Marshall Field Co. v. Oren Ruffcorn Co.

• Decision Date: 21 May 1902
• Citation: 117 Iowa 157,90 N.W. 618
• Parties: MARSHALL FIELD CO. v. OREN RUFFCORN CO.
• Court: Iowa Supreme Court

117 Iowa 157

90 N.W. 618

MARSHALL FIELD CO.

v.OREN RUFFCORN CO.

Supreme Court of Iowa.

May 21, 1902.

Appeal from district court, Union county; W. H. Tedford, Judge.

The defendant appeals from judgment for the amount due on three promissory notes. Reversed.Harvey & Parish and Sullivan & Sullivan, for appellant.

D. W. Higbee, for appellee.

LADD, C. J.

In this action recovery is sought on three promissory notes signed “Oren Ruffcorn Co., per Oren Ruffcorn, President.” In the first division of the answer the defendant denied their execution, and, while conceding them to have been signed by Oren Ruffcorn, alleged that he had no authority to do so. Appellee insists the genuineness of the signature was not put in issue. By section 3640 of the Code the signature is to be “deemed genuine and admitted, unless the person whose signature the same purports to be shall, in a pleading or writing filed within the time allowed for pleading, deny under oath the genuineness of such signature.” The denial is as specific as the circumstances of the case will permit of. It is apparent that, unless Ruffcorn acted with authority, the signature was not that of the corporation, and hence not genuine. The sworn denial is exacted from the party whose signature is alleged to be spurious. Walker v. Sleight, 30 Iowa, 310;Robinson v. Lair, 31 Iowa, 9. Of course, a corporation cannot of itself take an oath. It necessarily and always acts through its officers and agents. Section 3581 of the Code expressly authorizes a corporation, when a party, to verify by agent or officer; and we think that a proper verification of the answer by the secretary of the company put in issue the genuineness of the signature attached to the notes. See, also, section 3609, Id.; Blair v. Railway Co., 109 Iowa, 369, 80 N. W. 673. In such a case it is probable the officer should show knowledge of the facts in order to enable him to deny the signature. As the answer is said in the abstract to have been duly verified by the secretary, without setting out the verification, it will be assumed to have been sufficient in this respect. The burden of proving the due execution of the notes was on the plaintiff.

2. The plaintiff first offered in evidence the three notes, to which the defendant objected on the ground, among others, that their genuineness had been denied. This objection should have been sustained. Before they were admissible, the authority of Ruffcorn to attach defendant's name should have been shown. Miller v. House, 67 Iowa, 737, 25 N. W. 899;Hay v. Frazier, 49 Iowa, 454. But this pertains more especially to the order of the proof, and, if such authority had been subsequently established, the error might be deemed to have been without prejudice. Oren Ruffcorn was not shown to be an officer or agent of the company. The credit man of plaintiff was called as a witness, and, after some preliminary questions, was asked concerning the course of dealings between the plaintiff and defendant. This was objected to as immaterial. In response to an inquiry from the court, counsel for plaintiff stated that the purpose of the evidence sought to be elicited was to show authority. Thereupon defendant's attorney announced that no evidence would be introduced on its part, saying: “The notes have been introduced. We have our objections, and the court has overruled our objections, and this would be entirely immaterial.” The objection was then sustained. We fail to discover any admission affecting the issue in the statement quoted. It is rather an assertion that the objections already made would be relied on, with the suggestion that, if the notes were receivable in evidence, nothing further was necessary. But the appellee urges that the execution of the notes was admitted in an affidavit for change of venue, the second and third divisions of the answer, and in the counterclaim. None of these were offered in evidence. It is well settled that, unless the papers in a case form part of the pleadings on which it is tried, the admissions or declarations contained in them cannot be considered, unless formally introduced in evidence. Shipley v. Reasoner, 87 Iowa, 555, 54 N. W. 470;Leach v. Hill, 97 Iowa, 81, 66 N. W. 69;Burns v. Railway Co., 110 Iowa, 385, 81 N. W. 794. Anything said to the contrary in Mulligan v. Railway Co., 36 Iowa, 181, 14 Am. Rep. 514, must be regarded as overruled by these decisions. As a demurrer to the divisions of the answer mentioned and to the counterclaim had been sustained, and defendant had elected to stand on the ruling, these formed no part of the pleadings on which the trial proceeded. They were not offered as proof, and as there was no evidence of the genuineness of the signature, judgment should have been entered for the defendant.

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