Hurt v. Salisbury

• Decision Date: 28 February 1874
• Citation: 55 Mo. 310
• Parties: PEYTON V. HURT, Respondent, v. LUCIUS SALISBURY, et al., Appellants.
• Court: Missouri Supreme Court

55 Mo. 310

PEYTON V. HURT, Respondent,

v.LUCIUS SALISBURY, et al., Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Chariton Circuit Court.

Waters & Ray, for Appellants.

I. The association in question takes its existence as a body corporate from the date of recording the certificates with the recorder of the county, and not from the time of filing the same with the Secretary of State, as specified in Sec. 4, of Art. I, page 289, 1 Wagn. Stat.

Where there are general provisions common to a variety of subjects of a kindred nature, and special provisions applicable to each particular class, and they happen to be inconsistent, or in conflict, then the special regulation shall control the general. Sec. 4 of Art. 1, and sec. 2 of Art. 7 of Chap. 37, are manifestly inconsistent. The first, being general, is subservient to the second, which is special. The latter section declares that, “The persons so acknowledging and giving said certificate and their associates and successors, shall for a term not exceeding fifty years next succeeding the recording of such certificate, be a body corporate, &c., &c.

This clearly fixes the time when its corporate existence commenced, and this section governs associations under this article to the exclusion of the general provisions contained in Sec. 4 of Art. 1, when the two are inconsistent with each other.

II. Under the theory of appellants, the note cannot bind them individually. (Murray vs. Caruthers, 1 Metc. [Ky.], 70.)

Shackelford, for Respondent.

I. Under § 4, Art. 1, Ch. 37, Wagn. Stat., the corporate existence of the corporation dates from the time of filing with the Secretary of State. The provisions of Art. 7, § 2 do not modify the former general provision.

II. If the corporation had no existence at the time of the execution of the note sued upon, then the persons signing the note were personally liable. It was their duty if they intended to act only as agents, to see that a principal was in existence who was bound by their acts. (See 38 Mo., 245; 27 Mo., 162; 20 Mo., 284.)

III. If a person undertakes to contract as agent for an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he is personally responsible, and the agent when sued can exonerate himself from personal liability only by showing his authority to bind those for whom he has undertaken to act. It is not for plaintiff to show he had not authority; the defendant must show affirmatively that he had. (See Mott vs. Hicks, 1 Conn., 536; Tippets vs. Walker, 4 Mass., 595; Randall vs. VanUtcher, 19 Johns., 63; Steen vs. Wood, 7 Conn., 454.)

ADAMS, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff against the defendants on the following promissory note:

“($1,000.00.)

SALISBURY, Mo., February 22nd, 1869.

Twelve months after date, for value received, the undersigned as Directors of the North Missouri Central District Stock, Agricultural and Mechanical Association, promise to pay Peyton T. Hurt or order, the sum of One Thousand Dollars, negotiable and payable without defalcation or discount, and with interest from date at ten per cent. per annum.

Signed: LUCIUS SALISBURY, M. L. HURT, ELI WAYLAND, M. B. WILLIAMS, J. A. JOHNSTON, Directors; JAMES W. LEWIS, as Director.”

The petition charges, that the plaintiff loaned the defendants the money mentioned in the note on their individual responsibility and took this note as their personal contract for the same. The answer denied that the defendants borrowed the money on their personal responsibility and charged that they were acting as directors for the “North Missouri Central District Stock, Agricultural and Mechanical Association;” that this association is and was when the note was given a corporation duly organized under the laws of this State, and the note was the note and contract of the corporation, and not the individual or personal note of the defendants. The plaintiff, by replication, denied the new matter set up in the answer. The case was submitted to the court for trial and resulted in a verdict and judgment for the plaintiff.

From the evidence offered and given, the leading facts of the case are, that the corporation referred to was duly organized under section 2 of article 7, 1 Wagn. Stat., 333, (Genl. Stat. 1865, Chap. 62, § 2, p. 367), and that the certificate or articles of association were duly acknowledged and recorded in the Recorder's Office of Chariton County, where the corporation was located, on the 10th day of July, 1868, but were not filed with the Secretary of State under the provisions of section 4 of article 1, 1 Wagn. Stat., 289, till some time after...