F. Hattersley Brokerage & Commission Co. v. Humes
| Decision Date | 04 January 1916 |
| Parties | F. HATTERSLEY BROKERAGE & COMMISSION COMPANY, Respondent, v. MAMIE W. HUMES, Executrix, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
AFFIRMED.
Judgment affirmed.
Matt G Reynolds, Thos. B. Harlan and Lydia Lee for appellant.
(1) The corporate existence of the Humes Flour Company is established under the statutes of this State, by the showing that the articles of association were filed in the office of the Secretary of State and the certificate of incorporation issued by that officer; and this being true, its corporate character cannot be thereafter attacked collaterally or by any one except the state itself. Sec. 2975, R. S. 1909; Boatmen's Bank v. Gillispie, 209 Mo. 217; First National Bank v. Rockefeller, 195 Mo. 15; Furniture Co. v. Crawford, 127 Mo. 356; Merchants Bank v. Harrison, 39 Mo. 433; City v Shields, 62 Mo. 247; Granby Mining Co. v. Richards, 95 Mo. 106. (2) The deceased, Humes, transacted all business disclosed by the record with the Hattersley Brokerage and Commission Company, in the name of the Humes Flour Company, and it is familiar law that the contract of an agent is the contract of the principal, provided the former acts in the name of the principal and in such case the principal and not the agent is bound by the contract, unless the agent has especially agreed to become liable, or has obligated himself by fraudulent acts. Furniture Co. v. Crawford, 127 Mo. 356; Hartzell v. Crumb, 90 Mo. 629; Hearne v. Railroad, 53 Mo. 324; City of Carterville v. Gibson, 168 S.W. 673; Myers v. Kilgen, 177 Mo.App. 724; Bank v. Hutton, 224 Mo. 71; Whitney v. Wyman, 101 U.S. 392, 25 L.Ed. 1050; Great Lakes Coal & Dock Co. v. Seither Transit Co., 220 F. 28; Post v. Pearson, 108 U.S. 418; Halls Safe Company v. Herring-Hall-Marvin Safe Co., 146 F. 37. (3) (a) However, having dealt with the Humes Flour Company as a corporation, in its corporate name, respondent is now estopped to deny its corporate character, and cannot be heard to say that it did not know the Humes Flour Company was a corporation. Studebaker Bros. Mfg. Co. v. Montgomery, 74 Mo. 101; City v. Shields, 62 Mo. 247; St. Louis Gas Light Company v. City, 84 Mo. 202, s. c. 11 Mo.App. 55; 10 Cyc. 662; Whitney v. Wyman, 101 U.S. 392, 25 Law Ed. 1050; West Missouri Land Company v. Railroad, 161 Mo. 595; Broadwell v. Merritt, 87 Mo. 95; Stoutimore v. Clark, 70 Mo. 471; Railroad v. McPherson, 35 Mo. 13; Insurance Company v. Needles, 52 Mo. 17; Insurance Company v. Bowman, 60 Mo. 252; Ingle System Company v. Norris & Hall, 178 S.W. 1113; Beekman v. Railroad, 35 F. 12; Cory v. Lee, 93 Ala. 468. (b) And this is so, even if the corporation had not been regularly organized, provided it was a de facto corporation doing business as such, in good faith. Ellerbe v. National Exchange Bank, 109 Mo. 445; Hasbrouck v. Rich, 113 Mo.App. 389; Elliott v. Sullivan, 156 Mo.App. 496; American Salt Co. v. Heidenheimer, 80 Tex. 344; Gartside Coal Company v. Maxwell, 20 F. 197; Western Bank v. Trust Company, 163 F. 713; Railroad v. Continental Trust Co., 95 F. 497; Smith v. Sheeley, 12 Wall. 358; Andes v. Ely, 158 U.S. 312; Commissioners v. Bolles, 94 U.S. 104; Close v. Greenwood Cemetery, 107 U.S. 466; Cory v. Lee, 93 Ala. 468; Sniders Sons Co. v. Troy, 91 Ala. 224; Planters & Miners Bank v. Padgett, 69 Ga. 159; Merchants and Manufacturers Bank v. Stone, 38 Mich. 779; Stout v. Zulick, 48 N. J. L. 599. (c) Likewise, is it true even after the corporation has ceased active business or all of its stock is in the hands of one person. Oxley Stave Co. v. Butler Co., 121 Mo. 614; Youree v. Insurance Company, 180 Mo. 153; Bank v. Robidoux, 57 Mo. 446; Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Manufacturing Company v. Montgomery, 144 Mo.App. 494. (4) Frederick W. Humes, who, it is admitted, negotiated the contract in suit, in behalf of the Humes Flour Company, being dead, it was error to permit the officers and agents of the Hattersley Brokerage & Commission Company negotiating on its behalf to testify with reference thereto. Sec. 6354, R. S. 1909; Carroll v. United Rys., Co., 157 Mo.App. 247; Treats v. Flabders, 118 Mo. 660; Ring v. Jamison, 66 Mo. 424; Wood v. Matthews, 73 Mo. 477; Weiermueller v. Scullin, 203 Mo. 466; Lieber v. Leiber, 238 Mo. 1; Meier v. Thieman, 90 Mo. 433; Bishop v. Investment Company, 229 Mo. 699; McClure v. Clement, 161 Mo.App. 23; Taylor v. George, 176 Mo.App. 215; Griffin v. Nicholas, 224 Mo. 275; Banking House v. Rood, 132 Mo. 256; Williams v. Edwards, 94 Mo. 447; Columbia Brewing Company v. Rohling, 133 Mo.App. 65; Diggs v. Henson, 181 Mo.App. 34; Schuler v. Metropolitan Life Ins. Co., 176 S.W. 274; Goodale v. Evans, 263 Mo. 219. (5) The fact that Mr. Hattersley was called as a witness in the probate court did not make him a competent witness for all purposes thereafter, it appearing that he did not testify generally, that he was only asked to identify the account sued on, and it is not clear that he answered that question. Harris v. Railroad, 115 Mo.App. 527; Reding v. Reding, 143 Mo.App. 660; Garrus v. Davis, 234 Ill. 326; Merchants Loan & Trust Company v. Egan, 222 Ill. 494; Stevens v. Moulton, 68 N.H. 254.
W. B. & Ford W. Thompson for respondent.
(1) The test question universally applied in cases of this character is "to whom was the credit given." Wittenberg v. Fisher, 183 Mo.App. 347. Respondent did not know that there was a corporation by the name "Humes Flour Company," and did not extend credit to such corporation. (2) The stenographer of respondent, and also the bookkeeper of respondent, were both competent witesses, though Humes be dead. Carroll v. United Railways Co., 157 Mo.App. 247. (3) Appellant, by calling Mr. Hattersley, the president of respondent company, as a witness in the probate court, waived his incompetency when the case was tried on appeal, and more especially since his attorney's attention was expressly called to the effect of so calling him as a witness, and the warning given in the probate court at the time. Hickman v. Greene, 123 Mo. 165; Tomlinson v. Ellison, 104 Mo. 105; Bensberg v. Harris, 46 Mo.App. 404.
--This is a suit on an account for flour sold and delivered. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff is a corporation engaged in the brokerage business and defendant is executrix of the estate of her late husband, F. W. Humes. Defendant's husband was president of the Humes Flour Company, a corporation, for several years before the date of his death, and purchased the flour from plaintiff. Plaintiff insists that it did not know the Humes Flour Company was incorporated and dealt with Humes wholly on his personal credit, while defendant insists the estate of her deceased husband is in no wise responsible for the indebtedness, because it was contracted by the Humes Flour Company, a corporation. The case was tried before the court without a jury and no instructions were asked or given on either side.
It is argued that the judgment against the estate of F. W. Humes may not be sustained, in that plaintiff is estopped to assert a claim against the estate, for the reason it sold and delivered the flour to the Humes Flour Company, a corporation. This argument proceeds from the fact that plaintiff charged the flour at the several dates of its sale on its books to the Humes Flour Company, rendered its invoices to the Humes Flour Company, and received a number of checks of the Humes Flour Company, which appear to be credited as payments on the account. If this were all the evidence, the argument would be more persuasive, but other facts and circumstances in the case are to be looked to.
It appears that F. W. Humes purchased flour frequently from plaintiff during the years 1907 and 1908, under the trade name of F. W. Humes & Company. At that time Humes was conducting his business as an individual, under the trade name above mentioned. He suspended trading, however, with plaintiff for some two or three years, and, in the meantime, incorporated the Humes Flour Company, of which plaintiff says it had no knowledge. Thereafter Mr. Humes commenced trading again with plaintiff, and, at the time of opening the account in suit here, he instructed plaintiff to render invoices for the flour to Humes Flour Company, saying: "I am the Humes Flour Company." Plaintiff proceeded to deliver flour on different occasions and charge it as above stated. The invoices were also rendered to Humes Flour Company. However, plaintiff insists that it did not know Humes Flour Company was an incorporated concern but regarded it merely a trade name employed by Mr. Humes.
There is an abundance of evidence in the record tending to prove plaintiff extended credit to F. W. Humes personally in the sale of the flour, and there is evidence, too, tending to show that the business was all transacted with, and in the name of, the corporation, Humes Flour Company. Obviously plaintiff is not, in such circumstances, to be regarded as estopped from asserting its claim against the estate of Humes, if the credit was given in the first instance to Mr Humes individually. The real question in such circumstances is rather one of fact as to whom the credit was given. [See Wittenberg v. Fisher, 183 Mo.App. 347, 166 S.W. 1106; Stokes v. Mills, 171 Mo.App. 638, 154 S.W. 455; Steele v. Ancient Order, etc., 125 Mo.App. 680, 103 S.W. 108; Rottmann v. Pohlmann, 28 Mo.App. 399.] The court found the issue for plaintiff as if the flour were sold by it to Mr. Humes individually and on his credit, and there is substantial evidence tending to show such was indeed the fact, and the matter is...
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