pelled by the manner or form of the instrument or its signature.22 Authority does not involve the other party's belief that it did or did not exist, and no allegation about that is material; 23 and it need not be alleged that the officer having authority exhibited the evidence of it to the other party on demanding compliance with the principal's claim of right, denial of which is the cause of the action.24 Allegation that the corporation "made" the instrument includes by implication the authority of the active agent to make it,25 or a general

allegation that he was "duly" authorized or any equivalent words will suffice.26 Pleading that an agent made the contract does not make him a party to the suit, unless he be joined and impleaded.27

When the officer or agent sues on a contract made for its benefit, it is not necessary for him to allege the character of his office or agency.28

Suits by an officer or agent against the corporation, and vice versa, are treated in another chapter, which should be consulted as to the proper pleadings.29 In some actions, for instance mandamus to compel admission to office, the character of the office is vital and it with all incidental facts ultimately supporting his right must be pleaded.30 The chancery practice of anticipating a defense in order to compel a sworn answer from defendant, an accountable agent or officer, is not proper under the codes.31

made "with the plaintiff' is a sufficient allegation that the officer whose name appears on the pleaded copy had authority to make it. St. Paul Land Co. v. Dayton, 37 Minn. 364, 34 N. W. 335.

Allegation that contract was made "by C" in name of corporation need not set out his authority. Johnson County V. Chamberlain Banking House, 74 Neb. 549, 104 N. W. 1061. 26 Canadian Long Distance Tel. Co. v. Seiber, Tex. Civ. App. 159 S. W. 897.

"Acting by and through its duly authorized agents," held sufficient. Southern States Fire & Casualty Ins. Co. v. Lunsford, 192 Ala. 76, 68 So.

273.

"Who

was thereto duly authorized," suffices. Duval Inv. Co. v. Stockton, 54 Fla. 296, 45 So. 497.

Allegation that defendant made a contract "by and through" its superintendent which was ratified by "said defendant by its president,' suffices, though ordinarily allegation that defendant contracted is enough. Cushman v. Cloverland Coal & Mining Co. (Ind. App.), 83 N. E. 390, rehearing denied 84 N. E. 25.

27 Burnett Cigar Co. v. Art Wall

Paper Co., 164 Ala. 547, 51 So. 263.

Complaint against trustees of a French corporation and also against it on a contract held to state cause of action against it and them also, the law of France, where the contract was made imposing such liability. Compagnie Générale de Fourrures & Pelleteries, Anciens Establissements Haendler & Fils v. Simon Herzig & Sons Co., 89 N. Y. Misc. 573, 153 N. Y. Supp. 717.

28 Manager of a corporation bringing suit on a contract made for its benefit. McKee v. Needles, 123 Iowa 195, 98 N. W. 618.

29 See Chap. 42, supra, which also treats of suits by stockholders against officers.

30 Averment of a corporation by name of Trustees of the Academic School" and that plaintiff was one of the trustees, sufficiently avers in mandamus to reinstate plaintiff that there was such a corporate office as trustee. Fuller v. Plainfield Academic School, 6 Conn. 532. And alleging an expulsion of plaintiff alleges tenure and duration of his office sufficiently. Id.

31 Judah v. Vincennes University, 23 Ind. 272.

§ 3058. Stockholder's or member's character and rights or liabilities. In actions between the corporation and third persons there can seldom be any issuable fact concerning the character of a person as a stockholder, except in those actions relating to stock and stock liabilities all of which, together with the actions between it and the stockholders, are hereafter separately treated.32 Generally it is necessary to allege the holding of stock or the right thereto in order to make out the liability.33 It is especially necessary in a stockholders' suit brought in equity in right of the corporation that plaintiff qualify himself by allegations that he is a stockholder.34

§ 3059. Particular causes of action. The statement that the law of pleading is general 35 should be sufficient to dispose of any attempt to show here how particular causes should or must be pleaded. They should be pleaded, so far as the substance of the cause is concerned, just as they would be for or against natural persons; and therefore a work on corporations is not a place of search for precedents save in those actions which by their nature fall within the scope of corporation law. References to the principal ones of these follow. There are various remedies on the liability of the subscriber or stockholder to the corporation, or to its creditors, or to a receiver or other liquidator representing all interests; and the pleading must accord to the nature of the action. The ordinary remedy on the subscription is an action ex contractu in the nature of assumpsit, wherein the contract and the maturity of the liability thereon by formation of the corporation and fulfillment of conditions precedent must be alleged.36 And there may be a remedy against the stockholder or subscriber for a deficiency resulting from forfeiture and sale of his shares, which action must be pleaded with additional facts establishing as a legal conclusion the liability for such deficiency.37 When the action is brought by or for the benefit of creditors, or in order to wind up the corporation, or on assessments of full paid stock, further allegations will be necessary or desirable to set forth the essential facts com

32 Chapter on Stock and Stockholders, infra.

33 Complaint must show that fact at a time essential to the cause of action asserted (action for dividends). Tepfer v. Ideal Gas & Electrical Fixtures Co., 58 N. Y. Misc. 396, 109 N. Y. Supp. 664.

And see many other cases in the

chapter on Stock and Stockholders.

34 See chapter on Stock and Stockholders, subd. Remedies of Creditors, etc., infra.

35 § 3038, supra.

36 See § 657 et seq., supra, and chapter on Stock and Stockholders, infra. 37 See cases cited § 665, supra.

[§ 3060 posing the cause of action. They cannot be detailed here and will be found in other contexts.38 On the stockholder's side the variety of actions which may be brought against the corporation is great, and the diversity of allegations requisite to them is corresponding; but in all of them a prime allegation will be the fact of incorporation and of the relation of plaintiff by contract of subscription or the holding of stock to the defendant corporation. To this must be added such other allegations as make out the particular cause of action or equity asserted, and in pleading it must be remembered that the stockholder stands towards the corporation in a relationship growing out of a contract each being a distinct entity from the other. Therefore the general law of pleading should be resorted to as between any other litigants to determine how and what matters of substance should be pleaded. For particular applications of the rules the reader is referred the respective portions of this work which treat of the rights of the stockholders against the corporation and its officers and fellow stockholders, or against the persons who liquidate or manage its affairs.39

§ 3060. Pleading in extraordinary and special proceedings and equity. The pleadings and practice in quo warranto, mandamus, and injunction as far as dependent on principles of corporation law are discussed elsewhere.40 As to special proceedings under the codes and by statutes no cases have been found susceptible of reduction to general rules applicable to corporations. Each proceeding must be studied according to the local statutes which provide it, adapting, it would seem, the general law of pleading. Various equitable actions. are separately treated herein, and they should be consulted.41 In

38 See chapter on Stock and Stockholders, infra.

39 Fraud in inducing subscription, see §§ 627-629, supra.

Invalid forfeiture, see § 666, supra. Right to stock or certificates, to dividends or distributive rights, or to damages for denial of rights or refusal to transfer, see chapter on Stock and Stockholders, infra.

Statutory and equitable remedies against corporation, its officers, or controlling majority, see chapter on Stock and Stockholders, infra, also Chap. 42, supra.

Remedies relating to voting and

elections, see §§ 1699-1704, supra.

Remedies relating to corporate books and records and right to inspect same, see chapters on Corporate Books and Records; Inspection of Corporate Books and Records, supra.

Suits for receiver or for dissolution, see chapters on Receivers; Forfeiture, Dissolution and Winding Up, infra.

For other and more detailed references consult the general index.

40 See chapters bearing those titles, infra.

41 See chapters on Injunction; Receivers; Stock and Stockholders, infra.

many particulars the pleadings are substantially the same in equity and at law, requiring treatment together, and some of such matters are treated in previous sections.42 Beyond those resort should be had to the general law of equity pleading where the separate systems are still maintained.43 In a bill joining a member for purpose of discovery only it is not necessary to allege that he possesses information not common to other members.44

§ 3061. Pleading in justices' and other informal tribunals. The informal pleadings in certain inferior courts, especially before justices of the peace, and on appeals from them, present nothing distinctive in corporation actions. Plaintiff must prove all material facts, including corporate existence, precisely as if pleas were filed.45 The summons or writ suffices to allege corporate name and existence,46 or if alleged it need not be formally done.47 Amendments may be allowed to show jurisdictional facts.48

§ 3062. Joining and separating causes of action-In general. Except that involved in the distinction between the corporation and its members, there is nothing peculiar to corporation actions in the law. regulating the joinder of causes and separation of counts.49 The cases

42 See §§ 3038-3058, supra, and $ 3065 et seq., infra.

43Unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished."' New Equity Rule 18.

In federal equity practice the contents of the bill is now regulated by New Equity Rule 25 which states what the bill must contain. See the full text of this rule 226 U. S. App'x. 44 Wright v. Dame, 1 Metc. (Mass.)

237.

45 Town of Lewiston v. Proctor, 27 Ill. 414, where plaintiff was a municipality.

On appeal from a justice where the statement is sufficient to apprise defendant of the nature of the claim and specific enough to bar another it authorizes evidence an issue of incorporation. Mitchell Furniture Co. v. Payton, 4 Mo. App. 564.

46 Summons in plaintiff's name from justice court sufficiently avers incorporation. Wilson Sew. Mach. Co. v. Spears, 50 Mich. 534, 15 N. W. 894.

In a police court, where written pleadings are not needed, the writ describing defendant as a corporation will establish it unless special demand for proof is made (Pub. St. c. 167, $$ 87, 89); and on appeal from it the issue so waived cannot be raised. Cabana v. Holyoke Conclave, No. 20, A. O. F., 160 Mass. 1, 34 N. E. 1135.