89 P. 981 | Cal. Ct. App. | 1907
The complaint alleges that in October, 1902, plaintiff sold and delivered to defendants two hundred and fifty barrels of red Alaska Salt Salmon at $7.50 per barrel, less a discount of five per cent, making the total amount due $1,781.25; that the same had not been paid, except the sum of $850 on account, leaving $931.25 due and unpaid. The answer denies specifically the allegations of the complaint, and by way of counterclaim alleges that the plaintiff is indebted to the defendants in the sum of $1,593.75 for work and labor performed by defendants for plaintiff at its special instance and request, no part of which has been paid except the sum of $931.25, and concludes with a prayer for judgment against plaintiff in the sum of $662.50. *107
The court found that the allegations of the complaint are true, and as to the answer it found: "It is not true that within the two years prior to the filing of defendants' answer herein, or at any other time, the defendants performed work and labor or either thereof for plaintiff at the plaintiff's special instance and request or otherwise, or for which the said plaintiff promised and agreed to pay the said defendants the sum of one thousand five hundred and ninety-three dollars and seventy-five cents ($1,593.75) or any other sum of money." Upon the findings judgment was entered for plaintiff as prayed for in its complaint.
Defendants prosecute this appeal from the judgment, and urge certain rulings as prejudicial. There is no question as to the sufficiency of the evidence to support the findings, and there seems to be no serious question as to the sale of two hundred and fifty barrels of the salmon to defendants, the price agreed to be paid, and the balance due upon that transaction. The rulings complained of relate to the defendants' counterclaim. Their counterclaim is based upon what is claimed to be a contract binding upon plaintiff for the sale of all the salmon packed by the plaintiff for the season of 1902. This alleged contract is contained in a letter of which the following is a copy:
"Arthur L. Whitney. "Albion H. Whitney.
"C. E. Whitney Co. "Commission Merchants, "904 Hayward Building. "San Francisco, Cal., April 15th, 1902. "C. E. Whitney Co., "904 Hayward Building, City.
"Gentlemen:
"Confirming verbal understanding with you, I will give you the handling of all the salted salmon packed by the Northwestern Co. and other companies in which I may be interested this year, relying on your discretion and judgment to realize the best prices possible. You to receive a commission of 5 per cent net on the sales.
"Yours truly,
"NORTHWESTERN PACKING CO. "L. A. PEDERSEN." *108
It is admitted that defendants did not sell the plaintiff's salmon pack for the year referred to, but that plaintiff sold its entire pack of four thousand three hundred barrels, save and except the two hundred and fifty barrels, the subject of the complaint in this action. Defendants' contention is that the letter signed by Pedersen is a contract binding upon plaintiff corporation, and that they should have been permitted to prove that they had or procured purchasers ready, able and willing to purchase the entire pack of salmon, and thus earned the commission of five per cent as provided in said letter. The main contention is as to whether or not the letter constitutes a binding executory contract upon plaintiff corporation. Aside from the question as to the letter being unilateral and no valid consideration on the part of the defendants, we are of the opinion that the letter does not of itself constitute a valid contract binding upon the plaintiff corporation. It is written by the president of the corporation, and in it he says: "I will give you the handling of all salted salmon packed by the Northwestern Co. and other companies in which I may be interested this year." It is not attested by the seal of the corporation. There does not appear to have been any resolution of the board of directors authorizing the contract.
The salmon pack of 1902 was the property of the plaintiff, an artificial being created under the provisions of the statute. The title was in the corporation and not in Pedersen. The corporation could only act — could only speak — through the medium prescribed by law — the board of directors. The statute under which the corporation was created contains the express mandate: "The corporate powers, business and property of all corporations formed under this title must be exercised, conducted and controlled by a board of not less than three directors." (Civ. Code, sec. 305)
The rule has been adhered to by the courts. (Gashwiler v. Willis,
The court, under defendants' objection, allowed the plaintiff to read in evidence article VII of plaintiff's by-laws, which provides that the president shall sign as president "all certificates of stock and all contracts and other instruments in writing, which have been first approved by the board of directors." The defendants now urge that the ruling was erroneous, because they were strangers to and had no notice of the by-laws introduced in evidence. The record does not disclose that any such ground was stated in the objection. The objection was "to their introducing in evidence their own by-laws as a part of their own case as against us." However, the ruling was not erroneous under the circumstances of this case. As has before been stated, there is nothing to show that the plaintiff has been guilty of such conduct as to estop it from denying the validity of the contract signed by Pedersen. Where a corporation is sought to be charged for a breach of an agreement which has not been performed, and there is no question as to estoppel or ratification, the by-laws of the corporation are admissible in evidence for the purpose of showing that the contract was not executed as the by-laws provide.
It is claimed that the court erred in sustaining plaintiff's objections to certain questions asked of the defendant Arthur *110
L. Whitney for the purpose of showing that he had procured purchasers for the salmon who were ready, able and willing to purchase. If we are correct in our conclusion that the contract made by Pedersen was not the contract of plaintiff, then the evidence was properly excluded. The questions were each objected to as calling for the opinion of the witness, and the objections might well have been sustained on that ground. Each of the questions contained the interrogation as to whether the witness "had purchasers ready, willing and able to buy the salmon." Whether a purchaser was ready to purchase, able to purchase, and willing to purchase, would depend upon facts. If the party making an offer was able to purchase, and the price was agreed upon, the plaintiff must have been informed of the facts. Plaintiff could not have disproved the statement of the witness by independent evidence if he only said that he had a purchaser ready, willing and able to purchase. And furthermore the defendants would not have earned their commission by simply finding a purchaser who was ready, able and willing to purchase. A person might be ready, able and willing to purchase, and yet make no agreement to purchase. The broker is not entitled to a commission until he negotiates a sale by bringing the buyer and seller together. The broker does not earn his commission until he procures a valid contract to purchase, or brings the buyer and seller to an agreement. (Gunn v. Bank of California,
The judgment is affirmed.
Hall, J., and Kerrigan, J., concurred.