16 Colo. 118 | Colo. | 1891
The counsel of appellant in his able argument relies upon two general propositions for the reversal of the judgment. They are stated by him as follows:
“ First. That the alleged contract sued upon, under the construction claimed for it by the plaintiff, was not within the scope of the powers possessed by the witness Guilbault, as general manager of the defendant company.
“ Second. That the instrument sued upon did not constitute a contract between the plaintiff and defendant companies for the sale and delivery to the plaintiff of all or of any particular portion of the product of the mine of the defendant for the period of time specified in it. It was not an agreement for the sale and delivery of any portion of such product, but was merely an offer or memorandum fixing the price for such portions of the product as the defendant might see fit to deliver to the plaintiff during the period of time limited. To this latter extent, but no further, can it be said to have any of the elements of a contract for sale or delivery between the parties.”
In discussing the first proposition it becomes necessary to examine that portion of the by-laws of the defendant corporation providing for the appointment and defining the duties and powers of a general manager of its mines. It is as follows:
“ Art. 8. There shall be a general manager of the company’s mines, to be employed by the president or board of
When unrestricted by the by-laws, or his duties undefined by them, a general manager of a corporation has been defined to be “ the person who really has the most general control over the affairs of a corporation, and who has knowledge of all its business and property, and who can act in emergencies on his own responsibility; who may be considered the principal officer.” And. Law Diet. And such is the judicial definition given in Manufacturing Co. v. Lawson, 57 Wis. 404, where it is also said: “ The very term implies a general supervision of the affairs of a corporation in all departments.” To the same point, Spangler v. Butterfield, 6 Colo. 356.
In the absence of restrictions or controlling usages and customs in the particular class of corporations in which he is employed, he must be considered the principal officer, to whom is delegated the entire control and management of the corporate property, as far as operating the same is concerned. Such must of necessity be the construction of his powers when the president is a non-resident, and when the president is present his duties are well defined by law, and do not necessarily extend to the practical management of the property; while directors commonly act at intervals, when called together as a body. All the other officers of a mining corporation, except the general manager, may be,
The by-laws of a corporation are not necessarily public and known. They are for the government of the corporation. The learned counsel for appellant put in evidence some portion of the by-laws, and contends in argument that the public, in dealing with the manager, was bound by the authority conferred by the corporation, whether made public or not. The by-law of the corporation, in speaking of the manager, says: “ Whose duties shall be to take charge of the business of selling of ores mined, and to look after the development of the mining property, and to attend to all of the details incident to the business of the company at
The learned counsel for appellant contends, in a very able and ingenious argument, that the language, “ whose duty it shall be to take charge of selling ores mined,” in the by-law, can only be construed to authorize the manager to sell ores after they are severed and have become chattel, and are on hand as ores, and cannot extend to the sale of ores to be produced for future delivery. His language is: The question presented under this by-law is whether authority to take charge of selling ores mimed gave to the general manager any power to sell or* dispose of ores unmimed. That it admits of none but a negative answer seems obvious.” This construction of the power and the word “ mined ” we think too narrow and restricted. Hor do we think the contention that the assumption of the power by the manager for the disposition of ore not yet severed from the realty was an exercise of the power to incumber or dispose of the realty of the corporation, or in any way affect it, is tenable. The contract was for the disposition of all the ore produced for a limited time after it became chattel in character,— after it became a product of the realty by being severed. It was no more a contract affecting the realty than would have been the sale for future delivery of
The fact that ore before being mined and separated is a part of the realty in no way affects the character of the ore as personalty after the separation. The mining, breaking and separating the ore from the mass at once changes its legal .character, and it has no more the character of realty then wheat after it is harvested and threshed. Hor has the uncertainty of the tenure of office of the manager, and the fact that he might be at any time removed, any influence in determining the legality of the contract. All officers of a corporation hold office for a limited time, fixed in some instances ; in others, determinable at the will of the corporation ; yet, while filling the office, they can make contracts legally binding upon the corporation for a reasonable time. It appears from the evidence of the general manager that prior to the agreement in question the parties had extensive dealings. He said: “ The Lee mine was shipping most of their ore to the plaintiff company. I presume it was shipped there for four years and more; to my knowledge, they shipped there continually from the time I came up to the 15th of February, 188é. I came to Leadville in 1883.” And the reason given is the following: “ We were treated better with the Omaha & Grant than we were by anybody else.” With this knowledge and experience of the fairness of the dealings of the appellee, when it was found that a special contract could be made for all the output of ore for six months, with the further benefit to the company of $1 per ton in treatment, it was a duty imposed upon the manager by virtue of his office to make a contract. Another consid
"We conclude that the general manager of appellant had power and authority to bind the corporation by the contract as made. It is true that the declaration and statements of an officer of a corporation not under oath of his power and authority are not competent to establish them. But when, as in this instance, his general power and authority is conferred as in the by-law, his own testimony in regard to his powers and duties, as incidental to the general power conferred, must be regarded as conclusive, when called as a witness by the opposing party, and his testimony admitted without objection, and remaining uncontradicted by other officers of his company. He said: “ I was manager of the Robert E. Lee, and am still manager, but I had the handling of the ore up to the 15th of February, 1884. I had the general management of the mine on December 1, 1883; also charge of handling and disposing of the ore. * * * I was general financial agent of the corporation. * * * I sold and disposed of all the ore that was mined and shipped from the mine. I had authority to choose the reduction works to which I would ship and to dispose of it in any way that my judgment dictated. I was placed in that position by the president of the corporation, Mr. Pennock.” The following authorities support bur view of the power of the manager to make a contract: Story, Ag.,§ 93; 1 Pars. Cont. 44; Ang. & A. Corp., §§ 297, 298; Bates v. Iron Co., 7 Metc. (Mass.) 224; Smith v. Peoria
There is another view of this case which should not pass unnoticed. The general manager, Guilbault, held that office at the time of the trial, and had also been elected secretary of the corporation, and was naturally prompted to shield his company from damages, as far as he could conscientiously do so. His reluctance to testify fully is apparent. But it is fairly inferable from his entire evidence that he was not alone responsible for the contract. It appears that Mr. Pennock, the president, had been in treaty with Mr. Eddy, of the Smelting Company, in Denver, in regard to the matter, and that the contract was the result of such negotiations. He was asked, on direct examination:
“Question. About the 1st of December, 1883, did you receive any communication from the president in relation to making a contract for the treatment of ore or selling ore for six months? .Answer. I had word from him by telegraph, I believe, where to ship the ore; have not got the telegram ; I looked for it, but could not find it. It was a direction to ship the ore to the Omaha & Grant smelter. He stated Eddy & James. I made no agreement with the Omaha & Grant smelter with reference to the treatment of ore. The agreement was made by them. They submitted the proposition to me, and I signed it. * * * I had no other purpose in signing the name of the company than to formally accept their proposition in writing. I intended to ship them the ore, and I did not take much notice of it. I signed the proposition after I received the telegram from Mr. Pennock. I think it was in pursuance of the direction I received from Mr. Pennock that I signed this proposition, and thought I was carrying out his directions.”
He further said: “ I made no contract to ship unproduced
Although the testimony of this witness is evasive, it is fairly inferable from it that the contract originated with Messrs. Pennock and Eddy in Denver, and the execution of it was pursuant to the instructions received by the respect
By w-hom these contracts were made on the part of appellant does not appear, but it is fairly presumable that they were made by the manager. It also appears that the contract in question was not materially variant from those formerly made, except as to the length of time. The right to pledge or sell the ore three weeks in advance of the min
The second proposition relied upon, and ably supported by the elaborate argument of counsel, is “ that the instrument sued upon did not constitute a contract between the plaintiff and defendant companies,” etc.; and contends that the proposition was but a circular letter, amounting to no more than if it had said : “Our charges for reduction, and the prices we will pay for ores from the Eobert E. Lee mine for the next six months, will be thus and so. We invite your attention to these, and solicit the continuation of your patronage.” The record shows by the evidence, uncontradicted, of Guilbault and Head, that the contract was the result of
In Violett v. Patton, 5 Cranch, 150, it is said: “ To constitute a consideration, it is not absolutely necessary that a benefit should accrue to the person making the promise. It is sufficient that something valuable flows from the person to whom it is made, and that the promise is the inducement to the transaction.” See, also, Townsley v. Sumrall, 2 Pet. 182; Hadden v. Dimick, 31 How. Pr. 196; Greve v. Ganger, 36 Wis. 369; Barton v. McLean, 5 Hill, 256; Thorn v. Commissioners, 32 Beav. 490.
An almost, parallel case to the one under consideration in many respects was Riggins v. Railroad Co., 73 Mo. 598, growing out of the following memorandum: “ Kansas City, Mo., November 6, 1872. Lead from Baxter to St. Louis at 22J- per 100. All lead shipped by Chapman & Eiggins to be forwarded by M. E., F. S. & G. E. E. at above rates from January 1, 1873, to January 1, 1874, and above rates guarantied for same time. H. J. Hayden, G. F. A., Eiggins & Chapman,”— the breach alleged being that the railroad company refused to transport large quantities of lead offered by plaintiff at the rates mentioned in the proposition. The same defenses were interposed that are here insisted upon in argument, and it was held that, although Eiggins & •Chapman did not agree to ship any lead or definite quantity, they did bind themselves to ship over the road of the company any lead they should ship to St. Louis, and that that was a sufficient consideration for the company’s guaranty of rates. It was also urged in that, as in this case, the instrument was not a contract by reason of its uncer
In this case the testimony shows that it was not intended as a memorandum upon which a contract was to be drawn, but a contract entire and complete in itself, and was so understood and acted upon by the parties to it. Guilbault testified: “ I signed the name of the corporation for which I was manager, the Eobert E. Lee Mining Company, by myself as manager. I presume the signature to that was an acceptance of it. I so understood it. I had no other purpose in signing the name of the company than to formally accept the proposition in writing.” He also testified: “Immediately after signing this contract, the price changed to $17.50; all shipments Avere settled on the basis named in the contract. * * * I think they did receive about $10,000 advances on this contract, but 1 am not positive of it. Our books do not show it. I think we shipped mineral to the Omaha & Grant smelter about two months and a half after the execution of this contract, and the new rate fixed by the contract of $17.50 per ton; Ave shipped up to February 15, 1884, and all settlements were made on the basis of the price made in the agreement.” Mr. Head, manager of appellee, testified, in substance, to the same, and it remains undisputed; showing conclusively that the paper signed was intended to be and was regarded as a valid existing contract, and was acted upon as such by both parties, until the mines of appellant were leased and the disposition of ore passed out of its control.
' Richmond and Bissell, CO., concur.
Por the reasons stated in the foregoing opinion the judgment of the trial court is affirmed.
Affirmed.
•Me. Justice Elliott dissenting.