Hub Publishing Co. v. Richardson — 37 N.Y. St. Rep. 541

Majority

p. 541

The Hub Publishing Company, Resp’t, v. Charles A. Richardson, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

Corporations—Liability op promoters op.

Promoters of a company are liable for work done or material furnished for such company on their order, in ease such company is never actually incorporated, either on the ground that as agents they were acting without an existing principal or that they had made themselves personally liable.

Appeal from a judgment recovered upon a verdict, and from an order denying a motion for a new trial.

Roland Tracy, for app’lt; James Byrne, for resp’t

The action was brought upon an account for making and publishing prospectuses of the Victoria Hansom Cab Company, for envelopes and other things delivered by the plaintiff. It was averred in support of the liability of the defendant that the contract was made by himself and Robinson, who was not served with the summons, for the creation of the indebtedness. This was denied on his part, and the substantial issue presented for trial was the truth of this allegation.

On the part of the plaintiff evidence was given tending to establish the fact that the defendant Richardson, together with Robinson, ordered this work to be done and the other articles to be furnished. And if that was the fact, as the jury must have found it to have been proved, notwithstanding the contradiction by the defendant himself as hi's evidence was given, then the judgment seems to have been right For while the work and material was ordered for the Victoria Hansom Cab Co., that company had not been formed at the time, and never was brought into existence as a corporation. The defendant and Robinson, according to the testimony as the jui-y had the right to act upon it, were engaged as the promoters of this company. And as the company itself never existed as a corporation, they could very well be held liable under the evidence given on the part of the plaintiff for the amount of the bill incurred to it in this manner. Scott v. Ebury, L. R., 2 C. P., 255. And also on the ground that as agents they were acting without an existing principal. Kelner v. Baxter, L. R., 2 C. P., 174.

The jury if they believed the testimony given in support of the claim, as they appear to have done, could very well conclude that the defendant had made himself personally liable for the payment of the demand. For it would then follow that it was created at his instance and request, without the disclosure of any existing principal which he could make liable for the indebtedness. Wilcox Silver, etc., Co. v. Green, 72 N. Y., 17 .

The evidence as it was produced presented no more than a ques

p. 542

tion of fact for the jury. And the case was fairly submitted to them, and their verdict against the defendant cannot, under the well settled principles applicable to it, be disturbed by the court. The judgment and order should, therefore, be affirmed, with costs.

Van Brunt, P. J., concurs.