Hand v. Society for Savings of Cleveland

This action is for the recovery of damages for breach of a contract made at .Cleveland, Ohio. The complaint •sets out in full the contract, which does not recite that it was made by the defendant corporation and is signed simply “S. H. Mather, Prest.” Howhere in the appeal book is found a statement that it contains all of .the evidence, and our appellate authority, following Aldridge v. Aldridge, 120 N. Y., 616 ; 31 St. Rep., 948 , has held in Claflin v. Flack, 36 St. Rep., 728 , Judge Pryor writing, that if the case omits the statement that it contains all the eviolence, then that they are precluded from inquiring into the facts by the presumption, in support of the judgment, that the proof was sufficient to carry the case to the jury and to warrant the •verdict.

This general term in obedience to the rule of practice as laid down in the Aldridge case will not consider or discuss the facts, in the absence of such a statement.

The court of appeals in the Aldridge case says: “ This rule does not exist in the Code, but is so well established that a respondent may rely upon it. And after a case lias been made in a manner appropriate only for a review of questions of law, to reverse a judgment upon the facts would be an injustice to the respondent, who has a right to rely upon the court enforcing the rule it has announced for the guidance of litigants.”

Appellant’s objection to the complaint for its insufficiency was-raised at trial and such objection was then properly impressed upon the record, and the same will now be considered as if a demurrer to the complaint upon the grounds of want of jurisdiction, and that it does not state facts sufficient to constitute a cause of action. First, as to jurisdiction.

At common law in the absence of a statute, corporations organized under the laws of one state could not be sued .in the courts of another state. This was upon the theory that they were artificial beings having no existence or being beyond the "jurisdiction creating them. Of course this did not apply where the action was in the nature of an action in rem. However statutes were passed giving certain courts under certain circumstances jurisdiction against foreign corporations, and such is §427 of the old Code, which gave the supreme court and the superior and court of common pleas of New York city jurisdiction of actions by a resident against foreign corporations for any cause of action, and under § 1780 of the new Code this jurisdiction is extended to the city court of New York, but before this the marine court and the city court of New York had jurisdiction over foreign corporations as-to some causes of action. In the absence of any allegation in the complaint that the plaintiff is a non-resident of the state, and therefore disqualified to sue a foreign corporation by reason of § 1780 of the Code, such non-residency will not be assumed in support of a demurrer on the ground of want of plaintiff’s capacity to sue. Leslie v. Lorillard, 18 W. Dig., 288.

Now, as to whether the complaint states facts sufficient to constitute a cause of action. The defendant’s contention is, that as-the complaint sets forth in full a contract which did not recite that the defendant made it, and was simply signed “S. H. Mather, Prest,” therefore the allegation that defendant made and executed the contract was not enough, but that it should have been further alleged that S. H. Mather was the president of defendant and had executed the same by authority of and for defendant. Where a contract is in writing or by paroi (not under seal), in the name of the agent and within his authority, the principal can enforce the-same, and is liable thereon; but a different rule prevails as to sealed instruments. Nicoll v. Burke, 78 N. Y., 580 . The contract set out in the complaint was not under seal, and the allegation that the defendant made and executed the contract, when it appears to have been signed by another party, necessarily includes-the allegation that such other party was duly authorized "to make the contract in behalf of the defendant, and under it proof can be-given, and would be requisite, to establish that it was, in fact, the contract of the defendant, by proving the authority of “ S. H. Mather, Prest, ” to make the contract in defendant’s behalf. Moore v. McClure, 8 Hun, 557 .

He who acts through another acts himself, and an allegation that he acts" himself is good pleading where he acts through-

The judgment and order appealed from are affirmed, with costs.

Ehrlich, Oh. J., and Fitzsimons, J., concur.