Bigelow v. Gregory

• Decision Date: 30 September 1874
• Citation: 1874 WL 8954,73 Ill. 197
• Parties: LOYAL H. BIGELOWv.CHARLES A. GREGORY et al.
• Court: Illinois Supreme Court

73 Ill. 197

1874 WL 8954 (Ill.)

LOYAL H. BIGELOW

v.CHARLES A. GREGORY et al.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

This was an action of assumpsit, brought by Bigelow, appellant, against Charles A. Gregory, Franklin H. Watriss, Oramel S. Hough and Reuben Hatch, as co-partners, doing business under the name and style of the Warfield Cold Water Soap Company, to recover for goods sold and delivered. The defendants in the court below pleaded the general issue, and also interposed a further plea denying the partnership, verifying the same by affidavit. The cause was tried by the court without a jury, and the issues found and judgment rendered for the defendants. The plaintiff brings the record here by appeal to reverse the judgment.

From the testimony, it appears that, in November, 1870, the defendants, with one Isaac N. Gregory, signed a certain paper, commencing:

“Articles of association of Warfield's Cold Water Soap Company of Milwaukee.

We, the undersigned, being desirous of forming a company for the purpose of carrying on a manufacturing business, as hereinafter stated, under authority of the act of the legislature of the State of Wisconsin, relating to joint stock companies, approved April 2, 1858, and acts amendatory thereof, do hereby agree and certify that the name of the company is and shall be, Warfield's Cold Water Soap Company, of Milwaukee,” proceeding to state at length the objects of the company, the amount of its capital stock, its number of shares, the term of existence of the company, the number and names of the directors for the first year, they being the subscribers themselves, how the capital stock should be paid, the signers subscribing for all the stock, and agreeing to pay it as required by the directors, and concluding:

“We hereby adopt the foregoing as the articles of association of said Warfield's Cold Water Soap Company, of Milwaukee, for the purpose of becoming a body politic and corporate under said name.

Witness our hands, at Chicago, Illinois, this twenty-third day of November, A. D. 1870.

CHARLES A. GREGORY,

FRANKLIN H. WATRISS,

ORAMEL S. HOUGH,

REUBEN HATCH,

ISAAC N. GREGORY.”

This paper was filed in the office of the Secretary of State of Wisconsin, on the 8th day of July, 1871, and in the office of the city clerk of Milwaukee, August 23, 1871. It was also published in two newspapers in Milwaukee, the “Guide,” and “Herald,” September 13th and 15th, 1871.

The Revised Statutes of Wisconsin were introduced in evidence, and the act under which defendants claimed to have become incorporated.

Section 1 provides that corporations organized under this chapter shall have the usual privileges and powers of corporations.

Section 2. Any number of persons, not less than three, who, by articles of agreement in writing, shall associate according to the provisions of this law, * * * and who shall comply with the provisions of this chapter, shall, with their successors and assigns, constitute a body politic and corporate, under the name assumed by them.

Section 17. Before any corporation formed and established by virtue of the provisions of law, shall commence business, the president and directors shall cause their articles of association to be published at full length in two newspapers, etc. They shall also make a certificate of the purpose for which such corporation is formed, the amount of their capital stock, the amount actually paid in, and the names of their shareholders and the number of shares of each respectively owned, which certificate shall be signed by the president and a majority of the directors, and deposited with the Secretary of State, and a duplicate thereof with the town clerk of the town or clerk of the village or city where the business is to be transacted, which is to be recorded in books kept for the purpose.

Business was done under the name of the company, in which the defendants were jointly interested. There is no controversy as to the sale and delivery of the goods.

Messrs. LYMAN & JACKSON, for the appellant.

Messrs. KING & SCOTT, for the appellees. Mr. JUSTICE SHELDON delivered the opinion of the Court:

The only question here arising is, whether the defendants were exempt from individual liability by reason of having become a corporation.

The second section of the act of Wisconsin, under which defendants claim to have become incorporated, provides that, the persons who, by articles of agreement in writing, should associate according to the provisions of that law, and who should comply with the provisions of that chapter, should become a body politic and corporate, etc. Not that they should so become by articles of agreement in writing, but the further thing was required, of a compliance with the provisions of that chapter.

Section 17 is express, that before any corporation formed and established by virtue of the provisions of law, shall commence business, the articles of association should be published in two newspapers in the county in which the corporation was located, and the certificate required should be deposited with the Secretary of...