Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-02-17
Supreme Court

! Dakota. October, 1911, term.
McCOnnol & Company, Plaintiff and
Respondent. VS.. Lauritz Laursen, ct
AL. Defendants, and Walter Nelson
and Knud Christensen, APPELLANTS.
/. The complaint alleges that plain
tiff as and was a corporation duly
organized and existing according to
law and sets out in full the contract
for breach of which suit is brought in
which plaintiff, party of the first part,
is designated as "A Corporation OF
Winona, Minnesota HELD, that the
complaint by reasonable inference al.
leges that the plaintiff is a foreign
corporation, and that it was not error
for the trial court to overrule the
demurrer to the complaint upon the
ground that the complaint did not con-
tain the allegations required by Sec
ton 1851 of the Revised Codes of 1905.
2. BY the express provisions of Sec
ton 1862 of Revised Codes of 1905,
in an action by a corporation, the
plaintiff need not prove upon the trial
the existence of the corporation, un-
less the answer. an allegation of which
denies the existence of the corpora
ton, is verified. In the case at bar
the answer is not verified; therefore
the admission of incompetent evidence
tending to prove corporate existence
of plaintiff was not prejudicial to the
defendant, and Is not grounds for re-
versing the judgment of the trial.
court
3. On the back of the written in
strument containing all the terms
and conditions of a contract whereby
the plaintiff is to sell and deliver to
Defendant, Laursen, good, wares and
merchandise. f. o. b. Winona, Mime
sofa, is endorsed in writing the fol-
lowing: ''In consideration of the sum
of one dollar to use in hand paid by
the party of the first part. and in fur
Their consideration of the execution
by it of the within agreement, and
the sale and delivery of it's goods
as herein provided to the party of
the second part, we, the undersigned,
jointly and severally guarantee to the
said party of the first part, it's sue
cessors and assigns, the full and COM
plete payment of all Indebtedness Of
the party of the second part to the
party of the first part arising under
said agreement. according to the
terms and conditions thereof, and at
the time and in the manner provided
therein.
(Signed) Walter Nelson, (SeaU
(Signed) Knud Christensen, (Seal)
Held, that such endorsement is an
absolute guarantee to pay for such
goods as are delivered to Defendant,
Laursen by the plaintiff pursuant to
the instrument on which such indorse-
ment is contained, requiring no notice
of acceptance by plaintiff, and that it
is immaterial as to whether the con-
sideration of one dollar, stipulated
therein. was or was not paid, and i'm.
material as to whether the instru.
meat on which such Endorsement was
contained, was signed by plaintiff at
the 'me such endorsement was signed
by the defendants, guarantors, and
immaterial as to whether defendants
| guarantors, were notified of the de-
fault of Defendant, Laursen, principal
debtor, within a reasonable time after
his default.
! OSyllabus by the court.)
Action on Guaranty. From a judg
ment of the district court of Barnes
county. Burke, Judge. in favor Of
plaintiff, defendants Nelson and Chris
Jensen appeal.
! Affirmed.
Page & Englert. attorneys for ap
pellant
Lee Combs, attorney for respon.
dent. (Tawney, Smith & Tawney O.
i counsel.)
! Opinion by Nuchols, district Judge
|, Mr.. Justice Burke being disquali
fled. did not participate.
\ Hon. S. L. Nuchols of the 12tf
Judicial district sitting in his place
by request.