
    Thomas H. Wentz’s Admrs., Plffs. in Err., v. T. S. C. Lowe.
    One who has dealt with a corporation as such cannot, in a suit arising out of the transaction, controvert its incorporation.
    The question whether a new trial has been granted in a case must be determined by the record.
    Note. — One who has contracted with a corporation cannot deny the corporate existence in a suit arising therefrom. Cochran v. Arnold, 58 Pa. 399: Spahr v. Farmers’ Bank, 94 Pa. 429; Johnston v. Elizabeth Bldg. & L. Asso. 104 Pa. 394. In any ease corporate existence must be specifically denied by the defendant to take advantage of the want of it. Act May 25, 1887 (P. L. 271).
    (Decided May 10, 1886.)
    Error to the Common Pleas of Montgomery County to review a judgment for defendant in an action upon a promissory note.
    Affirmed.
    In 1875 Thomas H. Wentz furnished materials for the repair of a building of which the People’s Gas Light & Euel Company was the reputed owner. The materials were ordered by T. S. C. Lowe, and a mechanics’ lien was filed against the building. Lowe gave to Wentz his promissory note for $2,000, in payment, as the latter claimed, for this material. Upon this note $500 was subsequently paid, and the note renewed for $1,500.
    Wentz brought suit upon the latter note, claiming that the materials were furnished on the credit of Lowe; and offered evidence to prove that there was no such company as The People’s Gas Light & Fuel Company, excepting on paper. The court rejected this testimony, and its action in this respect was assigned for error.
    At the trial the defendant set up that the note was an accommodation note which he had loaned to plaintiff. The court left it to the jury to find whether it was such, instructing them that if it was, their verdict must be for defendant; but if it was a note given in payment of the material furnished to the People’s Gas Light & Fuel Company, their verdict must be for plaintiff.
    The jury returned a verdict for defendant.
    
      A motion for a new trial was made before tbe trial judge, tbe late Judge Ross, and plaintiffs claimed that it was granted; but the judge died before a retrial was had.
    The case was argued before bis successor, Judge Stinson; and a paper purporting to be an order for new trial was produced in evidence and filed in tbe case. Judge Stinson held the case under advisement until the' expiration of his term; and his successor, Judge Boyer, after argument of the case, denied tbe motion for new trial; and tbe plaintiff Wentz having died, bis administrators brought tbe case here on writ of error.
    
      George N. Corson, for plaintiffs in error.
    Where tbe judge prominently presents one side and ignores tbe theory of the other, it is cause for reversal. Goersen v. Com. 99 Pa. 388.
    Tbe meaning of words used in conversation is exclusively for tbe jury. Brubaker v. Okeson, 36 Pa. 519.
    We said tbe alleged company was a fraud in fact, and that is a question exclusively for tbe jury. Dornick v. Reichenback, 10 Serg. & R. 84; Jack v. Dougherty, 3 Watts, 151; Avery v. Street, 6 Watts, 247; Graham v. Smith, 25 Pa. 323; Loucheim Bros. v. .Ilenszey, 77 Pa. 305.
    Where tbe language of tbe charge as to tbe true character of the testimony tends to mislead tbe jury, it is error and a ground for reversal. Paweett v. Pawcett, 95 Pa. 376; Pistorius. v. Com. 84 Pa. 158.
    Tbe judge should studiously avoid deductions and theories, not warranted by tbe evidence. Burke v. Maxwell, 81 Pa. 139.
    Tbe judge must not mislead tbe jury. Mohney v. Evans, 51 Pa. 84; Ralston v. Groff, 55 Pa. 276; Ditmars v. Com. 47 Pa. 335.
    
      Charles Hunsicker, for defendant in error.
    It was held in Cochran v. Arnold, 58 Pa. 399: “Tbe validity of a corporation formed under tbe manufacturing law of April 7, 1849, cannot be inquired into collaterally.”
    Until tbe franchises of such corporations have been adjudged by proceedings by tbe commonwealth not to exist, it is a corporation de facto at least. Paterson v. Arnold, 45 Pa. 410, overruled.
    Parties who contract with a corporation as such cannot deny its corporate existence. Spabr v. Banners’ Bank, 94 Pa. 429, and tbe cases there cited.
   Per Curiam :

This case turned on a question of fact. The evidence was conflicting, but it was submitted to the jury in a clear and correct charge. The plaintiff, who dealt with the People’s Gas Light & Fuel Company as a corporation, cannot in this suit and in the manner proposed controvert its existence as such.

Whether a new trial had been granted by either or both of the predecessors of the present judge was to be determined by the record. The present court committed no error in holding that all the outside papers failed to establish that fact.

Judgment affirmed.

Motion for reargument denied on May 28, 1886.  