139 Mich. 47 | Mich. | 1905
(after stating the facts). 1. .The declaration is not based upon the theory that the credit was given to the corporation, and that in consequence of its illegal character the defendant is liable. Neither is any such' theory suggested in the testimony of the plaintiff or his clerk, the sole witnesses to establish the sale. Both testified that the goods were ordered by Ramsey in his own name, and that they knew nothing about the Sunfield Manufacturing Company, or the defendant’s connection with it, until some time after the sale. In the cases cited by the plaintiff (21 Am. & Eng. Enc. Law [2d Ed.], pp. 879, 880; Bigelow v. Gregory, 73 Ill. 197; Hurt v. Salisbury, 55 Mo. 310; Kaiser v. Savings Bank, 56 Iowa, 108; Loverin v. McLaughlin, 161 Ill. 417; Trust Co. v. Floyd, 47 Ohio St. 525 [12 L. R. A. 346]; Kruse v. Humpert, 21 Ky. Law Rep. 985; Cincinnati Cooperage Co. v. Bate, 96 Ky. 356; Walton v. Oliver, 49 Kan. 107) the declarations set forth the special ground of liability against the directors or stockholders. No averment of liability because the corporation was not legally organized is even suggested in the declaration now before us.
Whether, under the proper form of action and a proper declaration, the defendant is liable, it is not necessary to determine. It is sufficient - to say that under the declaration and proofs the sole question was whether the contract was between the plaintiff and defendant. Under the decisions of this court the members of a corporation are not
2. In view of a new trial two other questions may properly be decided, although they were not directly passed upon by the court below. Upon the trial defendant conceded that the amount and price of the goods were correct, and that they were delivered; the sole question being, To whom was the credit given ? Plaintiff was permitted to produce his books of account showing that the goods were originally charged to the defendant. They were competent, as there was testimony to show that the defendant saw these entries, and made no objection to their being charged to him.
3. Plaintiff claimed the right to a verdict and judgment upon an account stated. The bill was rendered to Mr. Ramsey, and to it he made no objection. He asserted that he did make objection when he first found that it was charged to him, and instructed plaintiff’s clerk that it should be charged to the Sunfield Manufacturing Com
Judgment reversed, and new trial ordered.