Croarkin v. Fitzgerald
| Decision Date | 30 October 1888 |
| Citation | 32 Mo.App. 265 |
| Parties | PETER CROARKIN, Appellant, v. JOHN FITZGERALD, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Knox Circuit Court. --HON. BEN. E. TURNER, Judge.
REVERSED AND REMANDED.
O D. Jones, for the appellant.
If defendant did employ the plaintiff in such a way as not to bind the board he is personally liable--even if he intended to, of which there is no evidence. " In the absence of charter restrictions the power of a corporation to make contracts is usually measured by the general objects and purposes of the corporation." Kitchen v Railroad, 59 Mo. 544 and 517. In this case it is a public charitable corporation and the " restrictions" are in the charter. The undisputed testimony is that it was not intended either by defendant or Francis or the board that the association should be bound. At least it was competent for defendant to do what Francis says he said he would do and did do--" take it altogether" on himself and employ teachers, and he does not deny he did say it to Francis. The action of the court is without any reason or authority from any view. The objection of defect of parties can only be made by answer if the petition on its face is sufficient. Shockley v Fisher, 21 Mo.App. 551. By answer to the merits defendant waives all defects of parties. Planing Mill v Church, 54 Mo. 520; Hammons v. Renfrow, 84 Mo. 332. When it is not made by answer or demurrer it is deemed waived. Baier v. Berberick, 13 Mo.App. 587; S. C. 85 Mo. 50; Hicks v. Jackson, 85 Mo. 283; Dunn v. Railroad, 68 Mo. 268. The point cannot be reached by instructions. Horsttkotte v. Menir, 50 Mo. 158; Thompson v. Railroad, 80 Mo. 521; State v. True, 20 Mo.App. 176.
W. C. Hollister, for the respondent.
Where a contract is made with an officer of a corporation, it will be held to have been made with the corporation itself. Ins. Co. v. Seminary, 52 Mo. 480. Where a corporation availed itself of the services of an attorney-at-law with the full knowledge of all the facts, running through a period of several months, this would amount to a ratification of his appointment as an attorney of the corporation. Southgate v. Railroad, 61 Mo. 89. This corporation accepted the services of this plaintiff; stood by and saw him conduct and carry on the school, hence the corporation is liable and not the defendant as an individual. Where a contract was made with a committee of a corporation who signed their own names adding their description as committee, etc., and the other party in the negotiation addressed in the name of the corporation, it was held to create a corporate not an individual liability. Whitney v. Wyman, 101 U.S. 392. It is a settled rule of law that not only the appointment but the authority of the agent of a corporation may be implied from the adoption or recognition of his acts by the corporation. Forsee v. Kiley, 57 Mo. 390. The treasurer of a corporation may employ an attorney without any special authority by the board of directors. Turner v. Railroad, 51 Mo. 501; Gilstrop v. Bank, 45 Mo. 419. A corporation acts only by its agents. The acts of the agents therefore within the scope of their authority will bind the corporation. Railroad v. Winkler, 33 Mo. 354. Authority of officer or agent may be implied. 61 Mo. 89; 42 Mo. 74.
This action was brought before a justice of the peace to recover the sum of one hundred and five dollars, claimed by the plaintiff as a balance due him for services as a school teacher. On the trial in the circuit court, the court instructed the jury " that the defendant is not personally bound to plaintiff, and the verdict should be for defendant."
It was shown in evidence that the St. Joseph's Educational Society was a corporation created under the laws of this state, and that the defendant was its president. Its constitution, which was put in evidence, contains the following paragraph:
With this provision in force, the defendant made the following contract with the brother of the plaintiff to teach the school owned by the society for the scholastic year of 1886-1887:
" Edina, Mo., July 13, 1886.
Be it known that on this day above-mentioned we, the undersigned parties, enter into the following contract, viz.: F. E. Croarkin agrees to conduct the school known as St. Joseph's College, of Edina, Mo., for the period of eight months, beginning September 6, 1886, and continuing until the eight months have been taught, his salary to be paid from the income of school, be it more or less. If the income of the school equal and average fifty dollars per month or more, then and in that case he is to allow out of such receipts the sum of fifteen dollars per month, shall be paid towards the wages of an assistant teacher. Otherwise he is to retain the whole income from tuition as salary. Wood and coal are to be furnished by school owners and directors.
JOHN FITZGERALD,
Pres. of St. Joseph College.
FRANCIS E. CROARKIN, A. B., Principal."
Having made this engagement for a principal, the defendant commenced looking about for an assistant, one of whose qualifications was to be that he should be able to play on the organ; and he concluded to offer the position to this plaintiff, who was the brother of Francis E. Croarkin, whom he had thus engaged as principal. This he did in a letter, written to Francis E Croarkin, from which the...
To continue reading
Request your trial