Brown v. La Crosse City Gas Light & Coke Co.

21 Wis. 51 | Wis. | 1866

Dowjstee, J.

The appeal in this case is from the order of the circuit court denying a motion for a new trial. The reasons urged for the new trial, and the errors here assigned, are in substance the same, and as follows : 1. That Esperson, one of the jurors, was not a citizen of the United States. 2. That the petition of the plaintiff for a lien was erroneously admitted in evidence, because it was not signed and sworn to. 3. That the records of the defendant were improperly admitted as evidence, because its existence as a corporation was not first proved. 4. That parol proof was erroneously admitted to show who was the president of the company, and that he acted as agent of the company, when the records were the best evidence. 5. That there was error in receiving the admissions of the president of the company as to the purchase of the goods for, and that they were used by, the company. 6. That there was no proof that the company, at the time the materials were furnished, owned the gas works mentioned in the petition, 7. That the cireuit court erred in not awarding a change of venue. 8. That the verdict is against law and evidence.

I. As to the first point, there is no proof that the juror Es-person was not a citizen of the United States. The affidavit of W. H. Stogdill, in which statements are made only on information and belief after verdict, cannot be regarded as proof of the truth of such statements. But if the proof had been ample, the objection came to late after verdict, being then made for the first time without showing any reason why it was not made before.

II. The statute does not require the petition to be sworn to; and it was signed in the name of the plaintiff by his attorney. That was sufficient.

III. The answer to that part of the complaint alleging the incorporation of the defendant, merely “ denies that he has any knowledge or information thereof sufficient to form a belief” This is no sufficient denial. The officers of a corporation, and especially its president, who verified the answer, must know or have information and belief whether it has an existence or not. The circuit court rightly considered the allegation thus attempted to be denied as admitted.

IY. There could be no error in proving by parol that Brewster was president of the company, as the same fact was first proved by the records of the corporation. As to his agency, it was in part proved also by the records; and it is proper at all times to prove the acts of an agent, when a knowledge of those acts, as in this case, is traced home to his principals, or the board of directors, and they did not disapprove thereof.

Y. The authorities cited by the respondent show that the admissions of Brewster were properly received.

YI. As to the ownership of the land and gas works, the complaint alleges they belonged, at the time the debt was contracted, to the defendant; and this is not denied.

YU. The motion for a change of venue, because the judge was one of the original corporators and directors, was rightly denied, it not appearing that the judge was then, or had been during the pendency of the action, any way interested in or connected with the company ; and he himself stated he had no interest in the company.

VIII. The eighth point is untenable. All the evidence does not appear to be before us; but there is sufficient to sustain the verdict.

By the Court. — Order of the circuit court affirmed.