Detroit Automatic Scale Co. v. Taylor

TURNER, J. On August 5, 1914, plaintiff in error, Detroit Automatic Scale Company, in the county court of McCurtain county, sued O. R. Carr, as principal, and defendants in error, Tom 6. Taylor and T. W. Hunter, as sureties, on the following undertaking : “Know all men by these presents that we, the undersigned, bind ourselves to pay the Stimpson Computing iScale Company, of Detroit, Mich., a corporation organized under the laws of the state of Indiana, with its principal office at Elkhart, Ind., the penal sum of ($500) five hundred and no/100 dollars. This bond is executed upon these conditions : Whereas, the undersighed C. R. Carr is about -to enter the services of said company las salesman, now if he shall fully account to said company for all property and moneys it may furnish to him for any purpose connected with such salesman, and pay said company any balance that may be due them, then this bond shall be void; otherwise in full force. “Signed this 21st day of April', 1913. “O. R. Carr. “Tom G. Taylor. “T. W. Hunter.” Plaintiff's amended petition alleged that on or about January 28, 1913, the Stimpson Computing Scale Company, a corporation, entered into -a written contract with C. R. Oanr to act as agent and salesman for said company, by the terms of which said Carr was to sell and handle the scales of said company in certain designated territory in this state; that, while acting as such agent, he breached his bond and contract of employment with said company by failing to account for all moneys coming into his hands as such agent. Plaintiff attached an itemized statement of the accounts between said company and said Carr as an exhibit, showing a balance due said company from Carr of $799.22. Plaintiff then alleged: “That it is the company, composed of the same officers and stockholders described as the Stimpson Computing Scale Company of Detroit, Mich., in said contract marked Exhibit A, ¿nd the bond marked1 Exhibit B, and for a number of years did business under said name, but on| or about the — day of -, through regular publication of the secretary of state, said company changed its name to avoid confusion with other companies of similar names, and plaintiff alleges that it is the identical company set forth and described as the 'Stimpson Computing 'Scale Company.” Plaintiff prayed: “That it have judgment against the said C. R. Carr in the amount set forth in said statement of account, to wit, * * * $799.22, and interest at 6 per cent, from 30th day of June, 1914, ;and that it may have and recover judgment against the defendants Tom G. Taylor and T. W. Hunter and each of them, in the sum of $500, the same being the full extent of the penalty in the said bond marked Exhibit B.” For answer defendants Taylor and Hunter filed a verified general denial. For reñí’’ plaintiff attempted to predicate a new cause of action upon an “account stated.” to which a motion to strike was sustained. The cause was tried to the court, and a demurrer sustained to the evidence of plaintiff, *122 judgment entered for defendants, and plaintiff brings tbe case here. No judgment was taken against Cam1. Tbe court erred in sustaining Ibe demurrer to tbe evidence; tliis for tbe reason -that the evidence shows that in September, 1912, the name of Stimpson Computing Seale Company was changed according to law to tbe Detroit Automatic Scale Company, . plaintiff herein; that this contract and bond were subsequently entered into by plain-1 iff under its old name, to wit, Stimpson Computing Scale Company; that this bond was delivered to tbe agent of the plaintiff, tbe Detroit Automatic Scale Company, and was accepted by it; that tbe principal of said bond, Carr, continued to work for plaintiff : that said plaintiff was erroneously described in said bond unite its former name, after it had changed its name by authority of tbe secretary of state. Tbe evidence further shows that there was no change whatever in tlio organization of the plaintiff after the change in its name; that plaintiff is the same corporation described in said bond and contract as the “Stimpson Computing' Scale Company,-’ as alleged in plaintiff’s petition. In Peever Mercantile Co. v. Statte Mut. Fire Ins. Ass’n, 23 S. D. 1, 119 N. W. 1008, 19 Ann. Cas. 1236, the facts were: Plaintiff was incorporated under the name of “Pee-ver-Gorman Mecantile Company,” but its name was, ¡in January, 1907, changed according to law to “Peever Mercantile Company.” On April 11, 1907, defendant issued a renewal policy of insurance to plaintiff, insuring its stock of goods in the name of “Pe.eveir-Gorman Mercantile Company,” which nolh'v was addressed and mailed to “Pee-ver-Gorman Mercantile Oomrv'.ny,-1 vtweive,d by plaintiff and retained by it, after which plaimin ptuu a part of the premium thereon and .executed a note for the balance. The property was destroyed by fire. In a suit on die policy dexmdau. defended upon the ground that said renewal policy was issued to plaintiff without any knowledge that it had ceased to exist, and without any notice that, plaintiff had changed its name; that therefore it was- not liable to plaintiff for the loss. The court said: “It is quite clear from the findings of the court (hat the present plaintiff and the Peever-Gorham Mercantile Company are one and the same corporation, and that the amendment of its articles of incorporation did not in any way change its identity as a corporation. * * * It is clear, therefore, that, the renewal policy having been mailed and r-eceived and retained by the plaintiff, the plaintiff, having sustained a loss during the existence of the renewal policy, was entitled to recover for such loss in this action, and that the mere fact that its articles of incorporation had been amended by a change in the name of the corporation did not affect its rights to recover under the renewal policy. * * * ‘With reference to the effect of changing the corporate name it may be stated that it has no effect whatever, 'in theory of law, upon the identity of the corporation, although it may have the effect of inducing additional averments in pleading in particular cases.’ 10 Cyc. 156; Trinity Church v. Hall, 22 Conn. 125; 7 Am. & Eng. Enc. of Law (2d Ed.) 686. 687: Welfley v. Shenandoah Iron, etc., Co., 83 Va. 768, 3 S. E. 376. it is quite clear irom the evidence and findings in the case at. bar that the identity of the plaintiff corporation was not changed by the amendment . in the name. It occupied the sqme premises and continued the same business and had preciicnJIy tbe same officers. In our opinion the court was right to holding tha'- Hv renewal policy was in effect mailed to the plaintiff, although issued and addressed in the name of the old corporation, and that its retention by the plaintiff was in legal effect an acceptance of the policy, and thereby created a binding contract between the defendant and the plaintiff. The change in the name ‘does not amount to the creation of a new corporation, since under the new name .all ita original rights, privileges, liabilities, remained intact.’ 7 Am. & Eng. Enc. of Law (2d Ed.) supra.” In Roberts v. Mosier, 35 Okla. 691, 132 Pac. 678, Aun. Cas. 1914D, 423. in the syllabus it is said: “A contract or obligation may be entered into by a person by any name he may choose to assume. The law only looks to tbe identity of the individual, and when that is clearly established the act, when free from fraud, will be binding.” And in Clement v. City of Lathrop (C. C.) 18 Fed. 885, the court said: “If it appears from the allegations and proof that the obligation sued upon was intended to be the obligation of the corporation sued, a recovery will not be defeated by reason iof a misnomier alone. Such misnomer of the corporation will not prevent a recovery, ‘either by or iagainst the corporation in its true name, provided its -u ur.ity with that intended by the parties to the instrument he averred in the pleadings and n-marent !in the proof.’ Ang. & A. Corp. par. 234; Daniel. Neg. Inst. par. 399; Dill. Mun. Corp. (3d Ed.) par. 179; Minot v. Boston Asylum, 7 Metc. [Mass.] 416. It is enough if the identity of the corporation is unmistakable, either from tbe face of the instrument or from the averments and proof.” Bt"l defendants contend they are nor liable, for the reason they never agreed to *123 answer to plaintiff for any sum whatever, the bond being executed to the Stimpson Computing Scale Company, and that they cannot be held beyond the express terms of their contract. The bond is not ambiguous, and it should^be construed according to the intent of the parties thereto. While it is executed to the Stimpson Computing Scale Company, the evidence shows that said company and plaintiff here are one and the oame company; that plaintiff changed n-name prior to the execution of the bond, but that the bond was delivered to the agent of plaintiff and accented by it; and under the authorities above cited, we do not think defendants’ contention tenable. But the court was right in sustaining defendants’ motion to stir-ike the reply of plaintiff to the verified general denial of defendant; this for the reason that the answer- did not contain “new matter” entitling plaintiff to a reply thereto under Kev. Laws. 1910, § 4753, which.provides: “When the answer contains new matter, the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted 'by him; and he may allege in ordinary and concise language, and without repetition, any new matter not in-eons'isienr wnh the petition, constituting a defense to such new matter in the answer. . The amended petition was based both up.on the bond and an itemized account attached as an exhibit to the petition. Plaintiff, by its reply to the verified general denial of defendants, alleged that on or about March 5. 1914, plaintiff and. defendant Carr checked over said accounts and agreed upon the amount due plaintiff, which, it alleged, constituted. an account stated between them; that defendants Taylor and Hunter accepted a letter from plaintiff, showing the amount due it if rom said Oarr, and that they promised in writing to make every effort to secure payment, of said account by Carr, and for that reason plaintiff alleged defendants are estopped to deny liability on the bond. It will therefore be seen that n-o “new matter” was alleged in the answer to which a reply could he filed, and that said matters alleged also constituted a departure from the original petition, in that plaintiff attempted to set up an account stated and a plea of estoppel against defendants’ denying liability on the bond. For -the reasons stated, the judgment of the trial court is reversed, and the cause remanded, with directions to grant a new trial. 1 ! i: i All the Justices concur, except HABJDX and BRETT, JJ., not participating.