Kalamazoo Novelty Manufacturing Works v. MacAlister

• Decision Date: 15 January 1879
• Citation: 40 Mich. 84
• Court: Michigan Supreme Court
• Parties: Kalamazoo Novelty Manufacturing Works v. Norman M. Macalister

40 Mich. 84

Kalamazoo Novelty Manufacturing Works v. Norman M. Macalister

Supreme Court of Michigan

January 15, 1879

Submitted November 19, 1878

Error to Kalamazoo. Submitted November 19, 1878. Decided January 15, 1879.

Judgment reversed with costs, and a new trial ordered.

Robert F. Hill for plaintiff in error. In a suit for salary fixed by a resolution the declaration should be special, Carney v O'Neil, 27 Mich. 495. The unrecorded acts of a corporation or of its directors may be proved by parol unless its charter forbids, Field on Corporations, p. 418, § 391; Angell & Ames on Corporations, §§ 283-4; Bank of U.S. v. Dandridge, 12 Wheat. 64; Ross v Madison, 1 Ind. 281; 1 Dillon Mun. Cor., §§ 235, 237, 238, and omissions may be supplied by parol testimony, Millaudon v. First Municipality, 1 La. Ann., 215; Prothro v. Minden Seminary, 2 id. 939; Vicksburgh R. R. Co. v. Ouachita Parish, 11 id. 649; Langsdale v. Benton, 12 Ind. 466; Weiden v. Woodruff, 38 Mich. 130; Phelps v. Whitaker, 37 Mich. 72; Richards v. Fuller, id., 161.

Brown, Howard & Roos for defendant in error. The records of a corporation are always admissible in evidence against itself, and are the best evidence (Ang. & Ames on Corporations, §§ 228-9; Jefferson v. Stewart, 4 Har. [Del.], 82; N.A. Building Ass'n v. Sutton, 35 Pa. 463; Hayden v. Middlesex Turnpike Co., 10 Mass. 397; Owings v. Speed, 5 Wheat. 420), and the corporation cannot alter or impeach them by parol evidence, Bartlett v. Kinsley, 15 Conn. 327; Brady v. Mayor, etc., 1 Barb. 584; People v. Oakland Co. Bank, 1 Doug. [Mich.], 282; Coffin v. Collins, 17 Me. 440; Hudson v. Carman, 41 Me. 84.

Graves, J. The other Justices concurred.

OPINION

Graves, J.

This case was here in 1877, and was then sent back for a new trial (36 Mich. 327), and having been retried and again determined in favor of Macalister, the company a second time bring error.

The questions now raised differ from any disposed of on the former hearing. The ground of action is of course the same. The claim preferred by Macalister is for six months' salary as company superintendent, together with interest, and the declaration is the common counts alone.

At the trial he swore that he was employed as company superintendent at a salary of $ 125 per month, and continued in such service six months under and by virtue of a resolution of the board of directors passed by them November 17, 1873. His counsel then offered an entry of the resolution in the book of the secretary of the company, as follows:

"The following resolution was offered by Mr. Kellogg, and was adopted: Resolved, That Mr. N. M. Macalister 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. On ballot Mr. Macalister was duly elected and declared superintendent."

The entry was admitted against objections by the company. The grounds of objection were explained as being that it was not shown that the resolution was regularly passed,--that a majority of the board were present or that the minutes had been approved by the board, or that there was any consideration for the resolution so as to bind the company.

These objections have no force. That plaintiffs in error were a private corporation competent to employ Macalister as superintendent on wages, and that the book containing the resolution was the proper record book of the corporation for such matters and actually kept by the secretary, were facts unquestioned. They were tacitly granted.

Hence prima facie the entry was an authentic act and record of regular proceedings by the board of directors and the resolve itself a declaration of the corporation, and being so, it was a legitimate item of evidence to help make out Macalister's claim. Having adduced this testimony, Macalister rested, and the company then showed by the person who presided at the directors' meeting when the resolution was adopted that a contract was in fact made at that time between the parties for Macalister's service as superintendent,--that the whole of it was not contained in the resolution, and he was then asked to state whatever was not embraced in the resolution, but the court ruled out all oral testimony so offered on the ground taken by Macalister's counsel, that it had been shown that the bargain was in the form of a written resolution and could not be varied by parol.

In order to exclude oral evidence of a contract on the ground taken, it must be first settled that there is a subsisting written contract between the parties (1 Starkie Ev., 731), and where the immediate issue is whether there is or was a writing covering the contract, it is not competent to exclude oral testimony bearing on that issue upon an assumption of such writing. To do so is to beg the question. It is true Macalister's counsel claimed by his objection that the resolution embodied the contract. But this was not admitted. The counsel for the company denied it and submitted testimony to prove it did not.

Surely it was not proper to refuse the evidence upon an assumption that the assertion of Macalister's counsel was correct, and the denial on oath wrong. See Pym v. Campbell, 36 El. & El. 91.

Moreover the position that the resolution embodied a contract was prima facie untenable. It did not contain the mutual assent of the parties. It did not purport to be their joint utterance or the manifestation of their accordant wills, and Macalister's counsel did not understand that it did. He conceived it to be necessary to go outside and give oral evidence of extrinsic facts to connect Macalister with it and link together written and...