69 Minn. 433 | Minn. | 1897
Tbis action originated in justice’s court. Tbe complaint was oral, and was entered in tbe justice’s docket in these words:
“Plaintiff for bis complaint files with tbe court, verified, * * * a certain promissory note, on wbicb there appears to be due tbe sum of forty dollars, for which amount they ask judgment, together with their costs and disbursements.”
“$40.00. For value received in policy No. B.-, dated the - day of-, 18 — -, issued by the Continental Insurance Company of New York, I promise to pay to said company, or order, at their office in Chicago, 111., forty dollars, in instalments as follows: Ten dollars and-cents upon the first day of July, 1892, and ten dollars and-cents upon the first day of July, 1893, and ten dollars and-cents upon the first day of July, 1894, and ten dollars and--cents upon the first day Of July, 1895, without interest. And it is hereby agreed that, in case of nonpayment of any one of the instalments herein named at maturity, this company shall not be liable for loss during such default; and the policy for which the note was given shall lapse until payment is made to this company in New York, or to the Western department at Chicago; and in the event of nonsettlement for time expired, as per terms on short rates, the whole amount of instalments remaining unpaid on said policy may be declared earned-, due, and payable, and may be collected by law. Given in payment for a policy of insurance. If transferred either before or after maturity, this obligation shall be subject to all defenses as if owned by the payee herein named.
- “J. S. Richardson.”
The answer was a general denial, and contained this further allegation : “The plaintiff is not a corporation, as alleged in said complaint.”
On the trial one witness was sworn on behalf of the plaintiff, and the note was received in evidence, over the objection and exception of the defendant. The defendant offered no evidence, and the justice gave judgment for the plaintiff for $40, from which the defendant appealed to the district court on questions of law alone, which court reversed the judgment of the justice court, and entered judgment for the defendant, from which the plaintiff appealed to this court.
The defendant claims that the judgment of the justice was erroneous for two reasons:
1. That the complaint does not state a cause of action. The complaint was made under the provisions of G. S. 1894, § 4984, which is to the effect that, when a cause of action upon an account or instrument is for the payment of money only, it is sufficient for the party to deliver the instrument to the court, and to state that there is due to him thereon from the adverse party a specified sum, which
The further objection is made that the instrument in question is not one for the payment of money. It may not be a promissory note, within the law merchant, but it is an instrument for the payment of money only, within the meaning of this statute.
2. That the judgment of the justice was also erroneous because there was neither allegation nor competent evidence of the plaintiff’s legal existence. There was no such allegation, but it does not appear from the record that no such evidence was given. There was one witness sworn for the plaintiff, but his testimony was not returned. The record shows no request to the justice to return the evidence, and his certificate does not show that he did return all of the. evidence. The presumption is that the evidence was sufficient to sustain the judgment. Hinds v. American, 24 Minn. 95.
Again, the defendant, by contracting with the “Continental Insurance Company,” recognized the existence of some legal entity known by that name, and having capacity to contract; and the contract was itself prima facie proof against the defendant, in the nature of an admission of the right of the person or being represented by that name to enforce the contract by action. Johnston v. Clark, 30 Minn. 308, 15 N. W. 252. The plaintiff, the Continental Insurance Company, is described in the title of the action as a corporation, and it produced and introduced the note or instrument in which the defendant had contracted with it by such name. This was sufficient, prima facie, to entitle it to recover from the defendant the amount due upon the note.
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