Chouteau Ins. Co. v. Holmes' Adm'r

Decision Date31 October 1878
Citation68 Mo. 601
PartiesTHE CHOUTEAU INSURANCE COMPANY v. HOLMES' ADMINISTRATOR, Appellant.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court.--HON. SAML. L. SAWYER, Judge.

This was a suit to recover the amount due upon two assessments on a stock-note given by Nehemiah Holmes, deceased, to the plaintiff company. It appeared at the trial that the assessments were ordered at special meetings of the board of directors, that a quorum of the board was present at each meeting and that Holmes, in his life-time, had paid a portion of the first assessment, but no part of the other. There was no evidence to show that notice of the meetings was given to the directors. Plaintiff had judgment and defendant appealed.

Gage & Ladd for appellant.

R. A. Frame and B. Wells for respondent.

HENRY, J.

It does not appear by express evidence that notices of the special meetings of the board of directors, at which the assessments were made, were given to the directors, although it does appear that a quorum of the directors was present and made the assessments. Nor was any evidence introduced or offered to show that notices were not given. That all the directors must be notified of a special meeting of the board is conceded; but the question for determination is, whether, if the meeting be held and a quorum be present, it will be presumed, in the absence of evidence to the contrary, that such notice was given, and all steps taken necessary to constitute it a regular and valid meeting of the board. In Sargent v. Webster, 13 Met. 504; Lane v. Brainerd, 30 Conn. 577, and McDaniels v. The Flower Brook Man. Co., 22 Vt. 274, it was decided that such would be the presumption. In Sargent v. Webster the court observed. “Another objection of the same kind is, that it does not appear that notice of the meeting was given to all the directors. But the contrary does not appear; and it would be hazardous to decide that every vote passed by an aggregate body is void, if it do not appear by the record that all were present. We believe it is not usual, in corporate records, to state how the members were notified. The presumption, omnia rite acta, covers multitudes of defects in such cases, and throws the burden of proof upon those who would deny the regularity of a meeting, for want of due notice, to establish it by proof.” The doctrine thus declared, was as distinctly announced in the other cases above cited, and also in the State ex rel. Bornefeld v. Kupferle, 44 Mo. 155.

For a contrary doctrine appellant relies upon the State v. Ferguson, 31 N. J. L. R. 124; Stow v. Wyse, 7 Conn. 215; Wiggin v. The Free Will Baptist Church, 8 Met. 301, People v. Batchelor, 22 N. Y. 128; Atlantic Mut. Ins. Co. v. Fitzpatrick, 2 Gray 279, and People's Ins. Co. v. Westcott, 14 Gray 440, in all of which it affirmatively appears, either that no notice, or an insufficient notice, had been given of the directors' or corporation meeting, the proceedings of which were complained of. In the State v. Ferguson the court said: “The fifth man was not present, nor was he notified of the meeting.” It appeared that the fifth township committeeman had not been notified of the meeting, and of course the presumption of the existence of a fact, which it was proved did not exist, could not be indulged. So in the Atlantic DeLaine Co. v. Mason, 5 R. I. 463, it affirmatively appeared that Hill, Carpenter & Co. had no notice of a meeting of stockholders at which an assessment on stock had been made. In Stow v. Wyse, 7 Conn. 214, parol evidence was admitted to prove that persons named in the vote at a meeting which authorized the execution of a deed for a company, convened and passed that vote without any notice to the other members of the company. In Wiggin v. The Free Will Baptist Church, 8 Met. 301, there was evidence of notice, but the notice given was held insufficient. In the People v. Batchelor, 22 N. Y. 128, the court based its opinion upon the fact, which was shown by evidence,...

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