Under some of the statutes there is no express provision for verifications by or for corporations pointing out the person or officer who is to make the verification, and it then becomes a question how the statutes applicable to persons shall be applied to corporations, if at all, and who may verify under them. Generally an affidavit or verification required of a corporation party may be made by any of its officers or agents or other person cognizant of the facts.93 Some of the states hold that a person competent for service is competent to verify.94 Statutes regulating verifications by "a party" necessarily apply to a corporation if it is a party, and its attorney authorized by the statute to verify for "a party" may do so for it.95

In other states the statute provides a way in which corporate parties shall make verification and by whom it is to be done. Within such a statute an "officer" has been held to include any officer and not only the one served,96 also a director,97 a manager,98 a member of a liquidating committee,99 and an agent designated by a foreign corporation.1

93 President could make affidavit for certiorari. Ex parte Heflin, 54 Ala. 95.

94 The agent who was served and who is conversant with the facts may verify the petition for certiorari to a justice. Hunt v. Atchison, T. & S. F. R. Co. (Tex. Civ. App.), 28 S. W. 460.

95 A domestic corporation is a party "within the county" where its principal place of business is, and therefore, an attorney may verify in an action by it in the county where he resides (Code Civ. Proc. § 525). High Rock Knitting Co. v. Bronner, 18 N. Y. Misc. 627, 43 N. Y. Supp. 725.

May be verified by attorney the same as with natural persons for clients. Market Nat. Bank v. Hogan, 21 Wis. 317; Western Bank v. Tallman, 15 Wis. 92.

96 Under Code Civ. Proc. § 446, "the verification may be made by any officer," and this includes the vice president (verification of petition in insolvency of corporation's debtor). In re Close, 106 Cal. 574, 39 Pac. 1067.

Affidavit of defense need not be

made by officer served. Kinney v. Harrison Manufacturing & Boiler Co., 22 Pa. Super. Ct. 601.

97 Eastham v. York State Tel. Co., 86 N. Y. App. Div. 562, 83 N. Y. Supp. 1019; Bigelow v. Whitehall Mfg. Co., 1 N. Y. City Ct. 138.

98 Stockton Lumber Co. v. Blodgett, 3 Cal. App. 94, 84 Pac. 441.

A managing agent who may be served is also an officer who may verify. Glaubensklee v. Hamburgh & A. Packet Co., 9 Abb. Pr. (N. Y.) 104.

Assistant district manager deposing that he is an officer (Code, § 207) may verify. Southern Cotton Oil Co. v. Lightsey, 100 S. C. 41, 84 S. E. 301.

99 Wills v. James Rowland & Co., 117 N. Y. App. Div. 122, 102 N. Y. Supp. 386.

1 A foreign corporation admitted to the state and with a designated agent is not "absent" so as to enable an agent or attorney to verify (Oregon Code Civ. Proc. § 79); but such agent is "any officer" of such corporation and may verify as such if he has "personal knowledge." West v. Home Ins. Co., 18 Fed. 622.

Unless such a statute is restrictive to officers or others designated, any person conversant with the facts and with ability to make the required oath may verify. The statutes of New York allow an officer to make it and alternatively in stated circumstances the attorney may do so, and in Nebraska a statute pointing out the attorney as a competent person to verify, was held not to require that he be competent for service, merely because that was also one of the qualifications of a verifying agent.4

In respect to a petition for removal to the federal courts, now required to be verified (and formerly verified as a common practice or because the state statutes required pleadings to be verified) but not expressly required to be signed under the present or former statutes,5 numerous decisions have been made. As the present statute does not specify how or by whom the verification shall be made, these decisions may be instructive or even decisive. A signature by the president,

2 The provision for verification by an officer is permissive. Another who is conversant with the facts may make it. H. G. Bittleston Law & Collection Agency v. Howard, 172 Cal. 357, 156 Pac. 515.

Under specific statute (Code, § 62) any officer, stockholder, agent, superintendent or attorney of the corporation may verify (verification by attorney). Tulloch v. Belleville Pump & Skein Works, 17 Colo. 579, 31 Pac. 229.

Managing or local agent may verify as well as officer (Code, § 258 as amended), but formerly only an officer could do so. Godwin v. Carolina Telephone & Telegraph Co., 136 N. C. 258, 67 L. R. A. 251, 103 Am. St. Rep. 941, 1 Ann. Cas. 203, 48 S. E. 636, distinguishing Phifer v. Travelers' Ins. Co., 123 N. C. 410, 31 S. E. 716; Banks v. Gay Mfg. Co., 108 N. C. 282, 12 S. E. 741.

3 The intendment of the statute is to permit verification by domestic corporations either by an officer as representing the party" (Code Civ. Proc. 525, subd. 1), or by an attor ney if the corporation is foreign or "is not within the county" and is

domestic (same section, subd. 3). It is therefore not always essential for an officer to verify for a domestic corporation. High Rock Knitting Co. v. Bronner, 18 N. Y. Misc. 627, 43 N. Y. Supp. 725.

In municipal court of New York a corporate defendant's answer need not be verified by an officer. The attorney may do so (Mun. Ct. Act, § 164). Chadwick v. Waldorf Steam Laundry Co., 54 N. Y. Misc. 618, 104 N. Y. Supp. 746; Climax Specialty Co. v. Benjamin C. Smith & Sons, 31 N. Y. Misc. 275, 64 N. Y. Supp. 42, 7 N. Y. Ann. Cas. 373, 64 N. Y. Supp. 42.

4 Under Code Civ. Proc. § 120, the attorney may verify, though he cannot be served with summons. The concluding words "or any officer or agent on whom summons could be legally served" does not require that capacity of the attorney. Beatrice Rapid Transit & Power Co. v. German Nat. Bank, 45 Neb. 147, 63 N. W. 374. 5 See Judicial Code, § 29.

6 A petition signed by the president was entertained but denied on the merits in Weeks v. Billings, 55 N. H. 371.

the general agent," the attorney, if of the court to which it is presented, seems to be sufficient and probably the act of presenting the petition when clearly that of the corporation suffices without much regard to the signature.10 The verification may be made by some person who knows the facts, e. g., its attorney, under the present statute.11 Before that an agent's 12 or officer's 18 verification had been accepted. None but allegations of fact are to be verified and if no facts are stated no verification is needed; 14 and they may be "duly verified" on information and belief.15

§3084. Issues, variance and admissions-In general. Ordinary rules for the construction of the pleadings and their effect govern in corporation actions.16 By construction a plea may be regarded as one

of nul tiel corporation though couched in the language of a plea ultra vires,17 and a plea that the laws of the corporation were violated may be treated as an allegation of misdoing by defendant promoters.18 Immaterial matters likewise will be disregarded.19 It is bound by its own allegations as any other party,20 in construing the pleadings against the pleader exhibits though not a part of the pleading may be examined as an aid to understanding them.21 By pleading a resolution set out with an allegation that it was so resolved, no issue is made as to the truth of the facts recited by it without an allegation affirming such facts.22 All facts involved which are legally presumed on the pleadings as they stand 23 are taken as established and out of the issues until overcome by evidence. If no answer is made the admission is limited to the pleaded facts of the bill or complaint.24 A defense, such as fraud, may admit that the contract was made as al

Dennette v. Boston Securities Co., 206
Mass. 401, 92 N. E. 498.

17 Denial of validity of a contract predicated on denial that plaintiff is de jure or de facto a corporation is plea of nul tiel corporation and not one of ultra vires. Rialto Co. v. Miner, 183 Mo. App. 119, 166 S. W. 629.

18 In an action against promoters and the corporation to recover the price of land, allegations of failure to observe the corporation laws, were construed as incidental to the main purpose of charging the individuals. Delgarno v. Middle West Portland Cement Co., 93 Kan. 654, 145 Pac. 823.

19 On a suit to charge the corporation for debts of its incorporators on the ground that they fraudulently transferred merchandise to it, it is immaterial what they did with their stock, and equally so if the suit is on the theory of assumption of their debts. Byrne & Hammer Dry Goods Co. v. Willis-Dunn Co., 23 S. D. 221, 29 L. R. A. (N. S.) 589, 121 N. W. 620.

20 Plaintiff cannot deny that defendant sued as a corporation is such, or that it has its office where the charter locates it. Etowah Milling Co. V. Crenshaw, 116 Ga. 406, 42 S. E. 709.

Corporation is bound by facts alleged that an action taken was authorized by directors. Grants Pass Hardware Co. v. Calvert, 71 Ore. 103, 142 Pac. 569.

The relation of an officer to the corporation cannot be affirmed and denied in the same pleading. O'Rourke v. Grand Opera House Co., 47 Mont. 459, 133 Pac. 965.

21 An exhibit attached to the answer of a corporation denying that it was formed under a later act, may be looked into, not to make the answer good but to show that what was done amounted to a reorganization under the later act. Com. v. Licking Valley Bldg. Ass'n No. 3, 118 Ky. 791, 26 Ky. L. Rep. 730, 82 S. W. 435.

22 A statement contained in a copied or quoted resolution embodied in an answer with an allegation that it was so resolved does not amount to an allegation that the statement is true (answer in a stockholder's suit). Coquard v. St. Louis Cotton Compress Co. (Mo.), 7 S. W. 176.

23 As to presumptions generally in such actions, see § 3090 et seq., infra. 24 Frye v. Bank of Illinois, 10 Ill. 332.

[§ 3084 leged, and overcome a denial of it.25 Admission of any fact may be made by other means than by the answer or subsequent pleadings. For example a motion presupposing a dissolution admits it 26 or taking an appeal may admit it 27 while an appearance admits the corporate existence and also its name as pleaded.28

Pleading or admitting any fact admits such other facts as are presupposed or necessarily implied, but no more. The general issue to a contract admits defendant corporation's existence and capacity but not its particular powers, 29 or even the time when the existence began, if that is material.30 Admission of incorporation does not include the corporate liability or the facts thereof.31 The admission of the defendant's corporate existence by suing it as such is likewise

25 Baines v. Coos Bay Nav. Co., 41 Ore. 135, 68 Pac. 397.

26 Moving for a substitution of trustees on the assumption that a forfeiture has occurred. Kehrlein-Swinerton Const. Co. v. Rapken, 30 Cal. App. 11, 156 Pac. 972, where, however, the question was passed without decision.

27 Appealing from justice of the peace and filing bond as corporation proves incorporation in the circuit court. L. Gerlinger Co. v. Labadie, 41 Ill. App. 283.

On appeal to the court from an assessment and levy of ditching costs, no issue as to incorporation can be made. Foster's Branch Ditching Co. v. Makepeace, 45 Ind. 226.

See also § 3125, infra.

28 A party which has appeared under the name sued by, cannot say that it is not a corporation or not properly named, or that the complaint was silent on these facts. Butterfield v. Graves, 138 Cal. 155, 71 Pac. 510.

See also 3019, supra, as to admissions by appearance.

29 Foreign corporation. Phenix Bank v. Curtis, 14 Conn. 437, 36 Am. Dee. 492.

Admits capacity to bring the action, e. g., one for possession of land. Society for Propagation of Gospel v.

Pawlet, 4 Pet. (U. S.) 480, 7 L. Ed. 927.

General issue admits only the existence of the corporation and capacity to sue (or be sued), and the unpleaded fact that conditions precedent to liability on the cause of action (contract of subscription) was performed is not admitted. Penobscot & K. R. Co. v. Dunn, 39 Me. 587; Oldtown & L. R. Co. v. Veazie, 39 Me. 571.

30 General issue pleaded by corporation admits competency to sue or be sued, but not the time when it was acquired; hence it may show against a plaintiff suing as stockholder that it was not organized when his claim to stock originated. Freeman v. Machias Water Power & Mill Co., 38 Me. 343.

Admission of corporate existence in the present tense in an agreed statement will not conclude party as to existence at an earlier time. Maryland Tube & Iron Works v. West End Improvement Co., 87 Md. 207, 39 L. R. A. 810, 39 Atl. 620.

31 Admission of incorporation by failure to deny it under oath does not make admission of corporation's ownership of dangerous wires covered by a general denial. Freeman v. Missouri & K. Tel. Co., 160 Mo. App. 271, 142 S. W. 733.