Herod v. Rodman

Perkins, J. Suit upon a ditching contract. Judgment below for the plaintiff. The contract commences as follows: “ An article of agreement,’made and entered into this 28th of August, 1857, between Edmund D. Ilerod, James H. Kilby and William H Olements, directors of the Eel River Draining Association, of the county of Boone” &c., of the first part, &p. The contract provides for the construction of a drain between three and four miles long. Payments were made upon the work by one styling himself “ treasurer” of the association. The contract was signed, simply: “ Edmund D. Herod, James H. Kilby. William H. Clements.” The suit was against these persons as individuals, and there was a personal judgment against them. On the issues of fact, as to the amount of work done, the value of it, &c., the case is not so clearly wrong as to authorize us to disturb the judgment. According to the cases of Macbeath v. Haldiman, 1 Term. Rep. 172; Unwin v. Wolsely, id. 674; Jones v. La Tombe, 1 Cond. Rep. U. S. 171; and Hodgson v. Dexter, id. 329, the suit should have been against the corporation, if one existed, in behalf of which these directors acted. The cases of Pitman v. Kintner, 5 Blackf. 250; McClure et al. v. Bennett, 1 Blackf. [242] 189; Hears v. Graham et al., 8 id. 144; Potts et al. v. Henderson et al., 2 Ind. 327; and The Inhabitants, &c. v. Weir, 9 id. 224, do not conflict with those above cited, because, with the exception of the first, they went upon the ground that the agents had exceeded their powers, and hence were alone liable; and in Pitman v. Kintner, it was held that the agent was not liable. O. 8. Hamilton, for the appellants. A. J. Boone, for the appellee. In the case at bar, if there was no such corporation organized ' as the Eel River Draining Association, for which the appellants assumed to act, then the appellants were personally liable. But whether there was such a corporation, or not, is expressly made by the statute a question for the judicial knowledge of the Court below. We must presume, at least, the contrary not being shown, that their decision is right, and that no such corporation exists. Anderson v. The Kerns Draining Co., 14 Indr 199. Per Guriam. The judgment is affirmed, with 1 per cent, damages.and costs.