Laflin & Rand Powder Co. v. Sinsheimer

Brent, J., delivered the opinion of the Court. This is an action of assumpsit to recover from the appellees for merchandise sold, and for which it is claimed'they are personally liable. The declaration contains three counts — the first, for goods sold and delivered — the second, for money found due on an account stated, and the third, is a special count. It is very full and lengthy, but alleges in substance, that the defendants pretending there was a company duly incorporated under the laws of West Virginia, by the name of the Lancaster Furnace and Mining Company, induced the plaintiff to sell certain goods to said company ; that the plaintiff afterwards discovered that the company was not in fact incorporated, that for reasons, which are specially set out, the necessary acts and proceedings to constitute a valid incorporation under the laws of West Virginia had not been performed and taken, that the said pretended corporation was but a voluntary unin ³¹⁹ corporated association, the members of which are personally liable for the goods sold to them under the name of the pretended company, and which goods were in fact received by the defendants.» The defendants pleaded, that they were not indebted as alleged,- and that they did not promise as alleged.

The incorporation of the defendants under the laws of West Virginia was placed in evidence, and proof offered, tending to show that certain requirements, which the appellant claims were conditions precedent to the incorporation of the defendants, had not been complied with. It was also proved that the goods had been sold and charged to the Lancaster Eurnace and Mining Company, and that no claim for them had been made against the defendants personally, until after the failure of that company. The plaintiff presented two prayers, both of which involved the valid incorporation of this company. But the Court rejected them, and instructed the jury.

First, That there is no evidence upon which the jury can find for the plaintiff on the first or second count in the. narr. Second, That the plaintiff having given in evidence the Statutes of West Virginia, under which the Lancaster Eurnace and Mining Company claims to have been incorporated, and the certificate of the Secretary of State of said State, declaring the existence of said corporation, it is incompetent for this Court to inquire collaterally into the validity of said corporation, and the plaintiff cannot recover upon the third and fourth counts in the narr. To these instructions by the Court, and to the rejection of its prayers, the appellaut has excepted. There has been no error alleged, in the argument, in the first instruction granted, and we do not understand the appellant as controverting its correctness.

The real question in the case is presented upon the second instruction. ³²⁰ If the view of the law, as there expressed, is right, the rejection of the instructions- asked for on the part of the appellant follows as a matter of course. As already seen, the incorporation of this company, by the name of the Lancaster Furnace and Mining Company, was obtained under the general corporation laws of West Virginia, in which State its operations as a Mining and Manufacturing Company were to be carried on. We have carefully compared the certificates of its incorporation, authenticated by the Secretary of State and the seal of West Virginia, with the requirements of the laws of that State, and we find that it is in all respects in matter of form in accordance with their provisions. Code, West Va., ch. 54, secs. 6, 7, 8, 9 and 10, and ch. 53, sec. 62.

The certificate, which is the charter giving to this company a corporate existence, discloses therefore no error upon the face of it, and is before us authenticated in such manner as is declared in the 10th section of the law, above referred to, shall be sufficient evidence of the existence of the corporation. Thus