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The question is, therefore, whether the findings of fact are sustained by the evidence. We have carefully read the evidence, and are satisfied that as to the greater part of the facts found the evidence is amply sufficient to sustain the findings. Among these facts so sustained by the evidence are the following: That the plaintiff's losses by the fire were over $14,000; that the plaintiff was unable to obtain the money from the insurance companies without the signature of the defendants to the proofs and checks; that the defendants refused to sign until the plaintiff had contracted to pay $666.74 out of the insurance moneys to the defendants; that the plaintiff would have suffered great hardship and injury in its business if it had been deprived of its insurance moneys for any considerable time; and that the plaintiff actually paid the sum of $506.74 upon said forced agreement. The only other fact remaining necessary to be found in order to establish a good case is the fact that the claim of the defendants against the plaintiff for $666.74 was an unjust and unfounded claim. This is, of course, a vital fact, and if it did not exist—i. e., if the claim was in fact a valid one-the action certainly will not lie, because it is of the gist of the action that the money extorted be upon a groundless claim.

599 It is vigorously claimed that the evidence shows the claim of the defendants to receive $1,000 for the building was a valid one. This contention is based upon the agreement to insure contained in the lease, which, the defendants claim, has not been carried out. This agreement was, in effect, that the plaintiff would keep the buildings and machinery insured for not less than $6,200, payable, in case of loss, to defendants, as their interest may appear. No amount is specified which should be put upon any one building or upon the machinery. That was apparently left to the judgment of the plaintiff. Now, was this agreement fulfilled? If it was, then the defendants had no just claim for any more than the amount for which the building destroyed was insured. The evidence shows that all the policies were joint policies, and there seems no doubt but that this fact was known to the defendants. They were payable to the plaintiff and to the defendants as their interest might appear. There was undisputedly $3,333.26 of the insurance upon the main building which was destroyed, $833.50 upon the engine and boiler house, and $3,333.26 upon the engine and boiler and connections; thus making about $7,500 in gross upon the buildings and engine and boiler. This sum was in fact all payable to the defendants if their interest in the two buildings and the engine

and boiler amounted to that sum. It will be remembered that, though the plaintiff furnished the engine and boiler, the lease, which was executed by both parties under seal, provided for a lien in favor of the defendants upon the boiler and engine for all unpaid rent, so that the defendants might, in fact, have a large interest by way of lien upon that part of the machinery. It appears by the evidence that at the time of this fire there was nearly $1,900 of unpaid rent. Under the lien provision of the lease, this sum seems to have been a lien upon the engine and boiler, and, had they been destroyed, the defendants would have been protected to that amount in addition to the protection afforded by the insurance 600 on the buildings. Certain it is that at the time of this fire there was $7,500 in gross of insurance upon the defendants' two buildings and upon the engine and boiler, which was payable to the defendants as their interest might appear, and this, we think, satisfies the agreement to insure contained in the lease. The result is, that the defendants had no valid claim for any of the insurance moneys save the amount for which the building was insured, namely, $3,333.26, and the judgment must be affirmed.

By the Court. Judgment affirmed.

DURESS-RECOVERY OF MONEY PAID UNDER.-Money paid to one not entitled thereto, under such duress as gives it the character of a compulsory payment, may be recovered back: Note to Cribbs v. Sowle, 24 Am. St. Rep. 173. To constitute duress, it is sufficient if the will be constrained by the unlawful presentation of a choice between comparative evils; as inconvenience and loss by the detention of the property, or payment of an exorbitant demand: Alston v. Durant, 2 Strob. 257; 49 Am. Dec. 596; Adams v. Schiffer, 11 Colo. 15; 7 Am. St. Rep. 202. See monographic note to Hatter v. Greenlee, 26 Am. Dec. 374-378, as to what constitutes duress; Joannin v. Ogilvie, 49 Minn. 564; 32 Am. St. Rep. 581, and note.

BERGERON V. HOBBS.

[96 WISCONSIN, 641.]

CORPORATIONS-FILING ARTICLES.-The mere recording of the articles of incorporation of a corporation with the certificate of the election of officers, without the intention or fact of the papers themselves remaining in the office, is not a sufficient filing to complete the organization of the corporation or vest it with corporate powers.

CORPORATIONS - DEFECTIVE ORGANIZATION-INDIVIDUAL LIABILITY.—If an attempt to organize a corporation fails by omission of some substantial step or proceeding required by

statute, its members or stockholders are liable as partners for Its acts and contracts.

CORPORATIONS - DEFECTIVE ORGANIZATION - COLLATERAL ATTACK.-The filing of articles of incorporation required by statute is a condition precedent to the vesting of corporate powers. Until this condition is complied with, the corporation cannot act under color of legal right. It is not a corporation de facto, and its right to act as a corporation is subject to collateral attack.

CORPORATIONS-DEFECTIVE ORGANIZATION-INDIVIDUAL LIABILITY.-The filing of articles of incorporation required by statute is a condition precedent to the vesting of corporate powers. Until this condition is complied with the association is not a corporation de facto, although it has carried on business under supposed authority to act as a body corporate in entire good faith. In such case, the members or stockholders are individually liable for its debts and contracts.

G. P. Rossman, for the appellants.

W. H. Packard and A. W. McLeod, for the respondent.

642 NEWMAN, J. There are two questions raised on this appeal: 1. Was the mere recording of the articles of incorporation, with the certificate of the election of officers, without the intention or fact of the papers themselves remaining in the office, a sufficient compliance with the statute, so that the organization of the corporation became complete, as upon a 643 proper filing of the papers themselves? and 2. If the recording was not sufficient for that purpose, are the defendants liable to the plaintiff only as a de facto corporation, or are they liable as copartners?

1. The statute (Rev. Stats., sec. 1460) provides that, upon the filing of "a certificate of organization, . . . with a copy of the constitution," in the office of the register of deeds of the county, "such society shall have all the powers of a corporation necessary to promote the objects thereof." It cannot be doubted that the filing of the proper papers in the proper office is made, by the statute, a condition precedent to the vesting of corporate powers. The court may not be able to clearly define the respect wherein the mere recording and removal of the papers from the office fails to serve the full purpose which the legislature intended to accomplish by the filing of them. The legislature, no doubt, had good and sufficient reasons for its choice of means to promote its purpose. For the court it is not a question of equivalents. A literal filing of 'the papers is necessary because it is so written in the law. The term "filing" and the verb "to file," as related to this subject, include the idea that the paper is to remain in its proper order on file in the office. A paper is said to be filed

when it is delivered to the proper officer, and by him received, to be kept on file: Bouvier's Law Dictionary. The statute is plain and easy of observance. Valuable rights and exemption from personal liability are to be secured by its observance. It is no undue severity to require its strict observance. The defendants had not observed it, and had not secured corporate powers.

2. Had the defendants secured immunity from individual liability? No doubt, as a general rule, where an attempt to organize a corporation fails by omission of some substantial step or proceeding required by the statute, its members or stockholders are liable as partners for its acts and contracts: Beach on Private Corporations, secs. 16, 162; 1 Thompson on Corporations, secs. 239, 416, 644 417. But the defendants' contention is, that they are not within this rule, because they are at least de facto a corporation, and their right to be a corporation cannot be inquired into in a collateral action, but only in a direct action for that purpose by the state. The infirmity of the defendants' contention is in the assumption that they are de facto a corporation. In order to secure this immunity from inquiry into its right to be a corporation in a collateral action, its action, as a corporation, must be under a color, at least, of right. It is immaterial that they have carried on business under the supposed authority to act as a body corporate, in entire good faith. If they had not color of legal right, they have obtained no immunity from individual liability for the debts of the supposed corporation. Until the articles of incorporation are filed in the office of the register of deeds of the county, there is no color of legal right to act as a corporation. The filing of such paper is a condition precedent to the right to so act. So long as an act, required as a condition precedent, remains undone, no immunity from individual liability is secured: 1 Thompson on Corporations, secs. 226, 508.

The defendants are not a corporation either de jure or de facto, but are liable for the plaintiff's claim as partners. It was not necessary to prove a copartnership by evidence. That was established by implication of law. Nor was it necessary to prove that the debt was unpaid. There was no presumption that it had been paid to be rebutted. The judgment of the circuit court is right, and must be affirmed.

By the Court. The judgment of the circuit court is affirmed. MR. JUSTICE MARSHALL, dissenting, said that: "With the decision that the defendants failed to comply with all the conditions

precedent to the corporate existence of the association I concur, but from the decision that because of such failure such association was not a corporation de facto I respectfully dissent. Hence dissent from the conclusion reached that the defendants are personally liable to plaintiff, and that the judgment should be affirmed, but, on the contrary, hold that it should be reversed..... If we hold with Missouri, Arkansas, and some other states, that unless all the steps necessary to the creation of the corporation have been taken there is no corporate existence, and that the members of the association are personally liable, we, in effect, say that it is not sufficient to enable such members to escape personal liability to show that their organization is a corporation de facto; that nothing short of a corporation de jure will do. But if we adopt the growing doctrine, supported, as I shall show, by the overwhelming weight of authority in this country, that if a person contracts with a de facto corporation, the members of the latter and such person believing, in good faith, in its legal existence, such members cannot be held personally liable, then we concede, necessarily, that it is not essential to freedom from such liability that all the statutory requisites to the existence of a corporation be complied with, because, when that is done, the organization, obviously, is not a corporation de facto only; it is a corporation de jure. This is too plain to admit of serious discussion. A few authorities of the multitude that exist on the question under discussion will be referred to." He then proceeded to show that the opinion of the majority of the judges was wholly irreconcilable with Cochran v. Arnold, 58 Pa. St. 399; Hamilton v. C. M. & P. R. Co., 144 Pa. St. 34; Spahr v. Farmers' Bank, 94 Pa. St. 429; Guckert v. Hacke, 159 Pa. St. 303; Planters' etc. Bank v. Padgett, 69 Ga. 159; Gartside Coal Co. v. Maxwell, 22 Fed. Rep. 197; Stafford Nat. Bank v. Palmer, 47 Conn. 443; Eaton v. Walker, 76 Mich. 579; Merchants' etc. Bank v. Stone, 38 Mich. 779; Haas v. Bank of Commerce, 41 Neb. 757; 17 Am. & Eng. Ency, of Law, 866; 4 Thompson on Corporations, sec. 5275; Morawetz on Private Corporations, 1st ed., secs. 141, 142; Angell and Ames on Corporations, sec. 635; Cook on Stock and Stockholders, sec. 637. Further proceeding he said: "After carefully examining such authorities and the reasoning on which the doctrine discussed is based, I am unable to understand how any other conclusion can be reached than that a decision cannot be made that plaintiff in this case can attack the existence of the agricultural association as a corporation, if it were such de facto, without holding in direct conflict with the decision in John V. Farwell Co. v. Wolf, 96 Wis. 10; ante, p. 22, which is supported by the highest authorities in this country, and which the court certainly would not wish to question. True, there are some authorities still holding to the ancient doctrine that anyone can challenge the existence of a corporation or the legality of its acts, but the trend of modern authority is to fence in, within constantly narrowing limits, the cases where private persons can attack either the existence of a corporation or the legality of its exercise of pow

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