26 Mont. 85 | Mont. | 1901
ON Rehbabing.
delivered tbe opinion of tbe court.
Tbis cause is before tbe cp-urt on a rebearing granted upon application of respondents on November 13, 1900. Tbe argument and decision bave been delayed on account of tbe illnéss of counsel for appellant. For a brief statement of tbe facts, reference is made to tbe former opinion in 24 Montana 255, 61 Pac. 650. These additional facts may be noted, as they do not appear in that statement: Tbe Hope Mining Company was organized under tbe laws of tbe state of Washington. Its trustees, except the president, Pitner, reside in Seattle, in that state, and its general office is there. On tbe day following tbe execution, of tbe contract by Franklin, tbe mine superintendent, Pitner, Franklin and Trent returned from Butte to Basin. Trent states that be took possession of tbe property after, some conversation with Field, tbe manager; Pitner then being at bis residence, near by. He further states that, after tbe contract bad been entered into by himself and Franklin at Butte, be told Pitner that Franklin bad given him a bill of sale, but that Pitner said that be did not care to know anything of it, and it must be understood that be did not.
Tbe conclusion stated in tbe former opinion was that tbe defendant should be granted a new trial, on two, grounds: First, that tbe trial court erred in admitting in evidence tbe contract upon which tbe plaintiffs found their claim to tbe property involved; and, second, in refusing to submit to tbe jury a certain instruction requested by tbe defendant. . Upon consideration of the argument and tbe authorities presented by counsel in support of the motion for a rehearing, we still
The evidence in the case at bar tending to shoAV that the president, Pitner, had or should have had knowledge of the character of the contract entered into by Fi’anklin, was sufficient to go to the jury. He refused to enter into the contract himself; but the evidence has a tendency to show that he ret-ferred Trent to Franklin, Avith the statement that the latter had authority to make it. It also appears from the testimony of Trent that he told Pitner that he had obtained a bill of sale of the Bryan Mills that Pitner knew of the character of the transaction, but refused to be informed of the particulars, and did not Avant it knoAvn that he knew anything, of the matter. Besides, on the next day he Avent with Franklin and Trent to Basin, and was there at the time Trent says he took possession of the mills. True, Pitner Avas called by plaintiff to testify, and denied all knowledge of the transaction until long after the defendant had made the levy. Still, it was for the jury to determine whether Trent or Pitner told the truth. If Trent’s .statements Avere to be taken as true, then Pitner kneiv or should-have known that Franklin had undertaken to bind the corporation ; and it ivas his duty, under the circumstances, to repudiate the transaction, and thus prevent his principal from being bound. He may not be permitted to say that he or the principal had no knowledge of the character of the contract and its purpose, while all the circumstances tend to show that he was put upon inquiry, and that it Avas his duty to inform himself.
' In what we have just said touching the authority of Pitner
Counsel for respondents contend that the defendant in this, case should not be heard to question the validity of the contract, for the reason that it was, at most, only voidable, and, being-voidable only, no person other than the corporation itself could question its validity. In support of this view they cite the following authorities: Eureka Iron and Steel Works v. Bresnahan, 60 Mich. 332, 27 N. W. 524; Gordon v. Preston, 1 Watts, 385, 26 Am. Dec. 75; Manhattan Hardware Co. v. Phalen, 128 Pa. St. 110, 18 Atl. 428. With this view, however, we do not agree. From an examination of these cases, it appears that in each instance the contract involved was upon its face executed on behalf of the corporation by the proper officer, and that it had been ratified by the corporation by acquiescence and retention of the benefits derived from it. We are unable to distinguish between the act of a. stranger and the act of a person who is an agunt for another, but unauthorized to do the act in question on behalf of the latter. So far as it would affect the rights of the principal, or those of any other person than the agent himself, the attempt to- bind the principal would be nugatory in each instance. If, for instance, A., a stranger, attempts to sell and deliver to C. the personal property of B., assuming to act as the agent of B., and, before B. has any knowledge of
' For the reasons stated, the conclusion reached in the former opinion upon, the first point decided must therefore be modified in accordance with the views now expressed; but we still think that the court committed prejudicial error in refusing the requested instruction. The defendant was entitled to have the jury cautioned that .they should not consider the contract as prima facie the act of the corporation, — in other words, that there was no presumption in favor of it because it purported on its face to be executed by Franklin on behalf of the corporation.
The judgment and order are" reversed, and the cause is remanded for a new trial.
Reversed and remanded.