Walworth County Bank v. Farmers' Loan & Trust Co.

14 Wis. 325 | Wis. | 1861

By the Gourt,

Cole, J.

It is conceded that it was incumbent on the respondent to make out a title to the railroad ties mentioned in the complaint, to enable it to recover. For the purpose of showing title in the property to be in the bank, the memorandum of sale of the 29th of April, 1859, was introduced in evidence. That memorandum was signed by Henry S. Durand, as président of the railroad company, and was probably sufficient provided Durand was authorized on the part of the corporation to execute it. It is contended that Durand, by virtue of his office as president of the railroad company, was fully authorized and empowered to sell and dispose of any of th.Q personal property of the company in payment of its debts. We are unable to say what are the precise powers and duties of the president of a railroad, company over its property and concerns. But we do not think he can, by virtue of the power inherent in his office, dispose of the personal property of the corporation for any purpose . at his pleasure, without special authority from the hoard of directors. If so, we cannot see why he might not dispose of the entire rolling stock of the company if he saw fit. It is probable that the general custom is, for the board of directors to clothe the president of the road with extensive authority over its management and concerns; but the fact that this power is conferred either by some article in the by-laws or by a special resolution of the board, shows conclusively that it is not inseparable from the office. See The President, Directors &c. of the Hallowell & Augusta Bank vs. Hamlin et al., 14 Mass. R., 178 ; Dispatch Line of Packets vs. Bellamy Manufacturing Co., 12 N. H. R., 205; Stowe vs. Wyse, 7 Conn. R., 214; Fulton Bank vs. N. Y. & Sharon Canal Co., 4 Paige, 127; Whitwell vs. Warner et al., 20 Vt. 425; Hoyt vs. Thompson et al., 1 Seld., 320. The act of incorporation provides that the affairs of the company shall be managed by a board of directors, who shall be chosen as therein prescribed. The board were to appoint one of their number president, and were to have power to make such by-laws and rules, not inconsistent with the constitution and laws of the state, as might be necessary for the well ordering of the affairs of the corporation. Sec. 4, chap. 392, p. 592, Laws of 1852. The charter does not anywhere prescribe the powers and duties of the president, and they were undoubtedly such as were conferred upon him by the board of directors.

It was insisted that Durand had authority to sell and dispose of the property in dispute, by virtue of two resolutions of the board of directors, one passed April 26th, 1855, the other April 3d, 1856. By the former resolution Marshall M. Strong and Henry S. Durand were appointed the fiscal agents of the company, and as such were authorized and empowered to sell and negotiate any securities owned by the company, and make loans for the benefit of the same, and to purchase any materials needed by the company. The latter resolution appoints the president as fiscal agent, and authorizes him to purchase such equipments for the road as the board might direct, and to purchase all necessary materials for the car shop, and contract for all necessary transportation of tie company. Neither of the aboye, resolutions authorized the president to sell the personal property of the poration. By the former, Durand,was to act in conjunction with Strong; while by the latter, he was only authorized to , \ . „ , ’ , , , , . , purchase such equipments for the road as the board might direct, and to purchase all necessary materials for the car shop, and to make contracts for the transportation of the company. This is far from giving the .president authority to sell and dispose of any personal property he might see fit. We therefore conclude that Durahd had no authority, either ex officio or under the Resolutions of the board of directors, to sell the railroad ties. ^

The judgment’ of the circuit court must be reversed, and a new trial ordered.

Dixon, 0. J.

N^cfdubt possession of personal property by the plaintiff at the, time of the alleged injury is ordinarily sufficient to enable him to maintain trespass or trover as against all persons except the owner or those claiming under him. Bup when in order to prove possession it becomes' necessary for the plaintiff to show a transfer of the property fronysome former owner to himself, and he attempts to do so anqhfails, the right of action fails also; for it then appears, not that the defendant is liable to him for the value, but to some other person who is the owner in fact.