Granby Mining & Smelting Co. v. Richards

• Decision Date: 21 May 1888
• Citation: 8 S.W. 246,95 Mo. 106
• Parties: GRANBY MINING & SMELTING CO. v. RICHARDS.
• Court: Missouri Supreme Court

8 S.W. 246

95 Mo. 106

GRANBY MINING & SMELTING CO. v. RICHARDS.

Supreme Court of Missouri.

May 21, 1888.

1. CORPORATIONS — CORPORATE EXISTENCE — COLLATERAL ATTACK.

Under act Mo. Feb. 20, 1865, providing that, where a special company is created and organized, a certificate in writing shall be filed with the circuit clerk in the county where the business is carried on, and a duplicate filed with the secretary of state, the mere failure to file such certificate with the circuit clerk is not fatal to the existence of the corporation, but is a mere omission which can not be taken advantage of collaterally.

2. SAME — INCORPORATION — POWER TO ISSUE SPECIAL STOCK — DELEGATION OF LEGISLATIVE POWER.

Where the powers of a corporation and the procedure by which it could be brought into existence have been prescribed by the legislature, the mere fact that the legislature in the same act gave such corporation power to dispose of special stock which was to form no part of the general stock of the corporation, and permitted the holders of such special stock to become a distinct company, is not such a delegation of legislative power as to render an organization formed under the special stock clause invalid.

3. SAME — INCORPORATION — LIABILITY TO LEGISLATIVE ALTERATION.

A company organized under act Mo. Feb. 20, 1865, entitled "An act to incorporate the Missouri Petroleum and Mining Company," which expressly exempts charters of companies formed thereunder from legislative alterations, is not subject to provisions of Rev. St. Mo. 1855, c. 34, art. 1, § 7, declaring that the charter of every corporation thereafter granted shall be subject to alteration.

Error to St. Louis circuit court; WILLIAM H. HORNER, Judge.

Action on promissory notes by the Granby Mining and Smelting Company against Eben Richards. Plaintiff claimed that the notes were executed by Richards and others while partners, doing business under the name of the "Missouri Zinc Company." Defendant claimed that the Missouri Zinc Company was a corporation, and that he could not be held liable as a partner. Defendant set out that the provisions of Rev. St. Mo. 1855, c. 34, art. 1, § 7, declaring that the charter of every corporation thereafter granted shall be subject to alteration and repeal, did not affect the Missouri Zinc Company, which was formed under special act Mo. Feb. 20, 1865, expressly exempting charters of companies formed thereunder from alterations or repeal. Judgment for plaintiff, and defendant brings error.

Walker & Walker, for plaintiff in error. Noble & Orrick and David Goldsmith, for defendant in error.

BLACK, J.

This action is based upon five promissory notes and an open account, and, without the credits, aggregate $75,000. The notes are dated in 1881 and 1882, and are signed "Missouri Zinc Co." — some of them "By T. T. Richards, Treas.," and others "By Eben Richards, Prest." The open account is for a balance for zinc sold in 1881. The petition alleges that the defendant, Eben Richards, and others not made defendants, were partners doing business under the name of the "Missouri Zinc Company," and as such executed the notes and incurred the indebtedness. There was a judgment against the defendant for $49,743.33, and he sued out this writ of error. That the plaintiff corporation supposed the Missouri Zinc Company was a corporation, and made all of the transactions in question with it as such, is clearly shown. The Missouri Zinc Company has and has had a board of directors and other officers since 1869; and the defendant supposed that he was but a shareholder and officer in a corporation, and never professed to be doing business as a partner with the other persons. The plaintiff prevailed in the circuit court on the ground that the Missouri Zinc Company was not a legally organized corporation, and defendant was held liable as a partner, with the named persons. The defendant insists (1) that his company was and is a corporation duly organized under the charter of the Missouri Petroleum Mining Company; (2) that if it is not a corporation de jure, it is and was a corporation de facto; (3) that in either case the members of the company are not chargeable for its debts as partners. The special act of February 20, 1865, (Acts of 1864-1865, p. 268,) makes designated persons, their associates, and successors, a perpetual body corporate by the name of the "Missouri Petroleum Mining Company," with power to mine coal, lead, iron, and other minerals; to bore for oil, etc.; to refine the same for trade; to quarry stone, and to buy, sell and lease real estate. The capital is not to exceed $2,000,000; the chief office to be at St. Louis; and the corporation not to be subject to the seventh, thirteenth, fourteenth, fifteenth, eighteenth, nineteenth and twentieth sections of the first article of the corporation law of 1855. It is also provided: "And said corporation shall have power to create and dispose of special stock in any one or more of its mining or other operations, which special stock shall be no part of the general stock of the corporation, nor shall its holders be liable for or interested in any other than the special property and business for which said special stock shall be created; the holders of...