Bedwell v. Ashton , 1899 Ill. App. LEXIS 364 ( 1900 )

Mr. Justice Higbee

delivered the opinion of the court.

This was a shit in assumpsit, by appellants against appellees, for the balance due on an account for wood and coal alleged to have been furnished by the former to the latter between January 1, 1893, and March 17, 1894.

The declaration charged that appellees were, at the time the wood and coal were furnished them, partners doing business under the firm name and style of Co-operative Supply Company. There was a plea of the general issue, and also a special plea denying joint liability by certain of the defendants. It was shown by the evidence that about September 20, 18S6, some seventy or eighty persons took certain preliminary steps toward the formation of a corporation to be known as the Rockford Co-operative Supply Company, or the Co-operative Supply Company, for the purpose of engaging in the fuel • and general supply business in Rockford, Illinois. It appeared probable that a certificate of the organization of such a corporation was issued by the Secretary of State, but if so the same was never placed on record in the office of the recorder of the county where its place of business was located, as required by law. The Supply Company continued in business from 1886 until 1894, when it went out of business, owing appellants the sum of $533.29. This suit was commenced in December, 1898, some four years after the company had ceased doing business. On the trial below, after the close of appellants’ evidence, appellees entered a motion requesting the court to strike out all the evidence introduced in the case by appellants and instruct the jury to find the issues for appellees. Appellees assigned as reasons why their motion should be granted, “ That the evidence introduced by the plaintiffs, and all of it, is totally insufficient to prove their case; that plaintiffs have not established any joint liability, as alleged in their declaration, on the part of the said defendants; that plaintiffs have not proved that all of the defendants to said case are jointly liable; that it affirmatively appears from plaintiffs’ evidence that said defendants were not all jointly liable; that it affirmatively appears from plaintiffs’ evidence, on plaintiffs’ own theory, that no joint liability exists, and that all parties who are jointly liable are not made defendants, and that it affirmatively appears that the said defendants are not liable many manner or degree, as alleged in plaintiffs’ declaration.” The court sustained said motion and instructed the jury as requested, and thereupon the latter returned a verdict in favor of appellees.

It is claimed by appellees that the steps taken by the Supply Company-in its attempt to organize, together with the acts subsequently done by it, constituted it a corporation de facto as to creditors dealing with it in its corporate capacity, and that in the absence of fraud such creditors could not charge the stockholders as partners with its debt. If the company was really a defacto corporation there is much force in the contention that the appellees could not be held liable for its debts. Bushnell v. Consolidated Ice Machine Company, 138 Ill. 67. But waiving the question as to whether or not there was a defacto corporation, and assuming that appellants became jointly and severally liable, either as partners or under the statute, for all debts and liabilities made by them and contracted in the name of said company, then before any one of them could be charged with the indebtedness in question, it must be shown that he was a stockholder at the time the indebtedness was contracted, or that he agreed to become liable with the others. Thompson on Corporations, Vol. 3, Sec. 2970.

The account sued on commenced January 1, 1893. It appeared from the stubs of the stock certificate- book that no stock was issued to either of the defendants Ryan Tucker or J. Kessler until February 23, 1893, and there is nothing to show that Magnus Lindell was in any way connected with the company until May 8, 1893, when a certificate of stock was transferred to him by James Alberts. J. G. Redmond appears to have been an assignee -of stock, but when the transfer was made was not shown. As these parties can not be held bound for that portion of the debt which was contracted prior to the time they became interested in the company, and as there was no proof to show what that portion.of the indebtedness- was, no joint judgment for any amount could be recovered against them with the other defendants. There was no proof that Claes Lundine, who was made a defendant, was ever a stockholder. The name of Chas. Lundine appears as a stockholder, but the two names are not idem sonans, and, in the absence of proof, we can not assume that they are the same person. There is no proof that L. Sandine, who was made a defendant, was ever a stockholder.

Where several are sued in an action ex contractu, plaintiff must prove a cause of action against all the defendants sued and declared against, whether served with process or not, otherwise he will not be entitled to judgment against any. Cassaday v. Trustees of Schools, 105 Ill. 560; United Workmen v. Zuhlke, 129 Ill. 298.

As appellants failed to prove the joint liability of all the parties made defendants to the suit, the action of the court below, in excluding the evidence and directing a verdict for the latter, was entirely proper. The judgment of the Circuit Court is accordingly affirmed.