Brown Manufacturing Co. v. Gilpin

BROAD DUS, P. J. The plaintiff corporation brought this suit in a justice’s court on an alleged indebtedness for goods sold and delivered to defendant to the amount of $34. The case originated in Columbia township, Boone county, where it was tried and judgment rendered for defendant and plaintiff appealed to the circuit court. When the case reached the latter court, defendant filed a motion to> dismiss for the following. causes: “1. Because the affidavit for an appeal is insufficient to authorize an appeal. “2. Because the appeal, bond is insufficient to authorize an appeal. “3. Because the notice of appeal is insufficient and does not comply with the statute.” The motion was overruled and defendant refused to further plead or answer and stood on his motion. The court heard the evidence and rendered judgment in favor of the plaintiff and defendant appealed. The affidavit for an appeal, after giving the style of the case, reads as follows: “James M. Morey, being duly sworn, upon his oath says that his application for an appeal is not made for vexation or delay, but because he believes the appellant to be injured by the judgment of the justice and that this appeal is from the merits. . “Browin Manufacturing Co., “James M. Morey, Treas., “Appellant. “Subscribed and sworn to before me this 4th day of Jan., A. D. 1905. [seal] “C. W. Allen. “Notary Public.” “C. W. Allen, Notary Public, Green Co., Tenn.” [134] One of the objections made to the affidavit is that it states that James M. Morey makes the application for himself and not for the Brown Manufacturing Company. That is true, literally speaking, but it is to be gathered from the entire instrument that he makes the application for said company. The next objection is that the affidavit was taken before a notary public of another State, which can have no force in this State. This objection is not well taken. Courts will take judical notice of the seals of notaries public, for they are officers recognized by the commercial law of the world. [Barhydt v. Alexander, 59 Mo. App. l. c. 193; Pierce v. Indseth, 106 U. S. l. c. 549.] And further that the notary does not certify, as required, when his term of office will expire. It has been ruled that a failure so to do will not invalidate his certificaté. [Railroad v. Railroad, 129 Mo. 62; Baskowitz v. Guthrie, 99 Mo. App. 304.] The appeal bond is objected to because, purporting to been have entered into by the plaintiff, it should have been signed by the president of the corporation, attested' by its secretary, with the seal of the corporation attached. The bond is signed as follows: “Brown Manufacturing Co., James M. Morey, Treas.” It is. no longer the law that all instruments of writing executed by a business corporation, should be signed by the president under its corporate seal. [Fire Ins. Co. v. St. Mary’s Seminary, 52 Mo. 480; Preston v. Lead Co., 51 Mo. 43; Buckley v. Briggs, 30 Mo. 452.] In the Preston case, supra, our court adopted the law as stated in Bank v. Patterson, 7 Cranch 299, that, “whenever a corporation is acting within the scope of the legitimate purpose,of its institution, all parol contracts made by its authorized agents are express promises of the corporation.” We believe the bond executed by the treasurer of the plaintiff is sufficient to bind it and in substantial compliance with the statute. [135] We cannot find any substantial objection to the notice of appeal. It states the cause, the justice’s court in which the judgment was rendered, its date, and that an appeal had been taken. It is also contented that the court committed an error in admitting as evidence exhibit A without first requiring plaintiff to prove that the signature attached was that of defendant. The exhibit was the foundation of plaintiff’s action and, not being denied under oath, it stood confessed. [Secs. 746, 3967, R. S. 1899.] Lastly, defendant contends that as the goods were returned to plaintiff and accepted by it without question, plaintiff was not entitled to judgment for their value. Defendant misapprehends the record. The plaintiff did not accept the goods when returned by the defendant, but notified him before he reshipped them, that they would not be received, and when they arrived stored them subject to plaintiff’s order. We have examined carefully every question presented by the defendant and find them without merit. Affirmed. All concur. •