OHIO-COLORADO REDUCTION & MINING Co.!
(Circuit Court, D. Co!orado.
1. NOTE OF COlIPORATION-IVno MAY EXECUTE.
The authority of an officer of a corporatIOn to exccutc Its notc dtpends upnn. thc by-laws, or upon the CI1StOlll of the corporation, if it be the custom of a corporation to permit the treasurer to exe,cute i,ts promis,sory notes, th? corporation will be bound by such note; especmlly, If It received the benefit of the money for which it was executed. When there are written evidences manc by the parties at the time the transaClions occurred, these are entitled to more weight than contrary statements made subsequently, and after a litigation has sprung up. The jury are to judge of the evidence.
Browne &; Putnam, for plamtiff. Wells, Smith &; Macon, for defendant. :McCRARY, J., (chargillgjury.) This is largely a case to be determined upon questions of fact. Such questions are ex.clusively for the consideration of the jury. The province of the court is only to call your attention to the principles of law by which you are to be guided in the application of testimony. 'The plaintiff, Mrs. Susan Foster, sues the defendant, the Ohio-, Colorado Reduction & Mining Company, a corporation, and she alleges that company is indebted to her upon a promissory note for $10,500. The defense is twofold: First, that this is not the note of this defendant corporation; and, second, that there was nO valid, subsisting debt fi:oID the corporation to Mrs. Foster at the time the; note was given, and for which it was given. These, then, gentlemen, are the two matters for you to consider. Upon the first question, as to whether this is the note of the defendant corporation, that is to be determined upon the question whether the person who executed the note on behalf of the corporation, Mr, Penn, the treasurer of the company, was authorized to execute such an instrument. The, law upon this subject is that the authority is not presumed from the mere fact that the person assumed the right to give a note in the name of the corporation. A corporation is an artificial person, which must act within certain' limits. It differs from a natural person. If an individual gives his note, it is not necessary to prove anything in the way of authority,' but a corporation must act by way of agents, and the authority of the agent 'Who acts for it is not presumed. It may, howln'er, be shown, either by showing an express authority,-as, for example, a resolution of the board of trustees authorizing a certain party to execute a note on behalf of the corporation,-or by a proyision of the constitution or by-laws of the corporation authorizing a certain otfi1
From the Colorado Law Heporter.
AND MINING CO.
cer to' execute promissory notes. 'H might- be shown in that way ; but I believe iUs not claimed that there is anything of this kind here. It may also be shown by th!l course of dealings of the corporation, and by facts and circumstances which are. sufficient, in th, . judgment of the jury, to show that the party who executed the note ,had the authority. If it was the custom of this corporationto permit the treasurer to execute its promissory notes, and i.f he was in the . habit of doing so, with the knowledge of the trustees; or of the corporation,-which means, ofeourse, the trustees,-they had, by recognizing that custom, and actingnpon it, themselves become bound by it, and especially if they received the benefits of transactions of this , sort, which they permitted the treasurer to enter into. It is only, therefore, necessary for you, in considering this branch of the defense, to inquire whether the evidence here establishes the fact that , Mr. Penn, the treasurer, was in th6 habit of acting for and on behalf of the corporation in executing promissory notes and other instruments of like character, and whether the corporation was aware of that fact, and made no objection to it. If you find this to be so, then ,you will come to the conclusion that the note was executeu by the corporation, and you will proceed, then, to the other qnestion; that is, whether the corporation was indebted to Mrs. Foster in the amount of money for which this note was given. Upon that question there is a great deal of testimony, and I do not know that I can say much which will aid you in its elucidation. It is to be determined upon all the circumstances developed before you in evidence. _In looking here uron into it, you will haw to consider what has been the stand, and what has been testified by the witnesses whose depositions have been taken. You will have to look into such documentary evidence as is before , you; as, for example, the books of the corporation, and the corre· spondence which is in evidence-the letters; and it is not improper - for me tO,say that the letters that are written by a business man, in the conrse of a business transaction, at the time that the events are · transpiring, if they bear upon the 'question that you have to consider, are often very oatisfaetory evidence,:-much more satisfactory than the statements of parties after they have come into conflict, and after a · controversy has arisen, and they have become biased and heated and excited by that controversy. If you can go back to the time when the transactions v.ere going on-when there was no difficulty between the parties-and if you can find either in the records they kept, or letters they wrote, anything that bears directly upon the question in contrO\'ersy, you are authorized to give a good deal of weight to anything of that kind; and therefore you will look into the letters which are in evidence, and see how far they corroborate the statements of Penn upon the stand. If they corroborate them,-if there is nothlllg in them in conflict with his statements bere,-they may be taken as important in the support of the claim of this plaintiff; but if, at
the time these transactions were transpiring, he made any statements in this correspondence which contradict the claim of the plaintiff here and now, or contradict Mr. Penn's statements upon the stlmd, that would throw some suspicion upon that much of his testimony. I do not say to you, gentlemen, whether'there is anything in thes3 letters that contradicts Mr. Penn, or anything that confirms or corroborates him. That is for you to say. I only say that the contemporaneous writings are often very satisfactory, where there is a conflict of te.;timony, s11ch as you have here. Here are these books: you take them and examine them for what they are worth. If they do not purport to be a record of such transactions as that which is now in controversy, why, of courF:e, they are not important; but if they do contain records of s11ch transactions,-if they show, in other words, what moneys were horrowed by the corporation, and do not show any transactions with Mrs. Foster of this character,-it is for you to consider what weight should be given that fact. In determining the question before you, you will also look at the testimony that bears on the question, how much money was raised by this corporation, and from what sources, and give the testimony such weight as it is entitled to in determining the question whether this amount of money was furnished by Mrs. Foster and put into its business or not. There is some dispnte as to whether any money was furnishecl by Mrs. Foster. If any money was furnished, the principal controversy iR as to whether it was furnished to the cor:)Qration, or furnished by her to Mr. Penn, to be used on his own behalf, and as an advancement by her to him. If, when the corporation was in trouble, Mr. Penn went to her, induced her to loan money to the corporation, gave the note of the corporation for money that went into its business, then she ought to have judgment for the amount. If, on the other hand, Mr. Penn obtained money from her to be put into the business on his own account, and afterwards gave this note in settlement of that account, in the name of the corporation, of course, if tlmt be the fact, the plaintiff is not entitled to reco\er. These are the two theories, gentlemen, and here is all this evidence. You must take it and determine. It appears that it is a controversy of long standing; the parties live at great distance; it is, necessarily, very expensive litigation. Therefore, it is exceedingly desirable that you should go to your room in a spirit of mutual concession, to hear and receive each other's judgments and ,iews, to arrive at a conclusion, and put an end to this controversy. If you find for the plaintiff, your verdict will be the amonnt of this note, with interest to tilis datto If you find for the defendant, yoU will simply say so. Verdict: "We, the jury, find the issues in this case for the defendant."
ADAMS V. SPANOLBR.
(Circuit Court, D. Colorado.
Motion for a new trial in a case tried before the diRtrict judge. will he heard by the circuit judge only on the request of the furmer, and nut as a matLer of right tu the unsuccessful party.
OFFICER-RESPONSIBILITY OB', IN EXECUTING PROCESS.
The rule is that the sheriff to whom a valid process is issued is hound to exercise ordinary skill and diligence in its execution, and in case of his neglect in this regard is liable for any d'lmnges which the party in teres led may have sustained in consequence of such neglect.
In case uf an attachment placed in the hands of a sheriff to levy, it is not the exercise of ord nary diligence for the she it! to take the representation of the defendant in ai tachmenL as to the value of goods seized thereunder. And in such case, when it appears that. here were in the po ·session of deft'ndant goodE' amply sufficient to satisfy the sum na-ned in the attachment, and the sherif!, upon the representation of defendant, fails to levy upon a sufficient quautity, he will be held responsible for sucll failure.
The rule in federal courts is that if the court be of opinion that, upon the evidence as it is presented, a verdict one way or another w"uld have to be set aside on molion for new tr,al, on the ground that it is not supported by tlle evidence, the court is not bound to submit tbe question to t.he jury. but may charge the jury in accordance wit h the view the court takes of the proof The court is not hound to go through the form of suhmltting a case to the jury, When satisfied in advance that in case the jury find one way the verdict w,1l be set as:de.
S.UIE-MEASURE OF DAMAGES.
In snch case, when it appears that t.he defenrlant in attachment is insolvent, the measure of damages will he the ditIere:lCe between the amount named in the attachment, willi costs. and th" amou"t reali,ted from sale of the toods seized-Ule actual damage sllsta,ned.
On 'Motion for Trial. lV. S. Decker, for plaintiff. lVells, Smith J: .lfacon, for defendant. 'McCRARY, J., (or.llly.) This case is before the court upon a motion for a. new trial. The was brought by plaintiff against the sherIff recover for the allegE'd neglect of the sheriff in making a levy by of a writ ')f attachment sued out by the plaintiff. The allegatIon is that the sheriff failed to levy upon sufficient property to pay the debt. The case was tried before t.he district judge and a jury, resulted in a verdict for the plaintiff. At the request of the distnct judge, the motion for new trial has been heard by the full bench. I mention this lest counsel might fall into the misapprehension that motions of this character are heard by the circuit judge as a matter of course. It is only when the district judge requests it that they are heard; if it were left to counsel, every case tried before the district Judge would have to be reheard. The question in this case was, whether the sheriff was negligent.
lFrom the Colorado Law Reporter.