81 Ind. App. 453 | Ind. Ct. App. | 1924
This was an action by the appellee, based upon a promissory note against the Warren Creamery Company, hereinafter called the Creamery Company, and Ralph C. Green and Curtis B. Hoffman, all as makers of said note, and the Redkey Auto Company as
The cause was tried by the court and resulted in a finding and judgment against said Creamery Company, as surety on said note, from which judgment, this appeal is prosecuted. The only matters presented on this appeal as cause for reversal are: (a) that the decision is not supported by sufficient evidence; (b) is contrary to law; and (c) error in the assessment of the amount of the recovery. There is practically no dispute in the evidence, and in considering its sufficiency to support said decision, we need consider only that which is most favorable to the appellee.
The evidence, as set forth in the appellant’s brief, tends, we may say, strongly, to establish the following facts, viz.; In January, 1920, one Curtis B. Huffman was the manager for the said Creamery Company at Warren, Indiana, said company being engaged in the business of buying milk, cream, butter fat, poultry and eggs; sometime in January, 1920, said Huffman met one Ralph C. Green, at Redkey, and spoke to him about taking employment with appellant company and operating a station for it at the town of Albany; he told Green that if he would procure a truck to use in his
It is first urged that the evidence is insufficient in that it fails to show any authority in the agent Huffman to sign said note.
There is evidence that Huffman was the “general manager” of the business of said Creamery Company, and, if said note was executed by him in furtherance of the business of his employer over
It is next urged that the evidence is insufficient because it conclusively shows that Creamery Company was a corporation created under the law of the State of Indiana authorizing the incorporating of “Voluntary Associations,” and that, therefore, as a matter of law, it had no authority to enter into any contract of suretyship, which, concededly was the nature of the contract in question. If we concede the proposition of lav/ as above stated, and as contended to be true, as a general proposition, still, it is not necessarily of controlling influence in this case; it does not necessarily follow that the contract in the instant case was void as being ultra vires. The said company had authority to enter into any and all contracts, not otherwise void, which would reasonably tend to promote the, business in which it was engaged. In this case it might have become the direct purchaser-of the truck in question, for use in its business, and no one would question its right to make such a contract of purchase. Instead of becoming the direct purchaser, its “general manager”, realizing that such truck was needed as an instrument to be used in advancing the business of said company, seems to have been of the opinion that it would be for the best interests of said company to have the trucks, or particularly the one in question, owned
In Wright v. Hughes, supra, it was said: “It may be regarded as settled, that where general authority is given a corporation to engage in business, and there are no special restraints in its charter, it takes the power as a natural person enjoys it, with all its incidents and accessories; * * * Having received the full benefit of the contract, it would now be a glaring injustice to allow those representing the corporation to set it aside and retain the benefit by sustaining their contention that the loan was ultra vires. Especially as this doctrine only concerns the corporation in its relation with the state and with its stockholders, and is never entertained where it will injure innocent third persons. * * * Like natural persons, corporations must be held to the observance of the recognized principles of common honesty and good faith, and these principles render the doctrine of ultra vires unavailing when its application would accomplish an unjust end, or result in the perpetration of a legal fraud. After a corporation has received the fruits which grow out of the performance of an act ultra vires, and the mischief has all been accomplished, it comes with an ill grace then to assert its want of power to do the act or make the contract, in order to escape the performance of an obligation it has assumed.”
It is also insisted that, upon the record in this case, the appellee is not a bona fide holder in due course, etc.
If the appellant has no valid defense as against the original payee of said note, the question raised as to the situation of appellee herein is of no consequence. We have already determined that appellant is not in a position to assert either the want of authority in Huffman, its general manager, or
It is finally insisted that there was error in the assessment of the amount of the recovery, the same being too large. It is urged that the court erred in allowing attorneys fees on said note, .for the reason, as alleged by said appellant, the note did not provide for such fees. With this contention, we cannot agree. The said note, while it is badly worded, clearly, to our minds, shows an intention that the makers thereof should be bound for the payment of attorney’s fees.
We find no error in this record.. Judgment affirmed.