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Nussbaum v. Williams

OPINION FILED JULY 17, 1980.

MATILDA NUSSBAUM, EX'X OF THE ESTATE OF ALDEN NUSSBAUM, DECEASED, PLAINTIFF-APPELLEE,

v.

OSCAR WILLIAMS ET AL., DEFENDANTS. — (CENTRAL ILLINOIS KENWORTH SALES AND SERVICE, INC., DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, JR., Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Defendant, Central Illinois Kenworth Sales and Service, Inc., appeals a summary judgment of the circuit court of McLean County entered on February 8, 1980, declaring plaintiff, Matilda Nussbaum, as executrix of the estate of Alden Nussbaum, deceased, not bound under a buy-and-sell agreement to convey to defendant-corporation her decedent's stockholdings in defendant. We reverse and remand.

In count I of the amended complaint, filed on November 30, 1979, plaintiff alleged that defendant, Oscar Williams, purporting to act as president of defendant-corporation, had demanded that she, as executrix, convey the decedent's shares to that corporation pursuant to the buy-and-sell agreement and that she had refused to do so. She sought the declaratory relief which was subsequently granted pursuant to her December 17, 1979, motion for summary judgment as to count I. Counts II and III pend in the trial court. We have jurisdiction because of the trial court's finding pursuant to Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)).

Plaintiff's motion for summary judgment was neither supported nor opposed by affidavits, counteraffidavits or other documents. However, the following undisputed facts were established by the pleadings. At Alden Nussbaum's death and for the prior years pertinent here, he was president of defendant and owner of 50% of its stock. During that time, Byron Nussbaum and Oscar Williams were vice-president and secretary-treasurer of defendant respectively and each owned 25% of its stock. A document purporting to be a buy-and-sell agreement had been typed with the date of the 20th day of November, 1976, typed thereon and the figures "1976" crossed out and the figures "1978" typed in below the crossed out figures. The document described Alden Nussbaum, Byron Nussbaum, and Williams as "Shareholders" and provided in substance that upon the death of any of them the personal representative of the deceased shareholder would sell and the defendant-corporation would buy the shares of the deceased shareholder at a price established by a formula. The document contained numerous other provisions, including restrictions upon alienation of the shares. The document had been signed in the following manner:

"IN WITNESS WHEREOF, this Stockholders Agreement was executed the day and year first above set forth.

/s/ Oscar Williams

/s/ Byron Nussbaum

_________________________ CENTRAL ILLINOIS KENWORTH SALES & SERVICE, INC.

BY /s/ Alden Nussbaum PRESIDENT

ATTEST:

/s/ Richard Hagstrom ."

Plaintiff asserted and continues to assert that, as a matter of law, Alden Nussbaum's estate cannot be bound by the document because he signed only in his representative capacity as president of defendant and not as an individual shareholder. She points out that a line remained vacant after the signature of the other shareholders and that the line would have been the logical place for her decedent to have signed had he intended to bind himself individually. The trial court agreed with plaintiff and granted summary judgment accordingly.

The parties do not dispute that ordinarily a corporate officer does not bind himself individually by signing a contract on behalf of his corporate principal. (19 Am.Jur.2d Corporations §§ 1341-43.) However, the defendant-corporation maintains that where, as here, the body of the contract sets forth that the corporation and the corporate officer who happens to sign on behalf of the corporation are both to be bound by the contract, the single signature purporting to be on behalf of the corporation is sufficient to bind both the corporation and the individual. The theory is based upon analogy to Kerfoot v. Cromwell Mound Co. (1884), 115 Ill. 502, 25 N.E. 960.

In Kerfoot, a firm selling gravel filed a complaint sounding in both special and common counts against one W.D. Kerfoot to recover for its furnishing gravel used in making a road bed. The trial court, over Kerfoot's objection admitted into evidence a document purporting to be an agreement for furnishing of the gravel and for payment in exchange. It listed W.D. Kerfoot and C.A. Kerfoot as being among property owners agreeing to pay for the gravel. The document was signed on behalf of the plaintiff by an agent and then on behalf of the purchasers of the gravel in this manner, "C.A. Kerfoot by W.D. Kerfoot, A.M. Jones, Committee and ...


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