Extension Gold Min. & Mill. Co. v. Skinner

• Decision Date: 04 February 1901
• Citation: 64 P. 198,28 Colo. 237
• Court: Colorado Supreme Court
• Parties: EXTENSION GOLD MIN. & MILL. CO. v. SKINNER et al.

64 P. 198

28 Colo. 237

EXTENSION GOLD MIN. & MILL. CO. v. SKINNER et al.

Supreme Court of Colorado

February 4, 1901

Error to district court, Arapahoe county.

Action by Daniel W. Skinner and another against the Extension Gold Mining & Milling Company. From a judgment in favor of the plaintiffs, the defendant brings error. Reversed.

Defendants in error claim to have entered into a contract with plaintiff in error, whereby they were employed by the latter to sell its mining property, by the terms of which it was provided that, if a sale was effected, they were to receive a specified sum; that by virtue of this agreement they negotiated a sale of such property upon terms and conditions satisfactory to the company. To enforce their demand under this contract, they brought this action in the court below. From a judgment in their favor, the company brings the case here for review on error. It appears that the defendant company is a corporation organized under the laws of this state; that by its articles of incorporation the management of its affairs is under the control of a board of five directors. The by-laws of the company provide that the president of the board has general charge of its business. The duties of the secretary are practically of a clerical nature, and those of its treasurer are limited to the custody of its funds and the keeping of accounts in connection therewith. The agreement in question was made with Henry M Fair, who was then a member of the board, and secretary and treasurer of the company. Previous to this arrangement the company had made a general assignment for the benefit of its creditors, and the title to all its property was vested in an assignee. The only evidence tending to prove that Fair was authorized to enter into the contract with plaintiffs for the company is that introduced in their behalf, which was to the effect that he represented to them that he was secretary of the company, had mining property for sale, and, if they could secure a buyer, he would pay them a commission; that he had papers relating to shipments of ore from the property, which he was endeavoring to sell; and visited the mine on several occasions. The contract of sale which plaintiffs claim to have negotiated was executed by the assignee of the company in that capacity and the prospective purchaser. The latter was obtained through the efforts of plaintiffs. The terms and conditions of this contract had been previously approved by the court. The president and secretary of the company signed the petition of the assignee addressed to the court for leave to sell. The evidence establishes affirmatively that Fair had no authority from any officer of the company or its board to enter into the contract in question. It also appears that at the time the contract of sale was executed no officer of the company except Fair had any knowledge that the latter had employed plaintiffs to secure a purchaser, or had agreed to pay them a commission if they succeeded.

Felker & Dayton, for plaintiff in error.

GABBERT J. (after stating the facts).

The contract upon which plaintiffs base their right to recover from the company was not binding on the latter unless Fair was its agent, authorized to make such contract, or the...