ed in the record are referred to and made a part of the findings. that such a question is not one which, in That "the contract under the Constitution "Ascertaining the relations of the parties under the contract, which resulted from the Kansas Constitution and the statutes and the defendant's ownership of stock, I find, so far as it is a question of fact, that the dues to be secured by the superadded stockholders' liability were such as were within the reasonable and proper scope of the business as contemplated by the parties, and that a guaranty of this character was not intended by the defendant stockholder, and was not contemplated by the Kansas Constitution as a due or a debt within such scope. I also find, so far as it is a fact, that it was not within the scope of the resoJution which assumed to authorize the president and secretary to guarantee securities negotiated by the company, and there is no evidence that the defendant stockholder had knowledge that the company was assuming, through its president and secretary, to guar-bank by the creditor, the question as to the antee the payment of claims not negotiated by itself; and there being no evidence of notice, I find, as a matter of fact, that he was not aware of it. That "the amount of the bank's indebtedness, or its liability, on a question of this kind could and would be put in issue in a suit between the creditor and the corporation; but whether such a due is within the scope of the contract between the creditor and the stockholder under the Constitution would not and could not be put in issue in a suit between a creditor and the bank to which the stockholder is not a party." That "in the original case against the character of the claim-whether it was one *contemplated by the contract between the[147] creditor and the stockholder-was neither presented nor litigated, nor was it in a situ"I also make a general finding for the de-ation to be presented or litigated; while in fendant." The rulings of law were stated in the opinion of the court set forth in the record, and reported 100 Fed. 676. the case now under consideration the question is not whether the claim was an indebtedness or a due for which the bank was liable, which question was litigated and concluded by the judgment, but a question whether it was the kind of a debt or due which the statutory contract between the creditor and stockholder covered or contem The circuit court ruled that "the relations of the parties are contractual, and the term 'dues' in the Kansas Constitution ought to be accepted as applying only to claims resulting from the legitimate and contemplat-plated. This precise question, as has been ed business of the corporation or company, such as arise in respect of transactions within the reasonable scope of the business contemplated; and, as between the creditor and the stockholder, they should not be extended 146] to claims which arise from the transaction of unauthorized business." said, was not presented-could not have been presented-in that case, and therefore is not concluded.". That this judgment came within "an exception to the general rule that a judgment against the corporation is conclusive." Plaintiff moved for a new trial, which was denied, and judgment entered for defendant. The case was taken on error to the United States circuit court of appeals for the first circuit and the judgment affirmed. 44 C. C. A. 456, 105 Fed. 224. This writ of certiorari was then issued. Mr. William Reed Bigelow argued the cause, and, with Messrs. E. L. Waterman and Park B. Pulsifer, filed a brief for petitioner: A judgment and execution against the corporation are conclusive on the stockholders, except when obtained by fraud or collusion. That "while under paragraph 1192 of the General Statutes of Kansas [1889] providing a remedy, a judgment against the corporation may be accepted under proper limitations as conclusive in a proceeding against the stockholder as to the amount and liability of the company upon claims in respect to transactions within the contemplation of the Constitution and of the parties to the contract, it should not be accepted as conclusive upon the question of the nature and character of the claims, for the reason that paragraph 1192 is only intended to give a remedy to the creditor in respect to the kind of claims contemplated by the Constitution. The judgment on this ground is accepted as Hancock Nat. Bank v. Farnum, 176 U. S. conclusive, because it relates to a corporate 640, 44 L. ed. 619, 20 Sup. Ct. Rep. 506; affair, and because the stockholder's in Ball v. Reese, 58 Kan. 614, 50 Pac. 875; terests are supposed to be represented by Thompson v. Pfeiffer, 60 Kan. 409, 56 Pac. the officers of the bank in respect to affairs 763; Steffins v. Gurney, 61 Kan. 292, 59 Pac. within the scope of its contemplated, legiti-725; Hale v. Hardon, 37 C. C. A. 240, 95 mate, and authorized transactions;" but the stockholder ought not to be concluded "as to the question whether the foundation and nature of the claim were within the fair intendment of the constitutional provision and the contract between the parties upon the ground of representation, for the reason Fed. 747; Dexter v. Edmands, 89 Fed. 467. It is immaterial that the judgment was rendered by default. Steffins v. Gurney, 61 Kan. 292, 59 Pac. 725; Guerney v. Moore, 131 Mo. 650, 32 S. W. 1132; Hale v. Hardon, 37 C. C. A. 240. 95 Fed. 760; Holyoke Bank v. Goodman Paper Mfg. Co. 9 Cush. 576; Gaskill v. qua County Bank v. Risley, 19 N. Y. 369, 75 Dudley, 6 Met. 546, 39 Am. Dec. 750; Milli-Am. Dec. 347; Farmers' Loan & T. Co. v. ken v. Whitehouse, 49 Me. 527; Came v. Curtis, 7 N. Y. 466; Alward v. Holmes, 10 Brigham, 39 Me. 35; Hanson v. Davison, 73 Abb. N. C. 96; Roussin v. St. Louis PerpetMinn. 454, 76 N. W. 254; Wilson v. Pitts-ual Ins. Co. 15 Mo. 244; Hart v. Missouri burgh & Y. Coal Co. 43 Pa. 424. The guaranty by the trust company of notes negotiated by a third party would not necessarily be ultra vires. The person who negotiated them may have done so as trustee for the company. There is no finding to the contrary. If negotiated by a trustee for the benefit of the company, they might be guaranteed by the company upon negotiation. Talman v. Rochester City Bank, 18 Barb. 123; Lyon, P. & Co. v. First Nat. Bank, 29 C. C. A. 45, 55 U. S. App. 747, 85 Fed. 120; Opdyke v. Pacific R. Co. 3 Dill. 55, Fed. Cas. No. 10,546; Marbury v. Kentucky Union Land Co. 10 C. C. A. 393, 22 U. S. App. 267, 62 Fed. 335; Baxter v. Washburn, 8 Lea, 1; Rogers Locomotive & Mach. Works v. Southern R. Asso. 34 Fed. 278; New York Security & T. Co. v. Lombard Invest. Co. 73 Fed. 537. See also Chicago, R. I. & P. R. Co. v. Howard, 7 Wall. 392, 19 L. ed. 117; Green Bay & M. R. Co. v. Union S. B. Co. 107 U. S. 98, 27 L. ed. 413, 2 Sup. Ct. Rep. 221; Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; National Bank v. Whitney, 103 U. S. 99, 26 L. ed. 443; Ft. Worth City Co. v. Smith Bridge Co. 151 U. S. 294, 38 L. ed. 167, 14 Sup. Ct. Rep. 339. It is not ultra vires for a banking institution to put assets in the name of an individual as trustee. Schofield v. State Nat. Bank, 38 C. C. A. 179, 97 Fed. 282. Acts done by the corporation, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. Bank of United States v. Dandridge, 12 Wheat. 64, 6 L. ed. 552; McNitt v. Turner, 16 Wall. 352, 21 L. ed. 341; Carpenter v. Rannels, 19 Wall. 138, 22 L. ed. 77; Cornett v. Williams, 20 Wall. 226, sub nom. Nash v. Williams, 22 L. ed. 254; Keely v. Sanders, 99 U. S. 441, 25 L. ed. 327; Pittsburgh, C. & St. L. R. Co. v. Keokuk & H. Bridge Co. 131 U. S. 371, 33 L. ed. 157, 9 Sup. Ct. Rep. 770; Knox County v. Ninth Nat. Bank, 147 U. S. 91, 37 L. ed. 93, 13 Sup. Ct. Rep. 267; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653. When a contract is not, on its face, necessarily beyond the scope of the power of the corporation by which it was made, it will, in the absence of proof to the contrary, be presumed to be valid. State Mut. F. & M. Ins. Co. 21 Mo. 91; MeIntire v. Preston, 10 Ill. 48, 48 Am. Dee. 321; Union Water Co. v. Murphy's Flat Fluming Co. 22 Cal. 620. The charter of the trust company is broad enough to cover such choses in action as these guaranties secured by real estate. Parkinson Sugar Co. v. Bank of Ft. Scott, 60 Kan. 474, 57 Pac. 126; McCormick v. Market Nat. Bank, 165 U. S. 538, 41 L. ed. 817, 17 Sup. Ct. Rep. 433. A judgment on an ultra vires claim is just as conclusive as a judgment on any other claim. Franklin County v. German Sav. Bank, 142 U. S. 93, 35 L. ed. 948, 12 Sup. Ct. Rep. 147: United States v. New Orleans, 98 Ū. S. 381, 25 L. ed. 225; Wilson v. Deen, 121 U. S. 525, sub nom. Milne v. Deen, 30 L. ed. 980, 7 Sup. Ct. Rep. 1004; Lake County v. Platt, 25 C. C. A. 87, 49 U. S. App. 216, 79 Fed. 567; Etna L. Ins. Co. v. Lyon County, 44 Fed. 329; United States ex rel. Portsmouth Sav. Bank v. Ottawa Bd. of Auditors, 28 Fed. 107. A judgment is not only conclusive as to what was actually determined respecting such demand, but as to every matter which might have been brought forward and determined respecting it. Davis v. Brown, 94 U. S. 423, 24 L. ed. 204; Cromwell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 38 L. ed. 450, 14 Sup. Ct. Rep. 592; Comstock v. Crawford, 3 Wall. 396, 18 L. ed. 34; Grignon v. Astor, 2 How. 319, 11 L. ed. 283. What is implied in a record, pleading, will. deed, or contract is as effectual as what is expressed. Cornett v. Williams, 20 Wall. 226, sub nom. Nash v. Williams, 22 L. ed. 254; United States v. Babbit, 1 Black, 55, 17 L. ed. 94. The conclusiveness of a judgment does not depend upon the reasons for the judgment, but upon the fact of a judgment. Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Citizens' Bank v. Brigham, 61 Kan. 727, 60 Pac. 754. A judgment by default is just as conclusive as one rendered after answer and contest. Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 39 L. ed. 859, 15 Sup. Ct. Rep. 733. A judgment is binding although the cause of action was barred by a discharge in bankruptcy which was not pleaded. Ohio & M. R. Co. v. McCarthy, 96 U. S. Dimock v. Revere Copper Co. 117 U. S. 559, 29 I. ed. 994, 6 Sup. Ct. Rep. 855. So, also, though barred by the statute of limitations, if it was not pleaded. Schnack v. Boyd, 59 Kan. 275, 52 Pac. $74; Head v. Daniels, 38 Kan. 1, 15 Pac. So, also, though barred by usury which in any event, every presumption should be was not pleaded. made in its favor. Charles v. Davis, 62 N. H. 375. A foreclosure decree is binding upon parties and privies as to defenses not set up. Stout v. Lye, 103 U. S. 66, 26 L. ed. 428. The nature of the liability and the time and mode of its enforcement are to be determined from the statutes, and not by the notions which particular courts may entertain as to what will be equitable and just in such cases. The provisions of the statute in question, which fix the liability of a stockholder, are plain and leave little room for interpretation. Sleeper v. Norris, 59 Kan. 555, 53 Pac. 757. Where a statute is clear and free from all ambiguity, the letter of it is not to be disregarded. St. Paul, M. & M. R. Co. v. Phelps, 137 U. S. 528, 34 L. ed. 767, 11 Sup. Ct. Rep. 168; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 39 L. ed. 601, 15 Sup. Ct. Rep. 508; Lake County v. Rollins, 130 U. S. 662, 32 L. ed. 1060, 9 Sup. Ct. Rep. 651. There is a presumption that the guaranties were within the powers of the corporation and its officers. National Bank of Commerce v. Atkinson, 8 Kan. App. 30, 54 Pac. 8; Sherman Center Town Co. v. Swigart, 43 Kan. 292, 23 Pac. 569; Morisette v. Howard, 62 Kan. 463, 63 Pac. 756; Southern Exp. Co. v. Western N. C. R. Co. 99 U. S. 191, 25 L. ed. 321. The contractual relation between the respondent stockholder and the petitioner creditor of the corporation is implied by law, and is not a question of fact in any sense. Canada Southern R. Co. v. Gebhard, 109 U. S. 527, 27 L. ed. 1020, 3 Sup. Ct. Rep. 363; Howarth v. Lombard, 175 Mass. 570, 49 L. R. A. 301, 56 N. E. 888. The word "dues" includes all contractual obligations. Whitman v. National Bank, 176 U. S. 559, 44 L. ed. 587, 20 Sup. Ct. Rep. 477; Chase v. Curtis, 113 U. S. 452, 28 L. ed. 1038, 5 Sup. Ct. Rep. 554; Rider v. Fritchey, 49 Ohio St. 285, 15 L. R. A. 513, 30 N. E. 692; Herrick v. Wardwell, 58 Ohio St. 294. 50 N. E. 903; Flenniken v. Marshall, 43 S. C. 80, 28 L. R. A. 402, 20 S. E. 788. See also Grund v. Tucker, 5 Kan. 70; Haynes v. Brown, 36 N. H. 545; Smith v. Omans, 17 Wis. 395; Powell v. Oregonian R. Co. 2 L. R. A. 270, 13 Sawy. 535, 36 Fed. 726, 3 L. R. A. 201, 13 Sawy. 543, 38 Fed. 187. Kan. Gen. Stat. 1889, ¶ 1192, is remedial, and not penal. Frame v. Ashley, 59 Kan. 477, 53 Pac. 474; Cottrell v. Manlove, 58 Kan. 405, 49 Pac. 519; Kan. Gen. Stat. 1889, ¶ 7281. The trust company seems to have followed the usual course of business in Kansas. Crissey v. Inter-State Loan & T. Co. 59 Kan. 561, 53 Pac. 867. See Van Pelt v. Strickland, 60 Kan. 584, 57 Pac. 498. Commercial Bank v. Cheshire Provident Inst. 59 Kan. 361, 41 L. R. A. 175, 55 Pac. 131; Alexandria, A. & Ft. S. R. Co. v. Johnson, 58 Kan. 175, 48 Pac. 847; Atchison, T. & S. F. R. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596. Mr. J. S. H. Frink argued the cause and filed a brief for respondent: The guaranty was not within the powers of the corporation. National Park Bank v. German-American Mut. Warehousing & Security Co. 116 N. Y. 281, 5 L. R. A. 673, 22 N. E. 567. The promise of the bank was beyond the scope of its powers, and absolutely null and void; the judgment rests upon no cause of action whatever. Brownsville Taxing Dist. v. Loague, 129 U. S. 494, 32 L. ed. 780, 9 Sup. Ct. Rep. 327; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 35 L. ed. 55, 11 Sup. Ct. Rep. 478. This was a jury-waived case. The findings of fact by the court have the same force and effect as the verdict of the jury. The facts found by the trial justice are conclusive where there is sufficient evidence to support them, although it may be conflicting. Grayson v. Lynch, 163 U. S. 468, 41 L. ed. 230, 16 Sup. Ct. Rep. 1064. The framers of the Kansas Constitution did not intend that stockholders should be responsible for every class of obligations. McCormick v. Market Nat. Bank, 165 U. S. 538, 41 L. ed. 817, 17 Sup. Ct. Rep. 433; First Nat. Bank v. Hawkins, 174 U. S. 364, 43 L. ed. 1007, 19 Sup. Ct. Rep. 739; California Nat. Bank v. Kennedy, 167 U. S. 362, 42 L. ed. 198, 17 Sup. Ct. Rep. 831. There may be a class of "dues or debts" for which a stockholder may not be liable. Cook, Corp. 4th ed. § 224; Whitman v. National Bank, 176 U. S. 562, 44 L. ed. 589, 20 Sup. Ct. Rep. 477. Judgments may be impeached for fraud and want of jurisdiction. Ball v. Reese, 58 Kan. 614, 50 Pac. 875. A judgment by default can give no validity to an absolutely unauthorized contract. Lake County v. Platt, 25 C. C. A. 87, 49 U. S. App. 216, 79 Fed. 567. A contract made by a corporation beyond the scope of its powers, express or implied, on a proper construction of its charter, cannot be enforced or rendered enforceable by the application of the doctrine of estoppel. Union P. R. Co. v. Chicago, R. I. & P. R. Co. 163 U. S. 564, 41 L. ed. 265, 16 Sup. Ct. Rep. 1173. Contracts made by a corporation after it has gone into liquidation are void. Richmond v. Irons, 121 U. S. 27, 30 L. ed. 864, 7 Sup. Ct. Rep. 788; Schrader v. Manufacturer's Nat. Bank, 133 U. S. 67, 33 L. ed. 564, 10 Sup. Ct. Rep. 238. The simplest and most obvious interpretation of a constitution, if in itself sensible, If the guaranty is made in the interest is the most likely to be that meant by the of the bank it would not be ultra vires, and,' people in its adoption. Lake County v. Rollins, 130 U. S. 662, 32 fore stated, the circuit court found that L. ed. 1060, 9 Sup. Ct. Rep. 651. Mr. Chief Justice Fuller delivered the opinion of the court: When a case is tried by the court without a jury, its findings on questions of fact are conclusive, although open to the contention that there was no evidence on which they could be based. The question remains whether or not the facts found are sufficient to support the judgment, and rulings to which exceptions are duly preserved may be reviewed. Plaintiff excepted to the refusal of the court to rule that upon all the evidence plaintiff was entitled to recover as matter of law, and also to the refusal to make other rulings requested, and to the rulings made. The correctness of these rulings was questioned in fifteen errors assigned in the circuit court of appeals, but they need not be recapitulated. [148] *The circuit court found as facts that the guaranties on which plaintiff's judgment in the state court was based were not guaranties of the payment of securities negotiated by the company; that the business which the corporation was authorized to do was "to buy and sell personal property, including stocks, bonds, bills, notes, real and chattel mortgages, and choses in action of every kind and description, and to transact the business of a loan and trust company;" that the guaranty of these notes was not within the reasonable and proper scope of the business of the company; and that defendant had no notice that the company was assuming to guarantee the payment of claims not negotiated by itself. The court referred to a resolution of the board of di"rectors authorizing the guaranty of securities negotiated by the company, and found this guaranty not within its scope. these guaranties were not "within the reasonable and proper scope of the business, as contemplated by the parties." The purview of the words "loan and trust" does not appear to have been defined by[149] statute or decision in Kansas, but the decla ration alleged that this company was organized "for the purpose of transacting a general investment loan and trust business, buying and selling commercial paper, obligations and securities," and it must be assumed that the general rule is applicable that such companies have no implied power to lend their credit, or to bind themselves by accommodation indorsements. They may guarantee paper owned by them, or paper which they negotiate in due course of business and the proceeds of which they receive, but the naked power to guarantee the paper of one third party to another is not incidental to the powers ordinarily exercised by them. The power as exercised here was cer tainly not "essential to the transaction of its ordinary affairs," nor within "the legitimate objects of its creation." And so far as the question might be resolved by the usage in Kansas, the findings were adverse to plaintiff. In Commercial Bank v. Cheshire Provident Inst. 59 Kan. 361, 41 L. R. A. 175, 53 Pac. 131, a judgment against a bank on a guaranty, where the record did not contain any of the evidence, and there was a general finding for plaintiff, was sustained. The court said that it must be presumed that the guaranty "was executed for a valuable consideration, by the duly authorized officers of the bank, and in due course of business;" and that while “it is true that, in this case, the paper itself does not indicate that the Commercial Bank ever owned it, nevertheless it may have received the proceeds and the guaranty may have been made strictly in the interest of the bank." But the findings in this case take it out of the range of that decision, and forbid resort to presumption to make out validity. We are of opinion that, upon the facts found, the guaranties were given without au This corporation was organized in 1888 under the general laws of Kansas, authorizing the creation of loan and trust companies, by voluntary association as prescribed, with the powers, among others, "to make by-laws, not inconsistent with exist ing laws, for the management of its prop-thority. erty, the regulation of its affairs, and for the transfer of its stock;" and "to enter into any obligation or contract essential to the transaction of its ordinary affairs." The Icharter of each corporation was required to set forth "the purpose for which it is formed;" and the statute provided that: "No corporation created under the provisions of this act shall employ its stock, means, assets, or other property, directly or indirectly, for any other purpose whatever, than to accomplish the legitimate objects of its creation." Kan. Comp. Laws 1885, p. 210, chap. 23, §§ 5, 6, 11, 26. The purposes for which the corporation was formed were set forth in its charter, and were as found by the circuit court. The by-laws provided for a loan committee with power "to discount or purchase bonds, bills, notes, and other evidences of debt," but did not embrace the power to guarantee. As be The 2d section of article 12 of the Constitution of Kansas provides as follows: "Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder; and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes." *In Woodworth v. Bowles, 61 Kan. 569, 60 150) Pac. 331, it was held that this constitutional provision was not self-executing, but required legislative action to give it effect. Section 32 of chapter 23 of the Compiled Laws of Kansas of 1885 provided that when an execution had been issued against a corporation, and property could not be found on which to levy it, then "execution may be issued against any of the stockholders, to an extent equal in amount to the amount of . stock by him or her owned, together with poration is estopped from questioning its Section 44: "If any corporation, created they have been found here, the defense would Whether in this case the corporation would have been estopped if it had made the The word "dues" thus appears to have defense of ultra vires, it did not make it, been regarded as equivalent to debts or that and judgment went against it. We have which is owing. Mr. Justice Story in United held such judgments conclusive in proceedStates v. State Bank, 6 Pet. 29, 36, 8 L. ed. ings under the Kansas Constitution. Han308, 310, said, in construing the statute cock Nat. Bank v. Farnum, 176 U. S. 640, there referred to: "The whole difficulty 44 L. ed. 619, 20 Sup. Ct. Rep. 506. But arises from the different senses in which the we did not there hold that it was not open term 'due' is used. It is sometimes used to for a stockholder to show that the judgment express the mere state of indebtment, and was not enforceable against him when renthen is an equivalent to owed or owing. And dered against the corporation on a contract it is sometimes used to express the fact that beyond its power to make. It must be rethe debt has become payable." membered that in the case before us the 151] *In Whitman v. National Bank, 176 U. S. right of action accrued, and the action was 559, 44 L. ed. 587, 20 Sup. Ct. Rep. accordingly averred to have been brought, 477, it was said that "the word "by virtue of the Constitution and the stat'dues' is one of general significance, utes of the state of Kansas in such case and includes all contractual obligations." made and provided." We think it was not Can an obligation which a corporation error to permit the stockholder to go behad no right to incur be a contract-hind the judgment so far as to show, or, at ual obligation and the basis of "dues," as that word is used in the state Constitution? We do not think so. It appears to us that it was not intended by that instrument to impose individual liability on stockholders in respect of risks which they had not under-133 U. S. 67, 33 L. ed. 564, 10 Sup. Ct. Rep. taken. One of the grounds on which the doctrine of ultra vires rests, is that the interest of the stockholders ought not to be subjected to such risks. Rights of stockholders must be considered as well as those of creditors, and they should not be held directly liable unless such liability was within their contract in legal contemplation. The rule in this court is that a contract made by a corporation beyond the scope of its powers, expressed or implied, cannot be enforced, or rendered enforceable, by the application of the principle of estoppel. The rule in Kansas seems to be that when the contract has been executed and the corporation has received the benefits of it, the cor all events, to insist, for the judgment record In Schrader v. Manufacturers' Nat. Bank, 238, it was ruled that, although the indi- In Brownsville Taxing Dist. v. Loague, |