Richardson v. Scott River W. & M. Co.

| Cal. | Jul 1, 1863

Cope, C. J. delivered the opinion of the Court, Norton, J. and Crocker, J. concurring.

This is an action to recover a sum of money secured by a bond and mortgage, claimed to have been executed by a corporation known as the Scott River Water and Mining Company. The plaintiff alleges that the corporation, by its President and Directors, executed the bond and mortgage in question, and asks a foreclosure of the mortgage, and a sale of the mortgaged property, etc. The defendants deny that the bond and mortgage were executed by the corporation, and resist the claim of the plaintiff to the relief asked.

There is no doubt that the debt for which the bond and mortgage were given was the debt of the corporation, but we are of opinion that the bond and mortgage cannot be enforced as corporate obligations. The bond purports to be the individual obligation of the persons signing it, and the corporation is nowhere named as a party to it, either directly or by the use of language tending to show that it was a corporate transaction. It is signed by four persons, who neither describe themselves as agents of the corporar tion, nor designate the corporation as the party intended to be bound by it, and we think that extrinsic evidence is not admissible to change the character of the instrument. If its construction were doubtful, such evidence might be resorted to for the removal of the doubt, but it is not admissible to show that the effect of the instrument is different from that which its terms plainly and unequivocally denote.

The mortgage is signed by the same persons who signed the bond, and although differing from the latter in the fact that the corporation is mentioned in the body of it, its execution cannot be regarded as a corporate act. It names as parties of the first part William P. Pool, Charles W. Tozer, George T. Terry, and John Reid, “President, Directors, and members of the Scott River Mining Company,” and concludes as follows: “ In witness whereof the said parties of the first part hereunto set their hands and affix them seals.” Then come the signatures of the parties, to each of which is appended a scroll or seal; but the seals thus appended are the private seals of the parties signing, and not the common seal of the corporation. The clause referred to is conclusive of this point, and as the corporation could only convey under its corporate seal, the mortgage is necessarily inoperative as the foundation of any right or claim to the corporate property. A corporation may alter its seal at pleasure, and may adopt as its own the private seal of an individual if it choose to do so, but when adopted it must be used as the seal of the corporation. If it be affixed as the seal of the individual, it cannot be treated as that of the corporation, and a declaration in the instrument that it is so affixed is conclusive of its character and effect. “ If a conveyance,” says Parsons, “ purporting to be the conveyance of a corporation, made by one authorized to make it, be in fact executed by the attorney as his own deed, it is not the deed of the corporation, although it was intended to be so, and the attorney had full authority to make it so. And if the deed be written throughout as the deed of the corporation, and the attorney when executing it declares that he executes it on behalf of the corporation, but says, ‘in witness whereof I set my hand and seal,’ this is his deed only, and does not pass the land of the corporation.” (1 Par. on Con. 118.) The same rule is laid down by Angel! & Ames in their work on corporations, and there are numerous cases in which the point has been judicially determined. The case of Brimley v. Mann (2 Cush. 337) covers the entire ground, holding that a deed executed by the agent of a corporation, and purporting to be the deed of the corporation, was not so in fact, as it was signed by the agent in his own name, and sealed with his seal. The seal of the agent is not a seal as regards the corporation, and where the seal is attached to a conveyance as that of the agent, the conveyance is the conveyance of the agent and not of the corporation. It is unnecessary to state in the conveyance that the seal used is that of the corporation, if the fact otherwise appear, either presumptively from the language of the conveyance, or by evidence aliunde. The fact must appear, however, in some manner, and where the conveyance itself declares the seal to be that of the agent, there is no room for any presumption or inquiry upon the subject.

Judgment affirmed.