70 W. Va. 169 | W. Va. | 1911
After this case was remanded to the circuit court of Mingo county, in obedience to the decision of this Court, as reported in 64 W. Va. 417, a trial was had which resulted in a verdict for the plaintiffs for the sum of $1,230.00, a portion of which was released to prevent the court from setting it aside, and judgment was rendered for the residue thereof, $558.40.
Insufficiency of the evidence to sustain the verdict and the exclusion of certain testimony are the only assignments of error we deem it necessary to pass upon. The defendant is a corporation and the verbal contract sued upon is alleged to have been made with its president. This was a contract for the purchase of a portable engine and a saw mill at the price of $1,230.00. As stated in the evidence for the plaintiff, it was very informal, and whether it was made or not seems to depend largefy upon
The defendant was not a dealer in engines and saw mills. It was engaged in the lumber business. Though machinery of the kind alleged to have been sold may have been owned and used by it, its general purpose was not the purchase of such machinery for resale. In other words, it was not a dealer in machinery. The disposition of the two assignments of error, therefore, must depend largely upon the legal inquiry as to whether the president of such a corporation has inherent authority to purchase expensive machinery to be used by it in its business, ox to constitute what may be called its plant or a substantial part thereof.
Of the power of the president of a corporation, Cook on Cor-poratiqns, at section 716, says: “His duty is merely to preside at meetings of the board of directors, and to perform only such other duties as the by-laws or resolutions of the. board of directors may expressly authorize. This is a rule established by the great weight of authority. The board of directors may of course expressly authorize the president to contract: or his authority to contract may arise from his having assumed, and exercised that power in the past; or the corporation may ratify his contract'or accept the benefits of it and thereby be bound. But the general rule is that the president cannot act or contract for the corporation any more than any other director.” Morawetz
The admissions of the president as a witness in the case
Horeover, we are of the opinion that the evidence relied upon to j>rove authority to make the contract is wholly insufficient. As we have said, the corporation was not a dealer in machinery. Authority in the president to buy it could not be inferred from his management of the company’s business, if his admissions can be regarded as sufficient to .prove his character as manager. There is no proof of any course of dealing sufficient to justify such an inference. It does not appear that he had ever before bought, for or on behalf of his conrpairy, an engine or saw mill or any other machinery, apparently designed for use as a part of its plant. All that he said is that he has, or had had, charge of its business in Mingo county “to a certain extent,” and charge of a certain “operation” in that county. There is no evidence of any established course of business, or conduct on the part of the president, relating to transactions of the kind involved here, and acquiescence of the company therein, nor of ratification of the alleged contract, nor of- the reception of benefit thereof in any sense or degree. The company never accepted the property or any part of it. Hence, the court should have directed a .verdict for the defendant as requested, and, not having done so, should have sustained the motion to set aside the verdict.
The erroneous judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded.