Judges: Guy
Filed Date: 10/15/1922
Status: Precedential
Modified Date: 11/10/2024
Plaintiff claimed an indebtedness from defendant of $638.95. Concededly upon an accounting between the parties
As the obligation of the defendant with respect to the so-called allowance of $138.95 was submitted to the jury under proper instructions and upon evidence which authorized their finding for the plaintiff, the" only question for consideration upon the appeal is as to defendant’s liability for the $500 portion of the claim.
Defendant set up in its answer the counterclaim that prior to the incorporation of plaintiff the defendant had dealings with Packer, one of the two stockholders of plaintiff corporation; that Packer had overcharged defendant in such transactions to the amount of $500; that the plaintiff corporation, in consideration of defendant agreeing to continue its dealings with the plaintiff, assumed any indebtedness of Packer to defendant. The proofs show that the corporation assumed to start business in July, 1921; that the machinery was purchased and a lease of the place of business in the name of the corporation was taken in that month, but because of the illness of the attorney having charge of the incorporation the incorporation was not actually effected until after August 4,1921, Packer and Klein, the only persons interested, meanwhile carrying on business under the corporate name with their joint, individual bank account.
Defendant’s counsel sought to prove by the testimony of defendant’s president the assumption agreement as pleaded, but the proof was excluded for the reason that as the alleged agreement was made prior to the incorporation of the plaintiff the testimony was inadmissible, and the only question submitted to the jury, as above stated, was as to the right of the plaintiff to recover the item of $138.95.
Although the corporation is a legal entity, distinct and separate from its stockholders, where the two persons who are the subscribers to and subsequent owners of all of its stock had actually begun business in the corporate name and made the agreement relied upon by the defendant, and the corporation itself subsequently knowingly accepted the benefit of the contract, the evidence
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Bijur and Mullan, JJ., concur.
Judgment reversed.