Hyperlawhypertext legal databasebeta Merrill v. Consumers' Coal Co. 114 N.Y. 216

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Merrill v. Consumers' Coal Co.

114 N.Y. 216 Court N.Y. Decision date 1889-04-23 English

Delivered by Haight, J.

Contents

Majority

p. 216
Edward B. Merrill, Respondent, v. The Consumers’ Coal Company, Appellant.

Headnote

Plaintiff’s complaint set forth, in substance, that he was employed by defendant to act as its attorney for one year under an agreement by which he was to receive, as compensation for his services, a transfer of 300 shares of its capital stock; that he performed the services and demanded the stock, but defendant refused to deliver the same. Plaintiff asked to recover the stock or its value. The answer admitted the employment, but denied any express agreement as to compensation. Upon the trial it appeared the agreement, substantially as averred in the complaint, was made on the part of defendant by its president.' Defendant moved to dismiss the complaint on the ground-that there was no proof of authority on the part of its president to make the contract. Held, that the motion was properly denied, as the authority of the president was admitted by the answer; . that if defendant desired to present the question that the president was not authorized to contract to pay in stock, the attention of the trial court should have been called to it; and this not having been done, that it was not available on appeal.
It appeared that defendant had, from its organization, employed attorneys by the year and paid them in its stock, that the contract had been made by the president, with the approval of the board of directors, and that plaintiff rendered the services called for by his contract with the knowledge of the directors. Held, that the evidence was sufficient to warrant a finding that the contract was approved of or acquiesced in by the directors.
(Argued April 15, 1889;
decided April 23, 1889.)
Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order
p. 217
made May 3, 1886, which affirmed a judgment in favor of plaintiff entered upon a verdict.
The nature of the action and the facts are sufficiently stated in the opinion.
Louis B. Schram for appellant.
The president of the defendant corporation had no authority to make the agreement alleged by the plaintiff to have been made. (Laws of 1853, chap. 233, § 2; Landers v. Frank St. M. E. Church, 97 N. Y. 119 ; Donovan v. Mayor, etc., 38 id. 291; C. & N. W. R. Co. v. James, 22 Wis. 194 ; Alexander v. Cauldwell, 83 N. Y. 480 ; McDonald v. Mayor, etc., 68 id. 23; Adriance v. Roome, 52 Barb. 399 , 411; Salem Bk. v. Gloucester Bk., 17 Mass. 1 -29; Schenck v. Andrews, 57 N. Y. 133 ; Risley v. I. B. & W. R. R. Co., 62 id. 240, 245 .) The authority to issue stock, vested in the trustees, cannot be delegated by them to the officers. (R., etc., R. R. Co. v. Thrall, 35 Vt. 536 , 554; Pike v. Bangor, etc., R. R. Co., 68 Me. 445 ; Silver Hook Road v. Ray Greene, 12 R. I. 164 ; Farmers' Mut. F. Ins. Co. v. Chase, 56 N. H. 341 , 346.) This is not a case of a plea of ultra vires by the defendant. The defense is that the contract upon which the plaintiff sues was not made. (Potter on Corp. §§ 541, 542 ; Bissell v. M. S. & N. I. R. R. Co., 22 N. Y. 258 .) There was no ratification of the alleged agreement by the corporation defendant. (Taylor on the Law of Corp. §§ 211-213; Harrington v. First Nat. Bk., 1 Sup. Ct. [T. & C.] 261; Smith v. Kidd, 68 N. Y. 130 ; Clark v. Woodruff, 83 id. 518; Bluminghoff v. Agr. Ins. Co., 93 id. 495.) The answer, while admitting that plaintiff was employed, alleges that no agreement was made in regard to compensation ; this is equivalent to an affirmative allegation that the plaintiff was to receive the just value of his services. (1 Greenl. on Ev. § 201; Gildersleeve v. Landon, 73 N. Y. 609 ; Ins. Co. v. Newton, 24 Wall. 32 ; Credit v. Brown, 10 Johns. 365 ; Carver v. Tracy, 3 id. 427 ; Hopkins v. Smith, 11 id. 161; Perego v. Purdy, 1 Hilt. 269; Barnes v. Allen, 1 Abb. Ct. App.
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Dec. 11 , 119 ; Smith v. Jones, 15 Johns. 229 .) The value of the stock in the defendant company was not proved. There was, therefore, no foundation laid for the amount of plaintiff’s recovery. (MacLeod v. Wakley, 3 Car. & P. 311; Hume v. Long’s Representatives, 6 Monroe, 116, 119.)
William S. Maddox for respondent.
If the question of “authority” to contract, or of “ratification” by the board of trustees could have properly been raised on the trial under the pleadings, then the other evidence in the case is sufficient to sustain the verdict. (Hooker v. Eagle Bank of Rochester, 30 N. Y. 83 ; Potter v. New York Infant Asylum, 44 Hun, 367 .) The managing officers of corporations now have the power to employ attorneys, or other agents, for the company without a formal resolution to that effect passed by the board of directors. (Jackson v. N. Y. C. R. R. Co., 2 N. Y. Sup. Ct. [T. & C.] 653; Le Grand v. M. M. Assn., 44 Supr. Ct. [12 J. & S.] 562; 80 N. Y. 638 ; Hoag v. Lamont, 60 id. 96-101; Am. Ins. Co. v. Oakley, 9 Paige Ch. 497 , 501; Mumford v. Hawkins, 5 Denio, 355 ; Western Bk. of Missouri v. Gilstrop, 45 Mo. 419 .) There was sufficient evidence of employment of plaintiff by the defendant, and of its terms, and of the ratification of and acquiescence in that employment by knowledge of the other officers and directors of the corporation, and of the rendering of the services to the conqoany by the plaintiff, to authorize the verdict. (Potter v. New York Infant Asylum, 44 Hun, 367 ; Root v. Olcott, 42 id. 546.) It must be assumed upon this appeal that the contract was, when made, a legal contract, such as the corporation could make. (Barnes v. Brown, 80 N. Y. 521 , 535.) A corporation, unless specifically prohibited thereto by the law under which it is organized, may contract to pay its debts with its stock. (Moore v. H. R. R. R. Co., 12 Barb, 156 , 158; Hart v. Laumam, 29 id. 410, 411, 418; Reed v. Hayt, 51 N. Y. Supr. Ct. 121 ; Van Cott v. Van Brunt, 82 N. Y. 535 ; Ang. & A. on Corp. § 590 a.) The medium of payment, by delivering 300 shares of the stock of the company, was selected
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for the convenience of the debtor. If it failed to avail itself of the arrangement made for its accommodation, after a-demand for the stock by the plaintiff, no injustice is done by exacting the sum in money. (Moore v. Hudson R. R. R. Co., 12 Barb. 158 ; Hart v. Lauman, 29 id. 417, 418.)

This action was brought to recover three-hundred shares of the capital stock of the defendant or their value. The complaint alleges that the plaintiff entered into an agreement with the defendant to render and perform legal services for the corporation and to act and appear for it as its-attorney for the space of one year, and that he was to be paid therefor three hundred shares of the stock of the company of' the par value of $5 per share ; that the services had been rendered and the stock demanded, but that no part thereof had been delivered to him. The answer admitted that the defendant employed the plaintiff to act for it as its attorney for the space- and period of one year, but alleged that no definite agreement, was made in regard to compensation. Upon the trial there was a conflict in the testimony as to the terms of the contract. The jury rendered a verdict in favor of the plaintiff for $1,500,. thus finding the contract as alleged in the complaint.

It appeared upon the trial that the agreement on the part-of the defendant was made by its president. After the plaintiff had given his evidence, the defendant moved to-dismiss the complaint upon the ground that there was no proof of any authority on the part of the president to make the contract. This motion was denied and an exception was taken. And, again, at the close of the testimony, the defendant’s-counsel renewed his motion to dismiss the complaint upon the ground that on all of the evidence there was nothing to show an employment by the corporation. This motion was also-denied and an exception taken. It is now contended that the-president had no authority to make the agreement with the plaintiff to pay him with the stock of the company; that the power to issue or dispose of stock is vested in the board of directors, and not in the president. It does^ not appear to us

p. 220
that this question was fairly raised by the exceptions taken. The answer, as we have seen, admitted the employment of the plaintiff for the term of one year. The corporation, by •admitting so much of the agreement, admits the authority of the president to make the contract. The answer only denies that portion of the agreement which provides for the payment ■of the plaintiff in the stock of the company. It is as to this portion only that the appellant now claims that the president ■exceeded his authority; but in no place was the attention of the trial court called to the question of the excess of authority by the president. The motions to dismiss the complaint were general, and to the effect that there was no authority on the part of the president to make the contract, and do not call the attention of the trial court to the excess of authority now contended for. It seems that this was the way that the motions were understood upon the trial, for, at the close of the charge of the court to the jury, the defendant requested the court to ■charge, in substance, that if they found that the contract was made as asserted by .the plaintiff, that the matter was hot brought before the board of directors, and that there was, consequently, no agreement on tire part of the corporation. The court then . made its final ruling upon the proposition by stating to the defendant’s counsel that his answer admitted that there was an ■agreement. To this ruling he appears to have acquiesced, as no exception was taken. Had the defendant desired to present the question of the excess of authority on review, he should have called it to the attention of the trial court.

But even if it should be held that the exceptions taken were ■sufficiently explicit to raise the question, still it appears to us that the motions were properly denied, for the reason that there is some evidence tending to show authority on the part of the president to make the contract. In the first place it is, as we have seen, admitted by the answer that the agreement had been made by the corporation employing the plaintiff for one year. The authority of the president to contract is thus conceded. It fur"ther appears from the testimony that the corporation had, from its commencement, hired attorneys to represent it by the

p. 221
year, and that the hiring had been done by the president with the approval of the board of directors ; that he had, prior to the hiring of the plaintiff, paid the attorneys so hired by him in the stock of the company; that the plaintiff had performed the services called for by the contract, with the knowledge of the directors. It is true that the president testified that he did not recollect that the arrangement with the plaintiff had been brought up at any of the meetings of the directors, but he does not appear to be positive upon this point. He was a party in interest, and his credibility was for the jury. We are of the opinion that the foregoing facts, and the inferences to be drawn therefrom, are sufficient to warrant a finding that the. contract of the president was approved or acquiesced in by the directors. These views render it unnecessary to determine the question as to whether the president had the power to agree to pay the plaintiff for his services out of the stock of the company without the consent of the board of directors.

The evidence of the plaintiff is to the effect that the president told him that the stock was of the actual value of $5 per share at the time the contract was made. There is no evidence that the value of the stock changed after that time.. The court instructed the jury that this was some evidence from which they could find that its actual value was, at that time, $1,500. Ho exception was taken to this charge. There is,, consequently, nothing upon this branch of the case presented for review.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.

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