Stone v. Great Western Oil Co.

Mr. Justice Breese delivered the opinion of the Court: The questions raised on this record by appellant are: First, that the plaintiffs did not, under the plea of nul Uel corporation, establish their corporate existence by showing a strict compliance with the provisions of the statute; second, if the defendant was liable to pay calls made upon him, those calls must be made in conformity with the statute, and one call only, and that for the whole amount due on the stock subscription, is not sufficient; and third, that the paper declared on shows on its face that it was without consideration, and shows no promise. In support of the first point, appellant insists that the plea of nul Uel corporation, put the onus of proving the corporate existence of the plaintiffs on them, and the fact must be established by showing a strict compliance with the statute. It seems this was a corporation formed under the general law, entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” approved February 18, 1857. The onus was certainly on the plaintiffs to establish their corporate character, and we think they have removed the burden by the proof. The main objection taken by appellant to the proof is, that the proposed associates did not file in the office of the secretary of State a certificate in writing as required by the first section of that act. There are two requirements specified in that section, the first that the writing by which the association shall be constituted, shall be signed and acknowledged before some officer competent to take the acknowledgment of deeds, and shall be filed in the office of the clerk of the Circuit Court, in the county in which the business is to be carried on, and also in the office of the secretary of State. The third section provides, when the certificate shall have been filed with the clerk of the court, and a duplicate thereof filed in the office of the secretary of State, the clerk shall issue a license to the persons who shall have signed and acknowledged the same, on the reception of which they and their successors shall be a body politic and corporate in fact and in name, by the name stated in such certificate, and by that name shall have succession, and be capable of suing or being sued in any court of law or equity of this State. Scates’ Comp. 762. There was no direct proof that a duplicate of this certificate was filed in the office of the secretary of State, but on the presumption that every public officer performs the duties enjoined on him by law, it is a fair inference from the fact that the clerk issued the required license, for the law declares a license shall issue only when the duplicate is filed in the secretary’s office, but in the case of Cross v. Pinkneyville Mill Co., 17 Ill. 54, this court held that requirement to be directory only, and the omission to file the duplicate would not defeat the organization. In Marsh v. Astoria Lodge, 27 Ill. 421, it was held, that an organization in fact, and user under it, was sufficient to show a corporation de facto, under the plea of nul Uel corporation, although there might have been irregularities or omissions in the first instance. In Prest. and Trustees of Mendota v. Thompson, 20 Ill. 197, it was said that to prove the existence of a corporation, it was sufficient to produce the charter and prove acts done under it and in conformity with it. In Baker et al. v. The Admr. of Backus, 32 Ill. 79, it was held when a company had taken all other steps to be incorporated under the general law of 1849, but had omitted to file the certificate of incorporation in the office of the secretary of State, such a non-compliance with the statute might sustain a quo warranto on behalf of the people, and oust the corporators from the exercise of their franchise, but it does not necessarily follow that it is not, as to third persons, a corporation; and in the same case, it was said, the allegation that a company, claiming to have been incorporated and acting as such, has never been legally organized as a corporation, or has never existed as such, can be ascertained in no other way than by a direct proceeding by scire facias, or by information in the nature of a quo warranto in a court of law. The first is proper when there is a legally existing body capable of acting, but who have been guilty of an abuse of the power intrusted to them; and the latter, by quo vjarranto, when there is a body corporate de facto who take upon themselves to act as a body corporate, but from some defect in their constitution, they cannot legally exercise the power they affect to use. See also Tarbell v. Page, 24 Ill. 46. These references dispose of the objection to the proof of a corporation. The objection to the evidence itself was not well taken. When the license was offered in evidence, it was treated as the original. No specific objection was made to it. Had it not been so treated, the original might have been produced or its absence accounted for. It has been so often held, by this court, that objection to evidence must be specific, that it has become the doctrine of this court. The rule is, that the party making the objections must point out specifically, those insisted on, and thereby put the adverse party on his guard and afford him an opportunity to obviate them. Sargeant v. Kellogg, 5 Gilm. 273; Swift v. Whitney, 20 Ill. 144; Buntain v. Bailey, 27 id. 410, and in Conway v. Case, 22 id. 127, and in Davis v. Ransom, 26 id. 100, this court said, parties should make specific objections in the Circuit Court to the introduction of evidence, if the propriety of its introduction is to be questioned in this court, and in the case of Gilham v. State Bank, 2 Scam. 248, it was held, if an objection which can be obviated by further proof, be not taken, or is not insisted on at the trial, it will not be received as the ground for a motion for a new trial. There having been no specific objection to this paper purporting to be a license, it was properly in evidence, and operated to the same extent, as proof, that a charter of incorporation would operate. The next point made by appellant is, that there was no legal call for the subscription of stock made on him, — that, by the instrument on which the suit is brought, he agreed to pay calls in conformity with the general incorporation law above cited, the eight section of which provides that all subscriptions to such stock shall be payable in such sums and at such times as the board of directors may require, and that one call for the whole amount of the subscription is not conformable to the law. It will be seen by reference to the subscription paper, that appellant agreed to do something more in this respect. He agreed to pay the calls upon the stock not only in conformity with this law, but also in conformity with the by-laws of the company. We do not know what the by-laws of the company were on this subject of calls, but it is not a forced presumption that they authorized this call, for the officers of such companies are presumed to act, if not in obedience, certainly not in hostility to their own laws. But whether this presumption be indulged or not is not material, since the secretary of the company, Mr. Taylor, proved that appellant paid assessments prior to the call set out in the declaration, and that he gave notice of calls of stock subscription both orally and in writing repeatedly. Appellant’s original subscription was for twenty shares, at one hundred dollars each, making two thousand dollars. The recovery against him amounts to eleven hundred and sixty-nine dollars fifty-seven cents, so that the inference is irresistible that he paid the difference between these sums, as calls before suit brought, and, in truth, it is so established by the testimony of Taylor and Clapp who acted as secretary and treasurer of the company. And the evidence shows that appellant was present at the meeting of April 10, 1858, when this call was made, that he had notice of it, and made no objections. This is not like the case of Spangler v. N. Ill. & S. Ind. R. R. Co., 28 Ill. 278, for the reason, in that case, by the contract of subscription, Spangler was to pay only in certain proportions. In this case the appellant was to pay according to the general law and the by-laws of the company, of which he was vice-president. By the general law, section 8, it is provided that the subscriptions to stock shall be payable in such sums and at such times as the board of directors may require, and the declaration alleges that they did by vote require the balance of all subscriptions due to be paid by a certain day. But, as contended by appellee, if, in this case, the stock had been ordered -to be paid wholly under one call, appellant ought to be estopped from objecting to the irregularity, as he cooperated with the other directors in making the order and also participated in the meeting of the stockholders a few days before, at which the directors were instructed to make the order for this call. These facts were not in Spangler’s case. The case of Erie and W. Plank-road Co. v. Brown, 25 Penn. 156, is on the point here discussed. The remaining objection, .that the subscription paper shows on its face no consideration and no promise, and therefore not affording a ground of recovery, is answered by the numerous cases decided by this court. Robertson v. March et al., 3 Scam. 198; Cross v. Pinckneyville Mill Co., supra; Tonica and Petersburgh R. R Co. v. McNeely, Admr., 21 Ill. 71; Prior et al. v. Cain, 25 Ill. 292; Griswold v. Trustees, etc., 26 id. 41. These cases show that such subscriptions are binding, and can be recovered by actions at law. There being no error in the record, the judgment is affirmed. Judgment affirmed.