White v. Bellefontaine Lodge I. O. of O. F.

• Decision Date: 08 May 1888
• Citation: 30 Mo.App. 682
• Parties: LIZZIE G. WHITE, Appellant, v. BELLEFONTAINE LODGE, INDEPENDENT ORDER OF ODD FELLOWS, Respondent.
• Court: Missouri Court of Appeals

30 Mo.App. 682

LIZZIE G. WHITE, Appellant, v. BELLEFONTAINE LODGE, INDEPENDENT ORDER OF ODD FELLOWS, Respondent.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

APPEAL from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.

Affirmed.

LEE W GRANT, for the appellant: The principle is well established that if an individual makes a contract with an association having a corporate name, in a suit by the association against him, he will not be allowed to deny that they are incorporated. This is true of religious and benevolent associations, as well as business corporations. Church v Pickett, 19 N.Y. 485; Society v. Perry, 6 N.H. 164; Medical Institute v. Harding, 11 Cush. 285. If a benevolent association adopts articles of association, uses a name implying a corporate existence, makes contracts in this corporate name and not in the name of the individuals composing it, it would be unjust to allow it to evade a just debt by denying its corporate existence. Barboro v. Occidental Grove, 4 Mo.App. 429.

T. A. RUSSELL, for the respondent: When a case is tried before the court without a jury, no objections are made to any of the evidence, and no instructions are asked or given, the judgment will be affirmed. Parkinson v. Coplinger, 65 Mo. 290, 294, 295; Harrison v. Bartlett, 51 Mo. 170; Wilson v. Railroad, 46 Mo. 36. All the evidence was heard and considered by the court, and having determined the question in favor of the respondent, the plaintiff has nothing of which to complain in this court. Reese v. Cook, 17 Mo.App. 512. By the act of March 15, 1883, it became necessary for defendant to file its affidavit in order to put in issue the fact of its incorporation, and having done this it was incumbent on the plaintiff to establish the incorporation, or show that the defendant was estopped from denying it. Session Acts, 1883, p. 121. The appellant failed to make the necessary proof on this point, and prima facie the respondent is not a corporation.

OPINION

THOMPSON J.

This action is brought by the widow of a deceased member of the defendant lodge of the Independent Order of Odd Fellows to recover the sum of forty dollars, known in the constitution of subordinate lodges and in the by-laws of defendant lodge as a " funeral benefit," and the further sum of two dollars per week for a period of forty-two weeks elapsing since the death of her husband, as a " widow's benefit" under such constitution and by-laws.

I. The petition alleges that the defendant is a benevolent corporation of the state of Missouri. The defendant appeared by the name by which it was impleaded in the petition and answered by a general denial. Separate from the answer and not referred to therein, is an affidavit to the effect that the defendant is not a corporation as alleged in the petition. This affidavit seems to satisfy the terms of the act of March 15, 1883, which provides that the fact of the existence of a corporation must be put in issue by an affidavit filed with the pleadings. This affidavit cast upon the plaintiff the burden of proving that the defendant was a corporation; but the plaintiff introduced no evidence tending to show that such was the fact, and the defendant, on the contrary, introduced evidence tending to show that it had never been incorporated. As the suit has not been properly brought, we shall affirm the judgment without looking into the merits, with the additional observation that if, after the decision and opinion of the circuit judge in this...