Dutchess Cotton Manufactory v. Davis

14 Johns. 238

• Court: New York Supreme Court
• Decided: August 15, 1817
• Status: Published

Opinion

Thompson, Ch. J.,

delivered the opinion of the court. Since the decision of this court in the case of The Goshen Turnpike Co. v. Hurtin, (9 Johns. Rep. 217.) the question whether an action will lie at all upon a promise by a stockholder, in a corporation like the present, to pay his instalments, ought to be-considered at rest, at least in this court. We then took occasion to notice the decision of the court of errors in the case of The Union Turnpike Co. v. Jenkins, (1 Caines’ Cases in Error, 86.,) and concluded that, although one of the members of the court, in deliver!^ his opinion, thought that the only remedy was a forfeiture of the shares, and all previous payments, yet, that was not the point on which the decision turned, but on the ground taken, "by the chancellor, that the condition upon which Jenkins was to become a member of the company, viz. paying 10 dollars, had not been performed, and that the corporation was not considered in esse at the time of making the promise by J enlmis,

In the case again=t Hurtin, we considered the note, which was like the one set forth in the declaration in this cause, as a promissory note within the statute, though it had not the words bearer or order ¡ and, therefore, it was not requisite that a consideration should be averred, or appear' upon the face of the note. Bui in that case, as in this, there is a consideration appearing on the face of the note. It is a promise to pay 100 dollars, for each share of stock set opposite the defendant’s name, to wit, thirty shares; and it is to be intended that the defendant bad become a stockholder to that amount.

The only question of doubt that can arise in this case is, whether it was not necessary for the plaintiffs to set forth in their declaration, by fit and proper averments, that they had been duly incorporated. But I am inclined to think it was not. The general act relative to incorporations for manufacturing purposes, (1 R. L.. 249.,) directs the certificate, which is to contain the requisite evidence of the company’s having become a body politic or corporate, to be filed in the office of the secretary of state, and declares, that as soon as such certificate shall be so filed, the persons who shall have signed and acknowledged the same, and their successors, shall become a body politic and corporate. This is a public law, and the certificate becomes matter of record. The incorporation ought not. therefore, to be considered a mere private act, since it was under a general law of the state, and the evidence thereof is made matter of record. But the defendant having undertaken to enter into a contract with the plaintiffs in their corporate name, he thereby admits them to be duly constituted a body politic and corporate, under such name. The case of Henriques v. The Dutch West India Company, (2 Ld. Raym. 1535.,) is very much in point on this question, if is there laid down by the counsel, and appears to be adopted by the court, that the plaintiffs in error were estopped, by the recognisance they had entered into with the defendants in error, from saying there was no such company ; and that where an action is brought by a corporation they need not show in the declaration how they were incorporated; but upon the general issue pleaded by the defend-the plaintiffs must prove they are a corporation. Th~ same principle was substanl~ally adopted by this court in the case of The Bank of the United States v. Haskins, (1 Johns. Cas. 132.) and in Jackson v. Plumbs, (8 Johns. Rep. 378.) The opinion of the court, therefore; is, that the plaintiffs are entitled to judgment upon the demurrer.

Judgment for the plaintiffs.