Northern Cent. Ry. Co. v. Bastian

• Decision Date: 16 May 1860
• Citation: 15 Md. 494
• Parties: NORTHERN CENTRAL RAILWAY COMPANY v. JOHN BASTIAN.
• Court: Maryland Court of Appeals

15 Md. 494

NORTHERN CENTRAL RAILWAY COMPANY v. JOHN BASTIAN.

Court of Appeals of Maryland.

May 16, 1860

A railroad company advertised a quantity of old iron rails for sale. The advertisement was signed by its secretary. A party acting for the plaintiff, who was an iron-broker, called on the secretary in relation to the iron, and was referred to the acting president of the company, who, on being informed that the plaintiff was a broker, and would charge him (the acting president) one per cent. commission on the sale assented to the charge. The plaintiff then went to the company's office, had an interview with the acting president, disclosed the name of the party wishing to purchase, and informed him that he (the plaintiff) would charge him one per cent. commission, and a sale was subsequently effected through the agency of the plaintiff. In an action by the plaintiff against the company to recover these commissions--HELD:

That these facts furnish evidence from which the jury might find that the acting president of the company was authorized to make the contract for the commissions sued for.

A corporation can act only by its agents, and, in order to bind the corporation, the agency must appear, but this need not be shown by any resolution or other written evidence, but may be implied from facts and circumstances.

The acting president being empowered to sell the iron, it was competent for him to engage the services of the plaintiff, in finding a purchaser and effecting the sale. Such an act, in absence of proof to the contrary, was within the scope of his agency, as a reasonable and proper means of accomplishing the business entrusted to his charge.

APPEAL from the Court of Common Pleas.

This action was brought by the appellee against the appellant on the 24th of December 1856, to recover the value of services alleged to have been rendered by the plaintiff to the defendant, as its agent and broker, in effecting the sale of a quantity of old railroad iron belonging to the defendant. Plea, not indebted as alleged.

Exception. After the evidence, which, for the purposes of this case, is sufficiently stated in the opinion of this court, was closed, the defendant offered four prayers, in substance as follows:

1st. That there is no evidence, competent to go to the jury, to show that R. M. Magraw was authorized by the defendant to employ the plaintiff, or any one else, as a broker, to sell for the defendant the iron spoken of in the evidence, or that said Magraw was authorized by the defendant to pay, or promise to pay, the plaintiff, or any one else, any commission for the sale, or procuring the sale, of said iron and, in the absence of any such evidence the plaintiff is not entitled to recover.

2nd. That the plaintiff is not entitled to recover in this action, unless the jury shall find from the evidence that the defendant either employed the plaintiff to render the services for which this suit is brought, or promised to pay him for them.

3rd. That though the jury may find that Mr. Magraw was the acting president of the defendant at the time of the conversation between him and the witness Robbins, as testified to by the latter, and that this conversation took place as stated by this witness, yet the plaintiff is not entitled to recover, unless the jury shall also be satisfied, from the evidence, that the defendant authorized said Magraw to promise, or undertake for it, that it would pay to the plaintiff the compensation for which the suit is brought, or ratified or adopted the agreement, if they should find any such, of said Magraw, so acting as president, with the plaintiff.

4th. If the jury believe, from the evidence, that the plaintiff was acting as agent for the Montour Iron Company, in effecting a sale to them of the defendant's iron, then it was a fraud upon said company, to act for and accept a compensation from the defendant in that transaction, and he is not entitled to recover in this action any such compensation from the defendant, unless the jury further find that such acting for and agreement to compensate by the defendant, was known to and acquiesced in by the said Montour Iron Company.

The court (MARSHALL, J.) granted the second and third, and rejected the first and fourth of these prayers, and to this rejection the defendant excepted. The verdict and judgment were in favor of the plaintiff for $419.33, and the defendant appealed.

The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.

Bernard Carter, and J. Mason Campbell, for the appellant:

1st. So far as the evidence shows, it appears that Hollins, the secretary of the defendant, was the officer of the corporation to whom the corporation had entrusted all matters relating to the sale of the iron. The advertisement, as published in the newspaper, and which was the source of the plaintiff's information, that this iron was for sale expressly directed purchasers to Hollins, the secretary, and it was this officer who signed, on the part of the defendant, the contract of sale which was finally entered into with the Montour Iron Company. It appears, however, that Magraw was at the time of this transaction the acting president of the defendant. Had he any power by virtue alone of his office to employ the plaintiff on behalf of the company and bind the latter to pay for his services? We submit, he had no such power. The Act of 1854, ch. 250, (the charter of the defendant,) confirms the original Act of 1827, ch. 72, the 12th sec. of which declares, the " President and directors, or a majority of them, may appoint all such officers, engineers, agents or servants, whatsoever, as they may deem necessary for the transaction of the business of the company, and may remove any of them at their pleasure; that they, or a majority of them, shall have power to determine, by contract, the compensation of all the engineers, officers, agents or servants in the employ of said company." Now if the plaintiff is to be considered as employed by the defendant, it must be as an agent or servant; the charter has, in express words, entrusted the appointment of all its agents and servants to the president and directors. How, in the face of this can it be pretended that Magraw, as acting president, without a word said to the directors, had the power to employ the plaintiff, and at a rate of compensation fixed by himself? There is nothing in the record, or in the charter of the company, to show that Magraw had any power without the action of the directors, to sell any of the property of the company, and without some special authority, or power, given by the charter, or a vote of the corporation, it is clear he had no such power, virtute officii. Angell & Ames on Corp., sec. 298. 7 Grattan, 352, Crump vs. U. S. Mining Co. 14 Mass., 180, Hollowell & Augusta Bank vs. Hamlin, et al. 29 Verm., 220, Hodges vs. Rutland & Burlington Railroad Co. 36 Maine, 414, Brown vs. Weymouth. 2 Ala., 724, Lazarus vs. Shearer. 19 Barb., 310, Soper vs. Buffalo & Rochester Railroad Co. If he had no power of himself to sell the iron, what better right had he to employ, of his own accord, another person to sell that which he had no power to sell? The accessory must be supported without the principal. Nor does it appear that Magraw pretended even to settle the terms of the sale of the iron, or to interfere in any way with Hollins in effecting the sale. According to the plaintiff's own showing, all he did was to assent to the charge which Bastian said he meant to make. There is no evidence or pretence that Magraw, or any other president, had ever been in the habit of making such contracts or engagements as this, or that any such power had ever been given by a vote of the corporation, or that the assent of the latter to the exercise of such powers was ever signified by acquiescence. Has the defendant, then, ever ratified this engagement of Magraw? There is nothing in the record to show that the corporation ever had any knowledge that Magraw had made any arrangement or engagement of any kind with the plaintiff with reference to the sale of the iron, and still less that it ever had any knowledge of the particulars of this arrangement. There could, therefore, be no ratification. Story on...