Hasselman. v. Japanese Dev. Co.

• Decision Date: 14 April 1891
• Citation: 2 Ind.App. 180,27 N.E. 318
• Parties: Hasselman. v. Japanese Development Co.
• Court: Indiana Appellate Court

2 Ind.App. 180

27 N.E. 318

Hasselman.

v.Japanese Development Co.¹

Appellate Court of Indiana.

April 14, 1891.

Appeal from superior court, Marion county; L. C. Walker, Judge.

A. C. Harris, for appellant. Ayres, Brown & Harvey, for appellee.

Crumpacker, J.

The appellee, an Illinois corporation, engaged in the mercantile business in the city of Chicago, filed its complaint against the appellant in the Marion superior court, in two paragraphs. The first alleges that the appellant is indebted to the appellee on account for goods, wares, and merchandise sold and delivered to him at his special instance and request, by the appellee, to the amount and value of $275, which was due and unpaid, and that a bill of particulars was filed with and made part of the complaint. In the second paragraph the appellee declares that on the 22d day of March, 1886, it sold and delivered to F. S. Morduant, at Chicago, Ill., goods, wares, and merchandise to the amount and of the value of $382.25, at the special instance and request of said Morduant and the appellant, a bill of particulars of which was filed with and made part of the complaint; that such goods, etc., to the amount of $275, were so sold and delivered to said Morduant, pursuant to and upon the faith of the written promise and agreement of the appellant, guarantying the payment of said amount within 30 days from the 18th day of March, 1886, which said written promise was addressed to the appellee in the name and style of “Nee-Ban,” and was in words and figures as follows, to-wit: “3-18-86. Fill Morduant's order. I will guaranty payment within thirty days. O. H. Hasselman.” It is further alleged that said Nee-Ban was the appellee's agent and the manager of its business at Chicago, Illinois; that a demand for the payment of the claim had been made upon Morduant and the appellant, and payment was refused; and that Morduant was insolvent. The appellant answered in three paragraphs, the first and second being general denial and payment; and in the third he admitted the guaranty as alleged in the second paragraph of complaint, but alleged, by way of avoidance, that the appellee sold to Morduant $107.25 in excess of the guaranty, and took an assignment of, and subsequently collected, certain moneys owing to Morduant at Cincinnati, Ohio, for the amount of such excess; that this was done without the appellant's knowledge or consent; and that he (appellant) had obtained and held a prior assignment of the claims due to Morduant at Cincinnati, so taken and collected by appellee. A general denial was filed to the answer, and the cause was submitted to the court without a jury. At the request of both parties, properly made, the court found the facts specially, and stated its conclusions of law thereon, and gave judgment for the appellee. The appellant excepted to the conclusions of law, appealed to the Marion superior court in general term upon such exceptions, and the judgment of the court in special term was affirmed.

This appeal brings before us for review the judgment of the court in general term affirming the judgment in special term. No exceptions were taken to any of the proceedings except the conclusions of law. The special finding discloses the following facts, somewhat abridged: First. During the months of March and April, 1886, the appellee was an Illinois corporation, engaged in business in the line of theatrical supplies at the city of Chicago. Its corporate name was “The Japanese Development Company,” but it was popularly known by the name of “Nee-Ban,” in which name it advertised its business extensively. “Nee-Ban” is the Japanese term for “No. 2.” Second. One Fred. S. Morduant was the proprietor and manager of a theatrical company called the “Juvenile Japanese Mikado Company,” and was largely indebted to the appellant for printing and money advanced. He was in the city of Chicago with his troupe, and needed an outfit to enable him to give entertainments, and on the 17th day of March, 1886, he applied to the appellee for the purchase of such outfit, and procured the appellee to enter into correspondence with the appellant, with the view of obtaining from him a guaranty of the payment for such goods as Morduant might order. Third. The negotiation between the appellee and appellant consisted wholly of telegrams and letters, which are copied at length in the special finding, and are as follows, barring the headings: (1) Telegram: “Chicago, March 17th, 1886. O. H. Hasselman, Indianapolis, Ind.: Send us order under your signature, authorizing us to collect from you for Morduant's order, on completion. Amount about two hundred and seventy dollars.” (2) Letter: “Chicago, March 17th, 1886. O. H. Hasselman, Indianapolis, Ind.-Dear Sir: Confirming our telegram to-day, send us an order under your signature authorizing us to collect from you for Morduant's order, on completion. Amount, about two hundred and seventy dollars. The full order as left by Mr. Morduant to-day will amount, as nearly as we can estimate, to $275. Yours, truly, Nee-Ban.” (3) Telegram: “St. Louis, 18th. Received, Chicago 18th. To Nee-Ban: Fill Morduant's order. I will guaranty payment within thirty days. O. H. Hasselman.” (4) Telegram: “Chicago, March 25th, 1886. O. H. Hasselman, Indianapolis, Ind.: Morduant orders one hundred dollars more. Will you guaranty on same terms? Wire reply. Nee-Ban.” (5) Letter: “Chicago, March 25th, 1886. Mr. O. H. Hasselman, Indianapolis, Ind.-Dear Sir: We beg to confirm our telegram of this day. Morduant orders one hundred dollars more. Will you guaranty on same terms? Yours, respectfully, Nee-Ban.” (6) Telegram: “Indianapolis, Ind., 3-25-1886. To Nee-Ban, corner State & Jackson streets, Chicago: Will not assume payment of any more. O. H. Hasselman.” (7) Telegram: “Chicago, March 26th, 1886. O. H. Hasselman, Indianapolis, Ind.: Morduant has exceeded guaranty one hundred and seven dollars. He has telegraphed you. You must guaranty this amount in addition, or we will attach at once. Answer. Nee-Ban.” (8) Telegram: “Indianapolis, March 26th, 1886. To Nee-Ban, Esq., Chicago, Illinois-Dear Sir: $275 is the full limit of amount of goods we will take and pay for upon our account. Respectfully, O. H. Hasselman.” (9) Letter: “Indianapolis, March 26th, 1886. To Nee-Ban, Cor. State and Jackson streets, Chicago, Illinois-Dear Sir: In answer to yours of yesterday, received this morning, confirming your telegram of yesterday, we answered last night by wire, saying we would not assume to pay any more than $275. We also telegraphed Mr. Morduant advising him to cancel the order beyond $275.00. Yours, O. H. Hasselman.” These were all the letters and telegrams that passed between the parties, and they were all duly received in the ordinary course of transmission and delivery, and they fix appellant's liability in this action, if any liability is fixed upon him. Fourth. The goods sold to Morduant were delivered to him beginning on the 16th of March, 1886, and from that time on up to the 25th of that month, when his orders aggregated $282.25; and, upon receiving notice that the appellant would not guaranty the payment of the whole sum, the appellee commenced some kind of legal proceedings in some court in the city of Chicago against Morduant. The nature of such proceeding and the amount claimed were not disclosed. Such proceeding was dismissed, and the matter compromised by Morduant giving to the appellee an order for $107.25 upon the box-office receipts at Cincinnati, at which place Morduant's company was to perform within a few days from that time, which order the appellee collected in full from such receipts. The appellant had an order from Morduant covering the entire box-office receipts at Cincinnati, antedating that given to appellee, but the appellee had no knowledge of such order. Fifth. The appellant had no notice of the acceptance of his guaranty by the appellee, except such as might be implied from the telegrams and letters, until the 22d day of April, 1886, when the appellee drew on him though the banks for $275. The appellee charged the goods furnished Morduant to the appellant, but the latter had no knowledge of that fact until after the commencement of this action. The claim, amounting to $275, is due and unpaid. Sixth. Since the commencement of the action a receiver has been appointed for the appellee in Cook county, Ill., by some court of competent jurisdiction, and, upon sufficient authority from such court, the receiver has sold and assigned the claim sued upon to one Isaac D. Fletcher, who owned the claim at the time of the trial. The conclusions of law upon the finding are general, and to the effect that the appellant is liable for the payment of the claim sued upon. Counsel for appellant contend that the conclusions are wrong, because- First. The appellee, being a corporation, could not contract in any but its true corporate name, and the contract sued upon, being made in an assumed or fictitious name, is not enforceable. Second. A receiver having been appointed for the appellee pending the suit, its corporate existence became extinct, and it was no longer a legal entity, and a judgment in its favor would be absolutely void. Third. Appellant's engagement was that of a conditional guarantor, and no notice of acceptance was given him by the appellee, so he never became liable upon the guaranty.

In relation to the first proposition, there seems to have been no question in any of the transactions or proceedings...