Christian v. Bowman

Vanderburgh, J. This action is brought against the defendants to recover upon certain promissory notes executed by the Mouse River Land Company, upon which defendants are alleged to be personally liable, on the ground that they were associated together in business under that name, and that the notes were executed by their authority and direction. There is evidence showing that the defendants attempted to perfect a corporate organization under the name of the “Mouse River Land Company.” They signed, filed, and published articles of incorporation, in due form, but failed to file the proper affidavit of publication, as required by the statute. The defendants were named as directors of the corporation, and the evidence tends to show that the notes in suit were executed in the corporate name by the president and secretary of the company, to secure a portion of the consideration for land sold and conveyed by plaintiff to the corporation as grantee, and the notes were secured by a mortgage, in like manner executed in the corporate name. It would perhaps have been a serious question for the consideration of the court, under the evidence in the case, if proper findings had been made, whether the defendants, for the purposes of this case, should not have been held to be a corporation de facto. So that if the plaintiff in these transactions dealt with the company as a corporation, and the deed, notes, and mortgage were given and received as corporate contracts by and between the parties, the individual members ought not to be charged with a joint liability, as partners or [104] otherwise, contrary to the mutual understanding of all parties as to the nature of the contract, solely on the ground of a technical omission to file the affidavit of publication. And it may be, if the record were such as to bring the case within the rule in respect to parties contracting with de facto corporations, and under which they are estopped to deny the corporate existence of an association claiming to be and acting as a corporation, a more equitable result might have been reached in this ease. But that question is not fairly in the case, and cannot be considered under the assignments of error. No reference is made in the pleadings to the existence of a corporation. . ' The complaint alleges that the defendants were associated in business under the name of the “Mouse Biver Land Company,” and as such caused the notes in suit to be executed. The case was not tried upon the theory that they were a corporation de facto; nor is the point fairly raised by the assignments of error. The defendants deny that they were associated together as alleged, and deny that the company executed the notes. The principal question of fact litigated before the court was that of the authority of the officers to execute the notes in behalf of the defendants. The first five assignments of error relate exclusively to the findings of fact in the case, and it is claimed that these findings are not supported by the evidence. We have carefully examined all the evidence, and we think there is evidence sufficient to support them, so that this court will not undertake to interfere on that ground. And the conclusion of law which is the basis of the seventh assignment of error is clearly warranted by the facts found. The sixth assignment of error raises the question of the existence of the Mouse Eiver Land Company as a corporation de jure, and the effect of the act of 1887, validating certain corporate organizations. Laws 1887, ch. 132. The ruling of the court was right as to the effect of this act of 1887 upon the cause of action in suit, though based on a wrong reason. The effect of the act was to legalize the corporation by force of the act, but it could not take away intervening vested rights; hence, as these notes were [105] held by plaintiff when the act was passed, it could not cut off or destroy his right of action thereon, if any he had. What the effect would have been if the record had shown that they were corporate notes, and the statute was merely giving effect to the understanding and intentions of the parties in their dealings with each other under the corporate name, we do not inquire. (Opinion published 51 N. W. Rep. 663.) Under 1878 G. S. ch. 34, § 3, as amended by Laws 1874, ch. 60, § 1, the filing of the affidavit of publication with the secretary of state was made essential to the existence of a corporation, whether created under title one (1) or title two (2) of that chapter. The eighth assignment of error, that Brown was not also made a party defendant, cannot be' sustained. Brown, who was a member of the association and the agent of it, ought to have been made a party defendant, but was not. This objection was not taken by answer. The fact that he should have been a party appeared at the trial, and there was no application to have him made •a party. It is certainly too late now to raise the objection. The ninth assignment is covered by what has already been said in disposing of the others. The objection of plaintiff to the consideration of the tenth assignment must be sustained. In it a large number of rulings and objections, each of which, if worthy of notice, should have been a separate assignment, are grouped together in violation of rule nine (ix.) of this court. 33 Minn, xix., (25 N. W. Rep. iii.) It will not do to group all the rulings of the court upon the reception and rejection of testimony under one assignment, and leave the •court to pick out such as it may deem necessary to consider, and treat them as subdivisions or parts of one general assignment. Order affirmed.