St. Paul Land Co. v. Dayton

DicKinson, J. The defendants separately demurred to the complaint. Both demurrers will be considered in this opinion. The demurrers admit the corporate existence of the plaintiff, which is sufficiently alleged in the complaint. The complaint also shows the making of the contract sued on between the president of the plaintiff, contracting in its behalf, and the defendants, whereby the latter contracted to convey the lands in question to the plaintiff. The demurrer admits the making of this contract. Upon these facts the plaintiff *366 might rest, without affirmatively showing that by its charter it was ■empowered to make such a contract, or to purchase and hold real property. It need not specifically allege, as it need not prove, that the contract made with the defendants, and upon its face valid, was not ultra vires. Baker v. N. W. Guaranty Loan Co., 36 Minn. 185 , ( 30 N. W. Rep. 464 ;) Bliss, Code Pl. 257. The allegation that the defendants duly made and entered into the written contract “with the plaintiff” is sufficient, at least upon demurrer, as an averment that Hager, who in terms executed the contract in its behalf, was authorized to do so. Although the seal be rejected as unauthorized, the instrument would be valid as a simple contract. Dickerman v. Ashton, 21 Minn. 538 ; Thomas v. Joslin, 30 Minn. 388 , ( 15 N. W. Rep. 675 .) The summons and complaint were against both of these defendants; and the fact that one of them, May I. Dayton, had not been served, so as to have been brought within the jurisdiction of the court, at the time when Lyman C. Dayton interposed his separate demurrer, afforded no ground for his demurrer to the complaint. The orders overruling the demurrers of both defendants are affirmed.