
    RICHARD MORRISON, Respondent, v. THE CORPORATION OF BRADLEY, BERDAN & COMPANY, Appellants.
    The plaintiff cannot recover against “the corporation of Bradley, Berdan &Co.,” upon a written contract entered into between himself and “ Bradley & Co.;” as the contract was not made by the corporation.
    If, however, a deceit was practiced on the plaintiff, and the circumstances of the case were such as to raise the presumption that the corporation was cognizant of the deceit, and fraudulently participated in it, by availing itself of the plaintiff’s labor, it is liable, not upon the written agreement, but for work and labor.
    Appeal from the District Court of the Eleventh Judicial District, El Dorado County.
    The plaintiff sued for the sum of nine hundred dollars due upon a contract, of which the following is a copy:
    “ This agreement, made and entered into this 20th day of June, A. D. 1853, by and between Richard Morrison and Bradley, Berdan & Co., witnesseth, that the said Richard Morrison agrees to work faithfully for the said Bradley & Co., under the direction and to the satisfaction of the Chief Engineer of the corporation of Bradley, Berdan & Co., for the period of twelve months or longer, should the parties agree. And the said Bradley & Co. agree to pay him at the rate of seventy-five dollars per month and his board. Ten dollars per month to be paid as wanted, and one-half of the remainder at the expiration of eight months, and the other half at the expiration of the year.
    (Signed.) “Beadley & Co.”
    Plaintiff proved the length of his services, and the execution of the contract.
    It was in evidence, that Bradley & Co., a corporation distinct from the defendants, had been in the habit of hiring workmen in the above manner for the corporation of Bradley, Berdan & Co., and that the latter were aware of the manner in which they were engaged, and employed them upon their works.
    The jury fouud a special verdict for the plaintiff. The Court, after argument, rendered a judgment for the plaintiff. Defendants appealed.
    
      
      Robinson & Beatty, for Appellants.
    
      Thomas H. Hewes, for Respondent.
    To the point decided by the Court, no authorities were cited by counsel.
   Murray, C. J., delivered the opinion of the Court.

Heydenfeldt, J., concurred.

The plaintiff declares upon a written contract, entered into between himself and Bradley & Co.

It is evident, that he cannot recover against the corporation, as the contract was not made by it. If, however, the circumstances of the case were such, as to raise the presumption that the corporation was cogniz ant of the deceit practiced; and fraudulently participated in it, by availing itself of the plaintiff’s labor, it is liable, not upon the written agreement, but for work and labor, and the declaration should have contained a count to this effect.

Judgment reversed and cause remanded, with leave to the plaintiff to amend his declaration.  