Sweet, Dempster & Co. v. Ervin & Co.

54 Iowa 101

Opinion

Eothrook, J.

1. PLEADING: action by partnership tk)n"rSemurr01, By section 2T16 of the Gode it is provided that a plaintiff, suing as a corporation or partnership, may aver generally, or as a legal conclusion, that it is a ° J ° . ,, corporation or partnership, lms would seem to ->• x i. £hat such an averment is necessary to constitute a good pleading. In Byington v. M. & M. R. Co., 11 Iowa, 502, the plaintiff sued the defendant by its name for a trespass upon lands. There was no averment in the petition that the company was a partnership or corporation organized under the laws of this or any other state. It was held that a demurrer to the petition was properly sustained. It is said in the opinion in that case that “it might be sufficient in an action ex eontraetu, that the contract itself recognized the corporation, or that the petition should allege that the contract was made with the defendant as a corporation.”

Counsel for appellee contends that by the contract in tin's case the defendants recognized the plaintiff as an artificial person, by contracting for the goods. It is true the petition avers that the defendants bought goods of Sweet, Dempster & Co., at an agreed price, but that plaintiff was a corporation, or partnership, or that defendants recognized it as such, nowhere appears. We think the case is within the rule of the authority above cited, and that the statute implies that such averment should be made.

Neversed.