Obrázky stránek

the rate of 5 per cent per month instead of per annum.

See also Southwestern Teleg. & Teleph. Co. v. Benson (1896) 63 Ark. 283, 38 S. W. 341, infra, V.

And see also the cases cited under I., supra.

III. Officers of corporations. For subordinate agents and employees of corporations below the grade of officer, see other subdivisions.

It seems that if directors of a corporation are its authorized agents for the purpose of making contracts, their signatures to an account prepared by the treasurer is proper evidence in support of the issue in an action against the corporation on an account stated. Davis v. Georgetown Bridge Co. (1803) 1 Cranch, C. C. 147, Fed. Cas. No. 3,637.

As said in Wilson v. Investment Co. (1916) 80 Or. 233, 156 Pac. 249, the mere fact that a man is president of a corporation does not give him any power to bind the corporation in any way, and hence his assent to an account against the corporation does not make it an account stated in the absence of any by-law, special order of the directors, or any usage or custom authorizing him to bind it by contract. While this is doubtless the general rule, it is little more than an academic rule, as the claim that the president has authority to bind the corporation seldom rests on the "mere fact" that he is president.

The president of a corporation engaged in subdividing a tract of land for purposes of sale, who, by resolution of the board of directors, was appointed general manager of the corporation, with full power to make and enter into all contracts on behalf of the company, had power to agree to an account stated with a contractor employed to grade streets and do similar work. His authority in this respect was not restricted by by-laws making it his duty to sign all contracts and other instruments in writing which had been first approved by the board of directors, and making it the duty of the secretary to affix the corporate seal to all documents requiring such seal. E. W. McLellan Co. v. East

San Mateo Land Co. (1913) 166 Cal. 736, 137 Pac. 1145.

But an account between a corporation and its president and manager, made and placed on the books of the corporation by such president and manager, was not an account stated, where, as soon as a third person became president, he challenged the correctness of the account. And the fact that such third person knew of the account before the change of officers did not make the account binding on the corporation where at that time he had no official connection with the

corporation, and consequently no power to protest, though he was the beneficial owner of most of the stock. Jones v. University Research Extension (1910) 157 Ill. App. 132.

And, conceding that the president and active manager of a terminal railroad company had authority to bind it by a settlement of the account of a contractor when done in good faith, such settlement was not binding on a mortgagee of the company's property where the contractor's claim was intentionally allowed for a sum in excess of that due, for the purpose of giving him a lien sufficient to protect subcontractors at the expense of the mortgagee. Beach v. Wakefield (1898) 107 Iowa, 567, 76 N. W. 688, modified on rehearing in (1899) 107 Iowa, 591, 78 N. W. 197.

It was held in Pick v. Slimmer (1897) 70 III. App. 358, that the president and secretary of a mercantile corporation were presumed to have authority to make and render a statement of the account of one performing services for it, amounting to an account stated.

The by-laws of the trust company involved in Farmers' Loan & T. Co. v. Mann (1867) 4 Robt. (N. Y.) 356, provided that all business relating to real estate securities, and the holding, managing, and selling of land granted to the company or taken in payment of debts, should be managed by a finance committee and that such committee should audit all accounts against the company; they further provided, however, that the president should be a member of all committees, in

cluding the finance committee, and should have the general direction and superintendence of the affairs of the company; for eleven years, during which defendant acted as the company's attorney in collecting debts, foreclosing mortgages, and managing and selling land, he repeatedly consulted with, and received instructions from, the president and secretary, and never received instructions from any other officer or director, and he settled a prior account with the president. It was held that the president and secretary had authority to settle his account against the company, in which he charged interest to which he would not have been entitled except for such settlement. The court said that the facts clearly established a fixed intention and design on the part of the company to waive and abandon its by-laws so far as that part of the business was concerned.

As to the authority of the president and treasurer of a corporation, see Thompson Bros. Feed Co. v. Neiman Bros. Co. (1917) 203 Ill. App. 317 (abstract).

It was within the authority of the secretary of an oil company to make and deliver to an employee a statement of the amount due him for services and expenses, whether regarded as a pay roll, a time sheet, or an account stated. This related merely to the bookkeeping of the corporation, which was a matter clearly within the duties of the secretary. Smith v. Sinbad Development Co. (1909) 11 Cal. App. 253, 104 Pac. 706. In this case the secretary was described in the articles of incorporation as secretary and general manager, but the bylaws subsequently adopted made no provision for a general manager; and the case was decided on the assumption that he was merely secretary when the account was delivered.

And though the secretary of an apartment house corporation testified that he had no authority to approve an account for refrigerators for the apartment house, his authority was a question for the jury, and the jury was justified in finding that he had authori

ty to bind the corporation by an account stated, where there was evidence that the contract for the refrigerators was executed in the corporation's name, by him, and by no other officer, and that he acted for the corporation in receiving notice of an assignment of the contract, in furnishing references to the assignee, and in other respects regarding the contract. Concord Apartment House Co. v. Alaska Refrigerator Co. (1897) 78 Ill. App.


In an action against a corporation on an account stated in the handwriting of the corporation's treasurer, and certified by three of its directors, the court told the jury that if the account was in the handwriting of such person and he was the treasurer, or authorized to settle the corporation's accounts, the account was proper evidence in support of the issue. Davis v. Georgetown Bridge Co. (1803) 1 Cranch, C. C. 147, Fed. Cas. No. 3,637.

But where plaintiff's salary as a corporation's superintendent was fixed by resolution of the board of directors, which resolution also designated the treasurer of the corporation as "consulting director," with whom the superintendent was to advise, the treasurer had no authority, either as treasurer or as consulting director, to bind the corporation by a paper certifying that a specified amount was due plaintiff as salary, where it was not a mere transcript of the entries in the corporation's books. Kalamazoo Novelty Mfg. Co. v. McAlister (1877) 36 Mich. 327. The court said: “His position as consulting director implied no power to liquidate and fix the sum which the company should pay McAlister, or to state the amount fixed as a fact admitted by the company. Moreover, the paper in paper in question, though made, as McAlister insists, on much deliberation, was neither drawn or received as performed by Kellogg in character of consulting director. On its face it professes expressly to have emanated from his authority as treasurer. That it was within his power and province in that capacity cannot be assumed. The document is not a mere transcript or brief


from the company's books, and was not adduced as such. It imports that it was ascertained and determined that the company was in fact the debtor of McAlister to the specified amount, and it was put in evidence as an admission of the company to that effect. general duty of the treasurer of a private corporation is to collect, receive, hold, and disburse the funds, and unless specially empowered, his authority could not be supposed to extend so far as to allow him to settle and audit disputed claims brought for salaries by other agents of similar grade, and to issue written admissions of his determination, binding on the corporation. Such duties would regularly fall on the board of directors, and the evidence in the case goes to strengthen the inference that such was the fact here. The resolution relied on by McAlister tends to show that it was for the board to speak on the part of the company concerning his wages, and not the treasurer, and he testified that it was the board who called on him to quit."

The bookkeeper of a corporation who also performs the duties of secretary and assistant treasurer has no authority to render an account to a creditor of the corporation, showing a balance due from the corporation, which will be binding on the corporation as an account stated, in the absence of evidence of express authority. "Even if such an authority might be implied from the general duties. of a treasurer or assistant treasurer when such officer has rendered an account to a debtor of the corporation, it by no means follows that actual authority need not be shown when the legal effect of the act would be to liquidate or establish unsettled demands against the corporation. An officer who does not possess the power to create a debt against the corporation directly cannot do it indirectly by sending an account which shows a balance due to the person to whom it is sent." Harvey v. West Side Elev. R. Co. (1878) 13 Hun (N. Y.) 392.

In the reported case (Dolman v. KAW CONSTR. Co. ante, 67), it was held that the chief engineer and general

manager of a railway construction company had authority to make a settlement with a contractor, which was upheld as an account stated.

See also the following cases in which the assent to an account stated appears to have been given by a corporate officer: Fee v. McPhee Co. (1916) 31 Cal. App. 295, 160 Pac. 397 (president and manager who also owned most of the stock); Jacksonville, M. P. R. & Nav. Co. v. Warriner (1895) 35 Fla. 197, 16 So. 898 (board of directors); United States Health & Acci. Ins. Co. v. Batt (1912) 49 Ind. App. 277, 97 N. E. 195 (president); Porter v. Chicago, I. & D. R. Co. (1896) 99 Iowa, 351, 68 N. W. 724 (board of directors); St. Mary's Church v. Cagger (1849) 6 Barb. (N. Y.) 576 (trustees); Wood v. Green (1914) 131 Tenn. 583, 175 S. W. 1139 (vice president); Generes v. Security L. Ins. Co. (1914) - Tex. Civ. App. 163 S. W. 386 (secretary).

But see Loewer v. Lonoke Rice Mill Co. (1913) 111 Ark. 62, 161 S. W. 1042, where an account between a corporation and a director employed by it as superintendent and purchasing agent was held not final because the entries in the account were made by the corporation's bookkeeper, under the direction of the director himself, who thus made the settlement with himself on behalf of the corporation.

And see also Wier v. American Locomotive Co. (1913) 215 Mass. 303, 102 N. E. 481, where an agreement between an automobile manufacturer and its corporate selling agent, represented by its "officers," was held not an account stated, without any discussion of the officers' authority.

As to authority of railroad purchasing agents, see Batavian Bank v. Minneapolis, St. P. & S. Ste. M. R. Co. (1904) 123 Wis. 389, 101 N. W. 687, supra, II. And see Providence Mach. Co. v. Browning (1904) 70 S. C. 148, 79 S. E. 325, supra, I.

IV. Bookkeepers and clerks. The rendition by a party's clerk or bookkeeper of an account showing a balance due the person to whom the account is rendered is not obligatory and binding upon the principal, in the absence of any showing that the book

keeper or clerk had any other authority than that conferred by law upon an agent of that description. Gutshall v. Cooper (1910) 48 Colo. 160, 109 Pac. 428; Spears v. Turpin (1844) 9 Rob. (La.) 293; Peterson v. Wachowski (1899) 86 Ill. App. 661.

In Spears v. Turpin (1844) 9 Rob. (La.) 293, supra, the court said: "The business of a bookkeeper is to make such entries in the books of his employer as he is ordered to do, to keep the accounts, and when he is directed, to draw off or copy from the books any that may be wanted and submit them to his principal, and then do with them as he may be directed. A mere clerk or bookkeeper has no more right, of his own accord, to state an account in the name of his principal, and acknowledge a balance as being due, than he has to create a debt by signing a promissory note. The obligation is only different in form, but equally binding. No man would ever be safe if it were permitted that he should be bound by any and every account his clerk or bookkeeper might state and deliver to another person, acknowledging that a balance was due or owing on it, without any other authority than that conferred by law upon an agent of that description."

And in Peterson v. Wachowski (1899) 86 Ill. App. 661, supra, the court said: "There is no evidence that appellant [the employer] ever saw the statement of January 3d after it was made out by the bookkeeper, or that the bookkeeper had any authority to in any respect change or abrogate the provisions of the contract. Nor is there any evidence that appellant and appellee ever agreed upon such statement as being final and correct. The only evidence in such respect is that appellee requested appellant to give him a statement of how much was due him, and that the bookkeeper made out and gave to appellee the account of January 3d." It was held that there was no account stated.

But if the employee is not only the employer's bookkeeper, but his manager or personal representative, in the very transaction concerning which the account is stated, it seems that he has

authority to state the account. Gutshall v. Cooper (1910) 48 Colo. 160, 109 Pac. 428, supra.

So, where a contractor's bookkeeper stationed at the place where work was being carried on was in the general management of the business in the absence of his employer, and particularly that part of the business connected with the accounts, and was directly in charge of the accounts, an account stated between him and a subcontractor was binding on the contractor. Alexander v. Scott (1910) 150 Mo. App. 213, 139 S. W. 991.

And the rendition of an account to plaintiff, an employee, by the employer's bookkeeper, and the acceptance of it by plaintiff, constituted an account stated where the employer knew that the bookkeeper was accustomed to render statements of account to workmen and jobbers, and knew that plaintiff was in the habit of receiving such statements from the bookkeeper from time to time, and regarded his books as correct, though the bookkeeper testified that he had no authority to agree on any balance. Wiley v. Brigham (1878) 16 Hun (N. Y.) 106.

And see Goodin v. Armstrong (1850) 19 Ohio, 44, in which it was held that where plaintiff and defendants were partners in a particular venture under an agreement that defendants should receive the avails of the investment and divide the net profits, and defendants' clerk and bookkeeper gave plaintiff a transcript of the account, showing the net profit, one half of which was placed to plaintiff's credit, this was such prima facie evidence of a settlement of the partnership accounts as authorized plaintiff to sue at law for the acknowledged balance in his favor.

In Brettel v. Williams (1849) 4 Exch. 623, 154 Eng. Reprint, 1363, 19 L. J. Exch. N. S. 121, one member of a firm of contractors gave a guaranty for goods sold by plaintiff to a subcontrac.. tor; plaintiff sued on the guaranty and also relied on letters written by a person described only as the "clerk" of the firm of contractors, as evidence of an account stated; it was not proved

that the partners other than the one giving the guaranty authorized the clerk to write such letters. The direction of a verdict for defendants was upheld, the court saying that there was no evidence of an admission of the account by defendants.

But see Martine v. Huyler (1890) 55 Hun, 611, 29 N. Y. S. R. 535, 8 N. Y. Supp. 734, where, however, the court's holding is somewhat obscure. Plain

tiff had acted as defendant's agent in managing certain property and collecting rents, and had rendered monthly accounts; he sued for an alleged balance due for salary, claiming that the agreed salary was $2.50 a day after the first year; defendant claimed the agreed salary was $48 a month, and it appeared that plaintiff for thirty-nine months deducted that amount in his monthly settlement, but that he thereafter deducted $54 for three months and $52 for forty-three months. The court said: "The retention of a sum beyond $48 a month would be very forcible evidence against the defendant, if it had been brought to her knowledge; but it never was, and neither the defendant nor her husband ever had knowledge of the increased deduction, and cannot therefore be charged with acquiescence therein. The settlements of the plaintiff were all made with clerks, who assumed the correctness of the charge for salary all through." This would seem to mean that defendant and her husband were not chargeable with acquiescence in the deduction of more than $48 a month, but the court subsequently, in holding that the accounts were binding on plaintiff, added that when accepted, as they were, by the clerks of defendant's husband, they were conclusive upon both parties. This was probably obiter, as defendant does not seem to have been attempting to recover any overpayment, and was not challenging the conclusiveness of the accounts.

As to the authority of a clerk of stockbrokers to bind his employers by a statement of a client's account showing a payment by the client of the 2 A.L.R.-6.

price of stock, see Robb v. Gow, 8 F. (Scot. Ct. Sess.) 90, 11 Mews, Eng. Case Law Dig. 1898-1910, col. 1861.

In the following cases accounts stated with clerks or bookkeepers were enforced without any ruling as to the agent's authority: Rice v. Schloss (1889) 90 Ala. 416, 7 So. 802 (account stated between plaintiff's "agent" and defendant's bookkeeper); Bee v. Tierney (1895) 58 Ill. App. 552 (bookkeeper and cashier); Chisman v. Count (1841) 2 Mann. & G. 307, 133 Eng. Reprint, 763, 2 Scott, N. R. 569, 10 L. J. C. P. N. S. 124.

See also Providence Mach. Co. v. Browning (1904) 70 S. C. 148, 49 S. E. 325; Richmond v. Standard Oil Co. (1899) 8 Ohio S. & C. P. Dec. 583, supra, I.; Loewer v. Lonoke Rice Mill. Co. (1913) 111 Ark. 62, 161 S. W. 1042; Harvey v. West-Side Elev. R. Co. (1878) 13 Hun (N. Y.) 392, supra, III.

V. Husband and wife.

Though by statute family expenses are chargeable against both husband and wife, and it is immaterial to which party goods sold for family use are charged, the husband's assent to an account for such goods does not render it an account stated as against the wife. "To so hold is to make her husband her agent against her will, and tc enable him to bind his wife without her assent, express or implied. The principle is elementary that it is only the parties to a contract and their representatives that are bound by it. That a husband may be agent for his wife is not doubted; but, as has been said, 'a husband has, by virtue of his relation alone, no implied power to act as agent of his wife in the transaction of her business. Whatever authority he exercises in that capacity must be derived from her prior appointment or subsequent ratification.' Mechem, Agency, § 63.. It is not disputed that if the goods were bought for family expenses and were used by the family but that the defendant is liable, but she cannot be made liable on a contract based on an account stated between her husband and the plaintiff, to which she has not as

« PředchozíPokračovat »