Kalamazoo Novelty Manufacturing Co. v. McAlister

• Decision Date: 18 April 1877
• Citation: 36 Mich. 327
• Court: Michigan Supreme Court
• Parties: The Kalamazoo Novelty Manufacturing Company v. Norman M. McAlister

36 Mich. 327

The Kalamazoo Novelty Manufacturing Company v. Norman M. McAlister

Supreme Court of Michigan

April 18, 1877

Heard April 13, 1877

Error to Kalamazoo Circuit.

Judgment reversed, with costs, and a new trial ordered.

Robert F. Hill, for plaintiff in error, on the point that Kellogg could not bind defendant by the certificate admitted in evidence, cited.--Peek v. Detroit Novelty Works, 29 Mich 313; National Bank v. Norton, 1 Hill 579; Junction R. R. Co. v. Reeve, 15 Ind. 236; Ang. & Ames on Corp. § 277; Neale v. Turton, 4 Bing. 148; and on the point as to permitting the jury to take to the jury-room the book.--1 Green Pr., 267; 1 Burr. Prac., 235; Neil v Abiel, 24 Wend. 185; F. & M. Bk. v. Winchfield, Ibid., 419.

Elbert S. Roos and Arthur Brown, for defendant in error, on the admissibility of the certificate in evidence as an admission, cited.--29 Mich. 313; Blanchard v. Inhab. of Blackburn, 102 Mass. 347; Morse v. Conn. R. R. Co., 6 Gray 450; Curtis v. Avon Cen. R. R. Co., 49 Barb. 148.

OPINION

Graves, J.

The company is a corporation, and McAlister, claiming that it owed him a certain balance for services as superintendent, brought this suit to recover it. The alleged employment arose under a resolution of the directors, in these terms: "Resolved that Mr. N. M. McAlister be appointed superintendent of the Kalamazoo Novelty Manufacturing Company for the term of two years, provided he gives satisfaction to the company, at a salary of fifteen hundred dollars per annum."

It appears also, that F. I. Kellogg, who was treasurer, was constituted "consulting director," "with whom the superintendent was to advise." McAlister was allowed to recover six hundred and eighty-seven dollars and fourteen cents, and the company allege error.

To prove that there was a balance due him from the company, and to establish its amount, he was allowed, after some preliminary testimony in regard to the time he was occupied in the company's service, to introduce, against the objection of the company, the following paper:

"$ 622.21. Kalamazoo, May 29th, 1874.

"This is to certify that the Kalamazoo Novelty Manufacturing Company is indebted to N. M. McAlister, late superintendent of said company, in the sum of six hundred and twenty-two dollars and twenty-one cents for balance of salary.

F. I. Kellogg,

"Treasurer Kalamazoo Novelty Company."

No account of McAlister had been presented to the company or board of directors. He had asked for a settlement but there had been no audit. He swore he could not fix the amount due him except by this paper. The instrument was introduced and received as an admission of the company of the fact of indebtedness and of the amount.

This we think was error. It could not be entitled to reception in evidence as an admission of the corporation without its being made to appear that Kellogg had authority to make it as an act of the corporation.--Green's Brice, 425 and note. There was no direct evidence of such authority. No by-law or resolution conveying the power was shown.

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 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...