Corn, Justice.
This was a.suit in replevin and arose out of the following circumstances-: The plaintiff in error, who was also plaintiff below, sold to- one H. H. Edgar a lot of chairs for his opera house, under a written contract that the title was not to pass to the purchaser, but was to remain in the plaintiff until they were fully paid for, with the right to take possession upon default in any of the payments agreed upon. Subsequently, Edgar sold the opera house property, including the chairs, to Thorpe and others,- who agreed to pay the claim of the plaintiff, amounting to $361.40. Thorpe and his associates in turn sold the property, including the chairs, to two of the defendants, Kendall and Gildersleeve, who also had notice of the claim of plaintiff. The defendants, Kendall and Gildersleeve and Revell, then procured the incorporation of the defendant, the Grand Hotel and Opera House Company, and the two former sold and delivered to it the opera house property, including the chairs. The claim of plaintiff not being paid, it made demand upon the defendant company for the chairs and, upon its refusal to deliver them, brought this suit in replevin to recover the possession. The case was submitted upon the pleadings, and agreed statement, as to a portion of the facts, and certain depositions taken at the instance of the plaintiff.’ The court found the right of property and the right of possession in the defendant company and gave judgment in favor of each of the defendants for costs.
Except as otherwise provided by statute, in sales of personal property, when by the terms of the contract of sale the title does not pass until payment is made, and in [144]*144the meantime the property is to remain the property of the vendor, who, in case of default in payment, has the right to repossess himself of and remove it without legal process, the vendor may reclaim it, even though it be, in the hands of a third party, who takes it in good faith and without notice. (Warner v. Roth, 2 Wyo., 63; Bunce v. McMahon, 6 Wyo., 24.) But by Section 2837, Revised Statutes, enacted in 1895, it is provided that no sale, contract or lease wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in possession, without notice, unless the same be in writing, signed by the vendee or lessee, and the original or a copy thereof filed in the office of the County Clerk of the county wherein the property is. The contract of sale was in writing in this case, but no attempt was made to comply with the statute by filing it with the County Clerk. The question of notice, therefore, becomes important.
It is claimed by counsel for plaintiff in error that Kendall and Gildersleeve were promoters, acting for and on behalf of the corporation; that the fact that they had notice of the plaintiff’s claim and agreed to pay it if they could not defeat an action for its recovery, and the fact that they borrowed money from the First National Bank and signed the name of the Grand Hotel Company shows that the purchase of the opera house property was made for the defendant company. And they rely upon the principle that, as stated in Alger on Promoters of Corporations, Section 208, “When the contract is made in the name or in behalf of the projected corporation, and is treated as a proposal to such corporation to be acted upon by it when it comes into existence, then, in the absence of other controlling circumstances, acceptance of benefits under • the contract justifies the inference that the corporation has accepted or adopted it.” And authorities are also cited in support of the proposition that, if an association of persons owning* [145]*145property subject to equitable claims obtains an act of incorporation, the property will remain subject to these claims after it is vested in the corporate name.
We are not disposed to dissent from these statements of the law, as applied to such cases, but it would seem that the court below did not find the facts upon which to base the conclusions insisted upon by counsel. The agreed statement is not entirely clear and the court made no special findings of facts. But it clearly appears that Kendall and Gildersleeve bought the property from Thorpe and others for seven thousand one hundred and seventy-five dollars on February 25th, 1898, paid for it and received possession, and it is admitted that this was its fair value. It is also agreed by the parties that the defendant, the Grand Hotel and Opera House Company, was incorporated on the 8th of March following, the defendants, Kendall, Gildersleeve and Revell, being the incorporators, and the capital stock was $25,000, divided into 500 shares of the par value of $50; that no stock was ever sold to any person except one share each to Kendall, Gildersleeve and Revell, their original subscription; there never was an election of officers, and it does not appear who were the trustees for the first year, named in the articles of incorporation. But it is stipulated that the defendant Revell “has, by tacit consent of said defendant, the Grand Hotel and Opera House Company, acted ■as its general manager and superintendent.” It is then further stipulated in the agreed statement as follows: “That on March 8, 1898, said defendant, the Grand Hotel and Opera House Company, purchased said chairs in controversy and said real estate on which said opera house is situated and in which are situated the chairs and other personal property from said Augustine Kendall and A. M. Gildersleeve and paid them therefor the sum of eight thousand dollars in the manner following: $1,700 cash and by assuming the payment of a note for $6,300, which sum of money on the 26th day of February, A. D. 1898, said Kendall and Gildersleeve borrowed from the First National [146]*146Bank sixty-three hundred dollars to aid them in paying the purchase price of seven thousand one 'hundred seventy-five dollars for said premises, chairs in controversy and other personal property, signing a note in favor of' said bank for said sum of sixty-three hundred ’ dollars, the signature to said note being as follows: “The Grand Opera House Co.that the said Kendall and Gildersleeve have not yet executed or delivered a deed conveying said real estate and premises to. the defendant, the Grand Hotel and Opera House Company, but have delivered possession of said personal property, as stated heretofore; said sum of $8,000 being a fair value of said property.”
We find here no evidence tending to show that the purchase of the property was made for the defendant company. But, upon the contrary, it is expressly admitted and agreed that Kendall and Gildersleeve, themselves, purchased and paid for it; the corporation was not then in existence and no mention was made of it. Nor do we find any evidence tending to show that the contract of purchase was treated as a proposal to the corporation to be accepted by it when it came into existence, or that it accepted any benefits under the contract: But, upon the contrary, it is expressly admitted and agreed that it bought the property and paid for it its fair value, and seventeen hundred dollars of the purchase price was paid in money. It is true it seems to be urged that Kendall and Gildersleeve- borrowed money by signing the name of the corporation to a note for $6,300, and that the money so obtained went as part payment upon the purchase from Thorpe and others. But the agreed statement does not bear out this claim.
Free access — add to your briefcase to read the full text and ask questions with AI
Corn, Justice.
This was a.suit in replevin and arose out of the following circumstances-: The plaintiff in error, who was also plaintiff below, sold to- one H. H. Edgar a lot of chairs for his opera house, under a written contract that the title was not to pass to the purchaser, but was to remain in the plaintiff until they were fully paid for, with the right to take possession upon default in any of the payments agreed upon. Subsequently, Edgar sold the opera house property, including the chairs, to Thorpe and others,- who agreed to pay the claim of the plaintiff, amounting to $361.40. Thorpe and his associates in turn sold the property, including the chairs, to two of the defendants, Kendall and Gildersleeve, who also had notice of the claim of plaintiff. The defendants, Kendall and Gildersleeve and Revell, then procured the incorporation of the defendant, the Grand Hotel and Opera House Company, and the two former sold and delivered to it the opera house property, including the chairs. The claim of plaintiff not being paid, it made demand upon the defendant company for the chairs and, upon its refusal to deliver them, brought this suit in replevin to recover the possession. The case was submitted upon the pleadings, and agreed statement, as to a portion of the facts, and certain depositions taken at the instance of the plaintiff.’ The court found the right of property and the right of possession in the defendant company and gave judgment in favor of each of the defendants for costs.
Except as otherwise provided by statute, in sales of personal property, when by the terms of the contract of sale the title does not pass until payment is made, and in [144]*144the meantime the property is to remain the property of the vendor, who, in case of default in payment, has the right to repossess himself of and remove it without legal process, the vendor may reclaim it, even though it be, in the hands of a third party, who takes it in good faith and without notice. (Warner v. Roth, 2 Wyo., 63; Bunce v. McMahon, 6 Wyo., 24.) But by Section 2837, Revised Statutes, enacted in 1895, it is provided that no sale, contract or lease wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in possession, without notice, unless the same be in writing, signed by the vendee or lessee, and the original or a copy thereof filed in the office of the County Clerk of the county wherein the property is. The contract of sale was in writing in this case, but no attempt was made to comply with the statute by filing it with the County Clerk. The question of notice, therefore, becomes important.
It is claimed by counsel for plaintiff in error that Kendall and Gildersleeve were promoters, acting for and on behalf of the corporation; that the fact that they had notice of the plaintiff’s claim and agreed to pay it if they could not defeat an action for its recovery, and the fact that they borrowed money from the First National Bank and signed the name of the Grand Hotel Company shows that the purchase of the opera house property was made for the defendant company. And they rely upon the principle that, as stated in Alger on Promoters of Corporations, Section 208, “When the contract is made in the name or in behalf of the projected corporation, and is treated as a proposal to such corporation to be acted upon by it when it comes into existence, then, in the absence of other controlling circumstances, acceptance of benefits under • the contract justifies the inference that the corporation has accepted or adopted it.” And authorities are also cited in support of the proposition that, if an association of persons owning* [145]*145property subject to equitable claims obtains an act of incorporation, the property will remain subject to these claims after it is vested in the corporate name.
We are not disposed to dissent from these statements of the law, as applied to such cases, but it would seem that the court below did not find the facts upon which to base the conclusions insisted upon by counsel. The agreed statement is not entirely clear and the court made no special findings of facts. But it clearly appears that Kendall and Gildersleeve bought the property from Thorpe and others for seven thousand one hundred and seventy-five dollars on February 25th, 1898, paid for it and received possession, and it is admitted that this was its fair value. It is also agreed by the parties that the defendant, the Grand Hotel and Opera House Company, was incorporated on the 8th of March following, the defendants, Kendall, Gildersleeve and Revell, being the incorporators, and the capital stock was $25,000, divided into 500 shares of the par value of $50; that no stock was ever sold to any person except one share each to Kendall, Gildersleeve and Revell, their original subscription; there never was an election of officers, and it does not appear who were the trustees for the first year, named in the articles of incorporation. But it is stipulated that the defendant Revell “has, by tacit consent of said defendant, the Grand Hotel and Opera House Company, acted ■as its general manager and superintendent.” It is then further stipulated in the agreed statement as follows: “That on March 8, 1898, said defendant, the Grand Hotel and Opera House Company, purchased said chairs in controversy and said real estate on which said opera house is situated and in which are situated the chairs and other personal property from said Augustine Kendall and A. M. Gildersleeve and paid them therefor the sum of eight thousand dollars in the manner following: $1,700 cash and by assuming the payment of a note for $6,300, which sum of money on the 26th day of February, A. D. 1898, said Kendall and Gildersleeve borrowed from the First National [146]*146Bank sixty-three hundred dollars to aid them in paying the purchase price of seven thousand one 'hundred seventy-five dollars for said premises, chairs in controversy and other personal property, signing a note in favor of' said bank for said sum of sixty-three hundred ’ dollars, the signature to said note being as follows: “The Grand Opera House Co.that the said Kendall and Gildersleeve have not yet executed or delivered a deed conveying said real estate and premises to. the defendant, the Grand Hotel and Opera House Company, but have delivered possession of said personal property, as stated heretofore; said sum of $8,000 being a fair value of said property.”
We find here no evidence tending to show that the purchase of the property was made for the defendant company. But, upon the contrary, it is expressly admitted and agreed that Kendall and Gildersleeve, themselves, purchased and paid for it; the corporation was not then in existence and no mention was made of it. Nor do we find any evidence tending to show that the contract of purchase was treated as a proposal to the corporation to be accepted by it when it came into existence, or that it accepted any benefits under the contract: But, upon the contrary, it is expressly admitted and agreed that it bought the property and paid for it its fair value, and seventeen hundred dollars of the purchase price was paid in money. It is true it seems to be urged that Kendall and Gildersleeve- borrowed money by signing the name of the corporation to a note for $6,300, and that the money so obtained went as part payment upon the purchase from Thorpe and others. But the agreed statement does not bear out this claim. Upon the contrary, it appears that the money -was borrowed by Kendall and Gil-dersleeve on February 26th, prior to the incorporation of the company, and paid over to Thorpe and others. The company, upon purchasing the property, assumed the payment of this amount to the bank, and it seems from the agreed statement that it did so by executing a new note to the bank, signed “The Grand Opera House Co.” Who [147]*147signed the name of the company does not appear. But it may perhaps be assumed to have been either Kendall, Gil-dersleeve or Revell, as no other persons appear to have exercised any authority in connection with its operations. Indeed, so far as appears, neither Kendall or Gildersleeve ever assumed to act in any way for the company. They, together with Revell, acted as incorporators and, so far as appears from the evidence, their connection with the company then ceased. No officers were' elected and there is no intimation that they were the trustees named in the articles of incorporation. Revell was general manager and superintendent, but there is no proof whatever that he had notice of the plaintiff’s claim or any knowledge of it.
Under this state of facts, we do not think the court below would have been justified in finding- that the purchase of the property by Kendall and Gildersleeve was made for the defendant company; nor that it was the case of an association of persons obtaining an incorporation and transferring the title to their property to the corporation in exchange for the capital 'stock. But it is admitted that the company paid for the property, seventeen hundred dollars of the purchase price being, paid in cash. And, while it does not appear from what source this money came, there is no intimation that it was furnished by Kendall or Gilder-sleeve, or that they obtained it in any way for the company.
It is also insisted that, no officers ever having been elected, the defendant company was a mere “naked body,” without capacity to hold property or do any other corporate act, and that, therefore, the plaintiff was entitled to a judgment against Kendall, Gildersleeve and Revell, the possession of the property being in them as the promoters and not in the corporation, which had no legal existence. But this contention again is met by the agreed facts in the case, for it is not only admitted that the company was duly organized and incorporated under the laws of this State; that it had money and paid it out for the opera house property, and that the defendant Revell acted as its general .manager [148]*148and superintendent, indicating that it was conducting some part, at least, of the business for which it ways organized, but it is also expressly admitted and stipulated that, at the institution of this suit, it was in the possession of the property in controversy. In the face of these admissions, we are unable to see how the plaintiff can claim a judgment against the personal defendants upon the theory that they and not the company were in possession of the property.
If it even appeared that Kendall and Gildersleeve were trustees of the defendant company, or that Revell, the general manager, had notice of plaintiff’s claim, we should be disposed to hold, under all the other facts of the case, that there was notice to the company. But there is no proof whatever of either • of these facts, and we see no escape from the conclusion that the defendant company was a purchaser without notice under the statute. The judgment will be affirmed. Affirmed.
Potter, C. J., and Knight, J., concur.