J. P. Calnan Construction Co. v. Brown

Waterman, J. 1 Appellant first insists that nojudgment ■should have been rendered in plaintiff’s favor, because its •corporate capacity was neither alleged nor proved. While it is true that the failure to so allege affords ground for demurrer (Sweet v. Ervin, 54 Iowa, 101), yet we think such an objection comes too late after judgment (Andre v. Railway Co., 30 Iowa, 107). The case of The Pembinaw v. Wilson, 11 Iowa, 479, relied upon by defendant, merely holds that actions must be brought in the names of persons, natural or artificial; that a “thing” can have no standing as a plaintiff. 2 I. No complaint is made by either party of the amounts ■found by the trial court. That a house was built on the property of Amos Brown, for tíre use of himself and wife, and that Haywood & Son advanced money to pay therefor, is not disputed. Amos Brown’s claim is that his son, B. C. 'Brown, built the house for him, and was to pay for the same, .and that he (Amos) did not know Haywood & Son in the transaction; that, if anything is owing said firm on -account of such work, it is an indebtedness of his son. We think the evidence fairly discloses that B. C. Brown was acting as agent for his father in the matter; that it was expected he could pay for the building out of certain resources placed in. his hands byhisfa.ther,but thesefell short. The building cost more than anticipated. The son then, as agent for his father, procured the money of plaintiff’s assignor to complete the payments. When the building was ■finished, Amos Brown and his wife went into' possession. It is but just that the amount so paid should be returned. This, however, affords no basis for a liability on the part of Louisa Brown, and the court properly dismissed the action as against her. ’ ; [40] ll. The amount clue on the note, and on account of' payments made by Haywood & Son on a mortgage upon thesepreinises, is established in accord with the trial court’s finding. We say this, notwithstanding no question is made in argument, because the answers allege that both of these items* have been paid. 3 III. On the issues which plaintiff attempts to present,, we have only to sa.y that the record does not disclose that any appeal was taken. The judgment of the-district court is approved, and on both branches o£ the case it is as-firmed. Granger, J., not sitting.