Campbell v. Pope

• Decision Date: 20 December 1888
• Citation: 10 S.W. 187,96 Mo. 468
• Parties: CAMPBELL, Comptroller, v. POPE et al.
• Court: Missouri Supreme Court

10 S.W. 187

96 Mo. 468

CAMPBELL, Comptroller, v. POPE et al.

Supreme Court of Missouri.

December 20, 1888.

1. CORPORATIONS — ACTS OF OFFICERS — ACQUIESCENCE — RATIFICATION.

Where a corporation is made party defendant to an action by service upon its president, as authorized by statute, and is represented by its attorney, it will be presumed to know what transpires in the action, and that on appeal by it an appeal-bond was executed for it by its president without attaching the corporate seal, and having acquiesced in such execution during the pendency of the appeal, and until suit on the bond, will be held to have ratified it.

2. JUDGMENT — FOR NEGLIGENCE — ASSIGNMENT — JOINT DEFENDANTS — MUNICIPAL CORPORATIONS.

The charter of St. Louis, § 9, requires the joinder, in an action against the city for negligence, of all parties jointly liable, and that the execution shall be first collected of the other defendants, and only from the city when the other defendants are insolvent. Held, that a judgment recovered in such an action, of which the city took an assignment on payment, was not satisfied, and could be enforced by the city against its co-defendants.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Action by Robert A. Campbell, comptroller of the city of St. Louis, upon an appeal-bond executed by the Pope Iron & Metal Company by R. C. Pope, its president, and by R. C. Pope and Harrison W. Burton as sureties. Judgment was rendered for defendants below, and plaintiff appeals.

Leverett Bell, for appellant. Taylor & Pollard, for respondents.

NORTON, C. J.

The record discloses the following facts: That on the 23d of March, 1882, one Mary Grogan recovered judgment in the St. Louis circuit court against a corporation known as the "Pope Iron & Metal Company," and a corporation named the "Broadway Foundry Company," and the city of St. Louis, for $3,500, for the death of her minor son, occasioned by the negligence of defendants. That an appeal from said judgment was prosecuted to the St. Louis court of appeals, where the judgment of the circuit court was affirmed, and from this judgment of affirmance the said Pope Iron & Metal Company prosecuted an appeal to this court, which resulted in an affirmance of said judgment. That on taking said appeal from the judgment of the St. Louis court of appeals to this court an appeal-bond, of which the following is a certified copy, was given, to-wit:

"Know all men by these presents that we, Pope Iron Metal Company, as principal, and Richard C. Pope and H. W. Burton, as sureties, are held and firmly bound unto Mary Grogan in the sum of eight thousand dollars, for the payment of which well and truly to be made we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated at St. Louis this 19th day of June, 1883. The condition of the above obligation is such, that whereas, Pope Iron & Metal Company has appealed from the judgment rendered against it, and in favor of Mary Grogan, in the St. Louis court of appeals: now, if said appellant shall prosecute its appeal with due diligence to a decision in the supreme court, and shall perform such judgment as shall be given by the supreme court, or such as the supreme court may direct the St. Louis circuit in the city of St. Louis to give, and, if the judgment, or any part thereof, be affirmed, will comply with and perform the same, as far as it may be affirmed, and pay all damages and costs which may be awarded against it by the supreme court, then this obligation to be void; otherwise to remain in full force and effect.

                "POPE IRON METAL CO.  [Seal.]   "RICHARD POPE.       [Seal.]
                "By R. C. POPE, Pres. [Seal.]   "HARRISON W BURTON.  [Seal.]
                "Affirmed in open court this 19th day of June, 1883
                    "Attest:  JOS. F. BARER, Clk."
                

The judgment thus obtained was duly assigned by said Mary Grogan to George M. Stewart, and was by said Stewart duly assigned to Robert A. Campbell, the plaintiff in this suit, who is and was at the time of said assignment the comptroller for the city of St. Louis, and who paid out of the funds of the city the sum of $4,287.50 to said Stewart therefor. It also appears that said Mary Grogan on the 23d December, 1885, by her certain writing, sold, transferred, and assigned all her right and interest in said appeal-bond to plaintiff, Campbell, and it is upon this appeal-bond that he sues the parties who executed the same, alleging in his petition that the Pope Iron & Metal Company has not paid said judgment, or any part thereof; and asking judgment on said bond for the amount of said judgment, interest, and cost.

The defendants denied the execution of the appeal-bond, and further set up that the defense that the Mary Grogan judgment, by virtue of the payment made by Campbell out of the funds in his hands as comptroller of the city of St. Louis, was in law satisfied. A trial before the court resulted in a judgment for defendants, and the cause is before us on plaintiff's appeal therefrom.

On the trial, among other things, it was proved that R. C. Pope, at the time he signed the appeal-bond, was president of the Pope Iron & Metal Company, and that as such he signed the name of said company to said bond, and that he and Burton, who was also an officer of said company, signed the same as sureties. Pope in his evidence stated that he had not been authorized by the board of directors to sign said bond, and that the Pope Iron & Metal Company had a corporate seal.

It is claimed by respondents that the appeal-bond in question, though signed and sealed as shown in the copy above given, was never executed by the Pope Iron & Metal Company, inasmuch as the seal of the corporation was not affixed thereto. "The old rule of the common law undoubtedly was that corporations aggregate could contract or appoint special agents for that purpose only by deed. In England, this rule has, in modern times, been greatly, though gradually, relaxed; and in our own country, where private corporations have been multiplied beyond any former example, on account of the inconvenience and injustice which must in practice result from its technical strictness, the rule has, as a general proposition, been completely done away with." Ang. & A. Corp. § 219.

While a seal of a corporation affixed to a writing or contract executed by the proper officer of the corporation is evidence that the contract or writing is a corporate act, and that the officer executing it did not exceed his authority, it seems to be nevertheless true that if the officer executing the instrument for and on behalf of the company was authorized, by vote or resolution, to execute it, that such...