Ætna Insurance v. Wires

| Vt. | Dec 15, 1855

The opinion of the court was delivered by

Redeield, Ch. J.

I. We think it is sufficiently settled in this state that, in a suit in favor of a corporation, upon the plea’of the general issue, the plaintiff is not required to adduce proof of the corporate existence; Boston Type & S. Foundry v. Spooner, 5 Vt. 93. Such defense should be "made by way of plea in abatement or in bar.

EC. The right of the secretary to bind the company by an assignment of its dues, without recourse, upon receiving the amount, does not seem very important. If it were, we should be inclined to regard it, as matter of course, in every officer entrusted with the collection of the debts of 'a company. But if the debt was or was not legally assigned so as to vest an equitable interest in the claim in M. Wires, and nothing more could be effected by any assignment, even under the corporate seal in pursuance of the vote of the company, in either case, it will not affect this suit unless the transaction operated to extinguish the debt. That is not a question in which the defendant Peck is concerned. It is between M-Wires and the company.

m. We think it did not extinguish the debt. The case finds that, upon the dissolution of the partnership of defendants, Mr. Peck promised to pay this debt; and we think we are not bound against the judgment of the court below, and the common mode of •transacting such affairs, and the ordinary presumptions arising therefrom, to infer that the promise was without consideration. It was at the time of the dissolution; and if it formed a part of the dissolution it was upon sufficient consideration. And it would be 'a strange presumption to suppose it did not form one of the steps in the dissolution.

IV. This being so, the defendant Wires is a mere surety as between the defendants; and it was no want of good faith in the defendant Wires to procure a brother to buy the claim, and if done bona fide, with M. Wire’s funds, we do not see any want of good faith in him, or that he can in any fair way he deprived of his beneficial interest in the claim. The transaction, as stated by the bill of exceptions, is in no sense a payment. The cases read by plaintiff’s counsel show that, if the money had been defendant Wires’, he might still keep the claim on foot, being a virtual surety. This may be true where it is for the interest of the surety to keep the original debt on foot, to preserve liens, &c; but we have no occasion to discuss it further here; Low v. Blodgett, 1 Foster 121" court="None" date_filed="1873-01-18" href="https://app.midpage.ai/document/bausman-v-eshleman-6401462?utm_source=webapp" opinion_id="6401462">1 Foster 121, is that of a surety, and the claim purchased with his money and assigned to a third person for his benefit; McIntyre v. Miller 13 M. & W. 725, is the case of a "debtor furnishing the funds to pay up the debts of a joint stock banking company, and assigned to some third party, in trust for the co-debtor. In both these cases, it was held the transactions did not discharge the debts.

Judgment affirmed.