corporation are likewise bound to ascertain the nature and extent of his authority. This is certainly so in all cases where this authority is special and of record, or conferred by statute. The fact in such a case that the agent made false representations in relation to his authority and what he had already done, will not aid those who trusted to such representations to establish a liability on the part of his corporate principal.'

v. Smedes, 3 Cow. 662; Maddox v. Graham, 2 Met. (Ky.) 56. Or prospective in its terms. Davenport v. Hallowell, 10 Maine, 317. As to corporate seal. Ante, sec. 130. Where a public corporation, transcending its legal power, assumes to direct its officers-for example, commissioners of highways to bring an action in their own names, or in their name of office, against third persons for trespasses upon the highways, and the action is accordingly brought and the officers are defeated, they cannot sustain an action against the corporation to be reimbursed their costs and expenses; and the reason is, that the action of a corporation directing such a suit to be brought, being in excess of its lawful power, is void, and cannot be the foundation of any contract, express or implied. Cornell v. Guilford, Denio, 510 Ante, sec. 98.

Baltimore v. Eschbach, 18 Md. 276, 282; Baltimore v. Reynolds, 20 Md. 1, 1862; Delafield v. State of Illinois, 2 Hill (N. Y.) 159, 174; 26 Wend. 192, 1841; affirming S. C., 8 Paige, 531, restraining unauthorized sale of bonds. Hodges v. Buffalo, 2 Denio, 110; 3 Comst. 430; 2 Barb. 104; Supervisors, &c. v. Bates, 17 N. Y. 242, 1858. This case also determines how far, in such a case, the sureties of such an agent or officer are liable for his acts. And see cases cited Ib. p. 245. Chemung Canal Bank v. Supervisors, 5 Denio, 517, 1848; Overseers, &c. v. Same, 15 N. Y. 341; 2 Comst. 178, per Strong, J.; Marsh v. Fulton Co., 10 Wall. 676, 1870; Miner's Ditch Co. v. Zellerbach, 37 Cal. 543, 1869; Swift v. Williamsburg, 24 Barb. 427; Hague v. Philadelphia, 48 Pa. St. 527; State v. Kirkley, 29 Md. 85, 111; Horn v. Baltimore, 30 Md. 218, 1868; Thomas v. Richmond, 12 Wall. 349, 1870, per Bradley, J.

Special and limited authority to borrow money conferred upon the town treasurer, when exercised, is exhausted, and the town is not liable for money he subsequently borrows and converts to his own use, although he assumed to act, and was, by the lender, supposed to be acting under the authority conferred upon him. Savings Bank v. Winchester, 8 Allen, 109, 1864; ante, sec. 81.

So in Upper Canada it is held that an individual dealing with a corporation through its council or the members of the governing body, is bound to notice the objects and limits of their powers and the manner in which those powers are to be exercised, and it should be borne in mind that their acts, when beyond the scope of their authority or done in a manner unauthorized, are in general nugatory and not binding on the corporation. Ramsay et al. v. The Western District Council, 4 U. C. Q. B. 374; Harr. Manual, 2nd ed. p. 20.

§ 373. Mode of Exercising the Power.-Respecting the mode in which contracts by corporations should be made, it is important to observe, that when, as is sometimes the case, the mode of contracting is specially and plainly prescribed and limited, that mode is exclusive, and must be pursued, or the contract will not bind the corporation ;' but the courts have sometimes regarded provisions on this subject as directory. Thus, where the charter directed the mode in which moneys should be drawn from the treasury to be by an order of the council, signed by the mayor, such an order, issued upon a memorandum in the minutes of the corporation, without a formal order being entered, was adjudged a sufficient 'compliance with the charter.' But unless the mode be prescribed and limited, valid contracts within the scope of the corporate powers may be made, as we shall see, otherwise than under seal or in writing.

$ 374. Seal not Necessary-How Concluded.—Modern decisions have established the law to be, that the contracts

1 Head v. Insurance Company, 2 Cranch (U. S.) 127, 1804; White v. New Orleans, 15 La. An. 667; Infra, sec. 388; Dey v. Jersey City, 19 N. J. Eq. 412, 1869; Baltimore . Reynolds, 20 Md. 1. Speaking of this subject in the case first cited, Marshall, C. J., says: "The act of incorporation is to them an enabling act; it gives them all the power they possess; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." Approved, Bank of United States v. Dandridge, 12 Wheat. 64, 68, 1827; see also Angell & Ames Corp. sec. 253; Diggle v. Railway Company, 5 Exch. 442; Homersham v. Wol, &c. Company, 4 Eng. Law & Eq. 426; Frend v. Dennett, 4 C. B. (N. S.) 576; Butler v. Charlestown, 7 Gray (Mass.) 12; Trustees v. Cherry, 8 Ohio St. 564, 1858; Bladen v. Philadelphia, 60 Pa. St. 464; McCracken v. San Francisco, 16 Cal. 591; Piemental v. San Francisco, 21 Cal. 351; Zottman v. San Francisco, 20 Cal. 90; Argenti v. San Francisco, 16 Cal. 255, 282, opinion of Field, C. J. Post, chapter on Taxation and Local Assessments. If a corporation sue upon a contract, though it be executory on their part, and not executed, this amounts to a conclusive admission that the contract was duly entered into by them. Grant on Corp. 63; 5 Man. & Granger, 192. A contract by a city with street railway company held not concluded, something remaining to be done. People's R. R. v. Memphis R. R., 10 Wall. 38.

2

Kelly v. Mayor, &c. of Brooklyn, 4 Hill (N. Y.) 263, 1843; see Neiffer v. Bank, 1 Head (Tenn.) 162; Penrose v. Taniere, 12 Queen's B. 1011; Maddox v. Graham, 2 Met. (Ky.) 56.

of municipal corporations need not be under seal unless the charter so requires. The authorized body of a municipal corporation may bind it by an ordinance, which, in favor of private persons interested therein, may, if so intended, operate as a contract; or they may bind it by a resolution, or by vote clothe its officers, agents, or committees, with power to act for it; and a contract made by persons thus appointed by the corporation, though by parol (unless it he one which the law requires to be in writing) will bind it.'

Fanning v. Gregoire, 16 How. (U. S.) 524, 1853; Ante, sec. 132; Abbey v. Billups, 35 Miss. 618; Alton v. Mulledy, 21 Ill. 76, 1859; Western, &c. Society v. Philadelphia, 31 Pa. St. 175; Ib. 185; Clark v. Washington, 12 Wheat. 40, 1827; Hamilton v. Railroad Company, 9 Ind. 359, 1857; Ross v. Madison, 1 Ind. (Cart.) 281, 1848; Story Agency, sec. 52, where it is said that, as the appointment of an agent of a corporation may not always be evidenced by written vote, it is now the settled doctrine—at least in America-that it may be inferred and implied from the adoption or recognition of the acts of the agent by the corporation." Infra, sec. 383. Parol contract by council with city physician held valid, no provision of the charte being contravened. Selma v. Mullen, 46 Ala. 411, 1871. See, also, Broo

Com. on Com. Law, 561-570.

In Fleckner v. United States Bank, 8 Wheat. (U. S.) 338, 357, 1823, it was urged that a corporation could not authorize any act to be done by an agent by a mere vote of the directors, but only by an appointment under its corporate seal. But the court declared that such a doctrine, whatever may have been its original correctness as applied to common law corporations, had "no application to modern corporations created by statute, whose charters contemplate the business of the corporation to be transacted by a special body or board of directors. And the acts of such a body or board, evidenced by a written vote, are as completely binding upon the corporation, and as complete authority to their agents, as the utmost solemn acts done under the corporate seal." Per Story, J. Further, as to common seal, see ante, sec. 130. Authority of agent, in absence of special restriction, may be given by parol or inferred from acts. Detroit v. Jackson, 1 Doug. (Mich.) 106. See ante, sec. 130. Infra, sec. 383.

A provision in the organic act of a city, that "on the passage of every by-law or order to enter into a contract by the council, the ayes and nays shall be called and recorded," prescribes how the order to contract shall be made and evidenced when directed by the council, but it is not a limitation on the power of authorized agents to make a contract by parol. Indianola v. Jones, 29 Iowa, 282, 1870. Ante, sec. 229; Baker v. Johnson Co. (parol contract), 33 Iowa, 151.

Contract may be concluded by ordinance or ing proposals), without signature by parties.

action of the council (acceptPeople v. San Francisco, 27

Cal. 655, 1865; Sacramento v. Kirk, 7 Cal. 419; Logansport . Blakemore,

§ 375. The assent of a municipal corporation to the variation or modification of a contract need not necessarily be expressed by the formal action or resolution of the common council; but it may be implied from acts relating to the contract work subsequent to the date of the contract.'

376. Contracts made by Agents-Mode of Execution. Where officers or agents of a corporation, duly appointed, and acting within the scope of their authority in executing an instrument in behalf of the corporation, sign their own names and affix their own seals, such seals are simply nugatory, and the instrument, according to the weight of modern judicial opinion, is to be regarded as the simple contract of the corporation, and will bind the corporation and not the individuals executing it, where the purpose to act for the corporation is manifest from the whole paper, and where there are no words evincing an intention to assume a personal liability.'

17 Ind. 318. How shown. San Antonio v. Lewis, 9 Texas, 69. In Indianapolis v. Skeen, 17 Ind. 628, 1861, it was held that third persons dealing with an agent of the city appointed by the council to negotiate its bonds at not less than " a specified rate, were not obliged to look to the records of the council for either his appointment or his instructions, since they were not necessarily of record there; but persons dealing with such an agent are, of course, bound to ascertain the fact of his appointment and the extent of his authority, but not his private instructions. Authority of agent to negotiate sales of bonds. Cady v. Watertown, 18 Wis. 322.

1

Messenger v. Buffalo, 21 N. Y. 196, 1860. Where certain work is stipulated to be done under the direction of a street commissioner of a city, this officer has authority, without a vote of the council, to authorize extra work to be done, or materials to be furnished, where these are rendered necessary by the action of the city authorities subsequent to the making of the contract, and where, without such extra work or materials, it would be impossible to fulfill the requirements of the contract. Ib. Modification of contracts by unauthorized officers not binding upon the corporation. Bonesteel v. Mayor, &c. of New York, 22 N. Y. 162, 1860; Hague v. Philadelphia, 48 Pa. St. 527. As to changes in contracts by parol, see Hasbrouck v. Milwaukee, 21 Wis. 217, 1866; compare Sacramento v. Kirk, 7 Cal. 419. Infra, sec. 383. Acceptance by city of proposals to it; see Springfield v. Harris, 107 Mass. 532, 1871.

2

Regents, &c. v. Detroit, &c., 12 Mich. 138; Sweetzer v. Mead, 5 Mich. 107; Bank of Metropolis v. Gottschalk, 14 Pet. 19; Story Agency, secs. 154, 260, 276, 277; Bank of Columbia v. Patterson, 7 Cranch, 299, 307; Hatch v. Barr, 1 Ham. (Ohio) 390; Baker v. Chambles, 4 G. Greene (Iowa) 428; Lyon

377. A few cases will be referred to, illustrating the rule just stated. A contract in relation to the survey of a city, a subject exclusively appertaining to the corporation,

v. Adamson, 7 Iowa, 501; 1 Am. Lead. Cas. 602; Mott v. Hicks, 1 Cow. 513, 534; Blanchard v. Blackstone, 102 Mass. 343; Stanton v. Camp (contract signed individually, with addition of "committee "), 4 Barb. 274; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326; Hopkins v. Mehaffy, 11 Serg. & Rawle, 126; Angell & Ames, secs. 293, 295; Gale v. Kalamazoo, 23 Mich. 344, 1871; Burrill v. Boston, Clifford C. C. 590, 1867. Where a town clothes its agent, or its committee, with full power to make a contract, and it is accordingly made, it is valid and binding, notwithstanding there has been no formal acceptance by a vote, or even if it be afterwards rejected by the corporation. Davenport v. Hallowell, 10 Maine, 317; Junkins v. School District, 39 Maine, 220, 1855; Willard v. Newburyport, 12 Pick. 227; Kingsbury v. School District, 12 Met. 99, 1846.

Where school directors gave an authorized bond for borrowed money, in their individual names, as school directors, though signed and sealed in their individual names, the corporation, and not the individuals, are liable thereon. Heidelberg School Dist. v. Horst, 62 Pa. St. 301, 1869.

The power of a committee, appointed by a vote of a town, "to let out and superintend the making" of a highway, is completely executed by the making of a contract with a third person embracing the whole subject matter of the vote and by the superintending of the construction of the highway. And, therefore, if the person contracted with fails to complete the road according to his contract, this is a matter for the town to deal with, and the committee have no power, without new authority from the town, to enter into a contract with another person for its completion. If they do so, and pay money in pursuance thereof, the town is not liable to them therefor. Nor is it liable if they transcend their power, and make a contract for a more expensive road than they were authorized to do. Keyes v. Westford, 17 Pick. 273, 1835.

Power to a town committee "to superintend the building of a house for the town," was adjudged to include the power to make the necessary contracts, it not appearing that any other or special committee or agent was appointed for that purpose-the court being of opinion that the making of contracts was essential to the building of the house. Damon v. Granby, 2 Pick. 345, 1824. Ante, chaps. IX. X. Majority of committee must sign contract. So held: Curtis v. Portland, 59 Maine, 483, 1871. Ante, sec. 221, and note.

It has been held in Upper Canada where work was done under a con tract not made with the corporation or any of its known officers, but merely with persons assuming to act as a duly appointed committee, that no action would lie against the corporation. Stoneburgh . The Municipality of Brighton, 5 U. C. Law J. 38. No action can be sustained for a breach of duty against the head of a corporation in not applying the seal to make a contract between a corporation and an individual, founded on a refusal (which if there had been a previous valid contract) would have