Year: 1875

NEW CAslLH, June x, 1910.


Court opened at 10 o'clock, Judges
Gilpin, Houston and Woottcn on the
bench


EThc case of McCaulley vs. Jenny was
resumed and by 11:30 o'clock all the
testimony was in.


Counsels on both sides then proceed
ed TO argue the case, after which Chief
Justice Gilpin delivered his charge to
the jury substantially as follows:


Gentlemen Of the jury--The action
Which you are empanelled to try Is call
cd an.action of covenant and is institu-
ted by the plaintiff, Robert McCaulley,
to recover damages on account of GER
tain breaches of an agreement which
the defendant. Nicholas Jenny, had
entered into, which is evidenced under
the hands and seals of the parties of
that agreement.


McCaulley is q plasterer, and brings
suit ts recover for material furnished
and labor performed on certain build.
ings in what is known as the Schuetzen
Park. The terms of the contract have
been read to you and you will have
observed that Mr. Jenny entered into
this agreement describing himself as
President of the Wilmington Rifle
Club, and wherever his name appears
II is as President. You will also OBJ
serve that the building itself Is describ-
cd as being owned by the Rifle Climb.
The learned counsel for the plaintiff
insists that by this paper, although
Jenny is so described, that he person
ally, individually and not officially en-.
tered into the contract, and that he Is
therefore, responsible for the work
done.


A party may bind himself and be.
come responsible under his covenant
Tor the payment of the debts of COM
pany, il such was the intent of the in-
strument signed by him. In the in
cepti0n OF this case was not aware
that there were any pleas other than
Mo1eesJdet"m. II nothing else appeared
Jenny would be responsible, but he
atterwaId further pleaded that he, in
signing it, did lit us President of the
Wilmington Rifle Club. This plea is
somewhat informal, and the plaintiffs
counsel could have demurred but he
took issue and went to the jury. That
plea, though informal, is substantially
good one, and gives the defense an
opportunity to show thecircumstances
under which the paper was executed,
that he executed it as President and
under the authority of the Rife Club.
That is the reason upon which the de-
fendant can show whether Jenny did
this upon his own responsibility or not,
and whenever such plea Is put in 1t
is incumbent TO show that he was nu-
thoriZcd. In tins case he shows it by
resolution of the club to have 1t done,
There is also evidence to show that
Jenny was authorized to make the
contract between McCaulley and TIE
ltiilc Club. So, too, you have further
evidence that after the work was COM
pleted the plaintiff presented his bill
to the Rifle Club for his work. This
is testimony which you are to consider
as bearing upon the understanding
whctAcr.or not this defendant entered
into the contract by the direct autho-
rily of the Rifle Club. The learned
counsel for the plaintiff objected to its
Introduction upon the assumption that
1t was an attempt TO vary the charac-
ter of the writing. 1t was admitted
because it went to show the relation of
the parties and remove the embarrass-
mcnt before the jury and to show the
meaning OF the parties to it. Ii moth
ing had been said of Jenny as Presi.
dent ! would not hesitate to charge
against it. New it is said that YOU
must treat it as his covenant because
it does not in law constitute a cove
nant on the part of the Rifle Club. 1t
Is true that ii docs not rs q covenant
hind the Rifle Club for the reason that
il beinga corporation can only make a
covenant under its corporate SEAL
Nevertheless if work is done for q cor
poration there is an action against it
which would be only change in this
c)Se from that of covenant to assump.
sit. This finds the company and they
are bound to pay. The rule of law Is
this-that where paper is made on
behalf of IL corporation with its autho-
lity and appreciation the party making
it is its agent and the corporation must
lie held liable. This is we'll settled
law and there is reason for it, because
corporations must act by agents.


Something has been said in regard
10 the act of Incorporation in this case
The plaintiffs counsel says the work
was done before this charter was re-
corded. This he holds as an objection
and If he meant anything 1t was that
there was Mt that time no corporation.
We say that the act was good at the
time it was passed for one year. 1t
was passed February II, 1871, and re-
corded December 16 OF the same year.
Therefore, it was valid from the time
of lis passage, and the objection of
counsel on this point amounts to moth.
ing, What is the question for the jury
TO dispose of? The way you will view
it will be whether this defendant is Ii:
able or not. In executing the contract
did this party do it on his own rcspon-
sibility or on the other hand did he do
it on behalf of the Wilmington Rifle
Club. To determine that you must
say whether you believe the testimony.
If you arc not satisfied with the evil
dence on this point you must conclude
that he did 1t on his own responsible
ty. He says he did not. Do you be-
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