{
  "id": 438653,
  "name": "Sarah E. Peake, Plaintiff in Error, v. The Wabash Railroad Company, Defendant in Error",
  "name_abbreviation": "Peake v. Wabash Railroad",
  "decision_date": "1856-12",
  "docket_number": "",
  "first_page": "88",
  "last_page": "90",
  "citations": [
    {
      "type": "official",
      "cite": "18 Ill. 88"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 384,
    "char_count": 7703,
    "ocr_confidence": 0.493,
    "pagerank": {
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    "simhash": "1:8a64967987f334de",
    "word_count": 1302
  },
  "last_updated": "2023-07-14T18:47:31.803188+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Sarah E. Peake, Plaintiff in Error, v. The Wabash Railroad Company, Defendant in Error."
    ],
    "opinions": [
      {
        "text": "Skinner, J.\nThis was an action of assumpsit. The declaration contains a count in mdebitabus assumpsit for moneys due on certain installments of stock subscribed, by the defendant below, in the Wabash Railroad Company, and the ordinary common counts.\nThe defendant pleaded non-assunvpsit and nul tiel corporation, upon which issues were joined; also, several other pleas, to which a demurrer was sustained. On the trial, the plaintiff proved the incorporation of the company, and, to establish the organization of the same, under the act of incorporation, proved, by the secretary of the company, and who was also a stockholder in the same, the books and proceedings of the company, by which the organization of the corporation and the calls for payment of the moneys in controversy appeared. The plaintiff also introduced, in evidence, the subscription book of the company, by which it appeared that the defendant subscribed ten shares of stock, of $50 each. The terms of subscription were, that the subscribers should severally pay the amount of their subscriptions, as calls should be niade by order of the company, to \u201cthe president, directors and company of the Wabash Talley Railroad Company.\u201d The plaintiff also proved, by a stockholder in the company, that he signed the name of the defendant to the subscription book in her presence and at her request. To all tins evidence the defendant obj ected, and there was no evidence of actual notice to the defendant of the calls made, nor of demand of payment.\nThe jury found for the plaintiff, and the court refused to set aside the verdict. It is insisted that the demurrer to the defendant\u2019s pleas should have been carried back and sustained to the first count of the plaintiff\u2019s declaration. This count is clearly good. It is-not a count upon the contract of subscription, but is a count in indebitatus assumpsit for calls, or installments due by the defendant, one of the corporators,, to the ' corporation, and is sanctioned by precedents adopted by Mr. Chitty for such a case. 2 Ohitty\u2019s PL 390, 391 and 392.\nMothing, in execution of the contract, remained unperformed, except the payment of money. Throop v. Sherwood, 4 Gil. R. 92. By the subscription, the defendant became a member of the corporation, and legally bound to pay according to the calls of the company; and the subscription book, with the orders of the company requiring payment of the portions or installments, were proper evidence to establish that legal liability, under the general count. It is questionable, if the entire contract had been declared on, whether the plaintiff could have again sued upon it for subsequent calls, upon the principle that a judgment in an action upon an entire contract merges the contract in the judgment.\nIt was not necessary to prove actual notice of the calls to the defendant, nor demand of payment.\nThe defendant was a member of the corporation, and is presumed to know of the orders of the body exercising the corporate powers and authorized to make the calls, and it was her duty to pay according to those calls and her contract of subscription. Angel and Ames on Corporations, 292, 293; 'ibid. 309, 310.\nThe secretary of the company, although a stockholder, was competent to identify the books containing the record of organization and the proceedings of the company, and to this extent only did he testify. Ryder v. The Alton and Sangamon Railroad Co., 13 Ill. R. 523.\nThe books of the company were competent evidence of the prehminary proceedings contained in them, showing the organization of the corporation under the charter. Angel and Ames on Corp. 407, 408, 506, 518, and 519; Fitch v. Pinkard, 4 Scam. R. 76; 13 Ill. R. 523.\nBut a stockholder in a private corporation is not competent to testify generally in behalf of the corporation. As one of the corporators, his interest disqualifies him from giving evidence for the corporation, and the identification of hooks and papers of the corporation of which he is a member, is an exception to the general rule, arising out of the necessity of the case. 13 Ill. R. 523 ; 2 Maul\u00e9 and Selwyn R. 337; Angel and Ames on Corp. 516 to 523.\nThere is a seeming variance in the name of the plaintiff in the record, and the name of the corporation created by the law, but it is wholly unreal. In the title of the law, the corporation is styled \u201cThe Wabash Valley Railroad Company,\u201d but in the body \u201cThe Wabash Railroad Company\u201d is named as the corporation thereby created, and hence it is the legal name of the corporation. The word \u201c Valley,\u201d inserted in brackets in the printed statutes, is the act of the secretary of state, in preparing the enrolled law for publication, and does not affect the legal name of the corporation.\nWere the contract of subscription specially declared on, it would be necessary, by explanatory averment, to avoid the apparent variance between the contract and the name of the plaintiff, and to show that the contract was made with the plaintiff by the name therein used. And the counts being general, some explanatory proof would, perhaps, be equally necessary to establish a contract with the plaintiff, or subscription to the stock in this company, although by a name variant from the legal name.\nInstruments in writing are not void because made to a party by a wrong name, and any misnomer, or apparent variance, may be reconciled and explained, in pleading, by averment, and avoided in effect by proof. Angel and Ames on Corp. 512 to 516; Hurd et al. v. Corlies et al., 18 Ill. R. post.\nThis action is not brought upon the contract of subscription. No written instrument is declared on, but the subscription, with the orders of the company making the calls, were offered in evidence, to prove a debt under the general indebitatus count. Our statute, therefore, did not dispense with proof of execution of the subscription, or writing by the defendant, and the stockholder admitted to prove the execution, was not competent for that purpose.\nJudgment reversed and cause remanded.\nJudgment reversed.",
        "type": "majority",
        "author": "Skinner, J."
      }
    ],
    "attorneys": [
      "O. B. Ficklin, for Plaintiff in Error.",
      "C. H. Constable, for Defendant in Error."
    ],
    "corrections": "",
    "head_matter": "Sarah E. Peake, Plaintiff in Error, v. The Wabash Railroad Company, Defendant in Error.\nEEEOB TO OLAEK.\nA suit in kukbitaim assumpsit for money due on installments for subscriptions to railroad stock, against a member of the corporation, will authorize a recovery.\nThe subscription book, with the orders of the company requiring payment, are competent evidence under the geneneral count. Actual notice of the calls, nor demand of payment, need be proved.\nThe secretary of the company, although a stockholder, is a competent witness to identify the books of organization and records of the company; but for general purposes stockholders cannot be called as witnesses for the corporation.\nThe books of the company, showing its organization, are competent evidence for that purpose.\nWhere the title of a law is \u201cThe Wabash Talley Bailroad Company,\u201d but is called in the bodyof the act \u201cThe Wabash Bailroad Company,\u201d asuitin the name of the latter is proper; the insertion of the word [\u201cuofiey\u201d] in brackets, by the secretary of state, does not change the name of the company. Instruments in writing are not void because mide to a party by a wrong name; the error may be explained and avoided by averments and proof.\nWhere a written instrument is not declared on, but indebitatus assumpsit is brought to recover upon a subscription to stock, proof of the subscription is necessary, but for this purpose a stockholder is incompetent.\nThebe was a verdict and judgment, in the Clark Circuit Court, for the defendant in error.\nThe opinion of the court furnishes a statement of the case.\nO. B. Ficklin, for Plaintiff in Error.\nC. H. Constable, for Defendant in Error."
  },
  "file_name": "0088-01",
  "first_page_order": 84,
  "last_page_order": 86
}