#### F. J. Haggarty Company, Defendant in Error, v. M. G. Conley, Plaintiff in Error.

Gen. No. 20,310.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.

Heard in this court at the October term, *2601914.

Affirmed.

Opinion filed November 1, 1915.

Rehearing denied November 15, 1915.

Statement of the Case.

Action by F. J. Haggarty Company, a corporation, plaintiff, against M. Gr. Conley, defendant, for $75 alleged to have been overpaid by plaintiff to defendant by mistake. Defendant claimed a set-off of $911.50. There was a judgment for plaintiff, to reverse which defendant prosecutes this writ of error.

The evidence showed that Frank J. Haggarty for some years prior to January 31, 1911, was a partner with his father in the teaming business under the name of M. C. Haggarty & Son, and on that day the firm was dissolved and M. C. Haggarty took all the property and assets of the firm. From January 31 to April 13, 1911, Frank J. Haggarty did some teaming business on brokerage, but had no teams, wagons, trucks or other assets of his own. April 14th a corporation was organized under the name of F. J. Haggarty Company, with an authorized capital of $5,000. F. J. Haggarty subscribed for $2,500 of the capital stock, W. E. Hall for $2,400, and John Kercher for $100. Frank J. Haggarty’s wife paid for the $2,500 stock subscribed for by him, and $2,400 of the stock was transferred to her. Hall and Kercher paid for the stock subscribed by them- respectively. Neither Mrs. Haggarty, Hall nor Kercher were interested in or in any way connected with the teaming business carried on by Frank J. Haggarty prior to the organization of the corporation.

Points relied upon for reversal were: First. Where an organization or association of persons take a name which imports a corporate existence and do business and contract under that name, they will be estopped to deny that they are a corporation; second, that where a corporation is a mere continuation of the same business previously transacted by the same parties, it must *261be presumed to be bound by the obligations which such business is liable for. The contention of defendant in error is that the facts disclosed do not bring the case within the rules of law so stated.

Abstract of the Decision.

1. Corporations, § 57 * —when evidence insufficient to estop denial of corporate existence. Evidence examined in an action by a corporation to recover an amount alleged to have been paid by mistake on a debt incurred by another before its incorporation, and held insufficient to show that there was an organization or association of persons doing business under the corporate name before plaintiff received its charter.

2. Corporations, § 472 * —when evidence insufficient to show corporation a continuation of another business. Evidence in action by corporation examined and held insufficient to show that the corporation was a mere continuation of the same business previously conducted by the same parties.

Coburn & Bentley, for plaintiff in error.

Francis E. Croarkin, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Baker

delivered the opinion of the court.