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on the strength of these contracts, and the letterhead of the defendant corcannot, while retaining the same, be poration, headed with its name and heard to say that its officers had no the names of its president, secretary, authority to make the contracts un- treasurer, and fiscal agent, and signed der which it was received. This is in the individual name of the fiscal hornbook law.

The contract agent, who had acted in good faith being under the seal of the corpora- in the matter; but the president, tion, and the signature of the corpora- secretary, and treasurer of the detion and its officers being undenied, it fendant claimed that they knew of no will, of course, be presumed not authority ever having been given to the only that the contract was in fact fiscal agent sufficient for him to make executed, but that its officers had the agreement of resale. It was held power to make it."

that the plaintiff was entitled to a In Lemmon v. East Palestine Rub- decree directing the defendant to pay ber Co. (1918) 260 Pa. 28, 103 Atl. 510, her, on surrendering her stock, the the plaintiff, by a contract in writing price stated in the agreement, with signed by himself and the defendant interest, etc. The case seems to have company by its treasurer and to which been decided upon the authority of its seal was attached, purchased of Rackemann v. Riverbank Improv. Co. the defendant certain shares of its (1896) 167 Mass. 1, 57 Am. St. Rep. treasury stock, and there was a stipu- 427, 44 N. E. 990, a case beyond the lation in the contract that the de- scope of this annotation, where it fendant would furnish plaintiff a was held that the defendant corporabuyer for the stock within six months, tion could not retain what was beneif desired, at a price to net the ficial in a transaction made through plaintiff a certain profit per share; an agent, while disclaiming what was the plaintiff gave his note for the onerous, provided that it could be stock, which was paid at maturity, restored to its former position. and the money went into the treas- In Whaley V. O'Grady (1912) 22 ury of the company; the stock re- Manitoba L. R. 379, the plaintiff purmained in its custody. It was held chased from the defendant company that the contract was entire and in- certain shares of another corporation, divisible, that there had been a com- through a stock salesman in the emplete and perfect performance of the ploy of the defendant company; at the contract by the plaintiff, of which the time of the sale, the salesman signed defendant company had received and the name of the company to an agreestill retained the benefit. "It is," ment to repurchase the stock, if desaid the court, “therefore, not in a sired, on a certain date at an advance position and will not be permitted to in price; he had authority in writing deny either the authority of its agent from the vice president. It was held in negotiating the contract or its in the trial court that the corporation liability to comply with its terms." was not bound by the agreement, and

In Dennette v. Boston Securities Co. that the action, which was to recover (1910) 206 Mass. 401, 92 N. E. 498, damages for its breach, must be disthe plaintiff brought a bill for a re- missed. On appeal the judgment was scission of a contract with the defend- reversed and it was held that the deant, whereby she had bought shares fendant must restore the plaintiff to of its stock under an agreement that his original position, and, on an asthe corporation would, on her order, signment of the stock to it, must repay resell the shares taken by her for a the plaintiff the sum that he paid for similar price. The ground of her ac- the stock, with interest. tion was that it later appeared that Re National Piano Co. (1918) 252 the contract was made on terms on Fed. 950, a stockholder transferred which the defendant's agent had no to the company all his stock in exauthority to contract. The plaintiff change for new preferred stock and a had made the purchase relying on a contract to repurchase it executed in letter delivered to her written on the name of the corporation by its president. All the important stock- the shares of stock, and the consideraholders knew of the contract and tion paid, with the only condition a made no objection to it, and all the condition subsequent,--that if after a directors apparently approved of it, year the purchaser was dissatisfied but there was never any vote of the E. Burr would repurchase the shares directors authorizing or ratifying the from him,-doubtless the only remecontract. It was held that the cor- dy of the plaintiff would be on such poration was bound without any new and independent contract to reformal vote, and the claim of the purchase. But if the agreement for stockholder was allowed in bankrupt- the sale of the stock to plaintiff can cy against the corporation.

be considered executory, and its conIn Swartz v. Burr (1919) 43 Cal. summation dependent on the condiApp. 442, 185 Pac. 411, the plaintiff tion precedent that at the expiration made an agreement with one Burr, re- of one year plaintiff elects to retain citing the payment of cash and the it, then the corporation, which has regiving of a promissory note by the ceived the money and the note, with plaintiff, and reciting also the deliv- knowledge of the contract, holds them ery by Burr to the plaintiff of cer- subject to the exercise of plaintiff's tain shares of stock of the Burr option, and must repay the money, and Creamery Company, “to be held for a cannot collect the note, but must surperiod of one year by" plaintiff, and render it for cancelation in the event stating that if, at the expiration of plaintiff decides not to retain the that time, the plaintiff desired to sell stock. It cannot accept the benefits such stock, he agreed to sell only to and repudiate the obligations." Burr, who agreed to pay him a cer- In Dickinson v. Zubiate Min. Co. tain sum, with interest, and provid- (1909) 11 Cal. App. 656, 106 Pac. ing, further, that after one year, if he 123, the plaintiff purchased stock of remained a stockholder, he would par- a corporation under an agreement ticipate in all dividends, etc. It was that it would, on demand, repay and alleged and found that, though the refund. to him the purchase price agreement was executed in the name after he had examined its property; of Burr, it was made for and as the he did so demand; thereafter the parcontract of the defendant Burr

ties made another agreement, whereby Creamery Company, of which corpora

the company agreed to refund to the tion Burr was the president and gen

plaintiff the purchase price, together eral manager. The court took the

with a certain assessment, six months view in affirming a judgment for the

from date, which agreement was plaintiff against the

signed by the president and secretary, corporation,

"subject to the ratification of the that it might reasonably be inferred

board of directors;" within two from the evidence that both Burr and

months thereafter it was formally the plaintiff entered into this con

submitted to the board for action, but tract on the understanding that Burr

no action was taken thereon until spoke for the corporation; that the after the expiration of the six months, corporation was presumed to know of

and nearly six weeks after the plainthe execution of the contract and tiff had made formal demand for reits terms; that the corporation had payment, the demand being then renotice that this was a contract for fused by the corporation, which by the transfer of a block of its unissued its formal resolution disaffirmed the capital stock; that it had received agreement. The court considered the cash payment, and that the note that if there was not a technical was made payable to it. The court ratification of the contract, the facts further pointed out that the contract were sufficient to estop the corporaindicated that the sale was executory tion from pleading want of ratificaor conditional, and said: "If this ap- tion as a defense, peared on the face of the agreement Miscellaneous. to be a completely executed sale of It may be noted that in Eichelberger v. Mann (1914) 115 Va. 774, 8014, 42 L.R.A.(N.S.) 1, 101 Pac. 370, S. E. 595, an action on a subscription where the treasurer of a corporation, to the stock of a corporation, the so described in a contract signed by court, in sustaining the rejection of him “Treas.,” agreed that he would, certain evidence offered on behalf of on demand, accept a return of stock the defendant, stated that the effect and refund to the subscriber the of that evidence, if true, was to es- amount paid, it was held that, by the tablish a collateral agreement between manner and form of the signature, he the defendant, on the one part, and had made himself personally liable certain promoters of a company acting on the contract. in their individual capacities only, on It may be noted that in Clayton v. the other part, to the effect that such Western Nat. Wall Paper Co. (1912) promoters, under certain contingen- Tex. Civ. App. —, 146 S. W. 695, cies, would take the stock off his where an agent agreed with an intendhands, and said: "In this transac- ing buyer that, if he would give him tion these parties in no way repre- his order for such goods as he sented the corporation or other stock- wanted and his note for the same, the holders. It was a private arrange- principal would take back all of cerment between parties acting in their tain former purchases that the buyer own behalf, and concerning which had left on hand or such as he could neither the corporation nor other sub- not use, at the original price and scribers had notice, and which was in freight charges, and give him credit no way binding upon them.”

on his note for the same when they While without the scope of this an- had inventoried the same, it was held notation, it may be noted that in that the agent had the implied authorGavazza v. Plummer (1909) 53 Wash. ity to make the contract. B. B. B.



Missouri Supreme Court (Division No. 1) - December 31, 1923.

(- Mo. 257 S. W. 449.) Statute - construction — notice of injury.

1. A statute requiring notice of injury within thirty days in case of injury on a city street due to the negligence of the city does not apply to one injured so severely as to be unable to give the notice.

[See note on this question beginning on page 619.] Municipal corporations liability injury within the time prescribed by for injury on street.

the statute, of a right of action for 2. There is a common-law right of the injury, violates a constitutional action against a municipal corpora- provision that a certain remedy shall tion for injuries caused by negli- be afforded for every injury where gence of the municipality in failing to the right to maintain such action is maintain the streets in repair.

given by the common law. [See 13 R. C. L. 309 et seq.; 3 R. C. [See 13 R. C. L. 487, 492; 19 R. C. L. L. Supp. 40; 4 R. C. L. Supp. 808.]

1043.] Constitutional law – denying right

denying right Municipal corporation time for of action to one unable to give no- notice of injury reasonableness. tice of injury.

4. A limitation of time for giving 3. A statute depriving one injured notice to a city of an injury on its by negligence of a city so severely streets due to its negligence, to thirty that he is unable to give notice of the days, is not unreasonable, since full (Mo. , 257 8. W. 449.) notice of all facts necessary to sus- jury on a city street as a condition to tain an action is not necessary.

a right of action only in cities of the [See 13 R. C. L. 487.)

second class is not void as a local or Limitation of action time for ex- special law.

ercising right.
5. A statute of limitations must

- equal protection - discrimination allow a reasonable time for the exer

between residents of different cities. cise of the right of action.

7. A statute is not invalid as class [See 17 R. C. L. 676.]

legislation which fixes a shorter time Constitutional law – local or special

for notice of injury on a city street, law - classification of cities.

in cities of the second class, than in 6. A statute requiring notice of in- others.

APPEAL by plaintiff from a judgment of the Circuit Court for Greene County (Patterson, J.) in favor of defendant in an action brought to recover damages for personal injuries, alleged to have been sustained through its negligence in permitting a sidewalk to become and remain defective. Reversed.

The facts are stated in the Commissioner's opinion
Mr. A. B. Lovan, for appellant:

5 McQuillin, Mun. Corp. p. 5124; Section 8182, Revised Statutes 1919, Durham v. Spokane, 27 Wash. 615, 68 closes the court against a person who Pac. 383; Born v. Spokane, 27 Wash. has been injured by the negligence of 719, 68 Pac. 387. the city, unless he notifies the mayor Under the ordinary statute of limiwithin thirty days of the occurrence tations the statute does not run for which damage is claimed. This against one who is incapacitated from violates $ 10 of article 2 of the Con- bringing the action; and it would work stitution of Missouri.

a miscarriage of justice to hold that Haggard v. Carthage, 168 Mo. 129, one who is injured should be barred 67 S. W. 567; 4 Dill. Mun. Corp. 5th ed. from collecting damages by reason of § 1613; Vogelgesang v. St. Louis, 139 the fact that he was incapacitated Mo. 135, 40 S. W. 653; Hackenyos v. from filing his claim until after the St. Louis, Mo. 203 S. W. 999; time prescribed had expired. Beane v. St. Joseph, 211 Mo. App. 210, Born v. Spokane, supra. 240 S. W. 840; Morrill v. Kansas City, Mr. D. M. Nee for respondent. Mo. App. 179 S. W. 762.

Small, C., filed the following opinThe statute is unconstitutional because it is in conflict with § 53, 31,

ion: of article 4 of the Constitution.

I. Appeal from the circuit court Louisville v. Kuntz, 104 Ky. 584, 47 of Greene county. Plaintiff sued S. W. 592; Louisville v. Hegan, 20 the city of Springfield for $7,500 Ky. L. Rep. 1532, 49 S. W. 532; damages for personal injury alleged Louisville v. Seibert, 21 Ky. L. Rep. to have been sustained through the 328, 51 S. W. 310; Louisville v. Mc

negligence of the city in permitting Gill, 21 Ky. L. Rep. 718, 52 S. W.

a sidewalk to become and remain de1053; Richardson v. Mahler, 111 Ky.

fective. She lost below on demurrer 408, 63 S. W. 962; Union Cent. L. Ins. Co. v. Spinks, 119 Ky. 261, 69 L.R.A.

to her petition, because it failed to 264, 83 S. W. 619, 84 S. W. 1160, 7 allege that she gave the city notice Ann. Cas. 913; Edmonds v. Herbrand- required by the statute within thirty son, 2 N. D. 270, 14 L.R.A. 727, 50 N. days after the accident occurred. W. 970; Henderson v. Koenig, 168 The petition, however, contained the Mo. 372, 57 L.R.A. 659, 68 S. W. 72; following allegations: “That on the State ex rel. Harris v. Herrmann, 75 10th day of April, 1921, the plainMo. 353; Hamman v. Central Coal &

tiff, while walking along said sideCoke Co. 156 Mo. 241, 56 S. W. 1091; Cooley, Const. Lim. 7th ed. 556.

walk, using due care and caution, It is unconstitutional because such caught the heel of her shoe in said a short time as thirty days is an un- hole and was thrown backwards to reasonable provision.

the ground with such force as to strain her back and spine to such an to notify the mayor sooner than the extent as to cause her great suffer- 29th day of June, 1921. The acciing and pain, and was hurt so se- dent happened April 10, 1921. The verely that she has not yet recov- petition states that, on account of ered; that for more than thirty days her injuries for more than thirty she was unable to get away from her days, she was unable to get away home; that at the time of her injury from her home, and that she notiplaintiff was pregnant; that the in- fied the mayor in writing of the injury caused her to miscarry and lose jury on the 29th of June, 1921; that the unborn child. Plaintiff further said notice, among other things, states that she notified defendant's stated “that because of her injury mayor in writing, verified by affida- she had not been able to notify the vit, stating the place where the in- mayor sooner, and that said notice jury occurred and when it occurred, is attached to and made part of her and the character and circumstances petition." of the injury, and that plaintiff While the mere attachment of the would claim damages for such in- notice to the petition and recital in jury; also stating in said notice the petition that it was made part that, because of her injury, she had thereof would not make it a part of not been able to notify the mayor the petition, still, in this case, the sooner; that the injury occurred on portion of the notice stating that the 10th day of April, 1921, and the “because of her injury she had not notice was served on the mayor on been able to notify the mayor soonthe 29th day of June, 1921. That er" was set forth in the petition itsaid notice is attached hereto and self and made a part thereof. So made a part of this petition."

that we may assume that there was The plaintiff standing on her de- a sufficient allegation in the petition murrer and refusing to plead fur- that because of the plaintiff's injury ther, the court rendered judgment sustained on account of the negliagainst her, and, failing to obtain a gence of the city she was unable to new trial, she appealed to this court. notify the mayor, as required by the In her motion for a new trial plain statute, within thirty days after the tiff alleged, among other things, injury was received, and was not that the demurrer was sustained for able to give such notice until June the reason that such petition shows 29, the date she gave such notice. on its face that she failed to notify Indeed, learned counsel for the city defendant of the injury sued for in his brief does not contend to the within thirty days, as provided for contrary.

contrary. So that the question is by $ 8182, Mo. Rev. Stat. 1919; that fairly presented to us whether, unthe plaintiff contends that said sec- der the statute, in view of the contion is void because it violates § 10, stitutional provision referred to by art. 2, of the Constitution of Missou- appellant, the disability of the inri; that her petition shows that she jured party to give the required nowas severely injured, and that be- tice, when caused by the injury sued cause of such injury she was unable for, affords an excuse for the plain

notify defendant sooner than tiff for not literally complying with June 29, 1921, which was more than the express words of the statute as thirty days after the injury, and to giving such notice. that the action of the court in con- Said $ 8182, Rev. Stat. 1919, is as struing said § 8182, and sustain- follows: "No action shall be maining defendant's demurrer, deprived tained against any city of the second plaintiff of her rights under said § class on account of any injuries 10, art. 2, of the Constitution. growing out of any defect in the

II. We think that plaintiff's peti- condition of any bridge, street, sidetion, in effect, alleges that the in- walk, or thoroughfare in said city, juries she sustained for which the unless notice shall first have been suit is brought rendered her unable given, in writing, verified by affida


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