The opinion of the court was delivered by
This appeal brings up for review summary judgments for the defendants, entered in the Superior Court, Law Division. The action was brought by C. B. Snyder Realty Co., a New Jersey corporation (hereinafter referred to as the plaintiff) against the National Newark & Essex Banking Company of Newark, a banking corporation organized under an act of the Congress of the United States, with offices in Newark, New Jersey, (hereinafter referred to as the bank), Newark & Essex Building Corporation, a New Jersey corporation (hereinafter referred to as the building company), and Gustave E. Wiedenmayer (hereinafter re
At the times covered by the complaint the building company was the owner of the fee of real estate commonly known as the National Newark Building, located at 744 Broad Street, Newark, New Jersey. The bank, individually and in other capacities, controlled 85% of the stock of the building company. The directorates of the two corporations were interlocking. Preliminarily, in November 1951, Mr. Wiedenmayer contacted the plaintiff for the purрose of investigating the possibility of obtaining a purchaser for the National Newark Building on certain specific terms.
A purchaser was located by the plaintiff. There then ensued negotiations between the plaintiff, the purchaser or purchasers it obtained, and Mr. Wiedenmayer (with which negotiations other officers of the defendant corporations were acquainted) whereby the transactions were molded until the proposed sale became one of the stock of the building company. The plaintiff thereupon submitted a purchaser’s offer for the stock to the defendant corрorations, i. e., to Mr. Wiedenmayer, on March 12, 1952. On March 13, 1952 defendants notified the plaintiff that a better offer had been received from a different prospective purchaser and had been accepted.
The plaintiff’s complaint was in three counts as above mentioned. The first count encompassed: (a) claims for
Ho answer has as yet been filed by any defendant. However various stipulations extending the time to answer or otherwise move with respect to the complaint were filed, interrogatories were propounded to the corporate defendants and answered, and depositions were taken of Mr. Wiedenmayer and other officers and directors of the corporate defendants. Separate motions for summary judgment were filed by each of the defendants, Mr. Wiedenmayer’s on September 24, 1952, the bank’s on September 30, 1952, and the building company’s on October 10, 1952. Each such motion stated two grounds, namely, (1) “the complaint and each and every count thereof fails to state a claim upon which relief may be granted,” and (2) “there exists no genuine issue of any mаterial fact and that the said defendant is entitled to judgment as a matter of law.” Affidavits, with exhibits
On March 13, 1953 the Superior Court, Law Division, after argument and consideration of the complaint and of the affidavits and depositions filed on the motions, determined that “the said complaint, affidavits and depositions show palpably that there is no genuine issue as to any material fact challenged and that the respective defendants are each entitled to summary judgment as a matter of law,” and ordered entry of summary judgment in favor of each of the defendants against the plaintiff on all counts of the complaint. Final judgment for each of the defendants accordingly was entered on March 14, 1953, and the plaintiff appealed. As hereinbefore noted, the appeals were addressed to the Superior Court, Appellate Division, but were certified prior to hearing there.
The questions involved on these appeals which have been consolidated may bе summarized briefly as follows: (1) Did the complaint state a claim or claims for relief against any or all of the defendants? (2) Were there genuine issues as to material facts challenged and were the defendants entitled to summary judgment as a matter of law?
I.
Relief was sought in the first count of the complaint upon the theory that the bank and the building company were liable to the plaintiff for breach of contract with the plaintiff to accept its purchaser and pay to the plaintiff $200,000 in compensation for the plaintiff’s services in connection with the proposed sale of the building company’s stock. The gravamen of the complaint is not a case of an alleged contract of sale, but under the peculiar circumstances a contract to obtain a firm
offer
to purchase stock on the
Corporations, like natural persons, are bound only by the acts and contracts of their agents done and made within the scope of their authority. Leggett v. N. J. Manufacturing and Banking Co., 1 N. J. Eq. 541, 553 (Ch. 1832). It is settled that a corporation is bound by the act of an officer or agent to the extent the power to do that act has been conferred upon him: (1) expressly (a) by the corporate charter, (b) by the by-laws of the corporation, or (c) by the corporate action of the stockholders or board of directors; (2) by implication (a) from powers expressly conferred or (b) incidental thereto; or (3) where the act is within the apparent powers which the corporation has caused those with whom its officers or agents have dealt to believe it has conferred upon them. Erie R. R. Co. v. S. J. Groves & Sons Co., 114 N. J. L. 216, 219 (E. & A. 1935). In the latter category the settled rule as reiterated in the Erie R. R. Co. case, supra, is stated in American Well Works v. Royal Indemnity Co., 109 N. J. L. 104, 108 (E. & A. 1932) as follows:
“The rule is that the principal is bound by the acts of his agent within the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case depending upon the apparent authority of the agent is whether the principal has by his voluntary act рlaced the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question; and when * * * the party, relying upon such apparent authority, presents evidence which would justify a finding in his favor, he is entitled to have the question submitted to the jury. * *
“Rule 3:56-3 provides that summary judgment shall be granted only ‘if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.’
The quoted language of this rule was taken from Federal Rule 56(c). Under the construction of the federal courts, this language was not designed ‘to cut litigants off from their right of trial by jury if they really have issues to try,’ and summary judgment should be granted only where ‘no genuine issue remains for trial.’ Chappel v. Goltsman, 186 F. 2d 215, 218 (C. C. A. 5th Cir. 1950). The matter cannot be decided on the affidavits of the parties where the facts are in dispute or where conflicting factual inferences may be drawn from them. Arnstein v. Porter, 154 F. 2d 464 (C. C. A. 2d Cir. 1946) ; Chappel v. Goltsman, supra. ‘Affidavits * * * are of value only when they indicate the nonexistence of factual issues and they have no value when they attempt to resolve a factual issue in favor of one of the parties.’ Kaiser Co. v. Ric-Wil Co., 95 Fed. Supp. 54, 55 (D. C. N. D. Ohio 1950).” * * * * * * * *
The opinions of the federal courts conform with the rule which was applied in New Jersey both before (Cross Co. v. Margolis, 136 N. J. L. 453 (Sup. Ct. 1948); Scarano v. Scarano, 132 N. J. Eq. 362 (Ch. 1942); Federal Deposit Ins. Corp. v. Goodman, 31 A. 2d 36 (Ch. 1942), affirmed 133 N. J. Eq. 64 (E. & A. 1942); Berger v. Interstate B & L Assn., 121 N. J. L. 507 (E. & A. 1939)), and after Rule 3:56-3 was adopted (Hodes v. Dunsky, 5 N. J. Super. 333 (App. Div. 1949); Geiger v. Metz, 11 N. J. Super. 134 (Law Div. 1950); Templeton v. Glen Rock, 11 N. J. Super. 1 (App. Div. 1950); Lionshead Lake, Inc. v. Wayne Twp., 9 N. J. Super. 83 (App. Div. 1950)).”
Burther, all pleadings shall be so construed as to do substantial justice.
R. R.
4:8-6 (formerly
Rule
3:8-6). A party may set forth two or more statements of a claim alternatively or hypothetically either in one count or in separate counts, and when two or more statements are made in the altеrnative the pleading is not made insufficient by
The affidavit of Mr. Alfred .Q. Wirtz, secretary of the building company during the times covered by the complaint, adopts as an exhibit a copy of the by-laws of said company. These by-laws provide: “The property, business and affairs of the Corporation shall be managed and controlled by its Board of Directors” (Art. IV, sec. 1); that said board may appoint an executive committee which “may exercise the powers of the directors in the management of the business, affairs and property of the Corporation during the intervals between the meetings of the Board of Directors” with power to “make such rules and regulations for its own government and relating to its own procedure and for the conduct of the business brought before it as it shall see fit” (Art. V, sec. 1); the president in addition to being chief executive officer “shall have general and active management of the property, business and affairs of the corporation subject to the supervision and control of the Board of Directors and Executive Committee” (Art. VI, sec. 3) and “The President * * * shall have power to- sign and execute on behalf of the Corporation, deeds, conveyances and contracts, and any and all other documents requiring execution by the Corporation” [Art. VI, sec. 8). These by-laws grant to the president the usual powers of the office found in most corporations.
Mr. Wirtz in his affidavit stated that there had been no express authorization by the board of directors for any officer of the building company to entеr into any agreement to pay compensation in connection with the sale of either the real estate or the stock of the building company. The affidavit of Mr. John N. Page, who had been a director and vice-president of the building company during the time
“It is undoubtedly true that agency cannot be proved merely by the extra judicial declarations of the person whose agency is sought to be proved. Van Genderen v. Paterson Wimsett Thrift Co., 128 N. J. L. 41 (E. & A. 1941).”
Although we there recognized that “statements made dum fervet opus by an agent are admissible as evidence against the principal,” such statements alone are insufficient to warrant a factual finding of express authority. As set forth in the Restatement of the Law of Agency, section .285:
“Evidence of a statement by an agent concerning the existence or extent of his authority is not admissible against the principal to prove its existence or extent, unless it appears by other evidence that the making of such statement was within the authority of the agent or, as to persons dealing with the agent, within the apparent authority or other power of the agent.”
See Van Dusen Aircraft Suрplies, Inc. v. Terminal Construction Corp., 3 N. J. 321, 328 (1949).
For the same fundamental reasons we find that there was insufficient evidence of express authority from the bank to present a factual question for the jury. The bank’s articles of association authorize its board of directors to elect a
As president of the building company, Mr. Wiedenmayer had “general and active management of the property, business and affairs of the Corporation subject to the supervision and control of the Board of Directors and Executive Committee” (By-laws, Art. VI, sec. 3,
ante).
Mr. Wiedenmayer in his affidavit denied express authorization to employ the plaintiff. The affidavits filed on behalf of the plaintiff assert
As executive vice-president of the bank, Mr. Wiedenmayer clearly was authorized to enter into binding contracts concerning assets of the bank up to $200,000. As cashier he was at least custodian of its securities. Further, the affidavit of Mr. Jones, a bank director, indicates that at the meeting of the directors on February 20, 1952 a committee was appointed, inter alia, “to consider the Bank’s investment in the Building Corporation” in the absence of the bank’s president, Mr. Cowan. Mr. Jones stated however that as a member of the committee so appointed he understood it had no authority to bind the bank in any way, and that the committee never met. Mr. Cowan, president of the bank, in his affidavit stated that for some time prior to February 20, 1952 he “was aware that certain persons had evidenced to Mr. Wiedenmayer an interest in acquiring the National Newark Building” and that the committee was appointed to “consider the Bank’s investment.” Mr. Sommers, a bank director, by affidavit averred that the bank’s investment committee never approved or met to consider any proposal for the sale of stock of the building company. Implied powers vested in corporate officers are only those which are necessary or proper to enable the officer to perform the duties of his officе. Beach v. Palisade Realty and Amusement Co., 86 N. J. L. 238, 241 (E. & A. 1914). We fail to see where any such implied authority could be found here.
We do, however, find sufficient evidence from which it might be inferred that Mr. Wiedenmayer had the apparent
II.
The first count of the complaint also includes a claim, in the alternative, against Mr. Wiedenmayer personally upon his alleged representations of authority to bind the corporate defendants to pay the plaintiff the allegedly
The affidavits filed on behalf of the plaintiff expressly aver that Mr. Wiedenmayer made such representations and that the plаintiff relied thereon. Mr. Wiedenmayer by affidavit and deposition denies this. Clearly there is a disputed issue of fact in this respect even in the event final judgment ultimately is entered in favor of the corporate defendants under this count.
The applicable law is well settled. It is stated by Mr. Justice Wachenfeld with detailed analysis of authorities in Fuller v. Melko, 5 N. J. 554, 558 (1950) as follows:
“One who assumes to act as agent for another impliedly warrants his authority to do so, but where he fully discloses the facts constituting his authority, he may not be held liable either on the contract or for breach of implied warranty.”
There palpably appears to be a genuine issue of fact as to Mr. Wiedenmayer’s assumption of authority and as to his disclosure if. such there was, of facts constituting his authority.
III.
As hereinbefore recited, the first count of the complaint also incorporated the plaintiff’s claims against the bank and the building company for compensation in connection with an alleged contract to obtain a purchaser for the
fee
of the land and premises adverted to as the National Newark Building, 144 Broad Street, Newark, N. J. Upon the complaint, interrogatories and answers thereto, and depositions and affidavits on file, there palpably appears to be no genuine issue as to the fact that the bank was a major stockholder (and in that and various other capacities controlled 85% of the stock) of the building company, and the fact that the latter owned the fee of said real estate. Although there are writings included in the record as exhibits, there is nothing advanced to show compliance by
We do not determine whether the procedure by which the defense of the statute of frauds was asserted was the proper course to pursue under the practice obtaining in our courts since September 15, 1948. Compare R. R. 4:8-3 and R. R. 4:15-2. No adjective question was advanced on these appeals in that respect.
IV.
The second count of the complaint is laid upon the theory of quantum meruit. Paragraph 24 of the first count, which is incorporated by express reference in the second count, specifically pleads the alleged contract to pay plaintiff $200,000 for its services. This theme is clearly followed through the subsequent paragraphs of the first count. Neither in the first count nor in the second count is there any allegation to the contrary.
In Moser v. Milner Hotels, Inc., 6 N. J. 278, 280-281 (1951) this court held:
“Having pleaded an express contract, the plaintiff cannot without showing a rescission, recover on quasi contract. It is a ‘wellsettled rule that an express contract excludes an implied one. An implied contract cannot exist when there is an existing express contract about the identical subject. The parties are bound by their agreement, and there is no ground for implying a prоmise. It is only when the parties do not agree that the law interposes and raises a promise. When an express contract exists, there must be a rescission of it before the parties will be remitted to the contract which the law implies, in the absence of that agreement which they made for themselves.’ Voorhees v. Executors of Woodhull, 33 N. J. L. 494, 496-497 (E. & A. 1869) ; Osterling v. Cape May Sota Co., 82 N. J. L. 650, 653 (E. & A. 1912) ; Pericin v. Denburg's Modern Bakery, 130 N. J. L. 547, 553, [554] (E. & A. 1943).”
We find our decision in the Moser case, supra, controlling under the circumstances of this case. An appropriate order or judgment should be entered in favor of the defendants by the trial court in this respect under R. R. 4:58-3, R. R. 4:58-4 and R. R. 4:55-2, as to the second count.
Y.
The third count of the complaint sounds in tort, bio claim against the building company is asserted in this count, but both the bank and Mr. Wiedenmayer are named as defendants thereto.
The third count states the plaintiff’s claim for interference with its alleged agreement with the building company, namely, that the building company would accept the offer of plaintiff’s purchaser to purchase the building company stock and thereby enable the plaintiff to receive out of the purchase money its $200,000 compensation and the plaintiff’s alleged similar agreement with the bank. The facts asserted by the complaint in connection with this alleged agreement are expressly confirmed in the affidavits filed on behalf of the plaintiff. The same facts are denied in the affidavits filed on behalf of the defendants, the bank and Mr. Wiedenmayer. A genuine dispute as to these facts is demonstrated in this circumstance alone, without detailed repetition of the matters testified to on deposition or averred in the affidavits. This count, of course, depends upon the existence
We recognize the rule laid down in Mayflower Industries v. Thor Corp., 15 N. J. Super. 337, 339-340 (Ch. Div. 1951), affirmed 9 N. J. 605 (1952), supra, that tort liability may be imposed for interference with prospective advantage, even where contractual relations between the corporations involved were not complete because one of the corporations had not gone through the formality of signing the agreement. Compare Louis Schlesinger Co. v. Rice, 4 N. T. 169, 179, 182 (1950). The principal claims of the plaintiff were expressly laid by the plaintiff upon an alleged agreement to obtain an offer to purchase stock upon terms propounded by the corporate defendants or either of thеm. The claim under this third count is grounded in a different theory, namely that the corporate defendants or either of them (by Mr. Wiedenmayer) independently agreed with the plaintiff that if the offer obtained by the plaintiff was the high offer if would be accepted, and that the bank and Mr. Wiedenmayer interfered with such acceptance. In such circumstances it becomes necessary for the plaintiff to prove that the corporate officer or officers making that antecedent agreement to accept such offer could bind either or both of his or their corporate principals thereby. In this respect there exist disputed issues of fact.
Insofar as this count is additionally premised upon the plaintiff's- alleged earlier performance in obtaining a purchaser of the
fee
of the National Newark Building,
i. e.,
upon interference by the bank and by Mr. Wiedenmayer. judgment for the defendants was properly entered. The plaintiff, as hereinbefore mentioned, admitted it could not recover commissions from the building company in view of the statute of frauds,
R. S. 25 :l-9 supra.
Plaintiff on the tort phase of the case asserts interference with that contract. Recovery upon the theory of unlawful interference with a
Conclusions
For the reasons above expressed the judgments of the Superior Court, Law Division, are reversed. The complaint sets forth claims for relief, R. R. 4:8-1 (formerly Rule 3:8-1), upon which relief can be granted. Cf. R. R. 4:12-2(e) (formerly Rule 3 :12-2 (e)).
The reversal of the trial court’s action in entering summary judgment for the defendants is subject to these qualifications, namely, that insofar as the first count relates to claims for compensation for the sale of real estate and insofar as the third count relates to claims for interference with agreements concerning the sale of real estate, the claims so premised are barred by R. S. 25:1-9, supra; the second count should be stricken, or the claims therein advanced be adjudged barred, for the reasons expressed in Part IY of this opinion, ante; and the first count presents claims only as limited herein.
The causes will be remanded to the Superior Court, Law Division, for the entry of appropriate judgments or orders under the pertinent rules, including but. not limiting said court to application of R. R. 4:58-3, R. R. 4:58-4, and R. R. 4:55-2, supra, consistent with this opinion, and for further proceedings in accord with the appropriate rules relating to the practice and procedure in the Superior Court.
For reversal — Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling and Jacobs — 5.
For affirmance — Justice Heher — 1.