Bell v. Commercial Inv. Trust Co., Inc.

Opinion by ESTES, O. Parties will be referred to as they appeared in the trial court, inverse to their order here. The Commercial Investment Trust Company, Inc., alleged to be a conpolration, had judgment against defendant, Ev,ai II. Bell, on verdict of jury, for $474.27 and interest, as balance on a promissory conditional sales «contract, executed by defendant, Bell, to Mote Mctor Ooanpany for balance of purchase price of an lautomobile, and by that company, for value, assigned and delivered to plaintiff. Defendant filed verified denial of the corporate existence of plaintiff, admitted the execution of the contradc sued upon, and pleaded payment of the balance of the claim. Defendant also, by way of cross-petition against the plaintiff, pleaded twd specific items of damage and prayed that plaintiff tklce nothing, and that she, defendant, have judgment against plaintiff for $1,000. The only error -assigned for review by defendant in this appeal is whether she is estopped to deny the corporate existence of plaintiff, it being conceded that defendant duly denied such corporate existence by her verified answer, and thereby oast this burden of proof upon the plaintiff. “An estoppel to -deny -corporate existence may arise from a judgment or other matfer of record. An estoppel tio deny the corporate existence may also/ arise from an express or implied admission of the fact in an action or proceeding brought by or against an alleged' corporlation. One who sues an alleged corporation as such thereby necessarily admits that it is a corporation and is estopped to deny its corporate existence, * * * and for the -same reason, a defendant is estopped to deny plaintiff’s corporate existence by counterclaiming and -asking judgment against it as a corporation.” 14 C. J. 248; Ward v. Minnesota, etc., R. R. Co. (Ill.) 10 N. E. 365; Rialto Co. v. Miner (Mo.) 166 S. W. 629; Black River Imp. Co. v. Holway (Wis.) 55 N. W. 418; McKnight v. Mineral Point (Wis.) 1 Pinney, 99. In Swafford Bros. Dry Goods Co. v. Owens et al., 37 Okla. 616, 133 Pac. 198, 198, this court quoted with approval the following from Clark and Marshall on Private Corporations, 275: *231 “A person who sues a corporation as such thereby -admits the legality of its incorporation, and is estopped, from denying it in that suit. And the same is true where a person files ia cross-bill or petition, or counterclaim against a corporation.” Further discussion of the doctrine of equitable estoppel is unnecessary. By her coun't-erelaim for $1.000 .against plaintiff, defendant estopped herself by the record and also admitted legality of plaintiff as a corporation. We deem it unnecessary to consider the other acts of estoppel urged by the plaintiff against the defendant. Let the judgment be .affirmed. Proper application being made for judgment in ibis court against tbe sureties on tbe supersedeas bond herein, and i'c being considered that such motion ought tol be sustained, it is hereby ordered and adjudged that defendant in error, Commercial Investment Trtisc Company. Inc., do have and recover of and from Donald Prentice and D. B. Jo'hnston, sureties on the supersedeas bond of Eva I-I. Bell, herein, the sum of $474.27 with interest thernon at the rate of ten per cent, per annum from July 6, 1923, for all of which let execution issue. By the Court: It is so ordered.