Barrett Mining Co. v. Tappan , 2 Colo. 124 ( 1873 )

Hallett, C. J.

The amount of the judgment against the company in the first action, and the fact that such judgment was rendered, was sufficiently shown by the recital in the condition of the appeal bond, and the entry in Wilson’s docket was merely cumulative evidence. Conceding that this entry was not properly admitted in evidence, the facts are established by the recital in the bond, and the docket entry could not have affected the result. The same may be said of the first entry in the record of the district court. It was not material to the issue, and was not prejudicial to appellants.

It does not appear at whose instance the district court dismissed the appeal, but this is not essential. Whether the order of dismissal was made at the instance of one party or the other, it was equally effectual in putting an end to the suit, and we must, in this action, presume that the order was regularly made, upon sufficient cause. Upon the point that the execution of the bond was not denied by the company, under oath, there is nothing to show that the affidavit of Barrett was made on behalf of the company. A corporation is, of course, unable to make oath, and must, of necessity, in this, as in other matters, act through and by its appointed agent. Although section 14 of the justices’ act (R. S. 399), appears to require a personal denial of the signature, this being impossible to a corporation to avoid denying a substantial right, the affidavit of some one acting for and on behalf of the corporation must be received. Trenton Banking Co. v. Haverstick, 6 Halst. 171; Commercial Ins. Co. v. Mehlman, 48 Ill. 313. But the denial must, nevertheless, appear to be the act of the corporation, for, otherwise, it might happen that a stranger would deny what was admitted by the real party in interest. And, although Barrett was a co-defendant, and might have denied the execution of the bond in his own right, yet, when he came to act for the company, he should show that he had authority from the company so to proceed, in order that it may appear that he is not now intermeddling in matters with which he is not concerned, as he alleges that he did when the bond was signed. Therefore, we think that the affidavit was not sufficient to put appellees to proof of the due execution of the bond, if, indeed, any affidavit was required. But it is said that the authority of Barrett, to execute the bond, is distinguishable from the signing, and, although the signature must be denied under oath, the authority of the agent need not be. Upon this we observe that the statute manifestly refers to the legal effect of the signature, rather than the manual act of signing. If the name of the obligor, in a bond, is subscribed by one in his presence, and by his direction, the effect is the same as if his name should be signed with his own hand, and under such circumstances we do not doubt that the obligor must deny his signature under oath, in order to put the obligee to proof of the fact. Qui facit per aliam facit per se, and when the name is signed by one thereunto authorized, it is as much the signature of the principal, as if written with his own hand. Therefore, if the principal would deny the authority of the agent, as the validity of the signature is thereby directly attacked, the denial must be under oath. The effect of tin's statute, upon this point, is precisely the same as the 14th section of the practice act (R. S. 506), under which it has been held, that the execution of the instrument must be denied under oath. Delahay v. Clement, 3 Scam. 201.

The objection that the bond was not under seal of the company, if maintainable, will not defeat the action, for debt will lie upon an unsealed instrument. 1 Ch. PI. 108. For the purposes of this action, it is sufficient that the bond was signed by the company, and, the signature not having been denied under oath, this fact was sufficiently established by the production of the instrument.

The judgment of the district court is affirmed, with costs.

Affirmed.