Curtis v. Piedmont Lumber & Mining Co.

MekrimoN, C. J.: The statute (The Code, §683; Acts 1871-72, ch. 199, § 23) prescribes, that “Every contract of every corporation, by which a liability may be incurred by the company exceeding one hundred dollars, shall be in writing, and either under the common seal of the corporation or signed by some officer of the company authorized thereto.” This provision is important and not merely directory. Its purpose is to protect corporations against the hasty or fraudulent acts and practices of their incautious or faithless officers and agents, and as well those persons who deal with *404 them in respect to contracts involving pecuniary liability of importance. They must necessarily act and contract by and through their officers and agents, and it is wise and salutary to protect them and those who deal with them in the way thus provided. Such contracts must be in writing and under the common seal of the corporation, or signed by some one of its officers authorized thereto. It is not sufficient to simply recognize, by such officer or agent, a merely verbal contract to give it efficiency. It must be done in writing, and in such way as to give evidence of the nature, purpose and substance of the contract. Otherwise, the statute would be practically nugatory. In this case, the defendant is a corporation of this State and clearly comes within the purpose of the statute above recited. The plaintiff alleges specifically a merely verbal contract with it, whereby a liability of it to the plaintiff might be incurred for a sum much greater than one hundred dollars. The defendant, in order to avail itself of the defence of the statute, must plead it specifically. It must appear from the pleadings that it intends to rely upon the same. Here the defendant does plead it specifically, and relies upon it as a particular ground of defence. The plaintiff relies upon divers letters written by the defendant’s treasurer to him to show that he, for the defendant, recognized the alleged contract in writing. These letters are set forth in the case stated on appeal, and we have examined them carefully. They do not, in any reasonable interpretation of them, refer to, or at all purport to recognize, the contract alleged. They do not refer to this or any particular contract, they simply refer to logs that the plaintiff sent and was expected to send to the defendant, but when or to what point they were to be sent, what number, what kind and at what price, does not appear by terms or the remotest implication. There was no evidence to go to the jury to prove the contract in writing signed by the *405 •defendant’s officer, and, hence, the plea should have been sustained. Kenner v. Manufacturing Co., 91 N. C., 421; Rumbough v. Improvement Co., 106 N. C., 461. The statute refers to executory contracts which create liabilities and obligations of the corporation — not tocases where “they have received and availed themselves of property sold and actually delivered to them. No doubt the defendant might be compelled to pay the fair value of any logs it received and accepted from the plaintiff, but no question in that respect is presented here. The defendant also pleaded specifically the pendency of another action in the same Court, between the same parties, founded on the same cause of action as in this case. It could not avail itself of such defence except by demurrer in proper cases, or by pleading the same specifically in the •answer, and it may be pleaded with other defences. The Code, § 239, par. 3; Blackwell v. Dibbrell, 103 N. C., 270; Montague v. Brown, 104 N. C., 161. Such defence is a good one when well pleaded, and should be sustained. Woody v. Jordan, 69 N. C., 189; Smith v. Moore, 79 N. C., 82; Tuttle v. Harrill, 85 N. C., 456; Sloan v. McDowell, 75 N. C., 29; Long t. Jarratt, 94 N. C., 443; 1 Chit. Pl., 454. Here it is admitted that there was an action pending in the same Court, between the same parties, founded upon and involving the same •cause of action as in the present action, when the latter began. That the plaintiff in the former action submitted to a judgment of nonsuit after the present one began, could not alter the case — he should have done so before this action began, if for any cause he could not proceed in the former ■one. Upon the admission of the pendency of the former action, the Court should at once have sustained the defendant’s plea and dismissed the action, • The defendant is entitled to a new trial, Error.