56 Tenn. 518 | Tenn. | 1872
delivered the opinion of the Court.
Adams, Dixon & Pike, a firm of Attorneys at Law,., brought this suit, in the first Circuit Court of Shelby county, to recover of the City of Memphis jive thousand’
The facts on which the questions to be determined arise, are as follows:
In 1869 the City of Memphis was a stockholder, to the amount of jive hundred and seventy-two thousand dollars, ($572,000), in the Memphis and Little Rock Railroad Company. Serious trouble sprang up as to-the legality of two rival Boards of Directors of the Railroad Company, each claiming the right to possess and control the operations of the Company; heavy litigation was pending between the rival Boards, in the results of which the City of Memphis had a deep interest, inasmuch as it was probably the largest stockholder. In this state of things, the Mayor of Memphis deemed it his duty to take prompt and efficient measures to have the interests of the City in the litigation properly represented and protected. Thereupon,, John ~W. Leftwich, the Mayor, with the approval of the City Attorney, engaged the services of C. W. Ad
“ Memphis, Tennesse,
Mayor’s Office, Nov. 17, 1869.
C. W. Adams, Esq., of the City of Memphis, is hereby constituted the Attorney for the City of Memphis, to represent the interest of the City in any matter touching the stock of the Memphis and Little Rock Railroad Compauy, owned by the City of Memphis. And he is hereby authorized to defend any suit that may be instituted concerning said stock, and is authorized to institute all legal proceedings in any ■court for the protection of said stock against all persons or parties.
[Seal.] JOHN W. Leftwich,
Attest: Mayor.
L. R. Richards, City Register.”
Under this authority Gen. Adams proceeded to Little Rock, and engaged actively and efficiently in the pending litigation, and so continued, to the neglect of his other professional business, until the interests of the City were successfully maintained and established. The proof is abundant, and without conflict, that the services rendered by Gen. Adams were reasonably worth five thousand dollars, ($5,000.) After the services were performed, the firm of Adams, Dixon & Pike made out their account, and presented it to the City for
The counsel for the City furnished the presiding Judge with nine distinct propositions, and requested him to give them as instructions to the jury — but the Judge declined to do so, except so far as they are contained in his charge, which Avas as follows:
“You are instructed that the seal of the Corporation to an instrument constitutes prima jaeie evidence, that it was planted there by the proper authority; and that, the instrument is the act of the Corporation; and, therefore, if you find from the testimony that the defendant’s official seal is planted to the instrument read to you in evidence, and attested by the Register of the City, you will, without proof to the contrary, find the employment of the plaintiffs. If you find the employment, you will then look to the testimony, and from it determine what the services rendered were worth.”
We have seen that the proof in the case fully warranted the jury in finding, that the services rendered by Gen. Adams for the City, were reasonably worth jive thousand dollars, ($5,000.) It follows, that the case must necessarily turn upon the question, whether the evidence of the employment of Gen. Ad
It is conceded, that the presumption is, that the corporate seal was properly placed upon the warrant of attorney given to Gen. Adams. But it is said, that the instrument, with the seal upon it, was not sufficient of itself, and without reference to the question whether the Mayor had authority to make the. instrument, in behalf of the City, to bind the City.. This, adds the counsel for the defendant, is what the Court told the jury — viz: that the instrument, having the seal upon it, was conclusive upon the City.
Is this the fair interpretation of the language of the charge? After telling the jury, that the fact that the seal was attached to the instrument furnished prima facie evidence that it was placed there by-proper authority, the Court added, “therefore, if you find that the official seal is planted on the instrument and attested by the Register, you will, without proof to the contrary, find the employment of the plaintiffs.” It is obvious that the counsel has not correctly interpreted the language of the charge. By reference to the case of Levering v. Mayor &c. of Memphis, 7 Hum., 558, it is apparent that the Court, in the present case, has not laid down the law as strongly for the plaintiffs as it was stated in that case by Judge Green: He there said — “it is sufficient to observe, that the seal of a corporation to an instrument constitutes prima facie evidence that it was planted there by the proper authority, and that the instrument is the act of the corporation. In the absence of proof to the contrary,
So, in the present case, the Circuit Judge did not assume that the Mayor had the authority to employ plaintiffs as Attorneys, but as the seal of the Corporation was annexed to the instrument, he told the jury that this fact raised the presumption, that the employment was by the Corporation, and this presumption would stand until overturned by contrary proof. He-did not say that the fact of the seal being annexed was conclusive of the employment, as was assumed in the argument. The charge was, therefore, in strict-accordance with the law, as settled in Levering v. Mayor, &c.
It is next insisted, that notwithstanding the signature by the Mayor, and the counter-signature of the Register, and the sealing of the instrument with the-
The question in that case was, whether the Corpo
The question now being considered, however, is, whether the Corporation itself, through its Board of Directors, had power to employ counsel to attend to the interests of the Corporation in another State? It may be conceded that there is no express power in the City charter, authorizing the Corporation to employ counsel for the specific purpose of prosecuting or defending suits outside of the State. But there is express authority for contracting generally — such a power is essential to the existence of the Corporation and is inherent in it. The power, however, can be legitimately exercised only in regard to matters which pertain to the trust created by the act of incorporation. Whatever powers are necessary and proper to the faithful ■ execution of these trusts, are necessary inci
The power to employ counsel whenever and wherever, in the discretion of the Board, it is necessary for the Corporation to be represented by counsel, for the preservation and protection of its interests, is necessarily implied, to enable the Corporation to effect the purposes of its creation, and to execute faithfully the trust committed to it. In the present case, the City owned a large amount of stock in a Railroad enterprise. It was the duty of the Board to protect this stock — -just as much so as it was its duty to protect the property of the City, within its corporate limits. If the Board believed that the value or the existence of this stock was in jeopardy, from rival Boards of Directors claiming to possess and control the operations of the road, it was the duty of the Board, as Trustees, to interpose for its preservation and protection — and if they believed that this could be best effected by employing counsel and sending them to Little Rock, to look after and attend to the interests of the City in regard to stock, the implied power so to employ counsel was clear and unquestionable.
This doctrine as to the exercise of implied powers
We have been referred- to a number of cases in which it is argued that a different rule of law from that laid down by us, has been declared. The first is the case of Butler v. City of Charleston, 7 Grey, 14. Butler sued for services as an attorney rendered to the City Council of Charleston. The services were admitted, but the proof showed, that he was employed by four Aldermen, by an act in the country and wholly unofficial — there was no vote or act of the City Council, or either Branch, ratifying the act of the four Aldermen. It was decided, that he was not employed by the Corporation. This decision has no application to the present case, for the reason, that plaintiffs here rely on a contract of employment signed officially by the Mayor and Eegister and sealed with the seal of the Corporation,, which employment was subsequently recognized and ratified by the action of both Branches of the City Government.
The next case is Donovan v. Mayor &c. of New York. This was an action for work and materials. The Court say, “the parties aggrieved have no remedy against the Corporation. They were employed in contravention of the policy and terms of the Statute, and they can not invoke the aid of the courts to enforce an unlawful agreement. They could not contract with the City, except through its authorized agents, and they are chargeable in law with notice of the limitations of official authority, imposed by general laws.”
The case of Carroll v. St. Louis, 12 Missouri, 444, decides, that the Mayor of St. Louis had no power to bind the Corporation to pay its regular Attorney additional compensation, beyond his regular salary, for-services in causes originating before the Recorder in St. Louis. The Court say: “The services sought to be recovered were rendered by the City Attorney, at the suggestion of the Mayor, and were either rendered in his capacity of City Attorney, and therefore remunerated by the salary which the law had fixed, or they were rendered voluntarily at the instance of the Mayor, who had no authority to bind the Corporation in the case supposed.” This decision has no bearing on the case before us.
The ease of Hodges v. The City of Buffalo, 2 Denio, 110, decides that “the Common Council of Buffalo have no authority to furnish an entertainment for the citizens and guests of the City, at the public expense.” This has no application to the present case.
In the case of Clark v. City of Des Moines, 6 Amer. Law Reg., 146, it was held, that “municipal corporations have and can exercise only such powers as are expressly granted, and such incidental ones as are necessary to make these powers available, and are essential to effectuate the purposes of the corporation, and these powers are strictly construed. And agents, officers, or even a city council of a municipal corporation, cannot bind the corporation by any act which transcends their lawful or legitimate powers. And
It was anciently the law, that corporations could do nothing except by deed. After successive. relaxations of this technical rule, it was finally held, that though corporations could not contract directly, except under their corporate seal, yet they might by mere-vote or other corporate act, not under their corporate seal, appoint an agent, whose acts and contracts, within the scope of his authority, would be binding on the corporation. Rex v. Biggs, 3 Pierre Williams, 419.
In the case of Bank of Columbia v. Patterson, 7 Cranch, 306, Judge Story said: “It would seem to be a sound rule of law, that wherever a corporation is acting within the scope of the legitimate purposes of its institution,, all parol contracts made by its authorized agents, are express promises of the corporation ; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie.”
It is settled by many adjudged cases in New York, that it is not necessary, in order to charge a corporation for services rendered, that the Directors, at a formal meeting, should either have formally authorized or ratified the employment. For many purposes, the officers and agents of the corporation may employ persons to perform services for it, and such employment, within the scope of the agent’s or officer’s duty, binds
Though the contract is one which was originally unauthorized, yet if it was within the scope of the charter and has been executed by the other party, if the Corporation have received the consideration for their promise, they are not at liberty to repudiate their obligation, but the other party may enforce it. Bissell v. S. & U. Indiana R. R. Co., 22 N. Y., 258: De Groff v. Amer. Linen Thread Co., 24 Barb., 375.
The result is, that the Circuit Judge committed no error in his general charge, and none in his refusal to charge the several propositions submitted by defendant’s counsel.
The judgment is, therefore, affirmed.