National Insurance v. Bowman

60 Mo. 252

• Court: Supreme Court of Missouri
• Decided: May 15, 1875
• Status: Published

Opinion

WagNer, Judge,

delivered the opinion of the court.

The petition alleged that the plaintiff was a corporation duly organized under the laws of the State, and that at the time of the execution of the note defendants were co-partners, doing business under the firm name of A. & V. Bowman, and that defendants by their firm name made their promissory note, by which they promised, for value received, to pay plaintiff, etc.

To this petition, one of the defendants demurred and assigned as reasons of objection : 1st. That the petition did not allege that the plaintiff was a corporation at the time the note was given. 2nd. The petition did not state where or in what State the corporation was instituted or organized. 3rd. It did not appear where the corporation liad its residence or principal office ; and 4th. That it was not alleged that defendants were co-partners for the purposes of doing business as such or that they were known as such.

This demurrer was sustained and plaintiff refusing to amend judgment was given in favor of both defendants.

The demurrer was frivolous and devoid of merit. The defendants having entered into the contract with the company, in its corporate name, thereby admitted it to be duly constituted a body politic and corporate at the time. (Farmers, &c. Ins. Co. vs. Needles, 52 Mo., 17, and cases cited.)

They were estopped from averring anything against its existence, and it made no difference where its principal office was located. The petition alleged that the defendants were co-partners, and that they signed the note in their firm name and tbtot was sufficient.

Moreover, it was error to give judgment in favor of both defendants,'when only one of them filed the demurrer.

The judgment must-be reversed, and the cause remanded ;

all the judges concur.