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Road promise to pay to Andrew Hearne two hundred dollars, this note bearing ten per cent until paid.
“ J. W. EDWARDS.
"John McKENSEY." The petition is in the usual form when based upon a promis bory note. A demurrer was sustained to it, and the action dismissed upon the ground that the writing is the obligation of the corporation, and not of the signers as individuals. We find no case decided by this court where the obligation sued upon was exactly similar.
In the cases of Trask v. Roberts, 1 B. Mon. 201, and Whitney v. Sudduth, 4 Met. 296, the promise of the defendants to pay was both joint and several. The obligations were clearly of this form, and the cases were made to turn upon this point, as it was held that the several promise could not be otherwise than personal. The case of Yowell v. Dodd, 3 Bush, 581, is distinguishable from the one now before us. In that case the obligation reads thus:
“Twelve months after date, the president and directors of the Huston ville and Bradfordsville Turnpike Road Company will pay Leroy Yowell twelve hundred dollars, for value received, at six per cent interest from date, this 16th of November, 1865.
"E. J. DODD, Pres.
Wm. L. McCain." It was held to be the obligation of the company. The differences between it and the writing now in question are Italicized above. It does not appear that the president of the company united in the execution of this one. This, however, may not be material. The record does not disclose whether it is so or not. The word “company," however, does not appear in it, and no official designation is annexed to the name of any one of the signers. Upon the other hand, no personal pronouns or words expressly indicating a personal liability are used. No action could, however, have been maintained upon it against the corporation without an averment of mistake or fraud in its execution. No company is mentioned. Upon the face of the note there is no one to sue but the makers of it. A petition founded upon it against the corporation would not have been sufficient, if drawn in the usual form upon a note. It would have been necessary to aver a mistake in its execution, and ask a reformation of the obligation. The party would have been compelled to set up the omission as a mistake in the drafting of the note, and that by inadvertence, or for some other reason, it did not show the real and true obligor.
The face of the obligation does not show that the corporation received the consideration, or that it was applied to its benefit, and an action could not be maintained upon it against a corporation without averring and proving, is denied, that it was executed and received as its obligation, and that by a mutual mistake in its execution this fact was not made to appear. Upon the face of the note the corporation is not prima facie liable. It cannot properly be said that upon its face it purports to be the note of the company. The “company does not promise to pay it. As it would have been necessary to make these independent averments to maintain an action against the corporation upon it, it necessarily results that the writing must, upon its face, be regarded as the undertaking of the parties whose names appear to it as obligors; and the question of individual or corporate liability must be raised by a proper answer, and not by demurrer: Pack v. White, 78 Ky. 243.
Judgment reversed, and cause remanded, with directions to overrule the demurrer, and for further proceedings consistent with this opinion.
CORPORATIONS — PERSONAL LIABILITY OF DIRECTORS. — The personal responsibility of the directors of a corporation upon contracts entered into on behalf of the corporation is governed by the ordinary law of principal and agent; if they fail to contract in such a manner as to bind the corporation, they bind themselves. So where they execute a note, affixing merely their individual names, they are individually liable thereon: Note to Hodges v. Nero England Screw Co., 53 Am. Dec. 649, 650. Where the president of a corpora. tion, having no seal, executes a contract as president, under his hand and a common scroll for a seal, it will neither be his own contract nor that of the corporation: McCaulley v. Jenney, 6 Houst. 32. A deed purporting to be exeouted by a corporation to one as a trustee, which bears the signature and seal of the president, with the suffix of “President of D. R. Co.," and also the sig. nature and seal of the trustee, with but one subscribing witness, is not the deed of the corporation, but the personal act of the president: Clayton v. Cagle, 97 N. C. 300. The corporation may, however, by ratification bind itself upon such contracts on which it would not otherwise be liable: Taylor v. Navigation Co., 105 N. C. 484; Pallerson v. Robinson, 116 N. Y. 193. Com. pare Liebscher v. Kraus, 74 Wis. 387; 17 Am. St. Rep. 171, and note.
LEATHERMAN V. TIMES COMPANY.
(88 KENTUCKY, 2.1.) STATUTE OF LIMITATIONS - AMENDMENTS BRINGING IN NEW PARTIES. —
Where a plaintiff commences his action against a corporation, and it is served with summons as such, when no such corporation exists, and, after the statute of limitations has fully run, he amends his petition so as to bring in new parties as partners and defendants, the new parties so brought in may successfully rely upon the statuto of limitations as a defense. J. M. Chatterson, and Baker, Kinney, and Kinney, for the appellant.
F. Hagan, for the appellees.
BENNETT, J. The appellant, in November, 1884, commenced action against the Times Company as an incorporated institution for the purpose of printing and publishing a newspaper, called the Louisville Times, etc., and Dr. Keller. The appellant sought to recover damages for an alleged libel published in said paper upon him. The appellant dismissed the action as to Dr. Keller.
An answer was filed in the name of the Times Company, without disclosing whether or not it was an incorporated institution or merely a private concern, alleging the truth of the libelous matter charged. The pleadings having been made up for more than a year, the Times Company filed an amended answer, disclosing the fact that it was not incor. porated. Thereupon the appellant filed an amended petition, setting up the fact that his allegation that the Times Company was a corporation was a mistake, and that the Times was & private concern, owned and published by the appellees Haldeman and Logan as partners. These two persons were summoned to answer this amended petition. They answered, among other things, that more than one year having elapsed since the publication complained of, the action against them was barred by the statute of limitations of one year. The lower court, deeming the reply to this plea insufficient, sustained a demurrer to it, and the appellant declining to plead further, his action was dismissed. The sole question is, Was the demurrer properly sustained ?
The appellant, in support of his contention that the demur. rer was improperly sustained, relies upon the case of Heckman's Adm'r v. Louisville and Nashville R. R. Co., 85 Ky. 631.
In that case the administrator, by mistake, sued the Louisville, Cincinnati, and Lexington Railway Company for an injury to his intestate, resulting in his death. An answer was filed, apparently in the name of said company. It was discovered afterwards that the Louisville and Nashville Railroad Company operated the road, and did the injury complained of, instead of the Louisville, Cincinnati, and Lexington Rail. road Company, and that the Louisville and Nashville Railroad Company had in fact filed the answer. Upon the discovery of the mistake, the true state of case, by amendment, was set up, and judgment was asked against the Louisville and Nashville Railroad Company. To the action as amended the Louisville and Nashville Railroad Company interposed the plea of the statute of limitations. It was held that where a person against whom a cause of action exists is sued by the wrong name, and a summons is served upon him, though in his wrong name, and he appears and files an answer, though in the name by which he was sued, he is thereby effectually brought before the court. Thus if a person having a cause of action against A sues him in the name of B, and A is served with summons in the name of B, and answers in that name, he thereby adopts the alias, and effectually brings himself before the court.
Here the attempt was made to bring the Times Company before the court as a corporation, and to recover judgment against it as a corporation, but no such corporation was in existence; therefore the Times Company representing individuals as partners, and not a corporation, such individuals were not brought before the court by filing the action against the Times Company and issuing summons thereon in that name alone. Had the appellees been made defendants to the original action, in connection with the Times Company as an alleged corporation, and had been summoned and answered, or had appeared and answered without having been summoned, in such case the mistake in suing the Times Company as a corporation would not have availed the appellees on their plea of the statute of limitations. But the appellees, as the owners of the Times, were not made defendants until more than a year after the cause of action had accrued; therefore this case is wholly unlike the Heckman case, supra. But the case falls within the principle that where a plaintiff commences his action against the wrong party, when no such party was in existence, and, after the statute of limitations has fully run, amends his petition by bringing in new parties as defendants, the parties so brought in may successfully rely upon the statute of limitations as a defense. Also, as intimated, the bringing of the action against the Times Company by that name did not have the effect of bringing the individual members of the company before the court, nor of suspending the statute of limitations as to them; for the statute of limitations is not suspended by merely filing the petition in the proper court, but a summons must be issued against the defendants before the statute is suspended.
The fact that the original summons was served by the sheriff upon the appellant, Logan, as the business manager of the supposed corporation defendant, did not have the effect to bring him before the court as a defendants
The judgment is affirmed.
LIMITATIONS OF ACTIONS - AMENDMENT. - Unless somo now claim or titlo not previously set forth is set up by way of amendment, the plea of the statute of limitations will be determined with reference to the date when the original complaint was filed: Chicago etc. R. R. Co. v. Bills, 118 Ind. 221; Sublett v. Hodges, 88 Ala. 491; Vanderslice v. Mattheros, 79 Cal. 273; Blanch. ard v. Lake Shore etc. R’y Co., 126 Ill. 417; Pennsylvania Co. v. Sloan, 125 III. 73; Rowland v. Murphy, 66 Tex. 534. But where an amended complaint brings in new parties, they are entitled to have the period of limitation esti. mated as to themselves from the date of the acquirement of their rights in the subject-matter down to the filing of the amended complaint: Rucker V. Dailey, 66 Tex. 284.
JENKINS V. Bass.
(88 KENTUCKY, 897.) NEGOTIABLE INSTRUMENTS - PROMISSORY NOTE – ASSIGNMENT. - A note
signed by two obligors, and made payable to “order of myself," may be shown by extrinsic evidence to be payable to one of such obligors and to bind the other obligor thereon to the payee, and a third party who holds the note by indorsement from the payee may bold both obligors bound
thereon. NEGOTIABLE INSTRUMENTS PROMISSORY NOTE - ASSIGNMENT. – One who
makes a note payable to himself may become bound thereon to another by writing his name on the back of the note and delivering it to such other party. This under section 13, chapter 22, General Statutes of Kentucky.