Kennedy v. Cotton

By the Court, T. R. Strong, J. It was not necessary for the plaintiff to allege, in the complaint, the incorporation of the Buffalo and Hew York Oity Eail Eoad Company, further than is done by the statement of its name, and of the making of the agreement between the defendant and the company, and what the company did in relation to the agreement. That statement includes the idea of the legal existence of the company; and the fact of incorporation was mere evidence in [63] support of it, not essential to be particularly stated in the pleading. No more certainty was required in the complaint, as to the corporate character of the company, than if the company had brought the action; and in that case it would be clear, upon authority, that at common law no specific allegation of incorporation would be important. The name of the company would imply its corporate existence. It would be impliedly averred, by the name, that the company was a corporation. And under the general issue the company would be bound to prove its incorporation. This doctrine is supported by numerous cases; among which I refer to Norris v. Stops, (Hob. 211;) Henriques v. The Dutch West India Co., (2 Ld. Raym. 1535;) The President of the U. S. Bank. v. Haskins, (1 John. Cas. 132;) The Bennington Iron Co. v. Rutherford, (3 Harrison’s N. J. Rep. 105, 158 ;) Harris v. The Muskingum Co., (4 Blackf. 267;) Richardson v. The St. Josephs Iron Co., (5 id. 146.) See also The Dutchess Cotton Manufact. Co. v. Davis, (14 John. 239;) Bank of Utica v. Smalley, (2 Cowen, 770, 778;) Bank of Michigan v. Williams, (5 Wend. 478,482.) The revised statutes of this state have provided a short form of pleading their incorporation by corporations created by or under any statute of this state; and have also relieved Such corporations from proving, in actions brought by" them, their corporate existence, “ unless the defendant shall have pleaded in abatement or in bar that the plaintiffs are not a corporation;” but they have not imposed upon corporations in declaring, the necessity of alleging their incorporation. The common law rule on that subject, as above stated, is wholly unaffected by those provisions. It has been held in one case, at special term, under the code which makes it a ground of demurrer to a complaint that the plaintiff has not legal capacity to sue, that a corporation suing must show in the complaint how it was created. (Johnson v. Kemp, (11 How. Pr. Rep. 186.) And this decision has some countenance in another case at general term. (The Bank of Havana v. Wickham, 16 How. Pr, R. 97.) But in neither [64] case was the rule of the common law, that in an action by a corporation the corporate name includes an allegation of the plaintiff’s corporate character, which must be proved under the general issue to a declaration, and, upon the same principle, under a general denial to a complaint, under the code, even adverted to; from which I think it manifest, that neither, as to the point in question, received due consideration. That rule is in direct conflict with those cases, and -is, I am satisfied, too well sustained by authority to be shaken by them. (See Union Mut. Ins. Co. v. Osgood, 1 Duer, 707; The Bank of Waterville v. Beltser, 13 How. Pr. R. 270.) The wisdom and convenience of the rule also strongly commend its preservation. The defendant is not at liberty to object that the incorporation of the company was not proved, as it does not appear that the objection was taken at the trial. It was incumbent on the defendant to raise the objection there, to.entitle him to avail himself thereafter of the omission or defect of proof in respect to that part of the case. If the objection had then been made, it might possibly have been obviated by proof. Besides, it affirmatively appears to have been assumed at the trial that the company was a corporation. In objecting to evidence, the defendant^repeatedly designated the company as a corporation; as that there was no allegation in the complaint that the company was a corporation, that the corporation was not competent to make the assignment, the omission of proof that the persons executing the assignment were officers of the corporation, that the seal affixed was the seal of the corporation, that the president and secretary had power to contract for the corporation: at no time intimating that the company .was not a corporation. The official character of the persons who acted as president and secretary in assigning the agreement with the defendant to the plaintiff, and their authority to execute the assignment for the company, were sufficiently proved. They, as such officers, and acting for the company, contracted with the plaintiff, [65] for the construction of the station buildings for the company, and assigned to the plaintiff the said agreement towards payment; and the company, after the buildings were erected, occupied the same, thereby recognizing those persons as their officers, and their authority to do what they had done. [Monroe General Term, September 6, 1858. T. R. Strong, Welles and Smith, Justices.] The agreement in question clearly imports a request to the • company to construct the buildings, and establish and improve the roads specified in the agreement, and a compliance with the request by the company, so far as to construct the depot, which was the consideration, on its part, of the agreement, was a sufficient consideration for the defendant’s undertaking. The recent case of Barnes v. Perine, (2 Kern. 18,) and the cases there referred to, are entirely decisive upon this point, and render any discussion of it unnecessary. It must be assumed from the report of the referee, that the buildings were erected by the company in pursuance of the agreement; and that was an acceptance of the whole of the agreement by the company, binding them to apply whatever moneys they should receive upon it to the purposes therein mentioned. My conclusion therefore is, that the judgment appealed from is right and should be affirmed.