
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1894.)
    Before Smith and Swing, JJ.
    The Elektron Mfg. Co. v. The Jones Bros. Electric Company.
    
      Action by foreign corporation — Failure in petition to aver, or at trial to present testimony to show, incorporation under law of other state— Effect — Dismissal of suit on that ground— When error.
    
    A general denial of the cause of action in the answer will not avail the defendant to bring in ques ion the right or capacity of the plaintiff to maintain its action ; if this is desired, a special plea in the nature of a plea of abatement should be made.
    In an action by a foreign corporation on a note, an answer admitting the execution of the note is a prima facie admission of the plaintiff corporation’s capacity to contract and to sue.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This was an action in the court of common pleas by the plaintiff in error against the defendant in error, on a note, of which the following is a copy :

“ Cin’ti, Sept. 12, 1890.
“ Four months after date, we promise to pay to the order of The Elektron Mfg. Co. three hundred and fifty-eight dollars. Value rec’d. Payable at bank here.
“$358.00. The Jones Bros. Electric Co.,
“Per W. H. Jones, President.”

Plaintiff, also, for a second cause of action, set out an indebtedness on an account.

Defendant answered, admitting the execution and delivery of the note as set out in the petition, but alleged payment. Also, by way .of counter-claim, he set up matter as a defense, and by way of a cross-petition, asked for damages. The answer further said that defendant denied- each and every allegation not therein admitted.

Campbell & Warner, for plaintiff in error.

Pogue, Pottinger & Pogue, for defendant in error.

Plaintiff introduced evidence tending to prove the allegations of its petition, and rested ; and thereupon the defendant moved to court to instruct the jury to return a verdict for the defendant, upon the ground that the plaintiff had failed to present any testimony to show that' the plaintiff was a corporation under the laws of the state of New York, which motion the court granted. For this action of the court, error is prosecuted in this court.

The petition was in this form : “ The Electron Manufacturing Co., a corporation under the laws of New York, plaintiff, v. The Jones Bros. Electric Company, a corporation under the laws of Ohio, defendant.

There was no allegation in the body of the petition as to the corporate existence of either the plaintiff or the defendant. In our judgment it was error in the court to instruct the jury to return a verdict for the defendant for the reason given.

We think the caption is in the nature of a descriptio personae, and forms no part of the allegation which sets forth plaintiff’s cause of action ; and a general denial will not avail the defendant to bring in question the right or capacity of the plaintiff to maintain its action; if this is desired, a special plea in the nature of a plea-in abatement should be made.

It further appears to us that the defendant having by its answer admitted that it had signed the note set out to the Electron Mfg, Co., that that was a prima facie admission that the plaintiff was a corporation, with capacity to contract and to sue, and that it would require affirmative evidence on the part of the defendant to rebut this, provided that there was such an issue raised in the pleadings. See 74 Mo. 101.

The judgment of the court of common pleas will therefore be reversed, and the cause remanded for further proceedings.  