Jenet v. Albers

• Decision Date: 09 December 1895
• Parties: JENET et al. v. ALBERS. [1]
• Court: Colorado Court of Appeals

43 P. 452

7 Colo.App. 271

JENET et al. v. ALBERS. ^[1]

Court of Appeals of Colorado

December 9, 1895

Appeal from district court, Pitkin county.

Action by Theodore Albers against Louis Jenet and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Downing Stimson & McNair, for appellants.

G.I Chittenden and Edwin M. Johnson, for appellee.

REED, P.J.

The appellants, with others, claimed to have become incorporated as the "Aspen Leader Publishing Company," and were engaged in publishing a newspaper called the "Aspen Leader," during the year 1893, and, for the purpose of such publication, rented from appellee a part of a building known as the "Albers Block," in the city of Aspen entered into the possession on the 27th day of March, 1893 and continued to occupy it during the balance of the year, at a rental of $110 a month. There was a written contract of lease executed on the part of the corporation by J.M. McMichael, as manager, who was also at the time assuming to be and acting as a director. Appellants were also acting as directors for the year. The corporation defaulted in the payment of rent, which was to be paid monthly, in advance. At the time of bringing the suit, the corporation was in default from June, 1893, to January, 1894 owing on that date $880. The suit was instituted against the individuals acting as directors of the corporation, under the statute making them individually and jointly liable for a failure to file the certificates required by the statutes. The answer was a general denial of the allegations in the complaint. The second defense was as follows: "And, for a second and separate defense to the said action, these defendants allege: That the said lease in complaint herein mentioned is not the contract of the said Aspen Leader Publishing Company, and that the same was never authorized by the board of directors of the said company, or by any officer or agent of the said company having power to authorize the said lease, nor was the same ever executed or accepted by the said company, or by the authority of the said company, or by any officer or agent of the said company having power to execute or accept the same." Third, the nonjoinder of Henry Webber, one of the directors. A trial was had, resulting in a judgment for the plaintiff for $880, from which this appeal was prosecuted.

This case is against the same parties as the case of Jenet v. Nims (recently decided in this court) 43 P. 147, the foundation of the action the same, the evidence to establish the liability the same, and the law applicable the same. That case must rule and control this.

The corporation, in the contracting of the debt, assuming to act as a corporation, and the individuals against whom the suit was brought, assuming to act as directors, and contracting the debt as officers, they are estopped to deny the official positions in which they pretended to act. See authorities cited in Jenet v. Nims. The defense that the making of the contract and execution of the lease by the manager and director McMichael was not the act of the corporation is untenable. Failing to disavow entering, using the building and receiving the benefits of the contract, and recognizing its...