Ramsey v. the Peoria Marine & Fire Ins. Co. Use
| Decision Date | 30 September 1870 |
| Court | Illinois Supreme Court |
| Parties | SILAS RAMSEYv.THE PEORIA MARINE & FIRE INSURANCE Co. use, etc. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Peoria County; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.
The opinion states the case.
Messrs. COOPER & MOSS, for the appellant.
Messrs. MCCULLOCH & RICE and Messrs. WORTHINGTON & PUTERBAUGH, for the appellees.
This was an action of assumpsit, in the Peoria circuit court, on a promissory note, to which the general issue was pleaded, with leave to set up any defense, and put in any evidence which the defendant might, under any and all special pleas, well pleaded. The action was brought to the November term, 1869, of the circuit court, by the Peoria Marine & Fire Insurance Company, for the use of William M. Dodge, receiver, on a stock note made by the defendant for the balance due on the purchase by him of seventy shares of the stock of that company, at the par value of $100 per share.
The note bore date July 24, 1867, payable six months after date, with interest at the rate of ten per cent per annum.
On the introduction of the note in evidence, the defendant objected, on the ground that no evidence had been given of the incorporation of plaintiffs, and of their organization under the charter. This objection being overruled, the plaintiffs, on the introduction of the note, rested their case, whereupon the defendant moved the court to exclude the evidence from the jury, which motion was also overruled, and these present the point first made by appellant on this record.
We are to understand, under the stipulation in this case, that the plea of nul tiel corporation was put in, as that is a special plea in bar, which can be properly pleaded with the general issue.
Under such a plea, it is the doctrine of this court, and of many other courts, that the plaintiff must give evidence of their corporate character by the production of the charter, and proof of user under it.
The leading case in this court, upon this question, is McIntire v. Preston, 5 Gilm. 48, where the whole subject is fully considered. There it was said, in referring to the contrariety of decisions on the point as to the plea of the general issue raising the question of the capacity of the plaintiff to sue in the character he had assumed, the better rule is, that in suits brought by corporations, the defendant, by pleading the general issue, admits the capacity of the plaintiff to sue, and that, if the defendant would deny the existence of the corporation, he must put in a plea for that purpose.
So early as 1825, this court held, where a private corporation sues to recover real property, or upon a contract, it must, under the general issue, produce the act of incorporation. Hargrave v. The Bank of Illinois, Breese (Beecher's Ed.) 122; Jones v. The Bank of Illinois, ib. 124, and this ruling has not been departed from by this court. By the stipulation, the existence of the plaintiffs as a corporation was directly in issue, and the court erred in permitting the note to go in evidence without proof of the corporate character of the plaintiffs. Such proof could readily have been made by producing the charter, and the note in suit would have established user under the charter. McIntire v. Preston, supra.
But the cause proceeded on evidence submitted by the appellant, a portion of which consisted of the charter granted by the general assembly, and thus the defective portion of the plaintiffs' case was supplied.
The next point made by appellant is, that appellees failed to prove a legal organization of the company.
The proof shows, that appellant was one of the original subscribers to the capital stock of this company, and as such, had been elected and served as one of the directors. These facts preclude appellant from making this objection. His acts as a director, implying that it was a corporation, estop him from denying its incorporation. It is a settled rule that a party who has contracted with a corporation de facto, is never permitted to allege any defect in its organization, as affecting its capacity to contract or sue; but all such objections, if valid, are only available on behalf of the sovereign power of the State. Stone v. Great Western Oil Co. 41 Ill. 85; Palmer v. Lawrence, 3 Sandf. (N. Y.) 161. Many other cases to the same effect might be cited, but it is unnecessary.
The next point made by appellant is, there was no sufficient consideration for the note.
The evidence shows that appellant was an original subscriber to the stock of this company, to the extent of seventy shares, for which he executed a stock note, and on...
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