Sidebilder
PDF
ePub

its common seal, when that doctrine was applied to corporations existing by the common law, it had no application to corporations created by statute, whose charters contemplate the business of the corporation to be transacted exclusively by a board of directors. The rule has even been broken in upon in modern times in respect to common law corporations. The acts of the board of directors, evidenced by a written vote, are as completely binding upon the corporation, and as complete authority to their agents, as the most solemn acts done under the corporate seal. With respect to banks, from the very nature of their operations in discounting notes, receiving deposits, paying checks, and other ordinary contracts, it would be impracticable to affix the corporate seal as a confirmation of each individual act. Where corporations have no specific mode of acting prescribed, the common law mode of acting may be properly inferred. But every corporation created by statute, must act as the statute prescribes; and it is a settled doctrine, that a corporation may be bound by contracts not under its corporate seal, and by contracts made in the ordinary discharge *of the official duty of its agents and officers. *291 Lastly, in the case of Osborn v. United States Bank, it was declared, that though a corporation could only appear by attorney, the authority of that attorney need not be under scal; and the actual production of any warrant of attorney to appear in court, is not necessary in the case of a corporation more than in the case of an individual.b

That corporations can now be bound by contracts

• 9 Wheaton, 738.

• Nor need the appointment of the agent in the common transactions of the corporation, be evidenced by the records of the corporation. Comm. Bank of Buffalo v. Kortright, 22 Wendell, 348. The Board of Directors of a corporation for all business purposes are the corporation, and they may authorize a committee to sell or mortgage real estate, and that power implies an authority to affix the corporate seal. Burrill v. Nahant Bank, 2 Metcalf's Rep. 163.

made by their agents, though not under seal, and also on implied contracts to be deduced by inference from corporate acts, without either a vote, or deed, or writing, is a doetrine generally established in the courts of the several states, with great clearness and solidity of argument;a

• Eastman v. Coos Bank, 1 N. H. Rep. 26. Maine Stage Company v. Longley, 14 Maine Rep. 444. Warren v. Ocean Ins. Co. 16 Ibid. 439. Hayden v. Mid. Turnpike Company, 10 Mass. Rep. 397. The Proprietors of the Canal Bridge v. Gordon, 1 Pick. Rep. 297. Bulkley v. The Derby Fishing Company, 2 Conn. Rep. 252. Danforth v. Schoharie Turnpike Company, 12 Johns. Rep. 227. Dun v. Rector of St. Andrew's Church, 14 Ibid. 118. Mott v. Ilicks, 1 Cowen's Rep. 513. The Baptist Church v. Mulford, 3 Halsted's Rep. 182. The Chestnut Hill Turnpike v. Rutter, 4 Serg. f Ruwle, 16. Duncan, J., in Bank of Northern Liberties v. Cresson, 12 lbid.312. La Grand v. Hampden Sydney College, 5 Munf. Rep. 324. Colcock v. Garvey, 1 Nott J. M Cord, 231. Bank of United States v. Dandridge, 12 Wheaton, 64, Bank of the Metropolis v. Guttchlick, 14 Peters, 19. Union Bank of Maryland v. Ridgley, 1 Harr. & Gill. 324. Poultney v. Wells, 1 Aiken's Rep. 180. Comm. Bank Orleans v. New. port Manufacturing Company, 1 B. Monroe's K. Rep. 14. Bates & Hines v. The Bank of Alabama, 2 Ala. Rep. N. S. 451. See also Angell g Ames on Corporations, 218, 219. 222, 2d edit. and the numerous authorities there referred to. The English law is more strict on this subject; for the general rule is still understood to be, that a corporation, though created by statute, cannot express its will except by writing under the corporate seal. The excepted cases are ; 1. Where the acts done are of daily necessity, or too insignificant for the trouble of the seal; 2. Where the corporation has a head, as a mayor, who may give commands ; 3. Where the acts to be done, must be done immediately, and cannot wait for the formalities of a seal ; 4. Where it is essential to a monied institution that they should have the power to issue notes and accept bills. London Waterworks v. Bailey, 4 Bingham's Rep. 283. 12 B. Moore's Rep. 532. S. C. Tindall, Ch. J. in Fishmongers' Co. v. Robertson, 5 Manning & Granger, 131. If tho contract be executed, the general rule does not apply; and therefore assumpsit for use and occupation may be maintained by a corporation aggregate, against a tenant who has occupied premises under them, and paid rent. The Mayor of Stafford v. Till, 4 Bing. 75. 12. B. Moore's Rep. 260. In Smith v. B. & S. Gas Light Company, 3 Nevill f. Manning, 771, it was held, that a corporation might authorize an agent to distrain, by parol; but that in cases of extraordinary acts to be done, or where an estate is to be vested or divested, there must bo a deed. In Beverley v. Lincoln Gas Light & C. Co., 6 Adolp. cf. Ellis, 829, it was adjudged that a corporation aggregate might be sued in assumpsit on a contract by

and the technical rule of the common law may now be considered as being, in a very great degree done away in the jurisprudence of the United States. But it is equally well settled, that though parol evidence be admissible to

parol, and whether expressed or implied, for goods sold and delivered. This was a relaxation of the ancient rule of the common law to the samo extent as had already been made by the courts of the United States, to which the learned judge, (Patterson,) who delivered the opinion of the K. B. in that caso, alluded. The English court took care, however, " to dig. claim entirely the right or the wish to innovale on the law upon any ground of inconvenience, however strongly made out,” but admitted that if the old rule had been treated by previous decisions with some degree of strictness, and that if the principle, in fair reasoning leads to a relaxation of the rule for which no prior decision can be found expressly in point, the mere circumstances of novelty, ought not to deler us." The liberal and sound reasoning contained in this decision, with the qualified reserve accompanying it, are both to be commended. It was further declared, in Church v. Imperial G. L. Co., 6 Adolp. f. Ellis, 846, that it made no difference as to the right of a corporation to sue on a contract entered into by them without seal, wbether the contract be executed or executory. In the case of the Mayor of Ludlow v. Charlton, 6 Mee. f- Wels. 820, in the excheqner in 1840, Baron Rolle gave an elaborate discussion and judgment on the question, how far a corporation could be bound by a contract with. out their corporate scal. It was held that the late English cases did not go so far as to explode the old rule, or to hold a corporation bound in the same manner as individuals by executed contracts. The general rule of the necessity of a seal to render a corporate contract valid still existed. The exception was limited to small ma'lers, or those not admitting of delay, or where the rule would greatly obstruct the every day ordinary convenience of the body corporate without an adeqnale object, or where the convenience almost amounted to necessity. The power of accepting bills of exchange and issuing promissory notes, came within the principle of the exception. The decisions in B verley v. The Lincoln G. L. & C. Com. and in Church v. Imperial Gas Light Cu, were founded on the principle governing the exceptions. The decision in this exchequer case was followed by the suprenic court of New-Brunswick in Seclye v. Lancaster Mill Company, Kerr's Rep. 377, and these decisions tend to narrow the doctrine inaintained in our American courts. But as dealing in contracts with corporate bodies has become so cominon, and the agency of corporations of some de. scription or other, is present in the infinite business concerns of the country, it becomes very difficult to ascertain, and dangerous to mistake, any certain fest, by which to de:erminc whether the transaction in the given case, comes within the principle of the exception to the general rale. Vol. II.

28

prove

the
agency

and contracts of the agent of a corporation, (for the appointment of the agent need not be by seal in the case of ordinary contracts) corporations, like natural persons, are bound only by the acts and contracts of their agents, done and made within the scope of their authority.a

(7.) Of the corporate name.

It is a general rule that corporations must take and grant by their corporate name. Without a name they could not perform their corporate functions; and a name is so indispensable a part of the constitution of a corporation, that if none be expressly given, one may be assumed by implication.b A misnomer in a grant by statute, or by devise, to a corporation, does not avoid the grant, though the right name of the corporation be not used, provided the corporation really intended it to be made apparent.

So, an immaterial variation in the name of the corporation, does not avoid its grant; though it is not settled with the requisite precision, what variations in the name are or are not deemed substantial. The general rule to be collected from the cases is,d that

• Essex Turnpike Corporation v. Collins, 8 Mass. Rep. 299. Clark v. Corporation of Washington, 12 Wheaton, 40. Bank of U. S. v Dandridge, Ibid. 64. Leggett v. New Jersey Manufacturing and Banking Company, New-Jersey Ch., April term, 1832. Bank of the Metropolis v. Guttchlick, 14 Peters, 19. As corporations act by agents, they are responsible in damages for injuries inflicted through their means. Goodloe v. City of Cincinnati, 4 Ohio Rep. 500. A special action on the case will lie for neglect of corporate duty, by which the plaintiff suffers Riddle v. Proprietors, &c., 7 Mass. Rep. 169. The powers and responsibilities resulting from corporate agents are very fully considered, and the substance of all the decisions is given in Angell g. Ames on Corporations, ch. 9.

• Anon., 1 Leon. Rep. 163. 1 Salk. Rep. 191. 1 Blacks. Com. 474. 475. 1 Kyd on Corporations, 234. 237. 250. 253. 10 Co. 28. b. 29. b.

• Case of the Chancellor of Oxford, 10 Co. 57. b. Inhabitants v. String, 5 Halsted's Rep. 323.

11 Kyd on Corp. 236—252.6 Co. 64. b. 10 Co. 126. a. Road Company v. Creeger, 5 Harr. f. Johns. Rep. 122. African Society v. Varick, 13 John's Rep. 38. The Turnpike Company v. Myers, 6 Serg. f

a variation from the precise name of the corporation, when the true name is necessarily to be collected from the instrument, or is shown by proper averments, will not invalidate a grant by or to a corporation, or a contract with it; and the modern cases show an increased liberality *on this subject. For a corporation to *293 attempt to set aside its own grant, by reason of misnomer in its own name, was severely censured, and in a great measure repressed, as early as the time of Lord Coke.a

(8.) Of the power to elect members and make by-laws.

The same principle prevails in these incorporated societies, as in the community at large, that the acts of the majority, in cases within the charter powers, bind the whole. The majority, here, means the major part of those who are present at a regular corporate meeting. There is a distinction taken between a coporate act to be done by a select and definite body, as by a board of directors, and one to be performed by the constituent members. In the latter case, a majority of those who appear may act; but in the former, a majority of the definite body must be present, and then a majority of the quorum may decide. This is the general rule on the subject; and if any corporation has a different modification of the expression of the binding will of the corporation, it arises from the special provisions of the act or charter of incorporation. The power of election, or the

Rex v.

Rawle, 12. Woolwich v. Forrest, Pennington's Rep. 115. Inhabitants v. String, 5 Halsted's Rep. 323. First Parish in Sutton v. Cole, 3 Pick. Rep. 232. Angell f Ames on Corporations, 60, 61, a Jenk. Cent. 233. case 6. 270. case 88. 10 Co. 126. a.

Varlo, Cowp. Rep. 348. 1 Kyd on Corp. 308. 400. 424. 1 Blacks. Com. 478. The King v. Bellringer, Term Rep. 810. v. Miller, 6 Term Rep. 268. The King v. Bower, 1 Barnw. f Cress. 492. Rex v. Whittaker, 9 B. & Cress. 648. Ex parte Wilcocks, 7 Cowen's Rep. 402. Field v. Field, 9 Wendell's Rep. 394. 403. Gibson, Ch. J. in St. Mary's Church, 7 Serg. g Rawle, 517. Sse the subject of the legality

The King

« ForrigeFortsett »