781 182; Doe v. Parratt, 5 Term Rep. 652; Doe v. Wilson, 4 Barn. & Ald. 303; Dias v. Glover, Hoff. Ch. 71; Rogers v. Benson, 5 Johns. Ch. 431; Den v. Hardenbergh, 10 N. J. L. 42; 18 Am. Dec. 371, and note; Taul v. Campbell, 7 Yerg. 319; 27 Am. Dec. 508; Fairchild v. Chastelleux, 1 Pa. St. 179; 44 Am. Dec. 117; Stuckey v. Keefe's Ex'rs, 26 Pa. St. 397; McCurdy v. Canning, 64 Pa. St. 39; Wright v. Saddler, 20 N. Y. 320; Lewis's Appeal, 85 Mich. 340; 24 Am. St. Rep. 94; Chandler v. Cheney, 37 Ind. 391.

The doctrine of survivorship in case of tenancies by entirety has been repudiated in Ohio and Connecticut: Sergeant v. Steinberger, 2 Ohio, 305; 15 Am. Dec. 553; Phelps v. Jepson, 1 Root, 48; 1 Am. Dec. 33; Whittlesey v. Fuller, 11 Conn. 337. The Connecticut court admits that it is the doctrine of the English law, and seems to base its decisions upon local customs and usage. The rule has been altered, in some respects, by legislation in the states of Iowa and Illinois.

The rule is recognized in Vermont, in Brownson v. Hull, 16 Vt. 309; 42 Am. Dec. 517; is stated by Barrett, J., to be settled law, in Davis v. Davis, 30 Vt. 440; and cited approvingly in Park v. Pratt, 38 Vt. 545. The plaintiff insists that the defendant was entitled to the use, income, and profits of the estate during his life, that he had a life estate in the property, and that it was subject to levy and sale upon an execution against him alone. Such undoubtedly is the common law. The husband, during his life, is entitled to the usufruct of the real estate belonging to his wife, and no doubt by that law can convey such life estate, or encumber it, and it may be taken upon execution against him alone. This rule was in force in this state in 1844, when Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517, was decided, and Royce, J., stated that he supposed the estate was liable to atttachment and execution at all times during the joint lives of the owners; and by this we understand he meant that the life estate of the husband could be taken upon his sole debts, but not so as to affect the right of the wife, should she survive him. But the legislature soon enacted that the rents, issues, and profits of the real estate of any married woman, and the interest of her husband in her right in any real estate which belonged to her before marriage, or which she may have acquired by gift, grant, devise, or inheritance during coverture, shall, during coverture, be exempt from attachment or levy of execution for the sole debts of her husband: Acts 1847, No. 37, sec. 1. By a sub

sequent act, it was provided that the words "issues and profits" shall be construed to include all moneys and obligations arising from the sale of such real estate: Acts 1850, No. 22; and later, the products of such real estate are in like manner protected: Acts 1861, No. 25. These provisions are embodied in our present statutes: Rev. Laws, secs. 2324, 2325. The plaintiff's counsel insist that these sections do not apply to an estate by entirety, but only to such real estate as may be owned by the wife separately. In this we think they are in error. Such an estate is the real estate of a married woman although her husband is joined with her in the title. It is the real estate of each. If the claim of the plaintiff is upheld, then the interest of the husband in his wife's right in her real estate is taken upon the sole debt of the husband. This would annul the statute. The estate of the wife, and her husband's interest therein in her right, in the property in question is protected from the husband's sole creditors by the spirit and letter of the statute. This construction has been given a similar statute in Indiana: Davis v. Clark, 26 Ind. 424; 89 Am. Dec. 471.

If the conveyance of the premises in question to the defendant and wife was a fraud upon the defendant's creditors, the latter must seek their remedy in some other action, and probably in the same manner they would be obliged to adopt in case the property had been conveyed to the defendant's wife, instead of the defendant and his wife jointly.

Judgment reversed, and judgment for the defendant.

HUSBAND AND WIFE - ENTIRETIES. - Where land is devised or conveyed to a husband and wife jointly, they take by entirety: Harrison v. Ray, 108 N. C. 215; 23 Am. St. Rep. 57, and note; and neither can convey any interest without the consent of the other during the existence of the marriage relation: Enyeart v. Kepler, 118 Ind. 34; 10 Am. St. Rep. 94, and note, where the cases on this subject are collected; Simonton v. Cornelius, 98 N. C. 433; Baker v. Stewart, 40 Kan. 442; and this was the rule in New Hampshire previous to the abolishing act.

LYNDON MILL COMPANY v. LYNDON LITERARY AND BIBLICAL INSTITUTION.

[63 VERMONT, 581.]

CORPORATIONS-POWER OF PRESIDENT TO BIND CORPORATION. - The presi、 dent of the board of trustees of a corporation, in the absence of express or implied power, has no more authority to bind the corporation than any other individual trustee. CORPORATIONS - POWER OF PRESIDENT — PRESUMPTION. It will not be presumed, that by virtue of his office as president of the trustees of a corporation, such president has power to bind the corporation.

SALES. IMPLIED PROMISE TO PAY FOR GOODS transferred from one person to another will not arise from the mere fact of their being received and used, when it was understood by the parties at the time that the goods were not to be paid for. CORPORATIONS-IMPLIED PROMISE TO PAY FOR GOODS RECEIVED. - Where the president of the board of trustees of a corporation without authority to bind it orders goods for its use, under an agreement with his cotrustees that he is to furnish such goods gratuitously, the fact that the corporation receives and uses them will not raise an implied promise to pay, or make it liable for their price; nor will the fact that such presi dent is an officer in the corporation furnishing the goods, with knowledge that such goods are charged to the other corporation, make it liable for their price. The knowledge of such trustee, in such case, is not imputable to the corporation sought to be charged. CORPORATION NOTICE TO AGENT AS NOTICE TO CORPORATION.

Where

two corporations have dealings through the intervention of a mutual agent, the question of whether or not either corporation is to be charged with notice of what is known to such agent by virtue of his relation to the other depends upon the circumstances of the case. CORPORATION - RATIFICATION OF UNAUTHORIZED CONTRACT. Officers of a corporation without authority to bind the corporation by their acts have no power to ratify an unauthorized contract by their failure to repudiate a claim arising out of such contract, when presented against the corporation. CORPORATIONS.

- ESTOPPEL AGAINST CORPORATION TO DENY ITS LIABILITY, by reason of its failure to disaffirm an unauthorized contract made with it, does not arise until it has knowledge that such contract has been made, or the party claiming the estoppel has been damaged by its authorized act.

CORPORATIONS- EVIDENCE OF UNAUTHORIZED CONTRACT. In an action against a corporation to recover for goods claimed by it to have been furnished under an unauthorized contract, evidence of an agreement between the president of the board of trustees of such corporation and his co-trustees, that he was to furnish the goods gratuitously, is admissible to show his want of authority to bind the corporation for their price.

George W. Cahoon and W. P. Stafford, for the appellant.

J. T. Gleason, and Bates and May, for the appellee.

START, J. The defendant did not take any corporate action with a view to repairing its buildings, and its trustees did not undertake to make the repairs upon the credit of the defendant. Hall, Harris, Thompson, and Vail were the defendant's trustees; but whether they were a majority of the defendant's trustees does not appear. These four trustees desired to repair the defendant's buildings; and shortly before the lumber in question was delivered, they made a personal and private arrangement among themselves, by which Harris and Vail were to put a heating apparatus into the buildings, Thompson was to furnish labor and make certain repairs thereon, and Hall was to furnish the lumber for such repairs. All this was to be done as a gratuity. The lumber was delivered by Hall, who was then president of the defendant's board of trustees, and a director of the plaintiff corporation. The lumber, prior to its delivery to Hall, was the property of the plaintiff and was charged to the defendant as it was delivered; but by whose direction the charge was so made does not appear.

1. The defendant's trustees did not authorize Hall to procure the lumber upon the credit of the defendant; on the contrary, it was understood and agreed that Hall should furnish the lumber as a gratuity. It does not appear that Hall ever undertook to pledge the credit of the defendant in procuring the lumber, except by inference from the fact that the lumber was charged to the defendant. If Hall did direct the plaintiff to charge the lumber to the defendant, such direction was without authority, and the defendant is not liable by reason of a purchase by its authority.

Hall had no authority, by virtue of his office of president, to purchase the lumber upon the defendant's credit. He could preside at the meetings of the board of trustees; beyond this he had no more authority than a single trustee. A single trustee or director has no power to act for the institution which creates his office, except in conjunction with others. It is the board of trustees or directors only that can act. If the board of trustees or directors makes a president, trustee, or any other person its officer or agent to act for it, then such officer or agent has the same power to act, within the authority delegated to him, as the board itself. His authority is, in such case, the authority of the board. It not appearing that Hall was authorized by a majority of the defendant's trustees to purchase the lumber in question upon the credit of the de

fendant, the case must be disposed of upon the assumption that he had no such express authority: Fairfield Sav. Bank v. Chase, 72 Me. 226; 39 Am. Rep. 319; Cook on Stocks and Stockholders, secs. 712, 716; Ashuelot Mfg. Co. v. Marsh, 1 Cush. 507.

It is claimed that authority in Hall, as president of the defendant corporation, will be presumed. The weight of authority is against this claim, and surely no such presumption can exist when, as in this case, want of authority clearly appears. If Hall had express authority to purchase the lumber upon the credit of the defendant, or general authority to act for the board of trustees, or had exercised the powers conferred upon the trustees, with their knowledge and acquiescence, to such an extent as to justify the presumption that such authority had been delegated to him, then the court below should have found such authority; there is nothing before this court from which Hall's authority can be presumed.

It not appearing that Hall, Harris, Thompson, and Vail were a majority of the defendant's trustees, authority to repair the defendant's buildings is not shown. From aught that appears in this case, the repairs were made without the knowledge or consent of a majority of the defendant's trustees, or the knowledge or consent of any one authorized to act for them, or for the corporation. Hall, Harris, Thompson, and Vail, in undertaking to make these repairs, did not profess to act for or to bind the defendant. They were volunteers undertaking to do what, presumably, the defendant could not do for want of funds. If under such circumstances corporations are to be held liable, then every corporation holds its property by a very uncertain and inse

cure tenure.

2. The plaintiff claims the defendant is liable by reason of its having received and used the lumber. It is true that the law usually implies a promise to pay for property transferred from one party to another, but this rule does not apply when there is an express contract, nor where it is understood by the parties that the property is not to be paid for: King v. Woodruff, 23 Conn. 56; 60 Am. Dec. 625; Waite v. Merrill, 4 Me. 102; 16 Am. Dec. 238; Weir v. Weir's Adm'r, 3 B. Mon. 645; 39 Am. Dec. 487; Walker v. Brown, 28 Ill. 378; 81 Am. Dec. 287. If there was a contract with the defendant, it was the arrangement made among the four trustees, by which Hall was to furnish the lumber as a gratuity, and the lumber AM. ST. REP., VOL. XXV. -50