Cozzens v. Chicago Hydraulic Press Brick Co.

• Decision Date: 03 April 1897
• Citation: 46 N.E. 788,166 Ill. 213
• Parties: COZZENS v. CHICAGO HYDRAULIC PRESS BRICK CO.
• Court: Illinois Supreme Court

166 Ill. 213

46 N.E. 788

COZZENS

v.CHICAGO HYDRAULIC PRESS BRICK CO.

Supreme Court of Illinois.

April 3, 1897.

Appeal from appellate court, First district.

Action by the Chicago Hydraulic Press Brick Company against James Cozzens. A judgment for plaintiff was affirmed by the appellate court (64 Ill. App. 569), and defendant appeals. Affirmed.

J. Burnham, for appellant.

Matthews & Hughes, for appellee.

This is an action, brought by the appellee, the Chicago Hydraulic Press Brick Company, against the appellant, James G. Cozzens, and three other parties, to wit, James M. Stebbins, John B. Mesney, and Wheatley, Buck & Co., upon a contract of guaranty of the payment of a promissory note. Before the trial, plaintiff obtained leave to amend by dismissing the case as to Wheatley, Buck & Co. During the trial the case was dismissed as to Stebbins and Mesney, there being no evidence that they had joined in the guaranty. Appellant was thus left as the only defendant. The pleas filed, both to the original and the amended declaration, were the general issue, with affidavit of merits, a plea denying the execution of the guaranty, a plea of nul tiel corporation, a special plea denying consideration for the contract of guaranty, and a plea denying joint liability. The case was tried before the court and a jury, and resulted in a verdict for the plaintiff, and, after the overruling of motions for new trial and in arrest of judgment, judgment was entered upon the verdict in favor of the plaintiff. This judgment has been affirmed by the appellate court, and the present appeal is prosecuted from such judgment of affirmance. The note which was guarantied by the defendant was a note for $1,000, dated Chicago, February 24, 1893, executed by the Ricardi Apartment House Company, payable 90 days after date to the order of Wheatley, Buck & Co., with interest at 7 per cent. per annum, and having thereon the corporate seal of the maker thereof. Wheatley, Buck & Co., the payees in the note, made an indorsement thereon, directing payment to the order of the plaintiff, the Chicago Hydraulic Press Brick Company. The terms of the contract of guaranty were as follows: ‘For value received, we hereby guaranty full payment of the within note at maturity, or any time thereafter, with interest at six per cent. per annum after due until paid.’ In the original printed form of guaranty, which was stamped upon the back of the note, in addition to the words of guaranty as above quoted, and following the same, were the following words: ‘And all expenses incurred in collecting by process of law, waiving demand, notice of nonpayment, and protest.’ But these latter words were erased before the parties signing their names upon the back of the note as guarantors placed their signatures thereon.

MAGRUDER, C. J. (after stating the facts).

1. The plaintiff, the Chicago Hydraulic Press Brick Company, is a corporation organized under the laws of Missouri, and it is claimed that its corporate existence was not proven. One of the pleas filed was the plea of nul tiel corporation. When this plea is interposed, the burden of proving corporate existence in cast on the plaintiff corporation. Bailey v. Bank, 127 Ill. 332, 19 N. E. 695. But this plea does not impose the burden upon the plaintiff of proving that it was in all respects a perfectly legal corporation. It is sufficient, for a recovery upon the issue presented by that plea, to make proof that the plaintiff corporation had a de facto existence. An associationmay be regarded as a de facto corporation where there is a law authorizing the creation of corporations of its class and powers, and where there is an attempt in good faith to comply with the law. Hudson v. Seminary Corp., 113 Ill. 618. The plaintiff introduced in evidence upon the issue made as to its corporate existence, section 2492, art. 1, c. 42, 1 Rev. St. Mo., as follows, to wit: ‘Sec. 2492. Articles of Incorporation When and Where Filed; Shall be Evidence When.—Whenever a corporation shall be organized under the laws of this state, it shall be the duty of the officers of said corporation to file with the secretary of state a copy of the articles of association or incorporation, and the corporate existence of such corporation shall date from the time of filing said copy of such articles; and a certificate by the secretary of state under the seal of the state, that said corporation has become duly organized shall be taken by all courts of this state as evidence of the corporate existence of such corporation. A certified copy of said certificate of the secretary of state shall be filed and recorded in the office of the recorder of deeds of the county in also introduced in evidence a certificate of also introcuced in evidence a certificate of incorporation issued by the secretary of state of Missouri, reciting that certain individuals had filed in his office articles of association or agreement in writing, as provided by law, and had in all respects complied with the requirements of law governing the formation of private corporations for manufacturing and business purposes, and certifying that said parties, their associates and successors, had become a body corporate, and duly organized under the name of Chicago Hydraulic Press Brick Company, and had all rights and privileges granted to manufacturing and business corporations under the laws of the state of Missouri. Plaintiff also introduced in evidence a certified copy of said certificate of incorporation, with the certificate of the recorder of deeds of the city of St. Louis attached, certifying that the same was recorded in his office February 19, 1890. Without deciding whether the statute of Missouri and the certificates made under and in pursuance thereof, as thus introduced in evidence, were or were not sufficient to prove the existence of a de jure corporation, they were certainly sufficient to show the existence of a de facto corporation. This was sufficient, under the issue made by the plea of nul tiel corporation in this collateral proceeding. Hence the objection that there was no proof of corporate existence is without force.

2. Objection is made by appellant that the appellee was allowed to amend its declaration without the granting of a continuance to appellant, and without giving him an extension of 10 days' time to plead to the amended declaration. In the declaration as...