French v. Donohue

• Decision Date: 29 April 1882
• Citation: 29 Minn. 111
• Parties: THEODORE L. FRENCH and another <I>vs.</I> MICHAEL E. DONOHUE.
• Court: Minnesota Supreme Court

29 Minn. 111

THEODORE L. FRENCH and another vs. MICHAEL E. DONOHUE.

Supreme Court of Minnesota.

April 29, 1882.

This action was brought in the district court for Sibley county against defendant upon his guaranty of payment endorsed upon three notes made by one Herman Anderson, payable to the Adams & French Harvester Company. The complaint alleges that the plaintiffs, Theodore L. French and the Sandwich Manufacturing Company, were, at the time of the making of the notes and at the commencement of this action, partners under the firm name of the Adams & French Harvester Company, and that the Sandwich Manufacturing Company was, during all said time, a corporation organized and existing under the laws of the state of Illinois. The answer puts in issue the partnership of plaintiffs and the incorporation of the Sandwich Manufacturing Company, but admits the execution of the guaranties of payment.

The case was tried before Macdonald, J., and a jury, and, when plaintiffs rested, the action was dismissed, on defendant's motion. Plaintiffs appeal from an order refusing a new trial.

G. D. Emery, for appellants.

S. & O. Kipp, for respondent.

VANDERBURGH, J.

This action was brought upon defendant's contract of guaranty of certain notes made to the Adams & French Harvester Company, in its partnership name, and dated July 30, 1878. The answer denies plaintiffs' allegations of partnership and the corporate existence of the Sandwich Manufacturing Company — one of the plaintiffs, — admits the due execution of said guaranty, and sets up, as an affirmative defence, an accounting and settlement of the matters in suit between the defendant and the Adams & French Harvester Company. Upon the trial in the district court, the plaintiffs offered in evidence a certified copy of the articles of incorporation of the Sandwich Manufacturing Company, purporting to be in pursuance of the general law of Illinois. The evidence was properly rejected by the court, because not accompanied with proof of the enabling statute, and as not properly certified and authenticated so as to be admissible, either under the laws of this state, or the act of congress. U. S. Rev. St. § 906.

Thereupon the plaintiffs introduced certain evidence tending to show recognition or admission of the corporate existence of the last-named company by defendant in his dealings with it, and in receipting and accounting for its property, in connection with a deposition of one Adams, who testified that he was the secretary and treasurer of said company, and that during all the time in question the plaintiffs were partners under said firm name as alleged. It also appeared in evidence that the defendant had business relations with the Adams & French Company, of which the Sandwich Company was thus shown to be a member, and that he executed the contract of guaranty of payment of said several notes in question upon the sale of plaintiffs' machinery made by him to the maker of said notes, and in pursuance of an agreement entered into between himself...