28 Barb. 59 | N.Y. Sup. Ct. | 1858
It was not necessary for the plaintiff to allege, in the complaint, the incorporation of the Buffalo and Hew York Oity Eail Eoad Company, further than is done by the statement of its name, and of the making of the agreement between the defendant and the company, and what the company did in relation to the agreement. That statement includes the idea of the legal existence of the company; and the fact of incorporation was mere evidence in
It has been held in one case, at special term, under the code which makes it a ground of demurrer to a complaint that the plaintiff has not legal capacity to sue, that a corporation suing must show in the complaint how it was created. (Johnson v. Kemp, (11 How. Pr. Rep. 186.) And this decision has some countenance in another case at general term. (The Bank of Havana v. Wickham, 16 How. Pr, R. 97.) But in neither
The defendant is not at liberty to object that the incorporation of the company was not proved, as it does not appear that the objection was taken at the trial. It was incumbent on the defendant to raise the objection there, to.entitle him to avail himself thereafter of the omission or defect of proof in respect to that part of the case. If the objection had then been made, it might possibly have been obviated by proof. Besides, it affirmatively appears to have been assumed at the trial that the company was a corporation. In objecting to evidence, the defendant^repeatedly designated the company as a corporation; as that there was no allegation in the complaint that the company was a corporation, that the corporation was not competent to make the assignment, the omission of proof that the persons executing the assignment were officers of the corporation, that the seal affixed was the seal of the corporation, that the president and secretary had power to contract for the corporation: at no time intimating that the company .was not a corporation.
The official character of the persons who acted as president and secretary in assigning the agreement with the defendant to the plaintiff, and their authority to execute the assignment for the company, were sufficiently proved. They, as such officers, and acting for the company, contracted with the plaintiff,
T. R. Strong, Welles and Smith, Justices.]
The agreement in question clearly imports a request to the • company to construct the buildings, and establish and improve the roads specified in the agreement, and a compliance with the request by the company, so far as to construct the depot, which was the consideration, on its part, of the agreement, was a sufficient consideration for the defendant’s undertaking. The recent case of Barnes v. Perine, (2 Kern. 18,) and the cases there referred to, are entirely decisive upon this point, and render any discussion of it unnecessary.
It must be assumed from the report of the referee, that the buildings were erected by the company in pursuance of the agreement; and that was an acceptance of the whole of the agreement by the company, binding them to apply whatever moneys they should receive upon it to the purposes therein mentioned.
My conclusion therefore is, that the judgment appealed from is right and should be affirmed.