Kelley v. Stern Publishing & Novelty Co.

227 S.W. 609, 147 Ark. 383, 1921 Ark. LEXIS 172

• Court: Supreme Court of Arkansas
• Decided: February 14, 1921
• Status: Published

Opinion

McCulloch, C. J.

Appellee sues as a corporation organized and doing business in the State of New York, and its cause of action is based on an account for merchandise alleged to have been sold and delivered to appellant, who was engaged in the business of selling merchandise, especially military novelties; at or near Camp Pike. The answer contained a denial that appellee is a corporation as alleged in the complaint. There was a trial of the issues before a jury, and the verdict was in favor .of appellee for the full amount of the account sued on.

The only assignment of' error presented on this appeal relates to the ruling of the court in allowing parol testimony to be admitted to establish the corporate existence of appellee. The court admitted the testimony of witness Rudinger, who stated that he was one of the officers and the manager of appellee’s business, and that appellee was a corporation organized under the laws of the State of New York, and was doing business at a certain place in the city of New York. He also testified that appellee was engaged in the business of manufacturing and selling military novelties and that the bill of goods described in the account against appellant was sold to appellant and shipped to him. The witness exhibited with his testimony numerous letters which passed between appellee and appellant with respect to the sale of the goods. We are of the opinion that the testimony of witness Rudinger was competent.

We have decided in criminal cases that parol evidence of general reputation is competent, under certain circumstances, to establish the existence of a corporation. Fleener v. State, 58 Ark. 98; Brown v. State, 108 Ark. 336; Turner v. State, 109 Ark. 332.

It has 'also been held by this court that in actions by or against corporations the parties dealing with a de facto corporation are estopped to deny its legal existence. Bank of Midland v. Harris, 114 Ark. 344; Wesco Supply Co. v. Smith, 134 Ark. 23. That'view is supported by the weight of .authority, and it is held that parol evidence that a putative corporation was acting as such or was dealt with as such in a given instance was admissible. 3 Ency. of Ev. 604; 4 Elliott on Corporations, p. 52.

The testimony of witness Rudinger was sufficient to establish the fact that appellee is a de facto corporation and that appellant dealt with it as such in incurring the liability upon which the present suit is based. "We are of the opinion, therefore, that the court did not err in admitting this testimony. It was, as before-stated, sufficient to warrant the verdict of the jury.

Judgment affirmed.