47 La. Ann. 1076 | La. | 1895
The opinion of the court was delivered by
The plaintiffs seek to hold defendants liable for an amount deposited in the Traders’ Bank, under which name it is alleged the defendants conducted the banking business, and the bank itself is included as a defendant. The defendants excepted that suing the bank along with the other defendants was a misjoinder, and es-topped the plaintiffs from denying the corporate capacity of the bank; that this estoppel was further supported by the fact plaintiff had recognized the corporate capacity of the bank by depositing the money and other dealings with it; and the estoppel is placed by the exceptions on the additional ground that in a previous litigation between Mrs. Williams, the plaintiff here, and Hewitt, one of the defendants, she had made averments inconsistent with her position in this case; that the defendants are liable as members of an unincorporated association. These defences of estoppel are again urged in the answer along with the general issue, and the defence that plaintiffs dealt with a corporation and can not hold the shareholders liable. The lower court overruled the exceptions on the merits, gave judgment against defendants, and they appeal.
The law recognizes a firm name and the petition sues the Traders’ Bank, alleging it to be an unincorporated association and the individual members of the association averred to be commercial partners. Money in bank and other personal property of the partnership is usually held in the name of the partnership, and the law
The defendants objected to the testimony offered by plaintiff tending to show that the articles of association relied on to sustain the defence of the corporate capacity of the bank were never published as required by law. The objection was, the petition alleged no defects in the organization of the corporation. In our view, it was unnecessary to make such allegations or offer the testimony. It is, we think, clear that sued as commercial partners it was for defendants to maintain they had become a corporation, by complying with the requisites of the law. Hence, the ruling on the testimony is of no consequence.
The legislation authorizing the formation of banking associations requires the organization articles to be by notarial act, stating the number of shares into which the stock is divided; the names, resi-I dences and number of shares held by the shareholders; the time/ manner of payment of the shares, with other particular's; and the act must be registered in the office of the recorder of the parish; the domicile of the corporation, and the act must be published in that parish and in New Orleans, and in Baton Rouge. Revised Statutes, See. 279.
It is conceded that the act claimed to invest the defendants with corporate capacity contained no statement of the number of shares held by defendants, and was never published in New Orleans or Baton Rouge. Mere informalities in the act may well be disregarded, but it will not be disputed it is to be presumed that the omission in the act here, and the failure to publish it as required, are' material. In our view, the fact affords no defence, and unless there is some other ground, defendants must be held as commercial partners. Cook on Shareholders, Secs. 230, 231, 232, 233, 234, et seq.; Revised Statutes, Sec. 282; Field vs. Cooks, 16 An. 153; Workingmen’s Accommodation Bank vs. Converse, 29 An. 370; Vrendenburg vs. Behan, 33 An. 635; Story on Partnership, Sec. 164; Angell and Ames on Corporations, Secs. 41, 591.
It is claimed, in support of the estoppel pleaded, that the tendency of more recent authority is that those who constitute themselves and do business as a de facto corporation can not be held as individuals. If this is to be accepted, there is but limited, if any, necessity for
We do not understand that the testimony as to the dealings of the plaintiffs with the bank attributes to them any knowledge at the time they made the deposit of the attempted organization. The estoppel seems to rest on the deposit and the certificate issued by the institution known as the Traders’ Bank. It is possible to conceive of one depositing his money in a bank with full knowledge the institution had proposed organization as a corporation under the laws, had failed, and yet was doing business. If anybody had that knowledge, in all human probability no such deposit would ever be made, certainly not, unless the depositor was satisfied of the personal responsibility of the parties engaged in the business, and relied on it, and on it alone. We can not, therefore, find the basis for any estoppel based on any knowledge on plaintiffs’ part of the attempted organization or its failure, for if he had any such notice he must be
The courts have not frequently applied the estoppel against denying the existence of the corporation. It will be found that in such eases the estoppel has rested on conduct of the corporation which made it inequitable for it to avail of the estoppel, and it strikes us if there is any room in this case for any estoppel, it would be that ; arising from defendants taking plaintiff’s money on deposit as Í bankers with no license to do that business. It would be, in our > view, a palpable wrong to plaintiffs if they were not precluded from enforcing against defendants the liability announced in express terms by our statute and with equal clearness by the commercial law that unincorporated bankers shall be liable to the full extent of| their engagements. Revised Statutes, Sec. 282; Story on Partnership, Sec. 164, 77; Angel and Ames on Corporations, See. 41, 591. • Estoppels in favor of corporations have been placed on dealings with them resulting in some benefit or advantage obtained from the corporation, and very naturally, it has been held that the party holding such advantage or benefit could not dispute the resulting liability by denying the existence of the corporation when sued by it I on his obligation. It is in great part the long line of cases of estoppels against or for corporations or asserted corporations all resting on some basis of conduct or of benefit obtained, or other cause forbidding as inequitable the estoppel attempted to be invoked, from
Nor do we think the other estoppel urged on us rests, on any better basis. It is that in the suit of Hewitt, one of the present defendants, against Mrs. Williams, the present plaintiff, she urged that the notes and claims on which she was sued belonged to the Traders’ Bank, of which he was president. It was a fruitless attempt of a debtor to deny the plaintiffs’ title to notes and claims assigned to him, which he had no interest to question. The defence failed, and because of this defence it is now urged she can not sue the defendants for her deposit. In the first place the averment by Mrs. Williams that Hewitt was president of the Traders’ Bank in no man
We have given the case in all its aspects careful attention, and in our view there was no defence. If we have not noticed all phases of the able discussion of the defendants, it is because the views expressed dispose of the case.
It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.