Thompson v. Allen

86 Mo. 85 | Mo. | 1885

Norton, J.

— This suit was brought on the sixteenth day of October, 1881, against C. C. Allen, Thomas M. Davy, William McMillin, and W. A. Daugherty, as partners doing business under the firm name of the Carterville Mining and Smelting Company, for the specific performance of a contract alleged to have been made by them on the twelfth day of September, 1876, with the grantors of plaintiffs, for the conveyance of a certain lot in the town of Carterville, Jasper county. A trial was had at the November term of court, 1883, during the progress of which it appeared that the alleged contract was made with a corporation, known as the Carterville Mining and Smelting Company, which company was not a party to the suit. After the evidence on both sides had been put in, clearly showing that the plaintiffs had no right to a judgment against the defendants then before the court, plaintiffs were allowed to file an amended petition, making the Carterville Mining and Smelting Company defendant, and alleging that the said Allen, Davy, Daugherty and McMillin were doing business as a corporation, and that the corporation executed the contract, the specific performance of which was asked for. To this petition, Allen et al. demurred, which was overruled, and the court then proceeded without either notice to, or the voluntary appearance of, the Carterville Mining and Smelting Company, to render its decree for specific performance against said company, awarding in its decree two thousand dollars damages for mineral taken from said lot. From this decree defendants have appealed.

The judgment must be reversed, because the Carter-ville Mining and Smelting Company was not before the court, either by service of summons or voluntary appearance, and the court, therefore, did not have jurisdiction to render judgment against it. The _ fact that Allen and others were sued as individuals, composing a firm, were the corporators, members and officers of the corporation, did not dispense with the necessity of having the corporation brought into court, either by summons or voluntary appearance. G. B. Allen & Co. v. Frumet M. & S. Co., 73 Mo. 688 ; Angell & Ames on Corp., secs 40, 46, 100, 591. “The fact that the name of the corporation was the same as that of the firm, and that the stockholders therein were the members of the firm, can make no difference. In the eye of the law, the firm and the corporation are two different persons. ” 73 Mo. 694.

The original petition stated a cause of action against individuals, the amended petition stated a cause of action against a corporation, and for this reason the demurrer of Allen and others ought to have been sustained and the cause regularly proceeded with against the corporation. The evidence of Daugherty, offered on the trial and excluded, tending to show that the contract for the purchase of the lot had been canceled and abandoned, was clearly admissible under the ruling of this court in the cases of Fulkerson v. Thornton, 68 Mo. 468, and Butts v. Phelps, 79 Mo. 302. Error was also committed in excluding the evidence of Wilson, offered in cross-examination, as to the expensiveness and length of time required in draining and developing the mineral land mentioned in his evidence, and the cost of getting out lead ore. This evidence was admissible as bearing on the question of whether the purchasers of this lot were guilty of such laches as not to authorize specific performance. Moorman v. Talbott, 55 Mo. 392; 63 Mo. 54.

Judgment reversed and cause remanded.

All concur.