42 Ga. 148 | Ga. | 1871
This was án action brought by the Whites against the plaintiff in error, for the recovery of certain cotton, alleged to have been received by them under contract. The record is volum'i%>us and embraces the evidence of many witnesses upon questions of fact, found by the jury. We do not propose to review the testimony, as the controlling question of the case turns upon the law governing corporations, and its application to the theory of defense relied on by the defendant below.
The action was brought in the ordinary form of assumpsit, to the March Term of Newton Superior Court. The return of the sheriff upon the 26th February, 1867, is “ I have this day served Newton Manufacturing Company with a copy of this writ, by leaving it at their most notorious place of business.” At the proper term the defendant appeared by counsel and pleaded the general issue. Upon these pleadings the case went to the jury, and a verdict was found for the plaintiff. An appeal was entered, and when the case came on for trial, the defendant pleaded “ that at the time of the several supposed promises and undertakings, etc.: to wit: in the year 1865, and for several years previous thereto, to wit: the year 1861, the defendant was not using or exercising any of the franchises conferred by its charter, that it had no officers or agents, appointed in accordance with its by-laws, and was not capable of making contracts or performing any of the functions of its corporate existence, but on the contrary was dormant or in a state of suspension,” etc. The Court below held that this plea was filed too late, and disallowed any evidence under it, showing, as a corporation, it was incapable of making the contract or was not operating within the forms of a charter.
The jury found for the plaintiffs, and a motion for a new trial, on several grounds, was made and overruled by the Court, and the case comes before us by exceptions to the judgment of the Court refusing a new trial.
If Mr. Phillips had, after his purchase of the stock, done business openly in his own name, this would have ended the corporate name. But from this record he used the corporate name to transact the business. Pennington swears that he gave receipts for Newton Manufacturing Company under the order of Phillips: “he directed me to sign for Newton Manufacturing Company,” not for “ W. R. Phillips,” that he did not want it known that he was the “ Newton Manufacturing Company.” Every witness in the case substantially sustains this material fact, and we, therefore, are of the opinion that, inasmuch as the Newton Manufacturing Company went on under its name to transact its business, it was liable, in that
2. The next question material to the ease is whether under the contract as proven, demand and notice of the election was necessary before the institution of the suit. In the view the Court below held of this question we concur, and his charge, in our opinion, left the matter fairly to the jury. His charge was “ that if they demanded or requested a settlement of the account sued for before the commencement of the action and defendant refused it, it is sufficient notice.” There was testimony on this subject sufficient to invoke the charge and sustain the finding of the jury theron.
Several exceptions to the charge of the Court were made and are assigned as error; but the general prevailing sentiment of exception is based on the first ground we have discussed, and after carefully examining the charge of the Court, under the law and facts of this case, we are satisified that the points in issue were fairly stated for their adjudication, and we are satisfied with the verdict under the rule of this Court so often repeated, that, except in cases where the verdict is decidedly against the weight of evidence, we will not interfere with the province of the jury.
Judgment affirmed.