288 P. 879 | Cal. Ct. App. | 1930
In a suit upon a promissory note judgment went for defendant A.A. Irish as administrator of the estate of B.M. Spencer, deceased.
The note was signed as makers by Amelia C. Brotherton, Louis M. Brotherton and the decedent Spencer in favor of Burrows Shoe Co., Rochester, N.Y., as payee. The evidence showed that the Brothertons were engaged in the retail shoe business and were refused credit by plaintiff, a wholesale shoe dealer, unless they would give a promissory note as security with some responsible third person as a co-maker. Accordingly they procured the decedent, Spencer, to join with them in making the note in question.
[1] The trial court found that it was not proved that plaintiff was a corporation. This finding is attacked on appeal, appellant claiming that by giving the note payable to Burrows Shoe Company, respondent is now estopped to deny its corporate capacity. Respondent answers that there can be no estoppel because the name "Burrows Shoe Company" is not necessarily that of a corporation, but might equally be that of a partnership, unincorporated association or individual doing business under a fictitious name. There is respectable authority on both sides of this question (1 Fletcher on Private Corporations, sec. 336, p. 699 et seq.), and the precise point seems never to have been squarely decided in California. We do not think it necessary in this case to decide between these opposing views, but prefer to stand on the middle ground taken by the supreme courts of Tennessee and Kansas in Ingle System Co. v. Norris Hall,
"One who enters into a written contract with a party described therein as a corporation is precluded, in an action brought thereon by such party under the same designation, *164
from denying its corporate existence. (7 R.C.L. 105, 106; 10 Cyc. 521.) Here the payee was styled in the note — `The Lowell-Woodward Hardware Company,' a title which prima facie
imports a corporation. (3 Encyc. of Ev. 599; 7 R.C.L. 699; note, Ann. Cas. 1912A, 969, second column.) There is some difference of opinion as to whether one contracting with an organization styling itself a `company,' there being nothing further in the language used to indicate its character, the term `corporation' not being employed, can be heard to deny its corporate capacity when sued by it upon the contract. The cases bearing on the question are collected in Ingle System Co. v. Norris Hall,
[2] The court further found that decedent, Spencer, signed the note as a surety, without consideration, and that time of payment was extended by agreement with the Brothertons without Spencer's consent. The finding that Spencer signed the note without consideration cannot stand since it appears that plaintiff insisted on his signature to the note before it would ship further shoes to the Brothertons on credit, and afterward made such shipments on the strength of the note as security.
[3] The finding that time of payment was extended is based on evidence that after the note became due an agent of plaintiff agreed to its payment by the Brothertons at the rate of one hundred dollars per month. But there was no new consideration for this promise and the finding must fall, under the authority ofStroud v. Thomas,
[4] Finally respondent's contention that his decedent's liability was not fixed because of the lack of presentment, demand and notice of dishonor is answered by the fact that these are not required under the Uniform Negotiable Instruments Law to fix the liability of a surety. (Colvin v. Glover,
The portion of the judgment appealed from is reversed.
Nourse, P.J., concurred. *166