Gray v. Elder

• Decision Date: 22 January 1932
• Docket Number: No. 6002.,6002.
• Citation: 61 N.D. 672,240 N.W. 477
• Parties: GRAY et al. v. ELDER.
• Court: North Dakota Supreme Court

61 N.D. 672

240 N.W. 477

GRAY et al.

v.ELDER.

No. 6002.

Supreme Court of North Dakota.

Jan. 22, 1932.

Syllabus by the Court.

The managing officer of a corporation is liable as principal, even though acting for the corporation, when he deals with one ignorant of the existence of the corporation and of the relation between the officer and the corporation, and when such officer fails to inform the other party to the contract that he is acting for and on behalf of the corporation.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Action by W. L. Gray against B. W. Elder, doing business as the Elder Horse Sales Company. The justice court rendered judgment in favor of the plaintiff, and the defendant appealed to the district court, where Alvin Vessey was permitted to intervene as a party plaintiff. From a judgment in favor of the plaintiffs, and from an order denying defendant's motion for judgment notwithstanding the verdict, defendant appeals.

Judgment affirmed.

S. E. Ellsworth, of Jamestown, for appellant.

Coffey & Strutz, of Jamestown, for respondents.

BURR, J.

Plaintiff Gray commenced an action against the defendant in justice court. Judgment was rendered in his favor, and the defendant appealed to the district court. While this action was pending in the district court, plaintiff Vessey was permitted to intervene.

Judgment was rendered in favor of the plaintiffs in the district court, and the defendant made a motion for judgment notwithstanding the verdict, which motion was denied.

From the order denying the motion for judgment notwithstanding the verdict and from the judgment the defendant appeals.

[1] Respondent urges that the order denying motion for judgment notwithstanding the verdict is not an appealable order. At the close of the trial in the district court the defendant moved for a directed verdict or for a dismissal. Later he made this motion for judgment notwithstanding the verdict, but did not move for a new trial.

An order denying a motion for judgment notwithstanding the verdict is not an appealable order. It is only when the same is coupled with a motion for a new trial and the court denies the motion for judgment but grants or denies the motion for a new trial that the moving party “may appeal from the order as a whole, and have the ruling on the motion for judgment notwithstanding the verdict reviewed in the Supreme Court.” Welch Mfg. Co. v. Herbst Department Store, 53 N. D. 42, 204 N. W. 849. Thus the appeal considered is the appeal from the judgment entered in this case. We review the testimony simply to see whether it sustains the judgment.

There are ten specifications of error. Six of these specifications deal with the introduction of testimony; one deals with an alleged failure to instruct the jury in a certain matter specified; the remainder are alleged errors in overruling the motion for a directed verdict and motion for judgment notwithstanding the verdict.

[2] The main issue involved is whether the action is brought against the proper defendant. This action is brought against B. W. Elder individually, “doing business as the Elder Horse Sales Company.” There is, and was at the time the transaction involved took place, a corporation known as the Elder Horse Sales Company, of which B. W. Elder was the president and manager. It is the contention of the defendant that any contract made by the plaintiff was made with the corporation, and not with B. W. Elder.

During the trial plaintiff Vessey was asked upon cross-examination, “Did you remember how that check was signed?” referring to a check exhibited to him. We may presume defendant had in mind that such check had been given to the plaintiff prior to the making of the contract involved, was issued by the corporation itself, and signed by the corporation, and that the cross-examination was for the purpose of showing the plaintiff then knew of the existence of the corporation. There is nothing to indicate this however. No offer was made to prove the check was signed by the corporation, no checks producedsigned by the corporation, and no one testified as to the signature on the check nor offered to testify, even though the defendant himself was a witness. Hence there is nothing to indicate the court erred in sustaining the objection.

The contract involved herein was entered into on or about April 1, 1930, and thereafter in July of that year the Elder Horse Sales Company, a corporation, commenced an action against the plaintiff Vessey and in the complaint alleged it was a corporation. Plaintiff Vessey served his answer in these cases denying certain allegations of the complaint, including the allegation of incorporation, though such denial was not sufficient to raise an issue thereon. Defendant sought to introduce the pleadings in these cases for the purpose of showing admissions on the part of the plaintiff and knowledge of the existence of the corporation at the time the contract involved was made. The court excluded the exhibits on the theory that whatever notice plaintiff had by reason of such...