Brotherton

In a suit upon a promissory note judgment went for defendant A. A. Irish as administrator of the estate of B. M. Spencer, deceased.

The note was signed as makers by Amelia C. Brotherton, Louis M. Brotherton and the decedent Spencer in favor of Burrows Shoe Co., Rochester, N. Y., as payee. The evidence showed that the Brothertons were engaged in the retail shoe business and were refused credit by plaintiff, a wholesale shoe dealer, unless they would give a promissory note as security with some responsible third person as a co-maker. Accordingly they procured the decedent, Spencer, to join with them in making the note in question.

The trial court found that it was not proved that plaintiff was a corporation. This finding is attacked on appeal, appellant claiming that by giving the note payable to Burrows Shoe Company, respondent is now estopped to deny its corporate capacity. Respondent answers that there can be no estoppel because the name “Burrows Shoe Company” is not necessarily that of a corporation, but might equally be that of a partnership, unincorporated association or individual doing business under a fictitious name. There is respectable authority on both sides of this…