122 Neb. 607 | Neb. | 1932
This is an action brought by the American Gas Construction Company against Robert Y. Lisco, Jr., to recover
. The petition of the plaintiff alleges that the plaintiff is a corporation organized and existing under the laws of the state of Iowa; that the defendant entered into a contract to purchase certain equipment for the installation of a gas-works at Laramie, Wyoming; that the equipment was delivered; that the contract price was $27,000, and that there is a balance of $4,000 unpaid. The defendant in his answer denies the corporate existence of the plaintiff. He further alleges that the real party plaintiff is C. I. Tenney. Defendant then proceeds with what is termed a counterclaim and cross-petition against C. I. Tenney, in which he sets out another contract under which C. I. Tenney is indebted to him in the sum of $5,000 and prays judgment against C. I. Tenney, doing business under the name of American Gas Construction Company, in the sum of $4,000. A writ of attachment is issued and money in the hands of the defendant due upon the contract sued upon by the plaintiff in this action is garnished as the money of C. I. Tenney. There was no personal service upon C. I. Tenney in Dawes county, Nebraska, and the only service upon Tenney is based upon the attachment and garnishment.
The claims set out in the pleadings arise by virtue of two different contracts. The contract set out in the set-off and counterclaim is signed by C. I. Tenney, while the one sued upon by plaintiff is signed by the plaintiff, by D. C. Tenney, Secretary. Our statutory provisions are as follows: Under section 20-813, Comp. St. 1929, defining
The defendant in. this case contends that the plaintiff was not in fact.a corporation, for that its life had expired prior to the execution of the contract by operation of law, and that C. I. Tenney was then doing business under the corporate name as a trade-mame. It is also seriously contended that C. I. Tenney is the real plaintiff in interest. The argument of the defendant upon the question is plausible and persuasive. However, we are confronted with certain well-established principles of law. When a party contracts with an imperfectly organized corporation, he is estopped to deny its corporate existence and is precluded from "recovering from its membérs individually as if they were partners. Nebraska Nat. Bank of York v. Ferguson, 49 Neb. 109; Livingston Loan & Building Ass’n v. Drummond, 49 Neb. 200; Estate of Davis v. Watkins, 56 Neb. 288; Exchange Nat. Bank v. Capps, 32 Neb. 242. Since the defendant entered into this contract with the corporation and has dealt with the plaintiff as a' corporation, he
Having reached this conclusion, other questions presented by the briefs become unimportant. The judgment of the district court is
Affirmed.