Blanchard v. Kaull

TEMPLE, J. — This action is brought against some thirty defendants averred to be partners, 'jointly engaged in the construction of a certain wagon road under the firm name and style of the Amador and Nevada Wagon Road Company. It is charged that the defendants, by their firm nam.e, through the agency of three of said partners, to wit: Kaull, Nikolaus and Tullock, who were duly authorized to act for and in the name of the partnership, executed and delivered the notes sued upon, all of which are in substantially the same language. One of said notes is as follows:

“($3590.50.) Twelve months after date we, as trustees of the Amador and Nevada Wagon Road Company, promise to pay to Louis Nikolaus, or order, the sum of three thousand five hundred and ninety dollars and fifty cents, in gold coin of the United States of America, with interest thereon at [666]the rate of two per cent per month from date until paid; the interest to be paid at the expiration of every two months. And if said interest is not paid at the expiration of every two months, the interest then due shall be added to the principal, and draw interest at the rate of two per cent per month until paid. For (value) received, this 3rd day of December, A. D. 1863.

(Signed) “JOHN M. KAULL, “LOUIS NIKOLAUS,

“J. TULLOCK,

“Trustees of the Amador and Nevada Wagon Road Company.”

It is also averred that the notes were secured by mortgage, which is also sought to be foreclosed in this action. • The mortgage is set out in full and purports to have been executed by the Amador and Nevada Wagon Road Company, a corporation duly incorporated, party of the first part. In no other way does the complaint show that the defendants are members of an incorporated company. The answer avers that the Amador and Nevada Wagon Road Company is an incorporated company, and that the notes and mortgage mentioned were executed by that corporation, and not by the defendants in their individual capacities.

On the trial no partnership was proven, nor any authority from the corporation to execute the notes and mortgage. Thereupon the notes were treated as the individual notes of the persons signing them, and judgment given against them, and the action dismissed as to the other defendants.

It is claimed that this judgment is erroneous, because the relief granted is not consistent with the case made in the complaint, nor within the issues raised by the pleadings; and also because the evidence shows that the notes were not the private contracts of the defendants against whom judgment was rendered, but of the corporation.