57 W. Va. 49 | W. Va. | 1905
This is an action of assumpsit brought in the circuit court of Tucker county, wherein the plaintiff claims that he entered into an executory, contract with the defendant by which he purchased from it 800 acres of land, lying in Randolph county, at $15.00 per acre, and that after the making of said contract, the defendant sold the timber on said land to another person, thereby rendering it impossible for it to carry out its contract with him; and claiming damages in the sum of $5,000. The defendant pleaded non-assumpsit, and filed an affidavit denying that it signed or authorized the signing of the telegrams in the declaration mentioned, and upon this issue the case was tried. After the plaintiff introduced all his evidence, the court, upon motion of the' defendant, excluded it from the jury, and instructed them to find- a verdict in favor of the defendant. The jury returned a verdict as instructed, and the court rendered judgment thereon, and it is this judgment that we are now asked to review.
The right of the courts in this State to exclude the evidence from the jury and to peremptorily instruct a verdict in favor of the defendant, has been, for many years, well settled, but it was not until the decision in the case of Ketterman v. The
We look to the evidence to see whether or not the court did right imexcluding the plaintiff’s evidence. To establish Iris case plaintiff relies upon certain letters and telegraphic communications, which, in order to get a more complete understanding of the case, are here given m extenso:
“Sunbury, Pa., Nov. 25, 1901. W. H. Cobb, Esqr., Elkins, W. Va. Dear Sir: — Your valued communication of 22nd inst. just at hand. We realize that the point you make*53 regarding- the difficulty of working our whole tract from one side, is probably well taken, and for that reason we have no objection to making sale of the land laying on the Otter Creek side & Shafers Fork side separate^. But we do not think the price you offer ($12.50) per acre for the land on Otter Creek side is sufficient for it, You know this tract is exceptionally well timbered and will not grow less with time. Besides the coal question should be taken into consideration to a certain .extent, We feel positive there is coal in paying-quantities on this tract, although we have not had it opened up. Yours truly, Glenn Boom & Lumber Co. per W. H. Sager, Secty.'’
“Elkins, W. Va., Nov, 27th, 1901. To W. H. Sager, care Glenn Boom & Lumber Co., Sunbury, Pa. Wire best cash price on Otter Creek land. My offer about limit. W. H. Cobb.”
“Sunbury, Pa., Nov. 27th, 1901. Fifteen dollars. W. H. Sager.”
“Elkins, W. Va. Nov. 27th., 1901. To W. H. Sager, care Glenn Boom & Lumber Co., Sunburj, Pa. Will take Otter Creek land at price named. W. H. Cobb.”
“Sunbury, Pa. Nov. 28th., 1901. To W. H. Cobb, Elkins, W. Ya. Our Mr. Chester will reach Elkins Monday to consult with you. Letter to-day. W. H. Sager.”
“Sunbury, Pa., Nov. 28th, 1901. W. H. Cobb, Elkins, W. Ya. Dear Sir: Your Teleg. of 27th rec’d. Our Mr. Chester will reach Elkins about Monday evening to arrange terms of sale with you and enter into agreement with you if satisfactory all around. Yours truly, W. H. Sager, ■ Secty Glenn Boom &. L. Co.”
The court sustained the objection to the introduction of all the telegrams, except the first one mentioned, sent by the plaintiff to Sager, care of the defendant, inquiring the price of the -land, and also sustained the objection to the introduction of the letter dated November 28, 1901. But we will first look to see if from these letters and telegrams the plaintiff has shown such an executory contract as he could spe-cificallj' enforce, for this is the basis of his action, and without establishing such a contract as he could, in a court of equity, specifically enforce against the defendant for the sale of said land, he would not -be entitled to recover in this action.
This brings us to the question, is the contract made by the letters and telegrams such a one as meets the requirements of the Statute of Frauds, above referred to? It is notneces-'sary that the whole agreement should be written upon one piece of paper, but if it can be fully collected from various papers referring to one another or directly related to one another, such as letters and telegrams written and sent, and the replies thereto, so that they may be fairly said to constitute one paper relating to the contract, is a sufficient agreement, if it appears that the minds of the parties met, and if the terms of the contract, by referring to the various writings, can be made to clearly appear. Gaines v. McAdam, 79 Ill. 201; Elbert v. Gas Co., 97 Cal. 244; Brewer v. Horst, 127 Cal. 643; 27 Am. & Eng. Ency. Law (2 Ed.) 1092; 5 L. R. C. C. P. 295; Smith et al. v. Easton, 54 Md. 138; Story on Contracts, 1449.
While these letters and telegrams constitute a complete contract between the parties to them, yet, if they were written and sent by some person other than the one who is sought to be charged, it is necessary that the authority of the person writing and sending them should be shown. The defendant filed an affidavit with its plea as provided by section 40, chapter 125, of the Code, denying that it signed or authorized the signing of the telegrams 'which are claimed to have been received by the plaintiff. If not, under the general issue, without such affidavit, certainly under this plea, verified by affidavit, the burden of proof was upon the plaintiff to show that W. PI. Sager, in signing these telegrams, was authorized by the defendant to do so on its behalf. There is no such authority shown or attempted to be shown, except that the evidence shows that Sager at the time, wras the secretary of the defendant company, but does not show that he had any other connection with the defendant, or that he had authority to make the sale of the land in question. A secretary of a corporation, as such, has no authority to make contracts for it.
“The secretary of a corporation has no power, merely as secretary of the company, to make, contracts for it. The*55 secretary is one of the corporate officers, but ho has practically no authority. The corporation may, of course, expressly authorize the secretary to contract for it, or may accept anti ratify his contracts after they are made.” Cook on Corp,, sec. 717.
And then, Thompson on Corporations, sec. '4897, says: “The law does not ordinarily imply, in the secretary of a business corporation, the power, ex-offift.o, to bind the company by means of letters or documents signed officially.” And, also, in Clark and Marshall on Corporations, sec. 704, we find: “Unless authority is expressly conferred, however,, or he is clothed with apparent authority by being entrusted with the management of the business, or part of it, the secretary of the corporation has no authority to make any contracts on its behalf and in ics name, or bind it by such acts, lie has no such authority merely by virtue of his office."
The secretary not having authority by virtue of his office to make such a contract a-; is relied upon by the plaintiff for the basis of this suit, the defendant cannot be held liable by reason of the letters and telegrams sent by Sager, unless he had, at the time, express authority from the corporation to. make sale of this land, or unless he was held out by the defendant in such a way as to make it apparent that he had such authority, or unless the contract was ratified by the defendant. Every one who deals with an agent is presumed to know the extent of his authority, and if he exceeds his express or apparent authority, his acts do not bind the principal, but only bind the agent, unless they have been ratified by the principal, Curry v. Hale, 15 W. Va. 867; Dyer v. Duffy, 39 W. Va. 148; Wells v. Michigan, Life, Ins. Co., 41 W. Va. 131; Rosendorf v. Poling, 48 W. Va. 621.
It is claimed that the letter of the 25th day of November,, 1901, addressed to the plaintiff and signed by Glenn Boom & Lumber Co., per W. H. Sager, Secty., shows that negotiations were pending- for the sale of this land, and that the telegrams sent by Hager to the plaintiff in reply to the plaintiff's telegrams, having come from the proper place, and the-, proper officer of the defendant, raises the presumption that, they were directed to be sent by the defendant. There is no. such presumption arising from the facts in this case. While, the letter shows that it was signed by the defendant, per-
But even if Sager had been shown to have authority to make this sale for the defendant, the telegrams sent by Sager were not proper to be admitted as evidence, because their genuineness had not'been shown. There is nothing to show that they had in reality' been written and signed by Sager. From the authorities there is some difficulty in determining what are original telegrams within the meaning of the rule that the best evidence must be produced. ‘ ‘By the decided weight of authority the question whether the communication sent or the one received is to be deemed the original depends upon which party' is responsible for its transmission. In other words, for whom the telegraph company is agent. If there is but a single communnication, the dispatch as delivered at the place of destination is the best evidence. * * * “Of course, there must be competent proof that the alleged sender did actually' send or avthorize the sending of the message in question. * * * In proving a contract by telegrams, the best evidence is the telegram containing the offer as received ■at the point of destination and the dispatch containing the acceptance as delivered for transmission.” Jones on Evidence, sec. 209.
Now,- in this case, the plaintiff adopted the telegraphic system as a means for making the contract here relied upon, and made inquiry' of Sager as to what he would take for the land in question, to which Sager replied, giving him the price, which plaintiff accepted. Now, in accordance with the above authority', the best evidence is the telegrams of the plaintiff as received at their destination and the telegram of Sager at the place at which it was delivered for its transmission. But
For the foregoing reasons we find no error in the judgment of the circuit court, and it must, therefore, be affirmed.
Affirmed.