§ 127. CHAPTER XI. OFFICERS AND AGENTS. Mode of corporate action. § 127. Mode of corporate action.-In general, a corporation aggregate can only act and conduct its business through the intervention of duly authorized agents.1 And the officers of such a corporation are its mere ministerial agents, whose function it is to conduct the corporate business for the benefit and under the authority of the corporation.2 But no person is an agent for the corporation who proceeds without any authority, either previously given, or inferred from the subsequent recognition of his acts by the corporation.4 1 See Planters' Bank v. Andrews, 8 Port. 404; Lyman v. White River Bridge (o. 2 Aiken, 255; 16 Am. Dec. 705; N. H. Sav. Bank v. Downing. 16 N. H. 187, M. E. Church v. Sherman, 36 Wis. 404; Muhleman v. Nat. Lus, o. 6 W. Va. 508. 2 Burr v. McDonald, 3 Gratt. 215; and see Ohio etc. B. R. Co. v. McPherson, 35 Mo. 13; Bank of U. S. v. Dandridge, 12 Wheat. 64, 113; State v. City Council, 3 Ilar. (Del.) 294; Eruest v. Nicholls, 6 II. L. 419. 3 Burdick v. Champlain Glass Co. 11 Vt. 19; Hayden v. Middlesex Turup Co. 10 Mass. 37. ompare Huntingdou etc. R. R. Co. v. Decker, 82 Pa. St. 119; Custar v. Titusville Gas etc. Co. 63 id. 381. 4 Perry e. Simpson etc. Manuf. Co. 37 Conn. 520; Smiley v. Mayor etc. 6 leisk. 604. § 128. Power to appoint or constitute.-The pow er to appoint, or iu some other way constitute suitable of ficers and agents, is incident to aggregate corporate bodies, and need not be conferred by the act of incorporation.1 Where a corporation has power to act at all, it may ap point an agent to do the act; 2 and from the mere fact of such appointment, the same powers will flow to the agent as if he had been appointed by an individual; and the acts of the agent, within the scope of his authority, will bind the corporation in the same way as if he were the agent of a natural person, and to the same extent. But officers or agents of a corporation specially empowered to make a contract, or to do a certain act, cannot delegate the trust to sub-agents, unless power to do so is expressly given them; 5 and, therefore, contracts made by said subagents will not bind the corporation. Unless prohibited by the charter, the officers of a corporation may confer authority upon its agent to draw and execute bills of exchange on behalf of the company. And in the absence of any prescribed mode of appointing agents to dispose of the property or negotiable securities belonging to a corporate body, it may be presumed that the president, as the head of the organization, has authority to appoint such agents. And a power of the managing officers of a corporation to employ attorneys and counselors may be presumed. But authority of a single officer of a railway company, to appoint an agent to exercise extraordinary powers in managing or selling the lands or timber of the company, must be affirmatively shown.10 1 Hughes v. Parker, 20 N. H. 58; Kitchen v. Girardeau etc. R. R. Co. 59 MO. 514. 2 See Atlantic Bank v. Merchants' Bank, 10 Gray, 532; Hughes v. Bank of Somerset, 5 Litt. 45. 3 Sharp v. Mayor etc. 25 How. Pr. 389; 40 Barb. 256. 4 City of Covington v. Covington etc. Bridge Co. 10 Bush, 69; Chicago etc. Railw. Co. v. James, 22 Wis. 194. Compare Salem Bank v. Gloucester Bank, 17 Mass. 1. 5 Brewster v. Hobart, 15 Pick. 302; Percy v. Millauden, 3 La. 568; McCormick v. Bush, 38 Tex. 314; Tippets v. Walker, 4 Mass. 595; Gillis . Bailey, 21 N. H. 149. Compare Dana v. Bank of U. S. 5 W. & Serg. 223; Dorchester Bank ». New Eng. Bank, 1 Cush. 177; Palmer v. Yates, 3 Sand. 137; Reid v. Memphis Gas Co. 9 Heisk. 545. 6 Gillis v. Bailey, 21 N. H. 149. 7 Preston v. Missouri etc. Co. 51 Mo. 43; and see Bank of Metrop. v. Jones, 8 Peters, 12; Ridgway v. Fariner's Bank, 12 Serg. & R. 256. 8 Mitchell v. Deeds, 49 Ill. 416; and compare Spear v. Ladd, 11 Mass. 94; Burrill v. Nahant Bank, 2 Met. 163; Bank of Commonw. v. Bank of Brest, Har. (Mich.) 106. 9 Southgate v. Atlantic etc. R. R. Co. 61 Mo. 89; Western Bank v. Gilstrap, 45 id. 419; and see State v. Commissioners étc. 21 Ohio St. 648; People v. Supervisors etc. 45 N. Y. 196. 10 Chicago etc. R. R. Co. v. James, 22 Wis. 194. § 129. How appointed or constituted.-The power to elect or appoint officers or agents, rests in the body of the corporators, unless otherwise expressly provided by the charter, or a general statute. In the latter case, the provisions of the charter or statute must be strictly pursued, or the appointment will not be valid.2 But a statute requiring the officers to be chosen as shall be provided by the by-laws of the company, can have no application to the first choice of officers by persons associated together for the purpose of forming themselves into a body corporate, since no by-laws can be adopted by or for a corporation until the corporation itself is created. A corporation may appoint an agent by parol; 4 and that it has done so may be inferred from its adoption of the agent's acts.5 Whatever may be the purpose of the agency, an appointment of the agent by the corporation, or the board of directors through which its business is transacted, is valid, though made without affixing the corporate seal. Nor is a formal resolution of the board of directors required to make the appointment valid; 8 appointment by course of business is allowable.9 1 M. E. Church v. Sherman, 36 Wis. 404; Haven v. N. H. Asy. for Insane, 13 N. H. 532; Brewster v. Hartley, 37 Cal. 15; Juker v. Commonw. 20 Pa. St. 484. 2 See Brewster v. Hartley, 37 Cal. 15; Lyon v. Jerome, 26 Wend. 485; Matthews v. Skinker, 62 Mo. 329. 3 Boston etc. Manuf. Co. v. Moring, 15 Gray, 211. 4 City of Detroit v. Jackson, 1 Doug. (Mich.) 106; Garrison v. Combs, 7 J. J. Mar. 85. 5 Nicholas v. Oliver, 36 N. H. 218; Stanford Bank v. Benedict, 15 Conn. 437; Farmers' Mut. Ins. Co. v. Taylor, 73 Pa. St. 342; Swan v. Liverpool etc. Ins. Co. 52 Miss. 704. 6 See Bank of Columbia v. Patterson, 7 Cranch, 299. 7 Wolf v. Goddard. 9 Watts, 544; Dispatch Line v. Bellamy Manuf. Co. 12 N. H. 205; Randall v. Van Vechten, 19 Johus. 60; Topping v. Bickford, 4 Allen, 120; Planters' Bank v. Rivingsville Cotton Co. 10 Rich. 95; and see Smith v. Cartwright, 6 Ex. 927; Austin v. Guardians etc. L. R. 9 C. P. D. 91. 8 Bank of Lyons v. Demmon, Hill & D. 398; Commercial Bank v. Kortright, 22 Wend. 348. 9 Bank of Middlebury v. Rutland etc. R. R. Co. 30 Vt. 159; St. Andrew's Bay Land Co. v. Mitchell, 4 Fla. 192; Exchange Bank v. Monteath, 17 Barb. 171. § 130. Appointment, how evidenced.—In order to establish an agency in behalf of a corporation, it is usual and proper to produce the records or books of the corporation containing the entry or resolution of appointment.1 But unless the charter or by-laws absolutely require such entry to be made, the appointment is valid without it,2 and may be proved by parol. And if a corporation refuse to produce its records, the testimony of one who has seen them is competent proof of the appointment and authority of an agent. So, the authority of an agent may be proved by "facts and circumstances"; 5 or may be shown by acts and the general course of business; 6 or his appointment may be inferred from the adoption of his acts by the corporation; or it may be established by estoppel. If a person acts notoriously as the officer of a corporation, and is recognized by the directors, or by the corporation as an existing officer, a regular appointment will be presumed; and his acts will bind the corporation, although no written proof is or can be adduced, of his appointment. 10 1 Brencombe Turnp. Co. v. McCarson, 1 Dev. & B. 306; H. Asylum for Insane, 13 N. H. 532; Owings v. Speed, 424; Benedict v. Lansing, 5 Denio, 283. Haven v. N. 2 Smiley v. Mayor etc. 6 Heisk. 604. 3 Hamilton v. New Castle etc. R. R. Co. 9 Ind. 359; Williams v. Female College, 29 Mo. 250; Union Manuf. Co. v. Pitkin, 14 Coun. 174, 187; Hooe v. Mayor etc. 1 Cranch C. C. 90; Preston v. Mo. etc. Co. 51 Mo. 43. 4 Narragansett Bank v. Atlantic Silk Co. 3 Met. 282. 5 North. Cent. R. R. Co. v. Bastian, 15 Md. 494. 6 Badger v. Bank of Cumberland, 26 Me. 428; Bank of Auburn_v. Putman, I Abb. Ct. App. 80; 3 Keyes. 343; Fayles v. Nat. Ins. Co. 49 Mo. 380; Union etc. Min. Co. v. Rocky Mt. Nat. Bank, 2 Cal. 248; Keith v. Globe Ins. Co. 52 Ill. 518. 7 Clark v. Pratt, 47 Me. 55; Alabama etc. R. R. Co. v. Kidd, 29 Ala. 221; Smiley v. Mayor etc. 6 Heisk. 604; Perkins v. Wash. Ins. Co. 4 Cowen, 645; Smith v. Birmingham etc. Canal Co. 1 Ad. & E. 526; Reg. v. Grimshaw, 10 Q. B. 747. 8 First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Augusta Bank . Hamblet, 35 Me. 491; London etc. Railw. Co. v. Winter, 1 Craig & P. 57. 9 Bank of U. S. v. Dandridge, 12 Wheat. 64, 79; and see Fister v. La Rue, 15 Barb. 323; McCullough v. Annapolis etc. R. R. Co. 4 Gill. 58. 10 Bank of U. S. v. Dandridge, 12 Wheat. 64, 79; Goodwin v. Union Screw Co. 34 N. H. 378. § 131. Who may be an officer or agent.-In general, any persons duly appointed may act as the agents of corporations, as well as of natural persons. But where the charter prescribes who only shall be the agents of the company for particular purposes, they alone can be made such.2 And a by-law which would render a class of persons eligible to office, who by the charter are ineligible, is bad. A corporation may employ one of its own members as agent; and the fact that he acted as auctioneer at a sale of corporate property and signed the memorandum of sale as agent for the purchaser, is no objection to the validity of the sale. But the principle that a person having a duty to perform for others, cannot act in the same matter for his own benefit, is strictly applied to agents of corporations." 6 1 See Anderson v. Saunderson, 2 Stark. 204; Palethorp v. Furnace, 2 Esp. 511; People v. Webster, 10 Wend. 554. 2 Washington etc. Turnp. Co. v. Crane, 8 Serg. & R. 521. 3 Rex v. Bumstead, 2 Barn. & Adol. 699; and see Rex v. Mayor, etc. 7 Mod. 373. 4 Stoddert v. Vestry of Port Tobacco Parish, 2 Gill & J. 227. 5 Stoddert v. Vestry of Port Tobacco Parish, 2 Gill & J. 227; see also Bangor Boom Corp. v. Whitney, 29 Me. 564; Mayor etc. v. Inman, 67 Ga. 370. |