244 Ill. 184 | Ill. | 1910
delivered the opinion of the court:
The contract of guaranty sued upon, upon its face appears to have been made by Francis H. Buzzacott and Charles M. Pusey with “the Beaver Dam Malleable Iron Range Company, of Beaver Dam, Wisconsin, a corporation,” and the first contention made by the appellant is, that it was error to permit proof to be made that it was the intention of Pusey, by said contract of guaranty, to guarantee a debt of Buzzacott to the Malleable Iron Range Company and to permit a recovery in favor of the Malleable Iron Range Company on said contract of guaranty against Pusey. The declaration averred that the defendant and Buzzacott, by an instrument in writing signed and sealed by each of them, did, jointly and severally, guarantee to the plaintiff, under the name and style of “The Beaver Dam Malleable Iron Range Company,” the payment to the plaintiff of any and all indebtedness then due or thereafter to become due to the plaintiff for goods theretofore purchased, shipped or ordered from the plaintiff by said Buzzacott, and for any goods which might then be purchased, shipped or ordered at any time in the future, provided, however, that said guarantors should not be liable on said guaranty for any amount to exceed $3200, and the proof fully sustained the averments of the declaration that the words “The Beaver Dam,” were by inadvertence, or otherwise, inserted in the contract of guaranty before the corporate name of the plaintiff, and the question to be determined is, was it proper to show, by evidence aliunde the contract, that, as a matter of fact, the contract of guaranty was made for the protection of the plaintiff? While there is some apparent conflict in the authorities upon this question, we think it was proper to admit such proof. Mr. Thompson, in his Commentaries on the Law of Corporations, (vol. 1, sec. 294,) says: “There is a general concurrence of modern authority to the effect that ‘a misnomer or variation from the precise name of the corporation in a grant or obligation by or to it is not material if the identity of the corporation is unmistakable, either from the face of the instrument or from the averments and proof,’ ” and the rule announced by Judge Thompson has been applied by this court in numerous cases.
The case of Peake v. Wabash Railroad Co. 18 Ill. 88, was an action of assumpsit brought to recover for moneys due upon certain subscriptions to the capital stock of the Wabash Railroad Company. The corporate name of the railroad company was “The Wabash Railroad Company,” but the terms of the subscription were, that the subscribers should severally pay the amount of their subscriptions, as calls should be made by order of the company, to the president, directors and company of “the Wabash Valley Railroad Company.” The declaration contained a count in indebitatus assumpsit for moneys due on certain installments of stock subscribed by the defendant in the Wabash Railroad Company, and the ordinary common counts. In the course of the opinion (page go) the court said: “Were the contract of subscription specially declared on, it would be necessary, by explanatory averment, to avoid the apparent variance between the contract and the name of the plaintiff, and to show that the contract was made with the plaintiff by the name therein used. And the counts being general, some explanatory proof would, perhaps, be equally necessary to establish a contract with the plaintiff or subscription to the stock in this company, although by a name variant from the legal name. Instruments in writing are not void because made to a party by a wrong name, and any misnomer or apparent variance may be reconciled and explained, in pleading, by averment, and avoided, in effect, by proof.”
In Chadsey v. McCreery, 27 Ill. 253, on page 254, it was said: “In x Kyd, 237, it is said, as the name of a corporation frequently consists of several words, the transposition, interpolation, omission or alteration of some of them may make no essential difference of their sense. It is held, in a devise to a corporation, if the words, though the name be entirely mistaken, show that the testator could only mean a particular corporation, it is sufficient, as, for instance, a devise to the inhabitants of the South Parish may be enjoyed by the inhabitants of the First Parish, ‘The First Parish’ being the legal name.—3 Pick. 237.”
In Board of Education v. Greenebaum & Sons, 39 Ill. 609, Greenebaum &! Sons filed a petition against the board of education of the State of Illinois to enforce a mechanic’s lien. The petition states that the plaintiffs entered into a written contract with the defendants by the name and style of “The State Board of Education of Illinois.” The proper name of the board, was “The Board of Education of the State of Illinois.” Objection was made to a recovery upon this ground. The court, in overruling the objection, said (p. 614) : “The proper name of this corporation is ‘The Board of Education of the State of Illinois.’ (Scates’ Comp. 425.) In the contract words are transposed, but the name and style remain substantially the same. The same words are embraced in both names. It is a settled principle that the transposition, interpolation, omission or alteration of some of the words going to make up the name of a corporation is not material if it makes no essential difference in their sense. (Angelí & Ames on Corp. 77.) In New Hampshire it was held, when a promissory note was given to the president, directors and company of, instead of to, the Newport Mechanics’ Manufacturing Company, which was the true name of the corporation to which the note was designed to be given, that the variance was not such as to preclude a recovery in the name of the corporation. (Newport Mec. Manf. Co. v. Starbird, 10 N. H. 123; 1 Kyd on Corp. 237; Bacon’s Abr. title Corporation, c. 2.) So this court held in Chadsey v. McCreery, 27 Ill. 253, that the transposition, alteration or omission of some words in the name of a corporation consisting of several words was immaterial if it was evident what corporation was intended. The suit is brought against the corporation by its true name, with an averment that the contract was executed by the name used in it. This is the usual and formal mode of declaring on such contracts. It is a familiar principle, when a deed is made to a corporation by a name varying from the true name, the plaintiffs may sue in their true name and aver in the declaration that the defendants made the deed to them by the name mentioned in the deed.—African Society v. Varick, 13 Johns. 38.”
We are of the opinion the trial court did not err in admitting proof to show that the contract of guaranty was made with the plaintiff under the name of “The Beaver Dam Malleable Iron Range Company.”
It is next contended by the appellant that the court erred in permitting the amendment whereby the title of the case was changed by substituting the Malleable Iron Range Company as plaintiff, the theory of the appellant being, that prior to the amendment, as there was no such corporation as the Beaver Dam Malleable Iron Range Company, there was no plaintiff, and there was therefore nothing to amend by, and hence the amendment could not properly be permitted to be made. The statute (Practice act, sec. 23,) provides : “At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of the action, and in any matter, either of form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense.” And the statute on amendments and jeofails (sec. 1) provides: “That the court in which an action is pending, shall have power to permit amendments in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.” At the time the suit was commenced it was attempted to state the name of the plaintiff correctly but the name of the plaintiff was stated incorrectly. There was, however, a plaintiff named in the suit, although the name used was not the correct name of the plaintiff. It was proper, under the statute, to permit any amendment, either in form or in substance, in any process or pleading which would enable the plaintiff to sustain the action for the claim for which it was intended to be brought. The only amendment sought ■ to be made was to correct the name of the plaintiff, as there can be no pretense upon this record but that the suit was brought by the Malleable Iron Range Company and that the suit was based upon a contract of guaranty signed by Pusey. We-think the amendment was in furtherance of justice and that it was properly permitted to be made.
It is also contended that the court erred in declining to permit the appellant to make - proof that the plaintiff had failed to perform its contract with Buzzacott. The letters hereinbefore set out in this opinion show that all matters in difference between the plaintiff and Buzzacott had been settled and adjusted long before this suit was commenced and that there was nothing due Buzzacott from the plaintiff. The court did not, therefore,' err in refusing to admit such proof.
The case of Rice v. Filene, 88 Mass. 230, in principle, upon this proposition, is like the case at bar. That was a suit upon a contract of guaranty, by which the defendant guaranteed the payment of certain goods sold by the plaintiff to his brother. The vendee made various objections to the goods, complained of delay in shipment and finally returned them to the plaintiff. Later on, the plaintiff and the vendee agreed that the vendee should waive his objections and receive and pay for the goods upon the plaintiff allowing him a discount of .¡ten per cent. It was held that these acts of the parties did not release the defendant upon his guaranty. The court, on page 235, said: “The objection that under the declaration in the present case the subsequent agreement as to the receipt of the goods upon the deduction of ten per cent was fatal to the right of the plaintiff to maintain the present action is not sustained. The sale of goods, the payment of which was guaranteed by the defendant, is the sale of goods bargained for on the 10th of October. The liability was for the goods then ordered. The subsequent acts of these parties as to an abatement in price were based upon that sale and the bill of parcels was rendered as of that date. The delay in forwarding the goods, and the fact that the time of credit was understood by the parties to be computed from the 10th of October, were distinctly alluded to by the vendee in his letter to the plaintiff, as well as the quality of some of the goods, as matters of complaint for which he claimed the right to repudiate the contract, but he waived the right so to do upon the allowance of ten per cent discount from the prices stated in the bill.”
It is also claimed by the appellant that as Buzzacott had bought and paid for more than $3200 worth of ranges subsequent to the date of the contract of guaranty appellant’s obligation was fulfilled and he could not be held therefor upon said contract of guaranty. We think it manifest that the contract of guaranty was a continuing obligation, and that the limitation contained therein was not a limitation upon the credit to be extended to Buzzacott by the plaintiff but a limitation upon the liability of Pusey. The contract provided Pusey was not to be liable for an amount to exceed $3200, and not the amount of credit which should be extended to Buzzacott by the plaintiff.
The case of Taussig v. Reid, 145 Ill. 488, is an authority in point. That was an action on a guaranty, under the terms of which the guarantors guaranteed the prompt payment by the principal of all indebtedness for goods purchased or which might thereafter be purchased, to the amount of $1500. After the execution of the guaranty, Reid, Murdoch & Fischer, the parties guaranteed, proceeded to sell goods on credit to the principal. The indebtedness varied from time to time. On November 23, 1887, when the account was closed, it amounted to $2714.96. The principal failed on November 24. The argument was made that the guarantors were discharged because after the execution of the guaranty the principal made default in payment in excess of $1500, of which no notice was given to the guarantors. The court, as to this point, said (p. 496) : “The position of appellants is untenable. They guaranteed the prompt payment, at maturity, of any indebtedness owing by Mrs. Zuckerman to plaintiffs for goods purchased, or thereafter to be purchased of them, to the amount of $1500. This amount stated in the guaranty was a limitation upon the liability of the guarantors and not a limitation upon the credit to be extended to Mrs. Zuckerman. It was, as we have seen, a continuing guaranty, and plainly contemplated that payments made or indebtedness otherwise settled by Mrs. Zuckerman should not in anywise affect their liability for indebtedness incurred by her for goods purchased and not paid for at maturity. The contract of guaranty looked to a future course of dealing for an indefinite time,—that is, a succession of credits was to be extended, and the guarantors undertook to be liable to the extent of $1500 for any indebtedness contracted in the course of such dealings and not paid by Mrs. Zuckerman at maturity. * * * Taking the language of this instrument and construing it in the light of the circumstances surrounding, it seems clear that it was intended that Mrs. Zuckerman should have credit with the plaintiffs and that appellants would be liable for any balance that might remain unpaid at maturity, at any time during the continuanee of the guaranty,—that is, that it was intended to give her credit with the plaintiffs to the amount of $1500 until the guaranty should be revoked.”
A number of appellant’s contentions urged as grounds of reversal are based upon the assumption that Francis H. Buzzacott remained a party defendant up to the time of the final judgment. This assumption is not correct: The filing of the amended declaration was a discontinuance of the suit as against Buzzacott. Black v. Womer, 100 Ill. 328; MacLachlan v. Pease, 171 id. 527; Kaspar v. People, 230 id. 342.
We have examined this record with care and have found no reversible error therein. The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
