[33]*33McFADDEN, Justice.
Respondent Allen Steel Supply Co., as plaintiff, instituted this action to recover a balance due for certain steel claimed to have been sold to appellant-defendant Guy R. Bradley. Judgment was entered for the respondent, from which judgment the appellant appeals.
Briefly the facts leading to this litigation are as follows: Appellant Bradley and one Kenneth Chattin, in September, 1961, entered into an agreement to sell certain supplies and materials including steel to Alpine Industries, for use in the construction of trailers. Bradley and Chattin contacted the respondent company concerning furnishing the steel. Bradley, a trucker, was well known to Loren Allen, president of respondent company, Bradley having over a period of years performed hauling services for the company.
As a result of the negotiations, respondent agreed to order the requisite steel from mills in Utah, with Bradley to take delivery of the steel on his trucks in Utah, and deliver the steel to Alpine Industries. Respondent was to receive $100.00 per load [34]*34over and above the cost of the steel. Orders for the steel were placed and periodic deliveries were made under such arrangement from October, 1961, through July, 1962.
Upon delivery of steel to Bradley’s truck, the steel mill immediately billed respondent for the load. Immediately following, respondent then billed Mr. Bradley for the cost of the load, plus $100.00. The first four invoices were addressed to Mr. Bradley, at his home address; subsequent invoices were addressed to Mr. Bradley, at P. O. Box 1644, Boise, Idaho, the address of “Western Industrial Corporation” and other enterprises of Mr. Chattin. This change in address was made at appellant’s request. The record is conflicting as to whether at the time appellant had the address changed, he also requested that the billing be changed from him individually to “Western Industrial Corporation.” Appellant asserts he made such request, which statement is denied by employees of respondent. Nevertheless, respondent continued to bill Bradley, and not Western Industrial Corporation.
The payment for the first shipment of October, 1961, was by check written by Bradley on an account he and Chattin had opened with moneys borrowed from a bank. All subsequent payments were made out of the same account, but by check of “Western Industrial Corporation”, and signed by either Bradley or Chattin.
All shipments were paid for, except the last three totaling $8,315.91, for which sum this action was instituted against Bradley individually. Appellant Bradley answered the complaint, denying he was indebted to respondent. In his answer he set out an affirmative defense and as a counter-claim alleged that he negotiated the purchase of the steel as an officer of Western Industrial Corporation, and that the steel was sold to such corporation and not to him individually; that the corporation became involved financially because of the insolvency of one of its debtors, and that by reason of wrongfully bringing action against him individually he was damaged in the amount of $6,000. At a pre-trial conference it was discovered that Western Industrial Corporation had not been incorporated until June, 1962, and Bradley withdrew his counter-claim for damages, but amended his answer by adding another affirmative defense. In this latter affirmative defense he alleged that respondent was estopped from denying it was contracting with “Western Industrial Corporation”, because such organization was a de facto corporation, that respondent had been advised and informed such corporation would be formed, and further that subsequent to November 1, 1961, all payments made on the account were by such corporation.
[35]*35After the pre-trial conference, appellant requested trial by jury for the first time. This demand was denied and the cause heard by the court sitting without a jury. The trial court entered findings of fact, conclusions of law and judgment for respondent. There is no dispute as to the amount involved, the only other question before the court being whether Bradley was individually liable for the amount due.
There are some twenty-four assignments of error; the twenty-fourth contains some fourteen sub-assignments of error directed to insufficiency of the evidence to sustain the judgment. For the purpose of this opinion these assignments of error have been grouped into three headings: (1) refusal of the trial court to admit certain exhibits offered by appellant, which were offered to prove that respondent was doing business with a de facto corporation; (2) insufficiency of the evidence; and (3) the invalidity of the Idaho Rules of Civil Procedure, and specially as to the invalidity of IRCP 16, dealing with pre-trial conferences, and IRCP 38(b) and (d) dealing with respondent’s demand for a jury trial.
During the course of the trial appellant offered into evidence a certified copy of the bankruptcy file of Alpine Industries, Inc., including the claim of Western Industrial Corporation; appellant also offered deposit slips, cancelled checks, telephone bills, check book, invoices, bills, and statements, all of which showed use of the name “Western Industrial Corporation.” The trial court refused to admit these exhibits into evidence. Appellant contends that these exhibits show that others treated the organization at least as a de facto corporation, and asserts that respondent was doing business with Western Industrial Corporation, as a de facto corporation.
In order to determine whether error was committed by refusal to admit these exhibits into evidence, under appellant’s theory, it becomes necessary to examine the essential elements of a de facto corporation.
It is generally held that for an organization to be considered as a de facto corporation, the following essentials must be found to exist:
1. A valid law under which a corporation with the power assumed might be incorporated ;
2. A bona fide attempt to organize a corporation under such law;
3. An actual exercise of corporate powers.
18 Am.Jur.2d 595, Corporations § 51; 8 Fletcher Private Corporations § 3777 p. 73 (Revised and Perm.Ed.1931). See also: Pickett v. Board of Commrs., 24 Idaho 200, 133 P. 112; Marshall-Wells Co. v. Kramlich, 46 Idaho 355, 267 P. 611.
[36]*36I.C. § 30-108 requires the filing of articles of incorporation with the Secretary of State of the State of Idaho, and issuance by him of a certificate of incorporation; I.C. § 67-910 establishes the fees to be paid the Secretary of State for filing of articles of incorporation.
While there is a divergency of opinion as to whether failure to file articles of incorporation with the proper officials and to pay the necessary fee absolutely prohibits a de facto corporation from coming into existence, (Annot.: 22 A.L.R. 376, 37 A.L.R. 1319;) in Marshall-Wells Co. v. Kramlich, supra, this court has aligned itself with the line of authority holding that there can be no de facto corporation when articles of incorporation have not been filed; therein this court stated:
“The Leader Hardware Company, Limited, was not, at the time the guaranty was signed, even a corporation de facto, because it had not filed its articles of incorporation, or attempted to do so, as required by law. (Citations)”
Free access — add to your briefcase to read the full text and ask questions with AI
[33]*33McFADDEN, Justice.
Respondent Allen Steel Supply Co., as plaintiff, instituted this action to recover a balance due for certain steel claimed to have been sold to appellant-defendant Guy R. Bradley. Judgment was entered for the respondent, from which judgment the appellant appeals.
Briefly the facts leading to this litigation are as follows: Appellant Bradley and one Kenneth Chattin, in September, 1961, entered into an agreement to sell certain supplies and materials including steel to Alpine Industries, for use in the construction of trailers. Bradley and Chattin contacted the respondent company concerning furnishing the steel. Bradley, a trucker, was well known to Loren Allen, president of respondent company, Bradley having over a period of years performed hauling services for the company.
As a result of the negotiations, respondent agreed to order the requisite steel from mills in Utah, with Bradley to take delivery of the steel on his trucks in Utah, and deliver the steel to Alpine Industries. Respondent was to receive $100.00 per load [34]*34over and above the cost of the steel. Orders for the steel were placed and periodic deliveries were made under such arrangement from October, 1961, through July, 1962.
Upon delivery of steel to Bradley’s truck, the steel mill immediately billed respondent for the load. Immediately following, respondent then billed Mr. Bradley for the cost of the load, plus $100.00. The first four invoices were addressed to Mr. Bradley, at his home address; subsequent invoices were addressed to Mr. Bradley, at P. O. Box 1644, Boise, Idaho, the address of “Western Industrial Corporation” and other enterprises of Mr. Chattin. This change in address was made at appellant’s request. The record is conflicting as to whether at the time appellant had the address changed, he also requested that the billing be changed from him individually to “Western Industrial Corporation.” Appellant asserts he made such request, which statement is denied by employees of respondent. Nevertheless, respondent continued to bill Bradley, and not Western Industrial Corporation.
The payment for the first shipment of October, 1961, was by check written by Bradley on an account he and Chattin had opened with moneys borrowed from a bank. All subsequent payments were made out of the same account, but by check of “Western Industrial Corporation”, and signed by either Bradley or Chattin.
All shipments were paid for, except the last three totaling $8,315.91, for which sum this action was instituted against Bradley individually. Appellant Bradley answered the complaint, denying he was indebted to respondent. In his answer he set out an affirmative defense and as a counter-claim alleged that he negotiated the purchase of the steel as an officer of Western Industrial Corporation, and that the steel was sold to such corporation and not to him individually; that the corporation became involved financially because of the insolvency of one of its debtors, and that by reason of wrongfully bringing action against him individually he was damaged in the amount of $6,000. At a pre-trial conference it was discovered that Western Industrial Corporation had not been incorporated until June, 1962, and Bradley withdrew his counter-claim for damages, but amended his answer by adding another affirmative defense. In this latter affirmative defense he alleged that respondent was estopped from denying it was contracting with “Western Industrial Corporation”, because such organization was a de facto corporation, that respondent had been advised and informed such corporation would be formed, and further that subsequent to November 1, 1961, all payments made on the account were by such corporation.
[35]*35After the pre-trial conference, appellant requested trial by jury for the first time. This demand was denied and the cause heard by the court sitting without a jury. The trial court entered findings of fact, conclusions of law and judgment for respondent. There is no dispute as to the amount involved, the only other question before the court being whether Bradley was individually liable for the amount due.
There are some twenty-four assignments of error; the twenty-fourth contains some fourteen sub-assignments of error directed to insufficiency of the evidence to sustain the judgment. For the purpose of this opinion these assignments of error have been grouped into three headings: (1) refusal of the trial court to admit certain exhibits offered by appellant, which were offered to prove that respondent was doing business with a de facto corporation; (2) insufficiency of the evidence; and (3) the invalidity of the Idaho Rules of Civil Procedure, and specially as to the invalidity of IRCP 16, dealing with pre-trial conferences, and IRCP 38(b) and (d) dealing with respondent’s demand for a jury trial.
During the course of the trial appellant offered into evidence a certified copy of the bankruptcy file of Alpine Industries, Inc., including the claim of Western Industrial Corporation; appellant also offered deposit slips, cancelled checks, telephone bills, check book, invoices, bills, and statements, all of which showed use of the name “Western Industrial Corporation.” The trial court refused to admit these exhibits into evidence. Appellant contends that these exhibits show that others treated the organization at least as a de facto corporation, and asserts that respondent was doing business with Western Industrial Corporation, as a de facto corporation.
In order to determine whether error was committed by refusal to admit these exhibits into evidence, under appellant’s theory, it becomes necessary to examine the essential elements of a de facto corporation.
It is generally held that for an organization to be considered as a de facto corporation, the following essentials must be found to exist:
1. A valid law under which a corporation with the power assumed might be incorporated ;
2. A bona fide attempt to organize a corporation under such law;
3. An actual exercise of corporate powers.
18 Am.Jur.2d 595, Corporations § 51; 8 Fletcher Private Corporations § 3777 p. 73 (Revised and Perm.Ed.1931). See also: Pickett v. Board of Commrs., 24 Idaho 200, 133 P. 112; Marshall-Wells Co. v. Kramlich, 46 Idaho 355, 267 P. 611.
[36]*36I.C. § 30-108 requires the filing of articles of incorporation with the Secretary of State of the State of Idaho, and issuance by him of a certificate of incorporation; I.C. § 67-910 establishes the fees to be paid the Secretary of State for filing of articles of incorporation.
While there is a divergency of opinion as to whether failure to file articles of incorporation with the proper officials and to pay the necessary fee absolutely prohibits a de facto corporation from coming into existence, (Annot.: 22 A.L.R. 376, 37 A.L.R. 1319;) in Marshall-Wells Co. v. Kramlich, supra, this court has aligned itself with the line of authority holding that there can be no de facto corporation when articles of incorporation have not been filed; therein this court stated:
“The Leader Hardware Company, Limited, was not, at the time the guaranty was signed, even a corporation de facto, because it had not filed its articles of incorporation, or attempted to do so, as required by law. (Citations)”
In the instant action articles of incorporation were prepared in November, 1961, by an attorney acting for Bradley and Chattin, yet they were not filed with the Secretary of State until June 20, 1962, with certificate of incorporation being issued that date. Thus appellant’s contention that Western Industrial Corporation was a de facto corporation is not correct.
I.C. § 30-110 provides:
“1. A corporation formed under this act shall not incur any debts or begin the transaction of any business, except such as is incidental to its organization, or to the obtaining of subscriptions to or the payment for its shares until a triplicate original of the articles of incorporation has been filed for record in the office of the county recorder as provided in section 30-108.
“2. If a corporation has transacted any business in violation of this section, the officers who participated therein and the directors, except those who dissented therefrom and caused their dissent to be filed at the time in the registered office of the corporation, or who, being absent, so filed their dissent upon learning of the action, shall be severally liable for the debts or liabilities of the corporation arising therefrom.”
The record fails to disclose any compliance with I.C. § 30-110, by way of filing articles of incorporation with the county recorder; even if such had been done, it could only have been complied with after date of issuance of the certificate of incorporation.
Appellant was one of the organizers of the corporation. He could not be discharged from his liability under I.C. § 30-[37]*37110 as a corporate officer except by way of novation or estoppel.
As concerns novation or estoppel, the trial court entered the following finding of fact:
“Throughout the whole period, the defendant Bradley was the buyer of the steel and plaintiff at no time agreed to substitute another debtor for defendant, nor was plaintiff ever notified that defendant intended to do business as a corporation.”
This finding is amply supported by the record. All hillings and statements were made in the name of and directed to the appellant personally. The mere fact that the periodic bills were paid for by the checks of “Western Industrial Corporation”, alone would not relieve the appellant from liability. Morton Marks and Sons v. Hill-Chase Steel Company, (Va.1954) 196 Va. 268, 83 S.E.2d 356.
The relationship of debtor and creditor having once been established between the respondent and the appellant, a new debtor cannot be substituted without .the agreement of both parties. Exchange Lumber & Mfg. Co. v. Thomas, 71 Idaho 391, 233 P.2d 406; First National Bank in Evanston v. Sims, 78 Idaho 286, 301 P.2d 1103. “Mere knowledge and consent by the creditor that a third party assumed the debt will not release the original debtor. It must appear that the creditor agrees to release the original debtor.” Exchange Lumber & Mfg. Co. v. Thomas, supra.
For an éstoppel to arise to bar respondent from denying it was doing business with Western Industrial Corporation (and not the appellant) it would have been essential that appellant prove all the essential elements of estoppel. Such elements have been discussed by this court in the case of Sullivan v. Mabey, 45 Idaho 595, 264 P. 233, as follows:
“* * * To constitute estoppel in pais, there must concur an admission, statement, or act inconsistent with the claim afterward asserted, action by the other party thereon, and injury to the other party. There can be no estoppel if either of these elements are wanting. They are each of equal importance.”
The exhibits offered by appellant which were rejected by the court failed to go to the proof of any of the elements of estoppel. Principally they were instruments where other parties Were shown to have done business with Western Industrial Corporation; they did not tend to show that respondent did business with anyone other than appellant. The offered exhibits did not tend to prove or disprove facts relevant to the issues presented by the pleadings, and the trial court did not err in refusing to admit them into evidence.
[38]*38Appellant also argues that even if Bradley made the initial orders for the steel, the three shipments involved in this action were made after the date of incorporation. The record shows the date of incorporation was June 20, 1962; while the shipments involved in this case were made June 22, June 26, and July 13, 1962, nevertheless they were ordered prior to the date of incorporation. Exhibit 7 is a series of invoices of Columbia-Geneva Steel Division showing sale by it to respondent of the steel delivered to Bradley. This exhibit shows three separate customer’s orders were placed to cover the shipments made. The first order was No. 870, dated 10-11-61, covering the first two shipments, the second, No. 876, dated 10-25-61, covering shipments from 11-20-61 to 4-9-62; the third, No. 898, dated 3-14-62, covering the last shipments between 4-24-62 and 7-9-62. Mr. Loren Allen, President of respondent, testified to the effect that steel orders had to be placed in advance of delivery dates, as the suppliers worked on quotas, and that it was necessary to give them “lead” times; that he and Mr. Bradley went out several times to place the orders with Mr. Corning, the sales representative of the steel supplier. This testimony is fully corroborated by data on respondent’s exhibit 7. Nothing appears of record which would justify the conclusion that respondent was dealing with Bradley other than as an individual.
The final group of assignments of error deal with the issue of the validity of the Idaho Rules of Civil Procedure. Similar issues were presented in the case of R. E. W. Construction Co. v. The District Court of the Third Judicial District, Idaho, 400 P.2d 390. We adhere to that holding in the instant case.
Appellant argues that even if the Idaho Rules of Civil Procedure are valid, he was entitled to a jury trial as a matter of right, for he made a demand for a jury trial within ten days after amending his answer. He asserts that the trial court committed error in not allowing the issues of fact to be tried by a jury.
IRCP § 38(b) provides:
“Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten (10) days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.” (Emphasis added).
In Lehman v. Bair, 85 Idaho 59, 375 P.2d 714, this court held that a plaintiff was entitled to a period of ten days after service of a pre-trial order within which to make written demand for jury trial on the issue of contributory negligence, where no men[39]*39tion had been made of contributory negligence in the defendant’s answer or pre-trial statement, and the pre-trial order set out the defendant’s contention that the plaintiff was guilty of contributory negligence. In discussion of the principles involved, this court quoted from 5 Moore, Federal Practice, § 3841, pg. 326, (2d ed. 1963), as follows:
“But if there has been no general demand and the amendment raises a new issue, then any party has the right to demand a jury trial as to the new issue, and should do so if the issue is triable to a jury and he desires it to be so tried; and the time within which the demand is to be made is computed from the time of service of the last pleading directed to the new issue.” (Emphasis added)
If there has been a waiver of a jury trial by reason of failure timely to demand the same as required by IRCP 38(b), and a subsequent pleading raises a new issue triable by jury, the right to trial by jury is limited to the new issue so raised. 2B Barron and Holtzoff, Federal Practice and Procedure § 878 p. 52; Lehman v. Bair, supra. However, IRCP 38(d) imposes a restriction on the right to jury trial on such new issue presented by the amended pleading when it provides: “A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the' original pleading.”
In the instant case, the respondent filed its complaint October 17, 1962. Appellant’s “answer and counter-claim” was filed December 11, 1962, the allegations of which were generally denied by the respondent’s reply thereto filed March 26, 1963.
Appellant by his answer and counterclaim, admitted respondent’s corporate existence and that it was conducting the business of preparing and selling prefabricated steel products in Boise, Ada County, Idaho. Appellant then denied respondent’s allegation that appellant was indebted to respondent in the amount of $8,315.91 for goods sold and delivered. As an affirmative defense and counter-claim, appellant in essence alleged that Western Industrial Corporation was a duly organized and existing corporation of the State of Idaho engaged in the business of purchasing, fabricating and reselling steel; that Bradley was an officer, director and employee of such corporation, and in that capacity he negotiated with respondent for the purchase of steel to be sold to such corporation; that the corporation bought the steel and that respondent was well aware of and knew the steel was being purchased by the corporation and paid for by it, and not being purchased or paid for by Bradley; that during June, 1962, the corporation became financially involved be-' cause one of its debtors became insolvent so [40]*40that the corporation could not pay for the last month’s purchase of steel, but that the respondent nevertheless wrongfully instituted the present suit to his damage.
A pre-trial conference was held April 24th, 1963, with the order being filed May 3, 1963. At the time of the conference appellant withdrew his counter-claim for damages and presented a second affirmative defendant as an amendment to his answer. Thereafter, and before the filing of the order, appellant filed a demand for jury trial of the issues presented.
By the pre-trial order appellant’s answer was amended setting forth a second affirmative defense alleging the execution by Bradley and Chattin of articles of incorporation; that Bradley believed they had been filed with the office of the Secretary of State and County Recorder of Ada County; that pursuant to such acts the Western Industrial Corporation commenced to and did act as a corporation; that respondent was advised of such intended corporation and all dealings between the respondent and purchaser were with a de facto corporation; that all payments of steel were paid upon checks of said corporation, and by reason thereof respondent w;as estopped from denying its business transactions were with such corporation.
The question is thus presented, whether this, amendment, arose out of the “conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading”, for if it did, then the waiver of' trial by jury by reason of failure timely to present a demand for jury trial was not revoked. IRCP 38(d). It is our conclusion that the factual presentations were the same. The allegations of the answer that respondent did business with Western Industrial Corporation, are commensurate with the allegations of the amendment that respondent did business with Western Industrial Corporation, a de facto corporation and thus failed to revoke the waiver of trial of issues by jury. IRCP 38(d).
In R. E. W. Construction v. The District Court of the Third Judicial District, Idaho, 400 P.2d 390, it was stated: “It is essential, that upon a request for trial of issues by a jury, even after the time for demand for jury has elapsed, that the trial court liberally exercise its discretion in this regard to carry out the designed purpose of the Idaho Rules of Civil Procedure.” As previously pointed out, the first demand for jury trial was not made until at least after the pre-trial conference was held April 24, 1963, some four months after the original answer and counterclaim were filed. If appellant’s demand be considered as an application to the trial court to exercise its discretionary authority and grant a jury trial, not as a matter of right, but as a matter of exercise of its discretion, this will be unavailing for appellant. Even had a jury been empaneled, the facts presented to the [41]*41trial court in this cause were insufficient to have sustained any verdict a jury might have returned for appellant on his affirmative defence; hence no prejudicial error appears in the trial court’s refusal to grant a jury trial. 2B Barron and Holtzoff, Federal Practice and Procedure § 892, p. 75 (Rules Ed. 1961); 5 Moore, Federal Practice § 39.09, p. 713 (2d ed. 1963).
Judgment affirmed.
Costs to respondent.
McQUADE, C. J., and TAYLOR and SMITH, JJ., concur.