Woodrough & Hanchett Co. v. Witte

89 Wis. 537 | Wis. | 1895

NewMAN, J.

It is not questioned that by tbe failure to file and record tbe resolution which was adopted for tbe purpose of changing tbe name of tbe corporation tbe intended change miscarried. R. S. sec. 1774. Tbe true name of tbe corporation still is, in law, tbe “ C. O. Scbwartz Stove •Company.” By that name it should sue and be sued. But it does not follow that tbe corporation was incapable of binding itself by its assignment by tbe name Zimmerman-’Syburg Company. Tbe integrity and validity of tbe assignment is in no respect questioned, except that it was made by a name other than tbe true legal name of tbe corporation.

It is well settled that a corporation, like a natural person, ■can. bind itself by a contract made by it under an assumed name which, is not its true corporate name. The misnomer ■of the corporation in such a contract has the same effect as the misnomer of an individual in a similar case. The contract will be enforced against the corporation in its true name, whenever its identity with the party intended to be bound by the instrument is asserted in the pleading and made apparent in the proof. The identity of the corporation with the party intended to be bound may be established by the same methods of proof as in cases of natural persons. 4 Am. & Eng. Ency. of Law, 204, and cases cited in the notes; 23 Cent. Law J. 531, 534, 535, and cases cited.

So, clearly, the corporation is liable to the plaintiff in this •action, although it contracted the debt under an assumed name. The identity of the corporation with the party which •contracted the debt to the plaintiff is unquestioned. Equally unquestioned is it that the party which executed the assignment to the appellant was the C. O. Schwartz Stove Company, although the assignment was made in an assumed name. No distinction is observed between the two cases in this respect. If the C. 0. Schwartz Stove Company would be bound by a transaction in the name of Zimmerman-■Syburg Company in the one case, it would be bound in the other case as well.. The question in the one case is the identity of the corporation with the party which contracted the debt. In the other case it is the identity of the corporation with the party who executed the assignment. In neither case is the corporation bound unless it is the identical party which incurred the debt or which made the assignment. In either case it is bound, if at all, because it is the identical party who incurred the debt or who made the assignment.

But it is urged by the respondent that the use of an assumed name was in legal effect an abandonment or dissolution of the corporation, and that from that time the stock-Folders are to be considered as partners. That theory would put the plaintiff out of court, for then his debt is against the partners and not against the defunct corporation, and the partners are not sued. But that theory equally establishes 'the validity of the assignment. It cannot be questioned that, as partners, they might use “ Zimmerman-Syburg Company ” as the firm name, or that an assignment of the partnership property under that name would be good. Clearly, the assignment is valid both at law and in equity.

By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded with direction to enter judgment in favor of the garnishee.