151 Mo. App. 260 | Mo. Ct. App. | 1910
This is an attachment snit and-the contest is between plaintiff, the attaching creditor and the interpleader, a mortgagee. The snit originated before a justice of the peace. A jury was waived in the circuit court where the cause was tried on an appeal and judgment was rendered for the inter-pleader. Plaintiff appealed.
The material facts thus may be stated. Plaintiff a manufacturer, sold and delivered some electrical machinery to the Coulson Stock Food Company, a corporation incorporated in Nevada but doing business in Kansas City. Part of the purchase price was paid but three notes given by the Coulson Company for the remainder aggregating one hundred and fifteen dollars, were not paid and are the foundation’ of the present action. These notes given at the time of the sale, October 20, 1906, were signed “Coulson Stock Food Co., Inc. by A. R. Coulson, Pres.,” and their payment was secured by what we shall call a chattel mortgage which was executed by the Coulson Company at the time of the execution of the notes and which covered the property sold by plaintiff to that company. This mortgage was not filed in the office of the recorder of deeds until January 9', 1907.
The Coulson Stock Food Company was incorporated in Nevada in September, 1906, with an authorized capital of $250,000. The articles recited that 131004 shares of the capital stock of the par value of one dollar each were subscribed, of which 131,000 shares were subscribed by A. R. Coulson.. None of the subscription price of this stock was paid into the treasury and the corporation existed on paper only. Coulson, its promoter, lived in Kansas City and began the
A number of declarations of law were asked by plaintiff and refused by the court. We are convinced the judgment was for the right party and do not find that special reference to the declarations of law is es
We agree to the proposition that Coulson having dealt with plaintiff in the name of the Nevada corporation would be estopped in an action prosecuted by plaintiff to enforce some right growing out of that dealing, from denying the legal existence of the corporation. [White v. I. O. O. F., 30 Mo. App. 682; Father Matthew Society v. Fitzwilliam, 12 Mo. App.
Further, we agree with plaintiff that “when a particular status exists the law will presume its continuance and when it has been changed some evidence of that fact must be produced.” [Cargile v. Wood, 63 Mo. 501; Diel v. Stegner, 56 Mo. App. 535; Janssen v. Stone, 60 Mo. App. 402.] But we think the evidence shows conclusively that there had been a change in the status of the property when the interpleader received the chattel mortgage from Coulson. Despite the recital that the Coulson Company was occupying the building, the mortgage disclosed that Coulson himself was the owner of the property conyeyed and the other evidence supports that declaration. The fact of his ownership was not dependent on the existence of a formal sale or transfer of the property by the corporation to him, but might be evidenced in other ways. The merely nominal proprietorship of the corporation had been cast aside and Coulson who was “the whole thing” had assumed possession and proprietorship. This he might do and we perceive no good reason for saying that he could not borrow money on the credit of the property for the uses of the business. Plaintiff is unfortunate in not having filed its mortgage until after the mortgage of interpleader was filed. As a simple contract, creditor, plaintiff’s claim under the attachment levy is inferior to the claim of interpleader derived through his mortgage lien. The judgment is affirmed.