Allen v. Citizens' Steam-Navigation Co.

22 Cal. 28 | Cal. | 1863

Norton, J. delivered the opinion of the Court—Cope, C. J. concurring.

The evidence was sufficient to sustain the finding that the money was advanced as a loan, to be applied as payment on the stock subscription, if Farris was continued in his place as captain of the Enterprise; but if not so continued, then to be repaid. It is hence not necessary to decide whether, if the money was paid on the stock subscription, it could be reclaimed in consequence of the verbal condition upon which the subscription was made.

Although there was no direct authority given to Chapman by resolution of the Board of Directors to borrow the money, nor any direct ratification by resolution of the Board, yet the evidence of the character of Chapman’s agency and of the acts which he did, and the knowledge which the officers and directors of the company had of his habit to borrow money for the defendant in the course of his agency, and the fact of the money being applied to the use of the defendant, was sufficient to warrant the finding that the money was borrowed for the defendant by its lawful agent.

The withholding of this item from the account rendered by Chapman by an understanding between him and Farris, indicates a purpose at the time to consider the money advanced either as a payment on the stock subscription or a loan to Chapman, instead of the defendant; but it does not change the fact that the money was loaned to the defendant, as found by the Court on the evidence, nor was it an act which, especially when considered in connection with the proof as to what transpired between the officers of the company and Farris in regard to this claim, and the reference to it in the affidavit annexed to Chapman’s account, can operate as an estoppel against claiming the amount as due from the defendant.

Judgment affirmed.