Liter v. Ozokerite Mining Co., 7 Utah 487

Liter v. Ozokerite Mining Co.

7 Utah 487 | Utah | 1891

Zane, 0. J.:

This action was brought, as alleged, to recover $950 compensation for labor performed by the plaintiff at the instance of the defendant. The plaintiff alleged in his complaint that the defendant was a corporation under the laws of the State of blew York. This allegation the defendant denied. To prove it the court admitted in -evidence a paper purporting to he a copy of the certificate of incorporation of the defendant, signed and duly •.acknowledged by Jacob Wallace, Hibbert B. Masters, and Charles H. Barkley, three of the five trustees mentioned therein. To these articles was attached the following certificate:

“State of New York, ) ''Office of the Secretary of State, ) ss‘

•“ I have compared the preceding with the original certificate of incorporation of Ozokerite Mining Company, *489with acknowledgment thereto annexed, filed and recorded in this office on the 5th day oí March, 1886; and do hereby certify the same to be a correct transcript therefrom, and of the whole of the said original.

“Witness my hand,and seal of office of the Secretary of State at the'city of Albany, this 30th day of November, one thousand eight hundred and eighty-six.

■ “ [Seal.] Eeedeeick Cook,

“Secretary of State.”

Also a certificate in writing, purporting to have been made by Jacob Wallace, president, and Charles H. Barkley, secretary, of the defendant, under its seal, designating the plaintiff, William H. Liter, as a person on whom to serve process against the defendant. The following certificate was also attached to the copy of the óertifieate of incorporation:

“TERRITORY OE TJtAH, | “Secretary’s Office, [ ss'

“I, Elijah Sells, Secretary of the Territory of Utah, do hereby certify that the foregoing is a full, true, and correct copy of the charter and certificate of incorporation of the Ozokerite Mining Company, a corporation organized under the laws of the State of New York, and the appointment of William H. Liter agent for said company to accept service in civil actions; said papers filed in this office December 5, 1886; as appears of record in my office. In testimony whereof I have hereunto set my hand and affixed the great seal of the Territory of Utah, this 13th day of November, A. D. 1890.'

“ [Seal.] Elijah Sells,

“Secretary of Utah Territory.”

Other acts, purporting to be by Jacob Wallace as president and Charles H. Barkley as secretary of the defendant, were proven.

*490Section 2293, 2 Oomp. Laws 1888, provides that all corporations not organized under the laws of this Territory shall, within sixty days after commencing business therein, file with the Secretary of the Territory, certified copies of their articles and certificate of incorporation, and that they shall also, .within sixty days after commencing business, designate some person residing in the county in which its principal place of business in the Territory is situated, upon whom process may be served, and shall file the same with such Secretary; that a copy of such designation duly certified by such Secretary shall be evidence of such appointment, and that service on such agent shall be deemed to be valid. The certificates of the Secretary of the State of ISTew York and of the Territory of XJtah are evidence that the certificate of incorporation of the defendant appears on the records of that State and this Territory. The certificate of the Secretary of the Territory is sufficient proof also of the appointment of the plaintiff as defendant's agent on whom to serve process. The officers of the defendant, by filing such certificates in the office of the Secretary of the State of New York and in the office of the Secretary of this Territory, and by designating the plaintiff as its agent, represented the defendant to be a corporation, and held it out to the public as such. It further appears from the transcript in this case that the plaintiff was employed by the defendant at $50 per month to look after its mine and other property, and that defendant paid plaintiff in part therefor, and that there is a balance due the latter for services so rendered to the amount found by the jury.

The defendant represented to the public and to the plaintiff that it was a corporation, and as such employed him. It will not be permitted to escape *491liability upon the plea that it was not. “K person who has contracted with a corporation de facto claiming to have been incorporated under the laws of a foreign State cannot., after the contract has been performed on the part of the corporation, impeach the validity of the contract upon the grounds that the company was incorporated without legislative authority, and that the making.of the contract involved an unauthorized exercise of corporate power.” % Mor. Priv. Oorp. § 756. And when individuals perform the acts and observe the-forms required to create private corporations, and cause the evidence thereof to be placed on public records in pursuance of law, they will not be permitted to deny corporate existence when sued upon contracts entered into by such association as a corporation with persons acting in good faith upon such representations and appearances. The court permitted the plaintiff to introduce in evidence two letters addressed to him, and signed by the witness R. J. Kruger. This ruling of the court, the defendant assigns as error. Kruger had testified that he was the agent of the defendant. Such letters were competent and relevant evidence to prove the-employment of the plaintiff as alleged in his complaint.

The defendant also • assigned as error the ruling of the-court in admitting in evidence certain letters of one J. Wallace. Prom the certificate of incorporation Wallace appears to have been one of the incorporators of the defendant, and as president he designated the plaintiff as the defendant’s agent on whom to serve process in Utah. The defendant held him out to the public as its president and agent, and will not be heard to deny his authority to act for it, as the evidence shows he did. Other errors alleged by the defendant have been carefully considered by the court, and held not to be well assigned. In con-*492elusion we feel it to be our duty to say that the counsel for the appellant in making the abstract filed in this case did not comply with the rules of this court. The abstract in all cases should contain an impartial statement of so much of the transcript of the record as may be necessary to present fairly the points made by the exceptions relied upon, so that the court, without looking at the transcript, may decide the case. When the court is obliged to read the transcript, the examination of the abstract is a waste of time, and the court ought not to be bothered with it. An abstract of any pleading or order and of such evidence as may be pertinent to the points relied upon should be fairly made, and the substance intelligently stated. Rule 6 of this court must be complied with hereafter, or the appeal in such event will be dismissed in pursuance of Rule 8. The judgment of the court below is affirmed.

Mister, J., and AstdeRSOn, J., concurred.