The plaintiff asserts that the claims, amounting to $300,776, held by the bank against the mill on the 1st day of May, 1875, have been fully and legally paid; and that between May 1, 1875, and the date of the failure of the bank, a new indebtedness, amounting tо $419,361, was incurred by the mill to the bank with the assent of the defendants, and that they are liable to the receiver of the bank for the sums by which the indebtedness exceeds the capital stock of the mill.
The referee found as a fact:
“ VIII. That to the creation of the debt of the Schaghticoke Woolen Mills to the Merchants and Mechanics’ Bank of Trоy, existing on the 1st day of May, 1875, or to any part thereof, the defendant, Daniel Robinson, did not assent.”
As a conclusion of law: “ I. That neither of the defendants are liable for any part of the indebtedness of the Sсhaghticoke Woolen Mills in excess of its capital stock exising on the 1st day of May, 1875.” The plaintiff insists that thе eighth finding of fact is without any evidence tending to sustain it, that it is a ruling upon a question of law, and that the referеe erred in finding it, and the General Term in sustaining it. If the plaintiff’s position is, in fact, well taken, he should have excepted to the eighth finding, pursuant to section 993 of the Code of Civil Procedure.
(Brush
v.
Lee,
The referee does not find whether the existence of the contract of May 1,1875, was known or unknown to the boards оf the two corpon tions, nor is it disclosed by the evidence; but it does appear that the hoard of directors of the bank consisted of four members, D. Thomas Yail, a director and president; Charles R. Church, a director and vice-president; Francis Sims, a director and cashier. The name of the fourth director does not appear. Church was a partner of Robinson and an indorser on some of the paper made by the mill after *200 May 1, 1875. The board of trustees of the mill consisted of five members, D. Thomas Vail, a trustee and president; Daniel Robinson, a trustee; Chester Griswold, a trustee; William Howard Hart, a trustee; and Thomas A. Knickerbacker, a trustee from May 1,1875, to June 18,1878, when James E. Pink-ham succeeded Knickerbacker as a trustee, and from that date until the failure of the mill its trustees were Vail, Robinson, Griswold, Hart and Pinkham.
There is no evidence that the financial transactions between the bank and mill, prior or subsequent to May 1, 1875, were unknown tо or disapproved by the board of either corporation, and this court will not, for the purposе of reversing the judgment, presume that the transactions were unauthorized by the boards. The contract dоes not appear to have been entered into for the personal benefit of Tail or Robinson, but solely for the benefit of the then involved corporations, and there is no evidence that Vail or Robinson profited, or sought to profit, by the contract. The contract was one which the boards of the corporations had power to authorize, their presidents to make, or to ratify aftеr it hád been made, and the burden was on the,plaintiff to show that the contract was not authorized or ratifiеd by the boards. •
(Bank of Vergennes
v.
Warren,
The judgment should be affirmed, with costs.
All concur, except Parker, J., not sitting.
Judgment affirmed.