H. W. Underhill Const. Co. v. Nilson

• Decision Date: 05 March 1928
• Docket Number: No. 16216.,16216.
• Citation: 3 S.W.2d 399
• Parties: H. W. UNDERHILL CONST. CO. v. NILSON et al.
• Court: Missouri Court of Appeals

3 S.W.2d 399

H. W. UNDERHILL CONST. CO. v. NILSON et al.

No. 16216.

Kansas City Court of Appeals. Missouri.

March 5, 1928.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

"Not to be officially published."

Action by the H. W. Underhill Construction Company against Arthur E. Nilson and others, doing business as Nilson Bros. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Leon Greenebaum, of Kansas City, for appellant.

J. Harold Olson and J. K. Owens, both of Kansas City, for respondents.

WILLIAMS, C.

This suit was instituted in the circuit court of Jackson county, Mo., at Kansas City. The prayer in the petition is for damages for an alleged breach of a contract.

It is alleged in the petition that the defendants executed a written contract agreeing to supply certain lumber to the plaintiffs. The execution of this contract was denied under oath. The evidence showed that in April, 1924, one Carl A. Nilson retired from business. Prior to that time he had carried on business at 4216 Euclid avenue, Kansas City, Mo. His business was conducted under the name of "Carl A. Nilson Planing Mill & Cabinet Factory." Carl A. Nilson was succeeded by his sons, Arthur E. Nilson and Earl O. Nilson, doing business under the firm name and style of "Nilson Bros. Planing Mill & Cabinet Factory." The offices and mill were removed to 4203-15 Michigan avenue. The father retained no interest in the business.

The plaintiffs in this case, H. W. Underhill & Co., had been, prior to the time mentioned in the petition, a partnership engaged in general contracting. Their offices were located at 235 North Waco avenue, Wichita, Kan. H. W. Underhill & Co. formed a corporation under the laws of the state of Kansas, calling itself the H. W. Underhill Construction Company.

The basis of the suit was an estimate from the Carl A. Nilson Planing Mill & Cabinet Factory, dated June 26, 1925, directed to Underhill Construction Company, Wichita, Kan. The following words appeared upon the exhibit written on the typewriter: "Nilson Brothers, A. E. Nilson, B. H." The acceptance of the estimate was signed "H. W. Underhill & Co., by C. E. Stemmons, Purchaser." The plaintiff sought in the suit to recover damages for the sum of $805 by reason of the alleged failure of defendants to carry out the terms and conditions of the proposal. The plaintiff attempted to introduce the estimate in evidence. The court refused to admit the exhibit; i. e. the estimate. Other exhibits were offered and excluded.

The court directed a verdict in favor of the defendants, and, after an unsuccessful motion for a new trial, plaintiff brings the case here on appeal.

It is contended that the brief of appellant does not comply with our rule. While the brief is not in strict conformance, we feel it is sufficient to allow a consideration of the case. It is contended that the court erred in directing a verdict for the defendant, and that the court erred in excluding the exhibit. It is argued that, while the exhibit was not signed in the proper name of the plaintiff, it was but a misnomer. We concede that the general rule is that a corporation must take contracts in its corporate name. However, there is an exception to this rule in that a misnomer of the corporation will not affect the validity of its contracts. Fletcher on Corporations, vol. 2, § 742, p. 1693; 14 C. J. "Corporations," § 388; St. Louis Hospital Ass'n v. Williams' Adm'r, 19 Mo. 609, loc. cit. 612; Adler v. Railroad Co., 92 Mo. 242, 4 S. W. 917.

It has been held that a contract taken under an assumed or fictitious name meets the requirements of the statute of frauds. 27 C. J. "Statute of Frauds," § 356, p. 287; sections 332, 331; Bishop Press Co. v. Lowe, 201 Mo. App. 68, 209 S. W. 962; Augur v. Couture, 68 Me. 427.

In the opening statement, the attorney for the defendant said:

"The evidence will show that H. W. Underhill Construction Company is a Wichita concern, a corporation under the laws of Kansas, and the principal place of business is at Wichita,...