59 Mo. App. 453 | Mo. Ct. App. | 1894
The Graham Book and Stationery Company was a trading corporation engaged at the city of St. Joseph in the mercantile business. Some time in the year 1893, the corporation made an assignment for the benefit of its creditors, George Crowther,
The facts necessary to state for an understanding of the points involved in the record, are that this corporation existed prior to July 6,1891, as the Whimple & Gilpin Company; that about that day the name of the corporation was changed to the Graham Book and Stationery Company and under the latter name is alleged to have executed the note aforesaid. On July 1, 1891, near a week before the formal change of name, H. L. Graham bought out about all the stock from the. stockholders of the corporation known as the Whimple & Gilpin Company, and the store and business, together with its management, was turned over to Graham; it being understood that he was manage and control it, and was, as soon as practicable, to be elected president, and he was so elected on July 6, aforesaid. There is evidence tending to show that on said July 1, after taking charge of the store and its management, he borrowed money of plaintiff and executed the note in the name of the Graham Book and Stationery Company. That he borrowed the money for the corporation, receiving plaintiff’s check payable to the corporation. The evidence further shows that three several semiannual payments of interest were made by the corporation and indorsed upon the note.
Plaintiff makes the preliminary point that these creditors with claims allowed, while they may appeal from the assignee to the circuit court, have no right under the statute to appeal from the circuit court to the appellate courts. We think they have that right.
Much criticism is made by appellants as to certain assumptions of fact contained in the instructions. But as the cause was tried by the court without a jury these criticisms are of little avail since we only look to the instructions in such cases to see upon what theory of law the court has disposed of the case. The legal propositions involved in the instructions given for plaintiff we believe to be correct.
The corporation being a trading concern, will be presumed to have the power, through its proper’officers, to borrow money for use in the transaction of its business and for this purpose to execute notes for the sums borrowed. But in addition to this, it was shown by the introduction of a by-law of the company that the officers named had the power to borrow money.' The by-law is as follows: “Article 13. The president, secretary and manager shall not borrow money for corporation to exceed the amount fixed by the directors, provided, the directors see fit to limit them.” We interpret this to mean that, unless and until the directory limited the power, it could be exercised.
One of the chief objections made by appellants to the plaintiff’s case is that when this money was borrowed, July 1, 1891, Graham was not an officer of the company and, indeed, that no such company was in existence. It is true that the corporation had not formally changed its name. It is likewise true that Graham had not been elected president. But, as already stated, it was shown that the change in the
It ought, in fairness to appellants, to be further stated, that there was evidence tending to show that Graham used the money borrowed of plaintiff in part payment of the stock-which he purchased of the former-stockholders, but it is not shown that plaintiff had any other knowledge of the use of the money than that he loaned it to the corporation and for the corporation. We have not discovered any evidence, either in that heard by the court or that offered and excluded which tended to show any complicity on plaintiff’s part in an improper use of the money.
The judgment will, therefore, be affirmed.