Joseph Holmes Fuel & Feed Co. v. Commercial National Bank

Mr. Justice Goddard delivered the opinion of the court. The ground principally relied on for reversal is the want of allegation and proof of the corporate existence of the plaintiff bank. We think this claim is without merit. The action is brought in the name of The Commercial National Bank of Denver, and the complaint avers that the plaintiff is a national bank, doing business under the act of congress. The national bank act (sec. 5136 of the Rev. Stats. U. S.) provides that a company organized pursuant to its terms shall be a body corporate. It is held in many of the cases that if a corporation sues by a name which imports a corporation, it is not necessary to specially aver corporate existence. Seymour v. The Thomas Harrow Co., 81 Ala. 250; Miss., etc., R. R. Co. v. Gaster, 20 Ark. 455; Wilson v. Sprague Mowing Machine Co., 55 Ga. 672; Sayers v. First Nat. Bank of Crawfordsville, 89 Ind. 230; Smythe v. Scott, 124 Ind. 183; Com. Nat. Bank of N. O. v. Newport Mfg. Co., 1 B. Mon. (Ky.) 13 ; Exchange Nat. Bank v. Capps, 32 Neb. 242; Phœnix Bank v. Donnell, 40 N. Y. 410; Stanly v. Richmond, etc., R. R. Co., 89 N. C. 331; Lewis v. Bank of Ky., 12 Ohio, 132; Central Bank of Wis. v. Knowlton, 12 Wis. 624. The allegation in the complaint that the plaintiff is a national bank, and doing business under the act of congress, imports a corporation, and in effect avers that it is a corporation. Furthermore, the admission of the execution of the notes by defendant company to plaintiff bank in its corporate name was an admission of its corporate existence and power to enter into the contract. Farmers & Merchants Ins. Co. v. Needles, 52 Mo. 17; The Nat. Ins. Co. v. Bowman, 60 Mo. 252. And many of the cases hold that, having dealt with [213] plaintiff in its corporate capacity, they are estopped from denying its legal existence. Jones v. Bank of Tenn., 8 B. Mon. 122; Bank of Galliopolis v. Trimble, 6 B. Mon. 599; Depew v. Bank of Limestone, 1 J. J. Marsh, 378; Mackenzie v. Bd. of School Trustees of Edinburg, 72 Ind. 189; Cong. Society v. Perry, 6 N. H. 164. We believe it is universally held that the execution of a note to a corporation, by its corporate name, is sufficient prima facie evidence of the existence of the corporation. The admission of the execution of the notes sued on, and their introduction in evidence, therefore established, prima fade, the existence of the plaintiff corporation; and the defendants introducing no evidence rebutting such proof, and the testimony of the witness Barton entirely failing to show a valid agreement on the part of the president of the hank to extend the time of payment, the court properly directed a verdict for the plaintiff, and the judgment is accordingly affirmed. Affirmed.