Brown v. Bass

132 Ga. 41 | Ga. | 1909

Fish, C. J.

(After stating the facts.) The court did not err in excluding evidence, and a nonsuit was properly granted, as the plaintiff could not recover after the rejection of the proffered, evidence by which he sought to show that he had acquired title to the lease contract and the rents arising thereunder. The scope of the objection to the transfer, by the insurance company, of the lease contract to Garlington and Peek, that such transfer was. inadmissible until there was proof of its execution, was not limited merely to the necessity^ of showing that the persons whose-names were signed to the transfer were, respectively, the president, and treasurer of the insurance company and that their signatures to the transfer were genuine, but was sufficiently comprehensive to demand, in addition to such proof, preliminary evidence of the authority of such persons to execute the transfer in behalf of the company. The transfer was tendered in evidence as an aict of the company, the objection called for proof of such act; and we are clear that merely showing that two agents of the company,, its president and treasurer, performed, the act was not, without-more, sufficient proof that it was the company’s act. The rule seems to be well established by the great weight of adjudicated cases that "The president of a corporation has no power, by reason of his office alone, to buy, sell, or contract for the corporation, nor to control its property, funds, or management. His duty is merely to preside at meetings of the board of directors, and to perform only such other duties as the by-laws or resolutions of the board of directors may expressly authorize.” 3 Cook on Corp. (6th ed.) §116. This rule was distinctly recognized and followed by this court in Minnesota Lumber Co. v. Hobbs, 122 Ga. 20, 24 (49 S. E. 783). In Merchants Bank v. Rawls, 7 Ga. 191 (50 Am. D. 394), it was held that the president of a bank, in the absence of any authority under its charter or by-laws, or from its directors, so to do, had no general power to sell or transfer a judgment in favor of the bank and to receive payment therefor. It follows that the president of the Union Central Life Insurance Company had no power, merely by virtue of his office, to sell and transfer the rights and interest of the company in the lease contract. The rule is equally well established that neither the secretary nor the treasurer of a corporation has any power, merely by reason of his office as such, to contract for the corporation. 3 Cook on Corp. (6th ed.) §717. The testimony of Sanford, that Clark, the treasurer of the insurance company, who signed the transfer for the - company, “was the active head of the company,” was not sufficient to show, or even raise the presumption, that he had authority to sell and transfer the company’s rights and interests under the lease contract. The meaning of the phrase “the active head of the company” is too uncertain to indicate that the person occupying such position was authorized to contract for the company. The testimony of Sanford does not bring the case within the rule that if the treasurer or other agent has been accustomed to make certain contracts for the corporation and it has acquiesced in them, it will be bound by a new contract of that kind entered into for it by him. It does not appear from Sanford’s testimony that Clark, the treasurer, ever before assumed authority to sell and transfer any of the property of the insurance company. What has just been said applies also to the copy of the alleged contract betunen the insurance company and Mrs. Sanford, which was excluded by the court. The existence of a,genuine original is essential to the admissibility of a copy. Civil Code, §5174. To meet one of the objections made to this copy, it was necessary to prove that the original thereof was executed by the insurance company. Evidence that’ it was executed by Clark, the treasurer of the company, without proof of his authority so to do, was, as we have shown, insufficient to show that the original contract was the act of the company.

The ruling herein made is readily distinguishable from that in Almand v. Equitable Mortgage Co., 113 Ga. 983 (39 S. E. 421). There a deed, purporting to be that of a business corporation, and to have been executed in the corporate name by the president of the corporation, was admitted in evidence over objections that it did not appear that the party signing it as president of the corporation was in fact such president, and that, even if he were president, there was no evidence that he had authority to execute the instrument. The exceptor objected to the admission of the deed, and it was incumbent on him to make it affirmatively appear that the ruling complained of was erroneous. As there was nothing in the record to indicate that the corporate seal was not attached to the instrument, it was held that it did not affirmatively appear that the admission in evidence of the paper was erroneous; for, if the corporate seal was attached, the presumption was that the person executing the instrument as president had authority so to do in behalf of the corporation. In the case now being dealt with, the instruments purporting to have been executed for the corporation by its president and treasurer were excluded from evidence, on the ground that 'it did, not appear that such officers had authority to act in behalf of the corporation in this respect. The party complaining of the exclusion of the papers should have shown affirmatively that the ruling was erroneous; for instance, that the corporate seal was attached to the instruments. This he did not do, but, on the contrary, the record shows that such seal was not attached to the papers excluded.

The rulings made dispose of the case, and it is unnecessary fo pass on other questions made in the bill of exceptions.

Judgment affirmed.

All the Justices concur.