Wilmington v. Thompson, 52 N.C. 387, 7 Jones 387 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 387, 7 Jones 387

WILMINGTON, CHARLOTTE AND RUTHERFORD RAIL ROAD COMPANY v. JOSEPH THOMPSON.

in an action against a subscriber to 'the s'tock of a railroad’company on a bond for the payment of an instalment of such stock, it was Meld that the existence of a President and an Engineer, acting and purporting to act for and •in behalf of the corporation, and a charter 'authorising the appointment of such officers, were sufficient to establish its organization as against the defendant and -all others dealing and treating with -them in their corporate ■capacity.

This was an action -of debt on -a bond tried before Shepherd, J., at the last Spring Term of Robeson Superior Court. Pleas — Won estfactum, and specially, that the bond is void, as being against public policy; also, that the bond has been discharged by a material alteration of the‘charter‘subsequent to its execution.

The plaintiff declared on a bond which had been given for an instalment of the stock subscription. To show the organization of the company, the plaintiff, after showing the charter of the company, passed by the Legislature, by which the -company, when organised, are authorised to appoint a president, directors, engineer and other officers, proved that H. W. Guión was acting as president, and that John C. McRae was •acting as engineer for and on behalf of the company, at the time the bond in question was executed. The plaintiff also ■offered in evidence the minutes of the proceedings of a meeting of the subscribers held in the town of Wadesborough, previously to the execution of the bond sued on.

The execution of the bond was duly proved. The defendant insisted that there was no competent evidence to show that the corporation had been organised, and asked his Honor so ■to instruct the jury, but he declined doing so, and held that the evidence was admissible for that purpose, and that if it was believed, the corporate existence of the company was sufficiently established. The defendant excepted. There were other exceptions sent to this Court, but not insisted on by the defendant’s counsel here.

Yerdict and judgment for tito plaintiff and appeal by the defendant.

Person and Strange, few the plaintiff;

Wm. McL. McKay and Fowler far the defendant.

Battle, J.

Most of the exceptions taken by the defendant on the trial, and set forth in his bill of exceptions, have been properly abandoned by his counsel in the argument here.

That the bond on which the suit was brought, is not against the public policy, and void on that account, was settled by the decision of the Court in McBm v. Bussely 12 Ired. Rep.. 224, and we are not disposed to disturb it, or sail it in question.

The defendant comes with a bad grace to object to an alteration of the charter which he had concurred in recommending. It was surely not erroneous in the Court to require of him to prove that he had subsequently dissented from, from the amendment, if, indeed, such a dissent 'could: then have availed him.

The testimony which he offered for the purpose of showing that the agent of the plaintiff had made misrepresentations to him with regard to the route of the road \ that the route selected was not the “most eligible,” and that the bond which another subscriber had signed was clear of erasure or interlineation when he first saw it, was properly rejected by the Court; N. C. R. R. Co. v. Leach, 4 Jones’ Rep. 340.

The only exception relied upon by the counsel for the defendant in argument before us, is that there was no evidence of the organization and corporate existence of the plaintiff at the time when the bond in controversy was given, and that, consequently, it was a nullity for the want of an obligee, as was decided in this Court, in the case of The Wilmington and Manchester Rail Road Company, v. Wright, 5 Jones’ Rep. 304. Upon the question which was mainly debated between the counsel, whether the paper which purported to- contain the proceedings of the subscribers for stock in the organization of ühe company, was admissible as evidence, for that purpose on fhe part of fee plaintiff, and, if so, whether it proved such organization, is, in the view which we have taken of the case, unnecessary for us to decide. The plaintiff produced the acts by which the charter was .granted, and then showed that at the time when the bond in controversy was executed, there •was a president and an engineer acting and purporting to aet for and ia behalf of the corporation. That, we think, was ■enough to be shown to establish the existence of the corporation as to those who treated and acted with it in its corporate capacity. We so decided in the ease of The Wilmington and Manchester Railroad Company v. Saunders, 8 Jones’ Rep. 126, and the same doctrine had been previously held in the ■case of The Tar River Navigatian Company v. Weil, 3 Hawks’ Rep. 520. The principle is, that the officers of the corporation, acting on its behalf, were so defacto, and that those who treat with, and enter into obligations to, them, cannot be permitted to repudiate such obligations. It is the sovereign •alone, who has the right to complain of the usurpation, when •such exists. The spirit of this principle was applied, at the Hast'Term to the'ease of the eoisawnssionere defacto of a town, and it was found to be supported by the highest authority in England; see Commissioners of Trenton v. McDaniel, ante 107; Scadding v. Levant, 5 Eng. Law and Eq. Rep. 113.

This doctrine is not at all opposed by the decision in the •case of the Wilmington and Manchester Railroad Company v. Wright, above referred to, for there it is stated expressly that there ivas no evidence that the plaintiff had a corporate «existence at the time when the note sued on was given.

Per Curiam,

Judgment affirmed.