Smith v. Tallassee Branch of Central Plank-Road Co.

W ALKER, J. In Stodder v. Grant & Nickels, 28 Ala. 416; Leaird v. Moore, 27 Ala. 326, and Friend v. Oliver, 27 Ala. 532, it is decided, that the circuit court cannot allow the amendment of a complaint, by striking out the only two parties plaintiffs, or a sole plaintiff on the record, and inserting another and distinct name as'plaintiff. These decisions are placed upon the ground, that when the name of the sole plaintiff, or the names of all the plaintiffs, are stricken out, there is no actor left, and then there is, in the language of those decisions, “no case,”— “the case is at an end.” The question in this case is distinguishable from the question in those three cases, in this, that here the name of the plaintiff’was not stricken out, leaving the case in the anomalous condition of a suit without an actor ; but the words originally employed in the complaint, descriptive of the artificial personage suing, from their intrinsic import pointed to and designated the same corporation, the name of which remained after an erasure of some of those words; In the Mayor and Burgesses of Stafford v. Bolton, 1 Bos. & Pul., it was held, that the declaring by a corporation, whose true name was, “the Mayor and Burgesses of the Borough of Stafford in the County of Stafford,” by the name of “The Mayor and Burgesses of the Borough of Stafford,” was a defect available by plea in abatement, and not by nonsuit, or plea in bar. - This case draws the distinction betweeir the mere misnomer of a corporation, and the suing by a person altogether different, or not in rerum natura. — See, also, Burnham v. Bank, 5 N. H. 446; Marine Bank of Balt. v. Biays, 4 Har. & J. (Md.) R. 338; Ang. & Am. on Cor. (5th edition,) 710, § 650. In Doe v. Miller, 1 Barn. & Ald. 699, it was decided, that there was no variance, where an ejectment was brought upon the demise of “the Mayor, Aldermen, capital Burgesses, and Commonalty of the Borough — 663 — town of Malden”; the name of the corporation being “the Mayor, Aldermen, capital Burgesses, and Com-omnalty of Malden.” It is remarked in the Newport Mech. Man. Co. v. Starbird, 10 N. H. 128, that the name of a natural person is different from that of a corporation, in this, that the alteration or transposition of a word in the former usually makes an entirely different name, while the name of the latter frequently consists of several descriptive words, and the transposition of them, or an interpolation or omission or alteration of some of them, may make no essential difference in the case. In that case, a note, payable to “The President, Directors and Company of the Newport Mechanics’ Manufacturing Company,” was held recoverable in an action by the “Newport Manufacturing Company.” While it must be conceded, that more strictness as to the name of the corporation is required in pleading, than in contracts and conveyances to which it is a party, (An-gelí & Ames on Corporations, 6th ed., §101,) and while we do not now commit ourselves to all the positions of the several cases cited above ; yet it is certain, that the authorities adduced establish the conclusion, that there is a well-marked distinction between a misnomer, which incorrectly nances a corporation, but correctly describes it, and the statement in’the pleading of an entirely different party. This conclusion being attained, the question of amendment in this case is stripped of embarrassment by the three decisions above quoted from 28th and 27th Ala. which we fully approve. Under our statute of amendments, wo think the amendment was properly allowed by the circuit court. — Code, § 2408; Crimm’s Adm’rs v. Crawford, 29 Ala. 623; Reid v. Scott, at the present term. This opinion is fully sustained by the decisions in. the eases of Brittain v. Newland, 2 Dev. & Bat. (N. C.) 363; Bullard v. P. D. & C. of the Nan. Bk., 5 Mass. 99; Sherman v. P. of Conn. Riv. Bridge, 11 Mass. 338. In the first of those cases, it was decided, that the defect was amendable, where the suit was in the name of the President and Directors of the Buncombe Turnpike Company, instead of the Buncombe Turnpike Company. In the — 664 — other two cases, an amendment similar to the one in this case was allowed. If the plaintiff have any corporate existence, it is derived from the 4th section of the act of 30th January, 1850, providing for the incorporation of the Central Plank-Road Company. — Pamphlet Acts ’49-50, p. 268. This act authorizes the incorporation of a company, for the construction of a plank-road from 'VYetumpkato G-unter’s Landing, or some other point on the Tennessee river. So much of the 4th section as it is necessary to copy in this opinion, is in the following words: “Any individual, or association, may establish branch plank-roads, running into, and connecting with said central plank-road, which branches may be governed by the respective stockholders thereof; and said stockholders for building branches to said central plank-road may become, and hereby are, incorporated under the provisions of this act.” It is contended, that the bestowment of a name by the charter of a corporation is indispensable to its creation ; and that the plaintiff has no corporate existence, because no name is provided in the statute. Names are necessary to the existence of corporations. It is “the very being of the constitution”; “the knot of their combination, without which they could not do their corporate, acts; for it is nobody to plead and be impleaded, to take and give, until it hath gotten a name.” — 2 Bacon’s Abr., Corporation, (C). But the authorities clearly show, that although the name is usually given by the charter, it is not indispensable that it should be so given. It is said in Wilcock on Corporations, 34, that every corporation has at least one name by which it may be identified ; this may be either derived from usage, or conferred upon it by the statute or charter of creation. In an anonymous case in 1st Sal-keld, 191, we find the following: “My Lord Coke says, that a corporation must have a name ; but that must be understood to be either expressed in the patent, or implied in the nature of the thing; as if the king should incorporate the inhabitants of Bale, with power to choose a mayor annually, yet it is a good corporation by the name of mayor and commonalty. So the city of Norwich is incor — 665 — porated to be a mayor and sheriffs by the charter of Henry IV, and are called mayor, sheriffs, and commonalty.” Where individuals are authorized to associate themselves together, and, organizing as a corporation under a general law, give themselves a name, the existence of the corporation has been maintained. — Falconer v. Campbell, 2 McLean, 195-198 ; see, also, Minot v. Curtis, 7 Mass. 447. The charter provides for the establishment of branches to tbe Central plank-road, and so designates them in the 18th as well as the 4th section above copied. The charter also clearly contemplates the establishment of more branches than one; and thus arises the propriety of distinguishing the different branches by a variation in the names. A most appropriate mode of accomplishing the object is by reference to some noted point towards which the branch leads. Tallassee, or its vicinity, is one of the points had in view in the organization of this company. It is shown by the record of the proceedings of the corporation, copied into the bill of exceptions, that it has used from the commencement the name of the Tallassee Branch of the Central Plank-Road Company. This is the name, which would naturally be given to it, by implication from the charter, and the route of the road. Without determining the effect of implication or usage, in a case where one existed without the other, we decide that the plaintiff has, by implication and usage, the name of the Tallassee Branch of the Central Plank-Road Company, and that the complaint, as amended, is in the proper name. The first section of the charter appoints commissioners to receive subscriptions of stock in the Central Plank-Road Company, and requires the payment to them, at the time of subscribing, of ten dollars on each share. The second section provides, that when fifty thousand dollars have been subscribed, directors may be elected in pursuance to a prescribed notice; and, in the words of the statute, “upon the happening of said election, said subscribers shall be, and are hereby declared to be, a body politic and corporate, in deed and in law.” The corporate .existence of the Central plank-road could not commence until the fifty thousand dollars of stock had been subscribed; but — 666 — the actual payment of the ten dolíais oil each, share is not, like the subscription of stock, made a condition precedent to the incorporation. — Selma & Term. R. R. Co. v. Rountree, 7 Ala. 670. We decide, however, that the legislature did not intend to prescribe the same condition precedent to the corporate existence of the branch roads, which is prescribed as to the existence of the Central Plank-Road Company. A different construction would do violence to the fourth section. That section says, that the stockholders for building the branches “are hereby incorporated under the provisions of this act.” No condition precedent is here set forth. These words, of themselves, imply an authority to make an organization, which having oeen formed under the act, and having accepted the provisions made available by it, gives legal life to the artificial being. — Falconer v. Campbell, supra. Besides, a construction which would prescribe the same amount of stock as a condition precedent to the existence of the respective branch roads, of undetermined length, location and cost, as to the main trunk, designed to extend from Wetumpka to the Tennessee river, would be most unreasonable. Notwithstanding the branch roads are incorporated “under the provisions” of the act, it does not follow that all of those provisions must apply to them; indeed, several of them are not susceptible of such application. The defendant’s contract bound him to pay his subscription, when required by the directors of the company. The directors required the payment, and the defendant was notified of the requisition. It was then his duty to pay ; and omitting to do so, he was liable to suit without further demand. We think the verbal notification by the secretary, under the order of the president of the company, was sufficient. The charter does not require a written notice. The witness Jordan had parted with his stock in the company before he became a witness. We cannot perceive how the judgment in this case could be evidence for him in any other suit, to which he might be a party; and — 667 — we therefore think he was a competent witness. — Code, § 2302. If the corporation was fraudulently conducted, and its operations were inconsistent with the public interest, or with the purposes of the charter, it might be the ground of a direct proceeding against it, but is not available as a defense in this case. — Angell & Ames on Corporations, 888, § 777; Rives v. South Plank-Road Co. at last term. It was certainly incompetent for the defendant, to vary the written contract by proof of an antecedent or cotem-poraneous parol agreement, that the money subscribed should be appropriated to the construction of a particular part of the road. The declarations of David C. Neal, the president of the road, made to the defendant before he subscribed to the capital stock of the company, as to the manner in which money subscribed by the inhabitants of a particular locality should be appropriated, were not, in our judgment, admissible under the circumstances stated in the bill of exceptions. Declarations of a similar character, made by the president and a director of a plank-road company, were held admissible, in the case of Rives v. The South Plank-Road Company, at the last term, for the purpose of showing fraud in the procurement of the subscription of stock. That decision was placed upon the ground, that the evidence conduced to show that the declarations were made at the time when the subscription was made, and that those who made them were acting as the agents of the company in obtaining subscriptions of stock. There is no such evidence here, and no evidence of Neal’s authority to make representations to procure stock; and we must hold the declarations inadmissible. A corporation is not bound by the declarations of its officers, unless made when acting for it, and about the business which they are transacting for it. Dpon the same ground, all the other declarations of David C. Neal, offered in evidence, Avere properly excluded. The 9th charge asked does not raise the question of the procurement of stock by fraudulent representations, but the question of the application of the money paid in by — 668 — other stockholders in violation of a verbal agreement co-temporaneons with the written agreement, or antecedent to it, and in conflict with it. The charge was, therefore, properly ..refused. There is no error in the record, and the judgment of the court below is affirmed.