETWEEN SHAREHOLDERS AND OFFICERS. A bill to compel directors to account to the corporation for assets wrongfully appropriated to their own use is rightfully filed by a stockholder on behalf of the corporation, where he has called on them to account and they have declined to sue themselves in the name of the corporation. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1426-1439; Dec. Dig. § 320.*] 5. CORPORATIONS (§ 320*)-OFFICERS LIABILITIES OF CORPORATION-ACTIONS BETWEEN SHAREHOLDERS AND OFFICERS. Directors who have wrongfully issued stock to themselves, received dividends thereon, and taken funds as compensation fixed by their own votes should be required to account therefor to the corporation, and not to the stockholder filing the bill for accounting, and a decree requiring them to pay him his pro rata share is erroneous. said directors to themselves at 50 cents on the dollar, in payment of their services in the promotion of the corporate business of said corporation, and to require said directors to repay to said corporation the dividends which they had collected on one-half of said stock and income certificates issued to themSelves, and to require said directors to account to and pay over to said corporation certain sums which it was averred said directors had unlawfully retained as commissions out of the moneys derived from the sale of certain shares of the capital stock and income certificates of said corporation sold by them. An answer and replication were filed, and the cause was tried upon the pleadings and evidence, and the bill was dismissed by the chancellor for want of equity. From that decree the complainant prosecuted an appeal to the Appellate Court for the Second district, where the decree was reversed, and the cause was remanded to the circuit court, with directions to that court to state an account between the corporation and said directors, and to charge each director with the full value of the shares of stock and income certificates issued to him and with one-half of all the dividends received by him upon said shares of stock and income certificates so issued to him, and to decree that each director pay to the complainant such portion of the amount found due from the directors as the number of shares and income certificates owned by the complainant should bear to the total number of shares and income certificates issued by the corporation. The complainant has sued out a writ [Ed. Note. For other cases, see Corporations, of error from this court to the Appellate Dec. Dig. § 665.*] Farmer, C. J., and Vickers and Cooke, JJ., dissenting. Court to review the judgment of that court. It appears from the pleadings and proofs: That the Joliet Tropical Plantation Company was incorporated in the state of Delaware on the 8th day of July, 1902, by Gardner W. Kimball, of Wilmington, county of NewBill by Leslie P. Voorhees against Truman castle and state of Delaware, and the defendA. Mason and others. From a judgment from ant directors, Mason, Barrett, Carey, Skeel, the Appellate Court reversing a decree for de- | Allison, and Antram, and 17 other persons, Error to Appellate Court, Second District, on Appeal from Circuit Court, Will County; Frank L. Hooper, Judge. all of whom resided at Joliet, Will county, state of Illinois. That said Kimball at the time of such organization appeared personally and the other incorporators appeared by proxy. That on the 14th day of July, 1902, the stockholders of said corporation held their first meeting at Wilmington, Newcastle county, Del., Gardner W. Kimball appearing personally and the other stockholders appearing by proxy, and at said meeting a board of directors, consisting of Mason, Barrett, Carey, Skeel, Allison, Antram, and Kimball, was elected. That the first meeting of the board of directors of said corporation was held on July 16, 1902, at Joliet, in Will county, and J. O. Barrett was elected president, J. J. Allison first vice president, George B. Carey second vice president, J. F. Skeel secretary, T. A. Mason treasurer, and C. E. Antram counsel. That the board of directors established an office in Joliet, and the record books and funds of said corporation have been kept at the Joliet office and the meetings of the board of directors of the corporation have been held at the Joliet office since that time. That while the charter powers of said corporation are very broad its business since its organization has been the purchase and improvement, as a plantation, of 3,200 acres of land in Old Mexico. That the capital stock of said corporation consists of $150,000, divided into 15,000 shares of $10 each. That the by-laws of said corporation provide for the sale of the shares of stock of the said corporation at $10 per share, and that there shall be issued income certificates which shall be sold for $290 each, to stockholders only-that is, each share of stock and one income certificate shall be sold for $300. That at the time the bill was filed, 1,264 shares of stock had been issued (three of which shares had been given to Gardner W. Kimball, the nonresident director), and 1,261 income certificates had been sold, That on July 16, 1902, the following resolution was passed by the board of directors: "Resolved, that in consideration of the large amount of labor and the weighty responsibility which devolve upon the first board of directors of this corporation, it is but just and proper that they should be allowed to purchase a limited number of income certificates at a special reduced price, such price to be net, without any commission or other allowance, except the $10 per share paid for shares of the capital stock should apply on the price of these income certificates, as in other cases. Resolved, that income certificates, not exceeding ten in each case, may be purchased by directors of the corporation at a net price of $150 each, including the $10 paid for the corresponding share of capital stock, provided such subscription is made not later than May 15, 1903. If taken on the installment plan the payments shall be $10 per share cash in sixty days, and the balance in monthly payments of [here follows the amount of the 91 N.E.-67 Re monthly payments, aggregating $140]. solved, that commissions on sales of income certificates be limited to ten per cent. of such sales. When sold on installments the commission shall be payable as follows: To secretary, ten cents monthly as the payments are made, for fifty months $5; to the general agent or director making sale, twenty-five cents out of each of first twelve payments, $3; fifty cents out of each of next forty-four payments, $22-total, $30." That on December 29, 1902, the board of directors passed the following resolution: "Resolved, that in view of the heavy responsibility assumed by this board in purchasing the additional 2,000 acres, guaranteeing the agreed payments and undertaking to manage the financing and development of the whole 3,200 acres, it is deemed just and proper, and it is hereby ordered, that each director be permitted to subscribe for 20 additional shares, in addition to the 10 already authorized, at net price of $150 each, payable in seventy-eight monthly payments, each one-half the amount in regular schedule. Secretary's commissior to be one-half the amount as in other cases, and no commission allowed for selling." That each of the defendants in error under said resolutions subscribed for 30 shares of stock and 30 income certificates, which aggregate 180 shares of stock and 180 income certificates, for which they either paid or obligated themselves to pay 50 cents on the dollar. That in the years 1904, 1905, 1906, and 1907 the corporation paid a dividend on each fully paid share of stock and income certificate, including the 180 income certificates issued to the board of directors. That on February 13, 1903, the selling price of each share of stock, with an accompanying income certificate, was advanced to $350 and the commission to $35. That the secretary of the corporation was named as selling agent of the stock and income certificates and the Illinois directors acted as subagents, and there was paid as commissions to the secretary and the Illinois directors for the sale of stock and income certificates $24,700. That the corporation purchased first 1,200 acres and afterwards 2,000 acres of land in Old Mexico, for which it paid $32,000. That on November 10, 1902, the complainant purchased of the corporation, through J. J. Allison, one of its directors, 5 shares of stock and 5 income certificates, at which time it was represented to complainant by Allison that the officers and directors of the corporation received no compensation for their service. That in 1904 the complainant ascertained for the first time that $54,000 worth of stock and income certificates had been issued to the 6 resident directors at 50 cents on the dollar, and that $24,700 had been paid to the secretary and directors as commissions upon the sale of stock and income certificates. That upon receiving such information he protested against the sale of said stock and income certificates to the directors |