Alston v. Heartman , 2 Ala. 699 ( 1841 )

COLLIER, C. J.

— Thp, points made by.the assignment of errors, are—

1. The suit should have been brought in the name of the corporation, and not its Treasurer.

2. If the suit was properly brought, it should have been dis* imctly averred in the declaration, that the plaintiff was the Treasurer .of the corporation.

1. It is an acknowledged principle of the common law, that Whsnever a legal right is created or liability imposed in favor of, or upon o.ue or more persons by means of a promissory note, that right naay be asserted, and that liability enforced by action, by and against all those persons. (Chitty on Bills, 566-9, Am. ed.) Let us test this question by that principle. Here the maker of the note did not contract with the plaintiff eo nomine, but his undertaking, literally interpreted, is to pay to “the Treasurer of the Manual Labor Institute of South Alabama,” — not to the individual who may fill that office at the time the note bears date, but to* the officer, without reference to the changes that may be made in .the office. Now, if the Treasurer for the time being could maintain an action on the note in his own name, by transmitting the light from incumbent to successor ad infinitum, it is clear, that his office would become qúasi a corporation, and possess one of its essential attributes without the aid of a legislative grant.

The reasonable interpretation of the note upon its face is, that it is an engagement to pay a sum of money to which the Manual Labor institute was entitled, and the Treasurer, as its proper depository, was to receive it. In this view, no legal right to sue vested in the Treasurer, the corporation was the party contracted with, and in its name the action should be brought.

Where a contract appears to have been made with a corporation, though agents are employed to effect it, and there be a written promise to pay the agents eo nomine, it has been held, that the corporation must sue for the breach of such a contract. [Gilmore v. Pope, 5 Mass. Rep. 491. See also Bower v. Morris, 2 Taunt. Rep. 337; African Society v. Varick, 13 Johns. Rep. 38. See also 1 Pen. Rep. 115.]

But where there is nothing on- the face of the writing to shew that the corporation was a party to the contract, though its name may be mentioned, the action nmst be brought in the name of the party who takes the legal interest. Thus in Buffum v. Chadwick, 8 Mass. Rep. 103, a prommissory note was payable to Arnold Buffum, agent of the Providence Hat Manufacturing Company, it was held, that an action lay by Arnold Buffum on the note, and his styling himself agent, &c. in his writ and declaration, was merely descriptio personas. (Greenfield v. Yeates, 2 Rawles’ Rep. 158; Binney v. Plumley, 5 Verm. 500.)

In Ewing v. Medlock, 5 Porter’s Rep. 82, a promise in writing was made to the treasurer of an unincorporated association of individuals — it was held, that the contract was not with the individual who might be treasurer, but with the association; and that the treasurer could not .maintain an action upon it. All the reasoning employed in .that case,, goes to shew, that the present suit is improperly brought.

We have considered .this case upon the assumption, that the Manual 'Labor Institute was a corporation, without citing the statute that made it such, because its corporate character is undisputed ; but whether it be corporate or otherwise, the decision of the question examined must be the same.

Without examing the second point made, the judgment of the Circuit Court is reversed..