1 Neb. 146 | Neb. | 1871
The complainant sets forth and alleges in its bill, that one James’ C. Mitchell, about the first of January, 1860, was the principal .stockholder in said .bridge and ferry company ; that the complainant being desirous of purchasing said Mitchell’s stock in said company, employed the defendant, O. Perry Hurford, to purchase the same for it, and that said Hurford undertook to make such purchase ; that said Hurford having sometime thereafter associated with him one John I. Redick, with the intent to defraud the complainant, represented to the complainant that said Mitchell peremptorily declined to sell said stock to the complainant, on the ground of a bitter hostility existing between said Mitchell and the complainant; that beleiving these representations to be true, the complainant directed the said Hurford and Redick to purchase said stock ostensibly in their own names, but in fact, on behalf and for the benefit of the complainant, furnishing to said Hurford and Redick a certain note held by the complainant against said Mitchell, for the sum of $1,767.41, to be used as part consideration for the purchase of said stock, and assigned said note to said Hurford and Redick for that purpose, they paying and the complainant receiving no consideration therefor ; that said Mitchell having demanded a further consideration in money for said stock, one John Rickley consented to advance it to the complainant, and directed said Hurford and Redick to apply certain moneys in the hands of said Redick, and certain indebtedness due from said Mitchell to
The complainant further alleges, that said Hurford and Redick, by some means unknown to the complainant, settled with said Rickley for said moneys and debts of said Rickley, used in the purchase of said stock, but that the same was done without its knowledge and consent; that by divers assignments and transfers all the stock and property of said Ferry Company, has become vested in said O. Perry Hurford, Thomas J. Hurford, and Noble R. Hays, but that said Thomas J. Hurford and said Hays had full knowledge of the complainants’ rights in the premises ; that said Ferry Company since the 14th day of February 1860, has been in continual and successful operation, and has accumulated large profits exceeding to a considerable extent all sums expended in carrying on its business : that as soon as complainant learned of the purchase of said stock from said Mitchell by said Hurford and Rodick, and at divers times
To said bill, the defendant, O. Perry Hurford, answers in substance, that the complainant is not a corporation and doing business in Platte co.unty, Nebraska, as alleged in said bill, that said Mitchell never acted as treasurer of the present Columbus Company, but that the company for which said Mitchell did act as treasurer and received said sum of $1,767.41, dissolved by its own act about the spring of 1859; that he never undertook or agreed to buy said ferry franchise for the complainant and that he never agreed
The- answer of said defendant Hays, admits that he owns one fourth interest in said ferry company, that he bought the same from O. Perry Hurford, that at the time of his purchase he had no knowledge or notice whatever of any right of the complainant, and that he paid for his said interest the sum of one thousand dollars; that some profits have accrued from the business of said ferry company, the amount of which he cannot state, and claims to be a bona fide purchaser.
The answer of Thomas J. Hurford denies all the allegations of the bill, for want of information, etc., excepting that he heard of the purchase of Hurford, Redick and Hughes, of said franchise, but' knows nothing of the manner or consideration of said purchase ; that he did not know of the settlement between complainant and Hurford and others; that he bought one-fourth interest in the ferry in 1860, in good faith of one John H. Green and paid about $700 therefor, and had no notice or knowledge of any rights of complainant.
To these several answers the complainant replies generally.- The evidence taken in this' case shows that the defendant, O. Perry Hurford, was employed by the com
The evidence shows that after said purchase, the parties met at Columbus to adjust the matter of the purchase; that a meeting of the members of the Columbus Company (the complainant) was called; that said Hurford and Eedick offered to transfer to said complainant their said purchase upon being reimbursed the amount of money paid by Hurford, Eedick and Hughes to Mitchell, in addition to the amount applied upon the Mitchell note; that the members of the company present declined to reimburse them ; that upon talking over the matter of Mitchell’s note, it was contended by Hurford and Eedick, that Mitchell was insolvent, and that the note was worthless or of very little value, and that unless the complainant would reimburse them for the money they had paid, etc., they desired a full discharge from the complainant of all liability to it on account of said note; that some dissatisfaction was expressed on the part of some of the members of- the said Columbus Company to this proposition, but that finally it was settled upon, that in consideration that the said purchasers of said ferry should maintain and keep a ferry at or opposite the town of Colum
The cause was heard in the court below upon the pleadings, proofs, exhibits, and master’s report, and a decree rendered against O. Perry Hurford for the sum of sixteen hundred dollars and costs, and that the bill be dismissed as to the other defendants with costs, from which decree the defendant Hurford appealed. The complainant also filed notice of appeal, and the cause now comes up and is heard by this court on the appeal of Hurford.
The history of the note which the Columbus Company ' held against Mitchell, appears from the record and proofs to be about as.follows: In 1858, Mitchell was Treasurer of" the Company, and as such received a considerable sum of its money, the exact amount does not distinctly appear from the record or proofs. Some disagreement between the
The first question presented is, in what capacity and for what purpose the note was then placed in Hurford’s hands, whether as an agent or in a fiduciary capacity, or simply to do with it as he pleased.
The person who gave tKe note to Hurford was John C. Wolful, the president of the Company; so Hurford says. Wolful testifies that when he gave the note to Hurford, he told him that he drd so, for the purpose of having him exchange it with Mitchell for'the ferry owned by Mitchell. Weaver and Kummer also testify that the Company authorized Wolful to place the note in Hurford’s hands for that purpose. Rickley, the secretary of the Company, swears that he had repeated conversations with Hurford on the subject of the contemplated transaction with Mitchell, and it was distinctly understood that Hurford was acting for the Company. It also appears, from the testimony of these four witnesses, that Hurford represented to the Company, or its . officei’s, that Mitchell would not give the ferry interest for the note “even up” (as it was expressed), and they told him to make the exchange, he contributing what money
The testimony and attending circumstances show very, clearly that the note was placed in Hurford’s hands for the purpose for which he used it. Hurford testifies that if the purchase of the ferry, as at first proposed with the note, “even up,” had been effected, he would have acted for the Company as its agent. When or how that agency was dissolved he does not pretend to say. It was not shown to have .been dissolved; and the established presumption of lawisthatit is continued (1 Greenleaf’s Evidence, Sec. 41-2). But we are not left to resort to presumption in this case. Hurford used the note in making the purchase. What right had he to do this, if he was making it for himself and not for the owners of the note ? He did it, as a matter of course, under the very authority with which he first received the note from Wolful, and when he himself admits he took the note to use, as he did use it, this is decisive of the matter. Again, on the 19th of January, 1860, he wrote a letter to Rickley, the Company’s secretary, in which he says “the chances are for success” in effecting the purchase ; and he also says that he and Redick made Mitchell ■believe that it was for themselves alone they wanted to buy. This letter shows they had been, or pretended they had been, deceiving Mitchell, whereas the fact was they were buying, partly at least, for some one else. Who was this some one else ? We think it was the Columbus Company.
I do not think any one reading this record can doubt for an instant that Hurford was the agent of the complainant
Leaving out of view the question of good morals and fair dealing which might be raised in this case, the law is perfectly plain that such a course of conduct, as this record' shows was pursued between the parties, will constitute the relation of principal and agent. An agency may be inferred by implication, from the acts of the parties, as well as by deeds or verbal delegation or informal writings. This was the rule of the civil law. — Pothier Lib. 3, Tit. 3, No. 3 ; 1 Domat. B. 1, Tit. 15, Sec. 1, Art. 5. And the wisdom of the common law follows the civil law by adopting it.
It is true, that by the ancient common law, corporations aggregate were considered incapable of making a contract, or-of appointing agents or attorneys to do any binding act, except by deed or power in writing, under the corporate seal. But the existing law on the subject is, that a corporation may be bound by'the acts of its agents, although not under its corporate seal, and even when they are not reduced to writing, except in those cases where the statute of frauds otherwise expressly provides.
The agency may be inferred from facts and circumstances, without the violation.of any known rule of evidenc. American Insurance Co. v. Oakley, 9 Page, 497 ; Perkins v. Washington Insurance Co., 4 Cowan, 645 ; Pickett v. Pearson. 17 Vermont, 470. Almost all the cases in which the question of the agency arose, were between the alleged principal and a third party, or where the effect was in some way to bind the principal by the act of the agent. But the question is not so presented.here. Here the agent has done an act, employing the property of the principal in the doing of it, and it is the principal who insists on the agency against the agent.
Lees v. Nuthall, 1 Russ. & My. 53, was this : The wife
Sir John Leach, the Master of the Nolls, held that Nut-ball having been originally employed by the plaintiff as his agent for the purchase of the estate, was held to the duties of that relation, and that the purchase in his own name .was to be held for the benefit of his principal, and rendered a decree according to the prayer of the bill with costs.
The case was carried by appeal, before Lord Brougham; who affirmed the decree of the Master of Nolls, 2 My. &. Keen 819.
I have selected this case for mention here, out of a gi’eat number to the same effect, because in its facts, it is apposite
When, now, we consider these facts which are either admitted or proved beyond a question, that on a previous occasion Hurford had acted as the agent of the company, in dealing with Mitchell in reference to its claim, out of which the note grew; that again he endeavored on its behalf to effect a settlement of it, by a novation with Kasserman ; that he recieved the note again to exchange it for the ferry, and acted on the Company’s behalf; that he was requested to join in the purchase by the Company, by contributing what money Mitchell required; that he constantly reported progress to its officers ; that at the time his efforts were' likely to be successful, he admitted impliedly, but most distinctly, that he was acting for some third party, which must have been the Company; that he used the note in the purchase, and effected the wishes of the Company as he had been requested; when we consider these facts, it is impossible to resist the conviction, that he was the agent of the complainant, and that as such he is bound to give it the benefit of the-purchase. — Faucett v. Whitehouse, 1 Russ & My. 132 ; Taylor v. Salmon, 2 Cromp & Meeson, 136 ; Church v. Sterling, 16 Com. 387; Parkhurst v. Alexander, 1 Johns. Chancery, 394 ; Reed v. Warner, 5 Paige, 650 ; Sweet v. Jacocks, 6 Paige, 364 ; Massie v. Watts, 6 Cranch, 143 ; Irvine v. Marshall, 20 How. 558 ; Flagg v. Mann, 2 Sumn. 286.
It now becomes material to inquire, how much of the purchase price of the ferry, the complainant’s note formed. And here too Hurford has himself supplied the proof. In his
But the defendants allege that after the purchase from Mitchell had been made by them in their own names, the complainant ratified it, and released them from any claim such as is here alleged. Several objections are urged against this release.
• The complainant is a corporation. By its articles of incorporation, it is provided that its business shall be conducted by a board of directors consisting of five members, one of whom is to be the President of the Company, and a Secretary and a Treasurer. This alleged release was made by a committee of five, appointed at a meeting of the members and from the body of the members of the Company. It was not the act of the directors, nor did they ever ratify it. On the other hand, when it .came to the knowledge of the secretary, he wrote Hurford, protesting against it.
McCollough v. Moss, 6 Denio, 567, was an action of debt brought against one of the stockholders of the Eossie Lead Mining Company, by virtue of its act of incorporation, rendering them personally liable for the payment of its debts. The action was founded on a promissory note made in the name of the company and signed by the president, who was the general managing agent, and by the secretary. The note was one of four, given to secure $15,000, and interest, for certain property sold to and received by the Company. The charter provided that the affairs of the Company should be conducted by five director's, a majority of whom formed a board for the transaction of business. It was not shown in evidence that the board of directors
Lott Senator, delivering the opinion of the court on this subject, says: “ Where a charter vests a board with the power to manage the concerns of a corporation the power is exclusive in its character. The corporations have no right to interfere with it, and courts will not, even on a petition of a majority, compel the board to do an act contrary to its judgment [Angel and Ames on Corpo. p. 121, 151 to 164) The stockholders as such, in their collective capacity, could do no corporate act. It is one of the fundamental conditions of the contract into which the corpora-tors have entered, by becoming members of the corporation, that its concerns shall be managed in the manner prescribed by the act of incorporation, and from this no essential departure can be made.”
But it is said that this is a technical objection to the form of the release, and in a Court of Equity, should not be permitted to prevail. I do not think it is such an objection as a Court of Equity could overrule. But even if it were, it must, in the circumstances of the case, have its full force, because the release was obtained fraudulently.
The meeting at which the committee was appointed, was called by or at the instance of Redick and Hurford, and its members were named by them. With a single exception, it was composed of persons who knew but little of the matter, or of the company’s affairs. That exception was one Green. The bill charges that at that time he was interested with Redick and Hurford in the purchase. This they both positively deny in their depositions, and swear that he did not become interested with them until after-wards. But the release is produced by them. It was drawn by Redick at the time and is signed by the committee, and among its numerous recitals it is stated, that
And as to any opportunity of the committee to investigate the matter, they could do nothing but inquire of these parties as to the facts. They could not come down from Columbus, where the investigation, such as it was, was being made, and learn the facts from Mitchell, for Redick, Hurford, Hughes and Green, were then pressing the matter to an immediate conclusion. They did not propose to remain but one or two days. They were detained by a storm longer than .they intended, but this gave the Company no opportu. nity to inquire elsewhere after the facts. Their own account shows that they gave the Company, only the alternative' either to lose all it had in the matter, or pay at once all that had been advanced. One of the committee swears
Nor do we think there was any ratification of the release in making of the deed by the mayor of Columbus to the purchasers, for that was the deed of a public officer who was bound to convey to a party occupying the premises, who appeared to have a right to the deed. It was not in any sense nor in any view the deed of the complainant.
The claim interposed for services rendered by the defendant Hurford to the complainant in securing the claim against Mitchell, and negotiating for the ferry, should be allowed the complainant to the extent of what the same was reasonably worth.
The defendant Hurford should be allowed the expense of the management and control of the ferry, the same to be deducted from the gross profits or income of said ferry. He should not be allowed for crossing the members of the Columbus Company free. The defendant Hurford, should
The complainant should be charged with the actual value of all property and money received by them from the defendants, in consideration of the pretended release and settlement.
The defendants must be charged with the value of one-half the ferry and franchise, together with the profits and proceeds thereof. It only remains to be determined how this shall be apportioned among the defendants.
There is no evidence showing that Thomas J. Hurford purchased his interest with notice as to the complainant’s claims. As to him the bill must be dismissed with costs. Hays did have notice when he bought, and as he purchased from the principal defendant, O. Perry Hurford, he would have a remedy over against him. '
The bill prays, among other things, that the right of the parties may be declared by the court in the decree. It will cause further litigation to settle the relations of the defendants as between themselves in the decree, and it will therefore provide that the amount to be paid be first made out of O. Perry Hurford, and then in event of his being unable to answer for the whole judgment, execution for due proportion should go against Hays. In order to determine the amount for which Hays may be liable, we must know the date of his purchase, which does not appear in the master’s report. And in order to render a final decree, the account between the complainant and defendants must be stated upon the basis of this decree.
A reference must therefore be had touching these matters, and also the rents, profits, proceeds, business and expenses of the concern.
' Cause remanded.