Stofflet v. Strome

101 Mich. 197 | Mich. | 1894

Grant, J.

This suit is based upon a promissory note for $25, dated March 20, 1890, which the defendant promised to pay to the order of the Evangelical Church of Vicksburg, Michigan. Plaintiff recovered judgment, and defendant appeals. Plaintiff's articles of association were dated May 14, 1887, acknowledged in February, 1889, and recorded with the county clerk December 23, 1892.

1. The first contention is that the plaintiff corporation was not in existence at the time the note was given, and therefore no recovery can be had. The corporation was. organized under chapter 170, How. Stat. Section 4621 provides for the election of trustees, and the making of the certificate of such election. Section 4622 provides for the acknowledgment of such certificate, and the recording of the same with the county clerk, and that, after, the-recording thereof, “such trustees and their successors shall be a body corporate, by the name expressed in such certificate.” Counsel recognize the rule that parties dealing with business corporations are estopped to deny their legal incorporation, but deny that the defendant knew in this-case that the plaintiff claimed to be a corporation. This-position cannot be sustained. The payee named was the-corporation. The note was given to assist in the payment-of its debts. Defendant treated with it as a corporation,, and cannot defeat his liability by the .failure to record the; certificate. Willard v. Trustees, 66 Ill. 55.

2. The next cohtention is that the suit was not brought, in the name of the corporation. The name specified in the certificate is the “Salem Church of the Evangelical Association of North America, in Kalamazoo County, State-of Michigan.” In the summons the names of the trustees-were stated, after which appeared the following clause:: “ Trustees of the Salem Church of the Evangelical Church of North America, a Corporation, at Vicksburg, Michigan.” The precise claim is that the suit should have been instituted by the name expressed in the certificate. The declaration sets forth the note, and describes the plaintiff by the name therein given. To this the general issue was pleaded. No objection was taken before the justice, and it was therefore waived.

3. It is contended that the suit was commenced by the plaintiffs in their individual capacity, and not as the church or corporation. It is too plain to require argument that it was intended to bring suit in the name of and for the benefit of the corporation. The defendant and his counsel so understood it on the trial, before the justicé, for he interposed the plea of the general issue, and notice “that the plaintiff was not a corporation at the time of the making of said note’ and filed an affidavit to that effect. The case was tried before the justice with the jury, and this point does not appear to have been raised. If, however, the point is technically correct, it does not affect the merits of the case. The defendant has not been misled or prejudiced. In such case this Court will consider an amendment made in the furtherance of justice. Merrill v. Village of Kalamazoo, 35 Mich. 211; Warder, Bushnell & Glessner Co, v. Gibbs, 92 Id. 29.

Judgment affirmed.

The other Justices concurred.