controlled by the courts: 1887, State v. McGrath, 92 Mo. 355, 17 Am. & Eng. C. C. 191; 1889, In re U. S. Mer. Rep. Co., 115 N. Y. 176; 1892, Re Waverly Ladies, 30 W. N. C. 257; 1892, Illinois Watch C. Co. v. Pearson, 140 Ill. 423, 41 Am. & Eng. C. C. 11; 1896, Altoona Gas Co. v. Gas Co., 17 Pa. Co. Ct. 662. But if the corporation applying has a clear prior right to the name chosen, the secretary of state may be compelled to register it. 1882, State v. McGrath, 75 Mo. 424; 1900, People v. Payn, 161 N. Y. 229, 55 N. E. Rep. 849.

Sec. 225. Effect of misnomer.

THE MEDWAY COTTON MANUFACTORY v. ADAMS.1 1813. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. Mass. Rep. 360-*364.

ΙΟ

SEWALL, J. In this action of assumpsit the defendants are charged upon a note made by them with an averment that it was made to the plaintiffs, by the name of Richardson, Metcalf & Co. To this declaration there is a demurrer, and the ground taken by the defendants is, that the promise expressed in the note declared on is not recoverable by the plaintiffs.

[It was argued that the variance was not obviated by the averment that the promise was in fact made to the plaintiffs in their corporate capacity, and that the demurrer was no confession of a substantially deficient averment.]

But the declaration is not liable to the objections which have been urged against it, if the case there stated is provable in any course of evidence competent for the plaintiffs to produce in a trial upon the general issue. For then the variance of name is not fatal to their demand; and if it is competent for the plaintiffs to prove the allegations of their writ, then these are confessed by the demurrer.

A variance or mistake of the name in cases of existing persons is not fatal to their contracts when there is a sufficient description of the parties whereby they may be known. A variance of the name subscribed from the name of the defendant does not prejudice, if it be found that the defendant executed the deed, although the name should be totally different."

A grantee or person entitled by a conveyance takes solely by the deed, and is therefore to be named or described with more exactness than is required in naming the party entitled by an obligation or contract constituting a chose in action. But even in grants and conveyances it is sufficient if the name be expressed in re and sensu, although not in verbis. And in all cases a misnomer may be aided by a verdict or an averment.3

4

These principles are noticed and relied on in the case of the Mayor and Burgesses of Lynn Regis, the case of misnomer of corporations reported by Lord Coke, and which was cited in the argument for the defendants. In that case the defendant, who was sued upon a bond 1 Statement abridged, and only part of opinion given, arguments omitted. 2 Salk. 462; Com. Dig. Fait. B. 1 E. 3; Grant. A. 2; Co. Lit. 3; 2 Rol. 42. 3 Dyer, 279.

given to the corporation, pleaded non est factum, and relied upon a variance in the bond from the true and right name of the corporation. But the plaintiffs had judgment, notwithstanding the misnomer.

In a more modern case1 the misnomer of a corporation was considered with a yiew to the argument which has been urged in the case at bar, that a corporation is a creature of the law, having no essence but what is derived from its name. In an action for tolls which accrued to the plaintiffs in their corporate capacity, and as a duty to the corporation, the corporate name of the plaintiffs was mistaken; and the declaration was in a name variant from the name given them in their charter. But the decision was, that the misnomer was not to be taken advantage of at the trial as a ground of nonsuit; and was only pleadable in abatement, as in the case of an existing person.

It may be objected that the variances in the cases cited of misnomer of corporations are not so considerable or material as the variance is in the case at bar, where the name of the promisees, as it is expressed in the note, is totally different from the name of the plaintiffs in their corporate capacity. The inquiry, however, is in this case, as it was in the cases of misnomer which have been cited, of the description of the promisees, or parties in the note or contract declared on. Does the name in the note sufficiently indicate the plaintiffs? Were they known by it as the promisees? Now this depends, in part at least, upon any inquiry of facts which may or may not be proved, and which may be provable by evidence extraneous to the note, or, for aught that appears, the note itself may maintain the plaintiff's aver ment, that it was made to them by the name therein expressed.. In an action of assumpsit there is no profert of the writing declared on, and this is not like a demurrer for variance as in a case of oyer of a deed. In such a case, a different construction might be required if there were no averments to identify the plaintiffs in the action with the description given of them in their deed.

Upon this demurrer we have only to determine whether the decla ration is in itself absurd and repugnant and incapable of proof. We think it is not, upon the authorities respecting misnomers of corporations, or upon the reason of the thing. The declaration is adjudged good, and the plaintiffs are to have judgment to recover their demand.❜ Note. Effect of misnomer.

1. In case of contracts, grants and devises misnomer does not invalidate if the identity of the corporation can be established. 1809, Inhabitants of Middletown v. McCormick, 3 N. J. L. (2 Penn. *500) 92; 1816, New York African Soc. v. Varick, 13 Johns. 38; 1820, Berks & D. T._ R. v. Myers, 6 Serg. & R. 12, 9 Am. Dec. 402; 1840, Milford & C. Turnp. v. Brush, 10 Ohio 111, 36 Am. Dec. 78; 1854, Kentucky Sem. v. Wallace, 15 B. Mon. (Ky.) 35; 1862, Mount Palatine Acad. v. Kleinschintz, 28 Ill. 133; 1867, Commissioners v. Louisville Orphans' Home, 3 Bush (Ky.) 365; 1871, Athearn v. Ind. Dist. of Millersburg, 33 Iowa 105; 1873, St. Luke's, etc., v. Association, 52 N. Y. 191; 1873, Walrath v. Campbell, 28 Mich. 111; 1875, Lefevre v. Lefevre, 59 N. Y. 434; 1884, Clement v. City of Lathrop, 18 Fed. Rep. 885; 1889, Chilton v. Brooks, 71 Md. 445; 1895, Woodrough & Hanchett v. Witte, 89 Wis. 537; 1899, Precious Blood Soc. v. Elsythe, 102 Tenn. 40, 50 S. W. Rep. 759.

1 Bos. & Pul., 40; 1 Chitty, 252; 3 Ans., 935. See 2 Bos. & Pul., 339, Elliot et al. v. Davis.

But in England it is, by statute, more serious-leading to individual liability of the corporate officer making the contract. 1858, Penrose v. Martyr, El. Bl. & El. 96 Ê. C. L. 499; 1889, Atkin v. Wardle, 61 L. T. 23.

2. In process.

(a) Issuing summons against a corporation by the wrong name is not a valid beginning of the suit against the corporation. 1835, Bank of Virginia v. Craig, 6 Leigh (Va.) 399; 1878, Pennsylvania Co. v. Sloan 1 Ill. App. 364; 1892, South. Pac. Co. v. Block, 84 Texas 21.

(b) But if process is issued against the corporation in the wrong name, the mistake can be corrected by amendment. 1809, Bullard v. Nantucket Bank, 5 Mass. 99; 1832, Burnham v. Strafford Co. Sav. Bank, 5 N. H. 573; 1857, Lane v. Seaboard & R. Co., 56 N. C. 25; 1860, Edinboro Acad. v. Robinson, 37 Pa. St. 210, 78 Am. Dec. 421; 1860, Keech v. B. & W. R. Co., 17 Md. 32; 1876, Roberts v. Nat'l Ice Co., 6 Daly (N. Y.) 426; 1885, Thompson v. Allen, 86 Mo. 85.

(c) So, if a corporation has process issued for it in a wrong name, it is ground for plea in abatement. 1842, Beene v. Cahawba & M. R. Co., 3 Ala. 660. See infra, under pleadings.

3. In pleadings.

(a) In actions against a corporation, transposition of words or other like, or slight, variations are not material: 1809, Bullard v. Nantucket Bank, 5 Mass. 99; 1814, Sherman v. Conn. B. Co., 11 Mass. 338; 1831, Burnham v. Stafford Sav. Bank, 5 N. H. 446; 1864, Board of Ed. v. Greenebaum, 39 Ill. 610. But see supra, under process (a).

(b) And the corporation defendant may, by appearance, waive what would otherwise be material variations: 1842, Stone v. Cong. Soc., 14 Vt. 86; 1875, Wilton Town Co. v. Humphrey, 15 Kan. 372; 1880, Mobile & M. R. Co. v. Yeates, 67 Ala. 164; 1886, Young v. South T. I. Co., 85 Tenn. 189; 1887, Bate Refrig. Co. v. Gillett, 31 Fed. Rep. 809.

(c) In actions by the corporation, care is required that no part of the name be omitted: 1867, Bartlett v. Brickett, 96 Mass. (14 Allen) 62; 1873, Drumheller v. First U. C., etc., 45 Ind. 275.

(d) But slight variations, not misleading as to the identity of the corporation plaintiff, are not material: 1832, Burnham v. Sav. Bank, 5 N. H. 573; 1838, Mechanics & T. Bank v. Prescott, 12 La. 444; 1869, Thatcher v. W. R. N. B., 19 Mich. 196; 1880, State v. Bell Tel. Co., 36 Ohio St. 296, 38 Am. Rep. 583.

(e) Defendant can take advantage of mistake in name of corporation plaintiff only by plea in abatement: 1841, Gray v. Monongahela Nav. Co., 2 Watts & S. Co. (Pa.) 156, 37 Am. D. 500; 1845, Trustees of M. E. Church v. Tryon, 1 Denio (N. Y.) 451; 1851, Hanover Sav. F. Soc. v. Suter, 1 Md. 502; 1869, Northumb. Co. Bank v. Eyer, 60 Pa. St. 436.

(f) As to effect of judgment rendered in wrong name, see, 1855, Lafayette Ins. Co. v. French, 18 How. (59 U. S.) 404; 1878, Lehman D. & Co. v. Warner, 61 Ala. 455; 1879, Wilson v. Baker, 52 Iowa 423; 1880, Brown v. T. H. & I., etc., Co., 72 Mo. 567.

Sec. 226. Change of corporate name.

CINCINNATI COOPERAGE COMPANY v. BATE.1

1894. IN THE COURT OF APPEALS OF KENTUCKY. 96 Ky. Rep. 356-361, 49 Am. St. Rep. 300.

[The cooperage company sued Bate upon a draft accepted by the Gebhart & Bate Brewing Company. The facts showed that originally

1 Statement greatly abridged, and only part of opinion given. (Cook Corp., § 243, thinks this decision is erroneous.)

the New Albany Brewing Company was organized under the Indiana laws. Afterwards Gebhart, Bate and another acquired all the stock of this company, became its directors, and without complying with the Indiana statute, changed the name to the Gebhart & Bate Brewing Company, and continued to do business in that name. The plaintiff contended that the parties thereby became liable individually or as partners and the superior court so held. On appeal to the Louisville law and equity court it was ruled otherwise, and this is the error assigned.]

*

HAZELRIGG, J. * The name of a corporation is "the very being of its constitution, the knot of its combination, without which it could not perform its corporate functions." (Smith's Mercantile Law, 3d edition, 141.)

"When a corporation is created a name must be given to it, and by that name alone must it sue and be sued and do all legal acts." (I Blackstone's Comm. 474.)

"The law knows a corporation only by its corporate name." (Walker's American Law, 9th edition, 232.)

"A corporation has no right or power of itself to change or alter the name originally selected by it without recourse to such formal proceedings as are prescribed by law." (Beach on Private Corporations, section 275.) The effect of such change of name is an abandonment not only of the corporate name, but of the corporation itself. The identity of the creature authorized by the statute to do business is destroyed. It is in no sense like the case where an individual changes his name. The very being of its constitution is destroyed by an abandonment of its name and an attempted substitution of a new name without authority of law. In the case of Fuller v. Rowe, 57 N. Y. 26, it was said: "Parties assuming to act in a corporate capacity without a legal organization as a corporate body are liable as partners to those with whom they contract." In Robinson v. Harris, 5 Ky. Law Rep. 928, it was held that the corporate existence of associations provided for in chapter 56, General Statutes, depends upon and begins only after the terms of the law are substantially complied with, and until the notice required by section 5 has been published, the association has no right to begin business as a corporation, and because such notice had not been published, the members were held liable as individuals. We concur in the conclusions reached by the superior court in this case, that "The Gebhart & Bate Brewing Company had no right to do business as a corporation until the members had complied with the law. Until they did so, no corporation existed. The stockholders were merely doing business as partners, and as such are individually liable for the debts.' Judgment reversed and cause remanded for proceedings conformable to this opinion.

Note. Change of name.

(a) Corporation can change its name only by consent of the state: 1847, Regina v. Registrar, 10 Q. B. (Ad. & E.), 59 E. C. L. 839; 1884, Goodyear Rubber Co. v. Goodyear, 21 Fed. Rep. 276; 1890, Sykes v. People, 132 Ill. 32.

(b) And the name can be changed only by consent of the shareholders: 1873, Morris v. St. Paul, etc., R. Co., 19 Minn. 528; 1879, Anthony v. International Bank, 93 Ill. 225; 1883, Wells v. Oregon R. & Nav. Co., 15 Fed. Rep. 561; 1899, In re Societe Francaise, etc., 123 Cal. 525.

(c) Such a change made by the legislature is an amendment, under constitutional provisions forbidding special acts: 1876, Chicago D. & M. v. Keisel, 43 Iowa 39; 1899, In re La Societe Francaise, 123 Cal. 525. But see, 1843, Doe v. Norton, 11 Mees. & W. 928; 1882, Hazelett v. Butler Univ., 84 Ind. 230.

(d) Such change, if legal, does not affect the rights, duties or liabilities of the corporation: 1843, The President, etc., of Ft. Wayne v. Jackson, 7 Blackf. (Ind.) 36; 1852, Trinity Church v. Hall, 22 Conn. 125; 1857, Hyatt v. McMahon, 25 Barb. (N. Y.) 457; 1858, Rosenthal v. Madison, etc., R. Co., 10 Ind. 358; 1869, Olney v. Harvey, 50 Ill. 453; 1875, Dean v. La Motte Lead Co., 59 Mo. 523; 1878, Heckel v. Sanford, 40 N. J. L. 180; 1879, Macon & A. R. Co. v. Goldsmith, 62 Ga. 463; 1895, McCloskey v. Doherty, 97 Ky. 300.

(e) Statutes usually provide a method for changing the corporate name: e. g., the laws of Michigan provide that any corporation "organized under the laws of this state may amend its articles of association by a vote of not less than two-thirds in interest of all its stockholders, but before it shall commence any business under its amended articles the said corporation shall cause such amendment or amendments, subscribed by at least two-thirds in interest of all its stockholders, and certified by its president, to be filed or recorded, as the case may be, in the same manner as is provided for in the original articles of incorporation, and when so recorded, such amendment or amendments shall become a part of the articles of incorporation of such company." Comp. L., § 8583.

When a corporation having the right to change its name has done all the statute requires, the secretary of state may be compelled by mandamus to register the change: 1897, State v. Pritchett, S. I. & Lesueur, 141 Mo. 29; 1900, People v. Payn, 161 N. Y. 229.