Bonfils v. Hayes
| Decision Date | 02 May 1921 |
| Docket Number | 9638. |
| Citation | 70 Colo. 336,201 P. 677 |
| Parties | BONFILS et al. v. HAYES. |
| Court | Colorado Supreme Court |
Rehearing Denied Nov. 7, 1921.
Department 2.
Error to District Court, City and County of Denver; Clarence J Morley, Judge.
Action by Anna Hayes against F. G. Bonfils and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
John T. Bottom, of Denver, for plaintiffs in error.
F. W Sanborn, Herbert M. Munroe, Jacob V. Schaetzel and Walter E Schwed, all of Denver, for defendant in error.
Anna Hayes, defendant in error, brought suit against Bonfils Tammen, and Litzenberger, and had a verdict and judgment for the death of her daughter by the negligence of their servant. They bring error.
The defendants were stockholders and directors of a corporation and were actively engaged in its business of printing and publishing the Denver Post. After the expiration of its 20 years of existence according to the statute, which was November 4, 1915, they continued business under the corporate name, and while they were doing so, September 16, 1916, a boy, driving a delivery wagon about the said business, ran down plaintiff's daughter and killed her.
1. One point of defense was that the boy was the servant of the corporation. Notwithstanding the statutory provisions that the certificate of incorporation shall state the period of existence, 'not exceeding twenty years' (R. S. 1908, § 847) and that corporations 'shall be bodies corporate and * * * have succession for the period for which they are organized' (Id. § 854,) plaintiffs in error insist that the corporation was a corporation de jure at the last-named date. The argument seems to be that the statute (R. S. §§ 891-2) which gives power to a corporation, at any time within 1 year from the expiration of its term of existence, to extend that term for another 20 years, ipso facto creates such extension for 1 year, since if it were dead it could not be brought to life, and so the privilege of extension at any time within 1 year must imply a continuance for that year. The argument seems unsound. Its conclusion is against the plain terms of the statute, which limits the life of corporations. The Legislature which creates them may revive them or provide methods of revival at will, and may give them life for this purpose when they are dead for that. 1 Black. Com. 485; La Grange & Memphis R. Co. v. Rainey et al., 7 Coldw. (Tenn.) 420, 421.
The revival of a corporation may, if the Legislature so provides, relate back to the date of its expiration, and so the corporation be held to have been alive during a time when it was legally dead. This is a fiction, but so is the corporation, and analogies to natural persons are misleading. The effect of a revival after an injury, inflicted, as in the present case, within one year from the expiration, is not before us, because the term of the corporation now in question has never been extended
2. It is claimed that at least there was a corporation de facto. To constitute a corporation de facto there must be three elements: (1) A law under which it may lawfully be formed; (2) a bona fide attempt to form it according to law; (3) a user or attempt to use its corporate powers. Jones v. Aspen Hdw. Co., 21 Colo. 263, 269, 40 P. 457, 29 L.R.A. 143, 52 Am.St.Rep. 220; Duggan v. Colo. M. & S. Co., 11 Colo. 113, 115, 17 P. 105; Fisher v. Pioneer Co., 62 Colo. 538, 546, 163 P. 851; Tulare Irr. Dist. v. Shepard, 185 U.S. 1, 22 S.Ct. 531, 46 L.Ed. 773; Clark v. Am. C. Coal Co., 165 Ind. 213, 73 N.E. 1083, 112 Am.St.Rep. 217; brief, 40, 14 C.J. 214, and cases there collected.
As in forming the corporation the certificate of incorporation, so in renewal the certificate of renewal is the causa sine qua non. Merges v. Altenbrand, 45 Mont. 355, 123 P. 21, 24, 14 C.J. 226. Therefore without the certificate of renewal or a bona fide attempt thereto there is no corporation de facto. The company now in question did not make, within the year following its expiration, and has never made, any attempt by certificate or otherwise to renew its life.
It is argued that the company has shown no bad faith and in good faith intended, but forgot, to renew. The answer is that it is not charged with bad faith, and an intention is not equivalent to an attempt.
3. Something is said that the corporate capacity cannot be questioned collaterally. We know of no principle which forbids such question in a case like the present. A woman sues three men for a tort. They answer that they were acting for a corporation. Is it possible that she may not put them on proof that there was such a corporation in existence at the time of the tort? He who, to avoid liability, claims to be a mere agent, must produce a principal. Fay et al. v. Noble, 7 Cush. (Mass.) 188, 194.
4. Some argument is made that the defendants are not partners even if there was no corporation; but if they were actively co-operating in a business enterprise, and in connection therewith committed the tort in question, they are liable whatever the title of their combination--partners, co-adventures, joint tort-feasors, or what. Jones v. Aspen Co., 21 Colo. 263, 270, 271, 40 P. 457, 29 L.R.A. 143, 52 Am.St.Rep. 220; Fay et al. v. Noble, 7 Cush. (Mass.) 188, 194.
Their active co-operation in the business, there being no corporation, makes them responsible for its liabilities, and able to demand its dues. Ward v. Brigham, 127 Mass. 24; Jones v. Aspen, etc., Co., 21 Colo. 263, 40 P. 457, 29 L.R.A. 143, 52 Am.St.Rep. 220; Roberts, etc., Co. v. Schlick, 62 Minn. 332, 64 N.W. 826; Johnson v. Corser, 34 Minn. 355, 25 N.W. 799; Rutherford v. Hill, 22 Or. 218, 29 P. 546, 17 L.R.A. 549, 29 Am.St.Rep. 596; Fuller v. Rowe, 57 N.Y. 23; Medill v. Collier, 16 Ohio St. 599; Fay et al. v. Noble, 7 Cush. (Mass.) 188, 194.
Numerous cases are cited to the effect that stockholders are not...
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