Foster v. White Cloud City Co.

32 Mo. 505 | Mo. | 1862

Bates, Judge,

delivered the opinion of the court.

The petition contains two counts — the first upon a note made by the defendant to the plaintiff, and the second upon an accounting between the parties and order of the company that the note should be executed, and its execution by the president of the company. The defendant appeared, and by answer denied that at the time of the execution of the note it was a body politic and organized and incorporated. It admits the passage of the acts of incorporation, but denies that even at the time of the answer the corporation had ever organized under them. It admits the execution of the note by Osias Bailey, but denies that he was president of the company, or had any authority to execute the note. It denies the accounting with the plaintiff, and denies any indebtedness to the plaintiff, who is charged by the answer with being a member of the company.

It is a little strange that the defendant, which by this answer denies its own existence, should yet appear to the action and cause its answer to be signed by its attorneys and sworn to by its agent. Possibly this may be accounted for by the fact that the company appears to have been formed and incorporated for the purpose of speculating in the lots of a city which it proposed to create in the Territory of Kansas.

The only questions that arise ■ are upon the admission of testimony given by the plaintiff. It appears that an association of individuals, who afterwards procured charters from the State of Missouri and the Territory of Kansas, was formed. The plaintiff having given in evidence the acts of incorporation, offered in evidence entries made in a book which was proved to contain the articles of association signed by the associates, and a record of their proceedings, including acceptance of the charters and organization thereunder, and an order allowing the plaintiff’s demand, and directing the note in question to be executed to him. The defendant objected to this testimony as incompetent and irrelevant; but its objection was overruled. We think the testimony was properly admitted. Though a great many of the entries in the book had no apparent connection with the matter in hand, yet, under the issues made by the defendant, the whole was proper to show the actual and effectual organization of the company. The defendant had denied its organization, and no better evidence could be given. No error appears in the record.

Judgment affirmed.

Judges Bay and Dryden concur.