88 Kan. 237 | Kan. | 1912
The opinion of the court was delivered by
The appellant is engaged in producing and refining oil and owns and operates a number of refineries located in Kansas and Oklahoma.. The appellee, claiming that he had performed services for appellant as superintendent of refineries, brought this action to recover his salary for one month. The jury returned a verdict in his favor for $175 and interest. From the judgment the company appeals.
The plaintiff alleged that he had been employed as superintendent of refineries for a period of one year from August 1, 1910, at a salary of $175 per month, under a written contract executed on behalf of the company by S. A. Darrough, its general manager; that in pursuance of the terms of the contract he had performed his duties as such superintendent and that his salary for the month ending October 21, 1910, remained due and unpaid. Attached to the petition was a copy of the contract. The answer, which was verified, admitted that Darrough was general manager of the company but denied his authority to create the office of superintendent of refineries or to fix the salary of such office or to make the contract. It set out what purported to be a copy of the by-laws of the company and certain provisions of its charter, which placed the management, control and direction of the affairs of the company, except as otherwise expressly provided, in a board of directors consisting of twenty-one members. It was alleged that no authority had been , delegated by the board to the general manager to enter into the contract set up in the petition.' As a further defense it was alleged that when the written contract was executed appellee well knew that S. A.
The claims of error are numerous, but most of them revolve about the question of the implied authority of the general manager of a corporation such as this was to enter into a contract for the employment of a general superintendent of refineries for one year and to fix his salary, We think the making of the contract in question was within the apparent scope of the authority of the general manager. It has been frequently held that the term “General Manager” or “General Superintendent” is a broad and comprehensive title, and that as to the public and those who deal with such an officer, without actual knowledge of his authority, he is the corporation itself. (A. & P. Rld. Co. v. Reisner, 18 Kan. 458, 460, “General Manager;” Pacific Rld. Co. v. Thomas, 19 Kan. 256, “General Superintendent;” A. & N. Rld. Co. v. Reecher, 24 Kan. 228, “General Manager;” Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1099, “General Manager”.)
In St. L., Ft. S. & W. Rld. Co. v. Grove, 39 Kan. 731, 18 Pac. 958, it was said:
“As the general manager of a railroad company has full control of all the company’s affairs, and complete direction over its treasury, we must assume that Miller had authority to employ Grove, or direct Forbes to employ him.” (p. 735.)
In Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, it was said:
“A general agent of an insurance company can mod*241 ify the insurance contract or waive a condition of a written policy by parol.
“A provision in an insurance policy respecting encumbrances on the property insured may be waived by the insurance company or its general agent; and this although the policy contains a printed stipulation that no agent of the company or any person other .than the president or secretary shall have authority to waive any of the terms or conditions of the policy, and all agreements by the president or secretary must be signed by either of them.” (Syl. ¶¶ 2, 3.)
“A general manager of a corporation has been defined to be a person who really has the most general control over the affairs of the corporation, and who has knowledge of all its business and property, and can act in emergencies on his own responsibility; who may be considered the principal officer.” (14 A. & E. Encycl. of L. 1002.)
(See, also, 4 Words and Phrases, p. 3073, under title “General Manager” and cases cited.)
In a recent case, Hornick v. U. P. Railroad Co., 85 Kan. 568, 118 Pac. 60, 38 L. R. A., n. s., 826, it was held that the general claim agent of a railroad com.pany has not the implied authority in the settlement of a claim against the company to bind the company by a contract to give the claimant employment for life. There • is, of course, a wide distinction between the powers of the general claim agent and those of the general manager, and in the opinion it was well said:
“It is not one of the duties of a claim agent to employ men to operate the road. If the general manager, or other official to whom power of employment is intrusted, should make such a contract there would be some room to imply authority of this exceptional character, but the employing and discharging of officers, agents and employees of the company is not the purpose for which a claim agent is appointed, nor is it a duty which naturally belongs to such an agency.” (p. 575.)
In the case last cited it was held that notice of a bylaw providing that no officer except the board of directors shall have authority to make contracts for service for the period of a year is not chargeable to one who is employed for a year by the general manager, who has been given absolute charge of its business at the place where the contract was made.
Nor was proof required showing that authority had been delegated to the general manager by the board or executive committee before the contract was admissible, for the reason that prima, facie the general manager was authorized to bind the company by such a contract. We construe, the allegations of the petition to set up a cause of action for earnings or salary due upon a contract, and not an action for damages for the breach of the contract by unlawfully discharging the appellee; and therefore the court properly limited the inquiry as to appellee’s earnings elsewhere to the month involved.
It is next contended that it was error to refusé to permit appellant to cross-examine appellee touching his knowledge of the provisions of the charter and bylaws of the company which it is insisted limited the authority of the general manager. This claim may be considered in connection with the claim that it was error to refuse to admit in evidence on the part of the
“The general manager shall have the control and management .of the property and business of the Company, under the direction of the Board of Directors.”
Section 21, in part, reads:
“The management, control and direction of the affairs of the corporation is vested in the Board of Directors, . . . except as especially otherwise provided by law or by these by-laws. . . . The Board of Directors shall fix and determine the compensation to be paid to each of the officers and the amount and condition of any bond any such officer shall furnish.”
It is quite obvious that none of these provisions restricts or limits the implied power of the general manager in matters within the apparent scope of his duties. The officers whose compensation is to be fixed by the board are clearly those officers named and created by the by-laws themselves, including the general officers of the corporation, the president, the six vice
The court limited the issues to whether or not the contract was entered into in good faith between appellee and the general manager clothed with authority to bind the company, and whether or not, in pursuance thereof, the appellee performed the services and was wrongfully and unlawfully discharged, and to an inquiry as to what sum, if any, was due him as salary, and submitted to the jury the question of whether or not there was any fraud or collusion on the part of S. A. Darrough and the appellee, or either of them, with the knowledge or connivance of the other. A number of instructions were asked by appellant, which were refused. Most all of them were based upon the theory that the general manager, under the provisions of the charter and by-laws of the company, had no authority to make the contract, and it is not necessary to consider the alleged error in refusing to give them.It would seem, however, that the court should have instructed that, even if the jury found from the evi
For the error in failing to instruct upon this defense, and in unduly restricting the issues, the judgment is reversed and a new trial ordered.