Dodge v. Minnesota Plastic Slate Roofing Co.

By the Court. MoMillaN, J. At common law in an action against a corporation, by its corporate name, it was not necessary, for the purpose of alleging its existence, to, aver the authority or act by or under which it was created. Angell & Ames on Corp. Sec. 632, and authorities cited; Woolf vs. City Steamboat Co., 62 E. C. L., 103; Bank of Utica vs. Smalley, 2 Cow., 778 ; Union Mut. Ins. Co. vs. Osgood & Alden, 1 Duer, 708; Lighte et al. vs. Everett F. [56] Ins. Co., 5 Bos., 716. The statute relied on by the defendant — Gen. Stat. Chap. 63, Sec. 94 — was intended to apply only in cases where it was necessary at common law for the pleader to set forth the law upon which he relied in the suit, and, in order to obviate the necessity of pleading at length the statute relied on, renders it sufficient, in actions by or against domestic corporations, to refer in the pleading to the act or proceedings by which such corporation was created. To constitute a waiver of a claim for a breach of warranty or contract, the acts or circumstances relied on to constitute the waiver must have been performed or have transpired after the party against whom the waiver is urged, knew or should have known the facts constituting the breach of warranty or contract. In this case the payment for the roof was made upon its completion. None of the defects in the roof, if they existed, could reasonably have been discovered for some time thereafter, and it would depend on circumstances how long thereafter; the acceptance of tlie work and payment therefor by the plaintiff, cannot, under these circumstances, be construed either into an admission that there was no deficiency in the work, or a waiver of his claim for a breach of the contract. So far as the complaint is concerned, we think it does not appear that there was any modification of the original contract which should prevent the plaintiff from relying upon the original agreement of the defendant as to the description and quality, of the roof at its completion in the spring of 1867, or release the defendant from its liability under the original contract in regard to these matters. The order overruling the demurrer is affirmed.