Glenn v. Bergmann

• Decision Date: 19 January 1886
• Citation: 20 Mo.App. 343
• Parties: D. A. GLENN, Respondent, v. W. C. BERGMANN ET AL., Appellants.
• Court: Missouri Court of Appeals

20 Mo.App. 343

D. A. GLENN, Respondent,

v.W. C. BERGMANN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1886.

APPEAL from the Cape Girardeau Circuit Court, ROBERT L. WILSON, Judge.

Affirmed.

R. H. WHITELAW, for the appellants: The parties who made contracts with, did work for, and received the warrants from the Cape Pottery Company, issued in its corporate name, are estopped from denying its corporate existence. Herm. Estop., sects. 571-573-575; Ang. & A. Corp., sects. 635-638; Bailey v. Trustees, 12 Mo. 175; Ohio & Miss. Railroad Co. v. McPherson, 35 Mo. 13; Smith v. Heidecker, 39 Mo. 157; Kansas City Hotel Co. v. Harris, 51 Mo. 464; Farm. & Merch. Ins. Co. v. Needles, 52 Mo. 17; Nat. Ins. Co. v. Bowman, 60 Mo. 252; Board of Com'rs v. Shields, 62 Mo. 247. If they are estopped their privies are also estopped. Herm. Estop., sects. 48, 49-216-332; Chouteau v. Goddin, 39 Mo. 229; Thistle v. Buford, 50 Mo. 278; Stoutimore v. Clark, 70 Mo. 471, and cases there cited.

DAVID L. HAWKINS and SAM M. GREEN, for the respondent: The defendants were personally liable, because there was no corporation which could be sued. Hurt v. Salisbury, 55 Mo. 310; Richardson v. Pitts, 71 Mo. 128; Rowan v. Richmond, No. 2801, Court App.; Heath v. Goslin, 80 Mo. 310.

ROMBAUER, J., delivered the opinion of the court.

The defendants were sued as co-partners, upon certain orders alleged to have been drawn by them on their treasurer, by their firm name of Cape Pottery Company, which orders were assigned to the plaintiff prior to the institution of the suit, and also upon an open account. There is no controversy about the fact that the orders were drawn for value, and assigned to the plaintiff, and that the account is justly due, and it stands admitted that the claims are wholly unpaid.

The cause was tried by the court sitting as a jury and the trial resulted in a judgment for the plaintiff. No objections were made to the admission of testimony and no instructions were asked or given. There was substantial evidence to warrant the verdict. The only question of law presented for our consideration arises on the following part of the defendant's answer which, on motion of the plaintiff, was stricken out by the court:

“And for another and further answer the defendants say, that the plaintiff should not be permitted to plead the plea by him pleaded, and assign as reasons therefor the following facts:

That some time in August, 1880, these defendants, together with Samuel S. Harris, John Ivers, Charles Fuerth, William Regenhardt, Henry L. Hunze, William Woeleke, Mary L. Russell, Mrs. Julia E. Harris, and Alexander Ross, associated together for the purpose of organizing a corporation to manufacture, sell, etc., pottery, ware, clays, etc., in the city of Cape Girardeau, Missouri, under the name and style of the Cape Pottery Company, and in pursuance of such undertaking, entered into articles of association which they duly signed, acknowledged, and had recorded in the recorder's office of said county of Cape Girardeau on the ______ day of ______ 1880.

That upon the filing and recording of said articles of association as aforesaid, the said Cape Pottery Company commenced to manufacture and sell pottery ware, clays, etc., and to transact such other business as was contemplated by said articles of association. That from the date last aforesaid the said Cape Pottery Company by its agents, officers, and servants, believing that it was duly and legally incorporated, commenced to do business as a corporation; held itself out to the world as such, and was treated by every one with whom it had business, including the plaintiff, as a corporation, entered into contracts and assumed all the rights and liabilities of a duly and legally incorporated company. That in the course of its business as a corporation, it bought goods, wares, and merchandise; employed skilled and unskilled labor, and in that capacity dealt with all the persons mentioned in the petition, including John Lambert, William Marshal, William Raubick, Fritz Goetz, David Hardin, and David A. Glenn. That in all of said contracts it was treated and recognized as a corporation and dealt with all persons as such and not otherwise. That in its transactions, it dealt with the parties above named, and issued to them warrants upon its treasurer, signed by its president and secretary, for the several amounts found upon settlements to be due them, including the warrants filed with the plaintiff's petition, which warrants were accepted by the persons with whom it dealt, as warrants issued by a corporation, duly and legally incorporated. That all contracts made by it, including the contracts for which the warrants were issued, that are filed with the petition, were made by it as a corporation and so entered into by the other...