Fuller v. . Rowe

| NY | Jan 5, 1874

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *25 That parties assuming to act in a corporate capacity without a legal organization as a corporate body, are liable as partners to those with whom they contract is not denied; but when it is sought to charge any one of them as a corporator or as a partner, the same rule applies to each. If as a corporator, he must be shown to have been such when the contract sued upon was made. (Moss v. Oakley, 2 Hill, 265, 268.) If as a partner he must be shown to have been a member of the firm when the contract sued upon was made. (McGuire v. O'Halloran, Hill Denio, 85, 86.) In this case the referee has found as a fact, that Rowe, at the time of the employment of the plaintiff, was not in any-wise interested in the company or its lands or mines and had nothing to do with his employment. This finding disposes of the question as to his liability to the plaintiff upon the contract made with him by Sweet, who then assumed to be president of the company, unless after Rowe became, as he supposed, a stockholder in the company and its president, there was a change made in the contract by which Rowe upon some consideration agreed to become jointly liable with Sweet and those for and with whom he acted; upon this question the referee has found that the plaintiff during all the time of his service worked in pursuance of his contract made with Sweet, and that Rowe never promised or assumed to pay him, "except as such promise or assumption may legally result from his acts after he became president of the so called company." One act of Rowe as found by the referee was seeing the plaintiff engaged in the *27 business for which he was employed before Rowe became, as he supposed, president, and under a contract, which, as the referee has also found, the plaintiff performed all the services for the recovery of value of which this action was brought. The other acts consist of accepting drafts made during May, June and July, by the plaintiff as superintendent, upon him as president, amounting in all to $5,400, which were paid by the treasurer, and after the work was abandoned ordering the books pertaining to the affairs of the concern to be delivered by one person to another. These facts or rather circumstances, are not of such irresistible force as to raise a legal presumption that Rowe, upon any consideration whatever assumed or promised to be jointly liable with Sweet and others, represented by Sweet in making the contract; and if for the purpose of upholding the legal conclusion arrived at by the referee, we should consider the facts found by him and look into the case for additional evidence to uphold a conclusion of fact, that Rowe, did, when or after he became interested in the enterprise, superintended by plaintiff, agree, jointly with those that hired him, to reward him for his services; we should find the fact, that Rowe supposed not only that he was elected president of a legal corporation and that he supposed he acted as such, but also quite satisfactory evidence that he never intended to become personally liable upon a contract he had no voice in making, whatever he might have been as to those he did make. The rights of the plaintiff as to those with whom he contracted, have been in no respect impaired by the incoming of Rowe and without an engagement by Rowe, upon some consideration to add his responsibility to those with whom plaintiff contracted, his claim to recover of him for any part of his services is without foundation.

The judgment appealed from as well as that entered upon the report of the referee, should be reversed and a new trial ordered.

All concur.

Judgment reversed. *28