Meikel v. German Savings Fund Society

16 Ind. 181 | Ind. | 1861

Davison, J.

The appellee, who was .the plaintiff, sued John P. Meikel, Valentine Putsch, and Qlufóles Mayer, upon a promissory note executed by the defendants to said plaintiff, by the name of “The Trustees of the German Savings Fund Society of Indianapolis.” The note is in this form:

“$600. Indianapolis, June 3,1851.

“Twelve months after date, I promise to pay to the order of ‘ The Trustees of the German Savings Fund Society of ^n^anaV°^s'‘ six hundred dollars, value received, without relief from appraisement laws.

“ J". P. Meikel.”

Indorsed—“Y. Butsch, Charles Mayer.”

It is averred in the complaint, that Butsch and Mayer, on the same day on which the note was executed, and before the delivery thereof to the plaintiff, indorsed it as above stated; thereby intending to make, and making, themselves primarily liable for the full amount of said note and interest.

The defendant, Meikel, answered: 1. By a general denial. 2. That at the time of the execution of the note, or at the commencement of this suit, there was no legal association known as '•'■The German Savings Fund Society of Indianapolis? and no trustees thereof, &c. And the defendants, Butsch and Mayer, answered jointly: 1. That they are not indebted as charged, &c. 2. That they are sureties on the note; that on the day it was executed, the plaintiff was not legally a corporate body under the laws of this State, nor was there, at said date, any legally authorized trustees, as alleged, &c. 3. They admit the indorsing of the note, but aver that they simply indorsed it as' accommodation indorsers, and did not thereby intend to be primarily liable with the maker for its payment. To the second defense of Meikel, as also to the second defense of Butsch and Mayer, demurrers were sustained, and the defendants excepted. Issues of fact having been made, the cause was submitted to the Court, who found for the plaintiff, and, over a motion for a new trial, rendered judgment, &c.

The errors assigned relate exclusively to the action of the Court in sustaining the demurrers. And the inquiry at once arises, whether the defendants, having executed the note to the plaintiff in what purports to be a corporate name, are estopped from denying her existence as a corporation. This question must be answered affirmatively. The style of the plaintiff, with which the defendants in this instance contracted, plainly indicates an existing corporation, organized under tbe general statute of this State, authorizing the organization of such corporations. 1 K. S., p. 239. And that being the case, they can not be allowed to deny the plaintiff’s corporate existence at the time they executed the note. Jones v. The Cincinnati Type Foundry, 14 Ind. 89; Shappel v. Hubbard, at this term; The Brookville, &c. Turnpike Co. v. McCarty, 8 id. 392. There is, however, an allegation in MeikeVs second defense to the effect, “ that at the commencement of this suit” the plaintiff was not a corporation. The matter thus alleged, had it been properly answered in abatement, would no doubt have been effective to abate the suit, but, here, it is set up in bar of a recovery on the note. For such purpose it can not, in our opinion, be pleaded. The demurrers seem to have been well taken, and the judgment must therefore be affirmed.

P. L. Walpole and K. Ferguson, for the appellants. John Coburn, for the appellee. Per Curiam.

The judgment is affirmed, with 5 per cent, damages, and costs.