138 P. 777 | Ariz. | 1914
The note in suit was made by John S. Jones, as president of the Jessie Mines Company, and upon its face it purports to have been made for and in behalf of and as the obligation of the Jessie Mines Company. The note is made payable to T. P. Otis and assigned by him to T. W. Otis for collection or renewal. The appellee Ohio Mines Company is sought to be held as the payor of the note by plaintiff, for the reason the Ohio Mines Company purchased all the assets of the Jessie Mines Company, and in part consideration for such purchase of such property the Ohio Mines Company “promised and agreed to and with the Jessie Mines Company to pay said note.” It is alleged by the plaintiff that he ratified said agreement and sale, and since said agreement and sale he has looked to said the Ohio Mines Company for payment and satisfaction of the note.
The defendants join in a third amended answer. They admit the sale and transfer of all the property to the Ohio Mines Company and deny the other allegations of the complaint. As a second defense in said amended joint answer, they allege the facts of the organization of the Jessie Mines Company as of October 11, 1901, and that it continued to do business until January 11, 1909, when it sold all its property to the Ohio Mines Company, a corporation organized about January 15, 1909. It is alleged that the Ohio Mines Company was organized “for the purpose of purchasing the assets of the Jessie Mines Company.” It is alleged that,
The plaintiff in a reply to the third joint answer denies all and every allegation of the same in the words of the allegation. Such a denial is a “negative pregnant” and as a traverse is a species of ambiguity and is'Condemned by the
The third joint answer simply recites: That on January 17, 1908, John S. Jones became financially embarrassed and was unable to meet his personal indebtedness due the plaintiff, and he with the plaintiff and T. P. Otis entered into a conspiracy to represent to the directors of the Jessie Mines Company that such indebtedness had been incurred in behalf of the Jessie Mines Company for supplies and merchandise purchased by Jones, its president and controlling stockholder, from the plaintiff for the company’s use and benefit, and that the Jessie Mines Company was equitably bound to pay such debt. That the conspiracy was fraudulently, falsely and deceitfully entered into to impose an unjust and unconscionable claim upon these defendants. That the defendants had not in any manner or wise assumed, contracted or obligated themselves to pay. Nothing is attempted to be alleged that such representations were ever made to the directors of the Jessie Mines Company by any one in pursuance to the carrying out of such conspiracy, nor that the note of the Jessie Mines Company was made and delivered by reason of such representations in pursuance to such conspiracy, and hence a denial of such recitals raised no material issue for trial. In the answer the defendants allege “that these answering defendants have never received any consideration whatever for the said note, a copy of which is set forth in the petition of the plaintiff.” This allegation is directly denied by the reply. The parties and the court treated this sufficient to raise the issue of no consideration, and this is the only issue of fact raised by the pleadings for trial.
The pleadings admit that the Ohio Mines Company was organized for the purpose of purchasing all the property of the Jessie Mines Company, and such property was paid for
Plaintiff in his -reply alleges: That the plaintiff’s assignor, T. P. Otis, was the owner and holder of a note of John S. Jones on January 17, 1908, and on or about that date the board of directors of the Jessie Mines Company passed the resolution set forth in the statement of facts. That the resolution was adopted by a majority of the said board independent of -any participation therein of John S. Jones. That pursuant to such resolution the president of the Jessie Mines Company issued its promissory note to T. P. Otis in consideration for the personal promissory note of John S. Jones. That, upon the issuance of said Jessie Mines Company’s note to T. P. Otis, he surrendered to the Jessie Mines Company the' John S. Jones note. That, at the time T. P. Otis surrendered to the Jessie Mines Company the John S. Jones note, John S. Jones was solvent, and the amount of the note so surrendered could have been recovered from the payor of the note in a suit at law.
The question at issue is whether the Jessie Mines Company received any consideration for the note in suit. The plaintiff contends that the John S. Jones note was assigned to the Jessie Mines Company in exchange for the note of the company, and that at the time of the exchange the Jones note
The court finds as a fact that T. P. Otis surrendered and redelivered to John S. Jones his personal note, which Jones kept, and did not account therefor to the Jessie Mines Company. That no consideration whatsoever passed from T. P. Otis or from T. W. Otis for the Jessie Mines Company note. This is a direct finding of the contested issue in the case against the plaintiff. The appellant attacks the findings containing the above and assigns error thereon because the said findings are not supported by the evidence.
John S. Jones, testifying in behalf of the plaintiff, stated that he was president and a director of the Jessie Mines Company from the time of its organization until it ceased doing business in 1909 by transferring all its assets to the Ohio Mines Company. He was president and a director on January 17, 1908. He purchased supplies of T. W. Otis. The indebtedness for the supplies was represented by the personal note of witness. This note was taken up by the Jessie Mines Company. “The Jessie Mines Company issued its promissory note for this personal note of mine. I have testified that the Jessie Mines Company issued its note in payment of my personal note and delivered its note to T. W. Otis. ... It was issued to T. W. Otis and my note exchanged for it. The Jessie Mines Company gave a note in exchange for my note by order of the board of directors.” The resolution appearing in the statement of facts above is then offered as the authority for making the note. Then he testifies that a note of the Jessie Mines Company was exchanged for his personal note and thereafter the first Jessie Mines Company’s
This evidence clearly preponderates in favor of the contention of the defendants that the note of John S. Jones ex
The parties in their pleadings admit that the date of the incorporation of the Jessie Mines Company was in October, 1901. Otis testifies on cross-examination that he first obtained the John S. Jones note about 1898. He was asked: “When were these supplies furnished to John S. Jones? Answer: Same time in 1898.” He states the supplies for which the first note was given were furnished before 1898. The evidence is clear that the note for the indebtedness was renewed from time to time until the note in suit was given, and no other consideration passed for the renewal notes except the extension of the. time for payment. The findings of the court that the note in suit was without consideration to the Jessie Mines Company is fully justified by the evidence.
Appellant has raised other questions, but, from the view we have taken of the ease, such questions are not controlling in a disposition of the appeal, not within the issues raised by
The judgment is affirmed.
FRANKLIN, C. J., and ROSS, J., concur.
Application for rehearing denied.
NOTE.—As to the effeet of the consolidation, merger or absorption of a corporation, on its unsecured liabilities, in absence of statutory or contract provision relative thereto, see notes in 11 L. R. A., N. S., 1119, 32 L. R. A., N. S., 616, and 47 L. R. A., N. S., 1058.