Simon v. Calfee

• Decision Date: 23 July 1906
• Citation: 95 S.W. 1011
• Parties: SIMON et al. v. CALFEE.
• Court: Arkansas Supreme Court

95 S.W. 1011

SIMON et al. v. CALFEE.

Supreme Court of Arkansas.

July 23, 1906.

Appeal from Circuit Court, Pulaski County; E. W. Winfield, Judge.

Action by J. S. Calfee against C. M. Simon and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Fulk, Fulk & Fulk, for appellants. Marshall & Coffman, for appellee.

HILL, C. J.

1. Calfee sued Chas. M. Simon, Julia Simon, and Arkansas Stables on two promissory notes for $125 each in favor of J. F. Allen & Co., signed by Chas. M. Simon and assigned to Calfee, a member of Allen & Co., and indorsed by Julia Simon and Arkansas Stables. Julia Simon went out of the case on a plea of coverture. The complaint alleged the indorsement of the notes by Arkansas Stables, a corporation organized under the laws of Arkansas. The answer did not deny this allegation as to the corporate existence of Arkansas Stables. The first point made is that there was no evidence introduced to show that the Arkansas Stables was a corporation which could bind itself by indorsement. There was no necessity of any evidence of the corporate existence of the Arkansas Stables as the apt allegation of it in the complaint was not denied. Where the power of the officers of a corporation to bind it is challenged in an answer, the authority should be shown in evidence and not presumed. City Elec. St. Ry. v. First Natl Bank, 62 Ark. 33, 34 S. W. 89, 31 L. R. A. 535, 54 Am. St. Rep. 282. But a corporation cannot avail itself of a want of power or lack of authority of its officers to bind it, unless the defense is made on such grounds. Thompson on Cor. §§ 7617-7619.

2. The defense to the notes was that Allen & Co. and Simon entered into a contract to bid on some government mail contracts; that they secured two such contracts; that Allen & Co. knew the contracts were illegal; that the notes were executed in pursuance of the alleged contract; and further alleged that, after the bids were accepted, Allen & Co. represented that the contract existing between them and Simon was illegal and the Post Office Department was canceling all contracts of like nature to theirs, and for mutual protection they would sell their interest for $500 to him; and that, on the strength of such inducements, Simon executed the notes sued upon; and that such representations were false and fraudulent. Issue was then made and sent to a jury on instructions given at instance of appellant to this effect: If Allen & Co. by false representations induced Simon to...