Butterick Co. v. Molen

• Decision Date: 25 May 1943
• Docket Number: Case Number: 30874
• Citation: 138 P.2d 89,192 Okla. 602,1943 OK 202
• Parties: BUTTERICK CO., Inc., v. MOLEN et al.
• Court: Oklahoma Supreme Court

1943 OK 202

138 P.2d 89

192 Okla. 602

BUTTERICK CO., Inc., v. MOLEN et al.

Case Number: 30874

Supreme Court of Oklahoma

Decided: May 25, 1943

Syllabus

¶0 1. EVIDENCE--Parol evidence to show contract was that of corporation whose abbreviated name was signed thereto by general manager.

In an action upon a contract signed by the general manager of a corporation and in which an abbreviated name of the corporation is used, parol evidence is admissible to establish such fact and that the contract was the contract of the corporation.

2. JURY--Waiver of jury by disclaiming desire for jury trial.

When a cause is called for trial and a party thereto disclaims any desire for trial by jury, he thereby waives a jury.

3. APPEAL AND ERROR--Parties may not prevail on issues first raised on appeal.

Parties will not be permitted to prevail in the Supreme Court on issues not raised in the trial court.

Appeal from District Court, Custer County; W. P. Keen, Judge.

Action by the Butterick Company, Inc., against James I. Molen et al., to recover balance due upon account for goods sold pursuant to terms of written contract. Defendants had judgment, and plaintiff appeals. Affirmed.

A. J. Welch, of Clinton, for plaintiff in error.

Meacham, Meacham, Meacham & Meacham, of Clinton, and Jones & Wesner, of Cordell for defendants in error.

PER CURIAM.

¶1 This action was instituted on February 7, 1940, by the Butterick Company, Inc., hereinafter referred to as plaintiff, against James I. Molen, Tom Sowell, and S. L. Molen, hereinafter referred to as defendants, to recover a balance alleged to be due upon account for goods, wares, and merchandise which had been sold and delivered pursuant to a written contract which had been entered into on August 6, 1935, between plaintiff and Molen Bros. by Tom Sowell. The action as framed was one for money judgment based upon the contract. The defendants denied that the contract was their contract and alleged that it was the contract of a corporation of which Tom Sowell was secretary, treasurer, and manager and the other defendants were president and vice president, respectively. The cause was tried to the court without the intervention of a jury. The evidence adduced at the trial disclosed that the correct name of Molen Bros. was Molen Brothers Dry Goods Company, a corporation, and that defendants were the stockholders, officers, and directors of said corporation; that at the time the contract here involved was entered into Tom Sowell was the manager of the store located in Clinton, Okla.; that the goods, wares, and merchandise were purchased pursuant to said contract for sale in said store, and that payments therefor were made under the provisions of said contract to the plaintiff by checks of the corporation until 1938, when the stock of merchandise in the store, and which inventoried approximately $13,000, was turned over to an attorney in St. Louis, Mo., for the purpose of liquidating said stock and paying creditors whose claims aggregated approximately $6,500; that the liquidating agent had tendered plaintiff approximately 2 per cent of the amount of its claim, and that it had refused to accept the same, and thereupon instituted this action seeking to hold the defendants liable upon the contract as their individual obligation.

¶2 The evidence further showed that the only store in Clinton which was doing business under the name of Molen Bros. was that of the corporation, and that the defendants were never engaged 'in business individually, but were at all times so engaged as officers and directors of the corporation whose correct name was Molen Brothers Dry Goods Company, a corporation. Upon the evidence, substantially as above narrated, the trial court found that the contract involved was that of the corporation and not that of the defendants individually, and rendered judgment in accordance with such finding. The plaintiff appeals.

¶3 As grounds for reversal of the judgment plaintiff urges the following propositions:

"1. The trial court erred in overruling plaintiff's demurrer to the original answer, motion for judgment, demurrer to amended answer and renewal of motion for judgment, objection to any evidence in support of the amended answer, for the reason that said answer raised no issue and stated no defense.

"2. The court erred, after discharging the jury on the grounds that only a question of law was involved, in thereafter proceeding to trial at a nonjury term, upon the issue presented in the fourth paragraph of the amended answer, said defense being only an attempt to contradict the terms of a written contract and thereby shift the liability from defendants to said insolvent dead corporation.

"3. Even if the contract were a corporation contract, still, under the testimony of defendant, James I. Molen, president of said corporation, the defendants would be liable: (1) Under the statutory trust fund doctrine (secs. 9763, 9788, 9789); (2) Under the common law trust fund doctrine for mismanagement, diversion and waste of assets, and (3) as partners, they having changed the name of the corporation in violation of see. 9732, O. S. 1931.

"4. Defendants having invoked the equity powers of the court by the allegations of said 4th paragraph of the amended answer, permitting them to substitute said corporation in their place, and the court having received their evidence in support of that defense, the defendants, by their own affirmative action, created and accepted the relation of trustee for the benefit of creditors, and they were required to properly execute that trust, and would not be permitted to dispose of the total assets without receiving a dime for the same, to the detriment of plaintiff as a creditor, and the trial court committed error in refusing to so decree, regardless of the form of the action or the pleadings involved."

¶4 Under the first of the above propositions plaintiff argues that the verified amended answer of the defendants by admitting that the contract had been executed in the name of Molen Bros. by Tom Sowell, thereby admitted the individual liability of the defendants and precluded them from introducing any evidence which would tend to establish a contrary situation. In support of the contention so made plaintiff directs our attention to 49 C. J. 269 § 335; Caldwell v. Baxter, 158 Okla. 76, 12 P. 2d 509; Puritan Mfg. Co. v. Toti & Gradi, 14 N. M. 425, 94 P. 1022 (which enunciate the rule that a verified general denial does not place in issue the execution of an instrument, and which are without application here for the reason stated in Bradshaw v. Sexton,...