Gilbert v. Sharkey

Denied May 9, 1916.

On Petition for Rehearing.

(157 Pac. 146.)

Mr. Justice Benson

delivered the opinion of the court.

4. The first assignment of error is to the effect that the trial court erred in admitting in evidence the written contract upon which the action is based. At the time of writing the former opinion this question was dismissed from our consideration, for the reason that the exhibits were not attached to the bill of exceptions. It has since developed that all of the exhibits had originally been properly attache^ thereto, but that by reason of their unwieldy bulk they had become detached in some manner, through no fault of appellant, *329and temporarily mislaid. They are now before us. Defendant contends in an able argument that the contract is irrelevant and incompetent to establish his personal liability, because it appears upon its face to be the contract of a corporation, and not that of an individual. However, the complaint alleges that the defendant was doing business in the name of a corporation which did not exist. The' defendant’s answer recites that the contract was executed by him as president and agent of the H. W. Lemcke Company, a corporation, which was then contemplating a change of its corporate name to that of the John P. Sharkey Company, which change, it asserts, was subsequently, made. These allegations are denied by the reply. It seems to us that in the light of the issues it is beyond the pale of argument that the contract was properly admitted.

A careful examination of the other points urged in the petition fails to convince us of any error in the conclusion reached in the former opinion, and rehearing is therefore denied.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.