Oakes v. Cattaraugus Water Co.

• Decision Date: 02 November 1894
• Citation: 143 N.Y. 430,38 N.E. 461
• Parties: OAKES v. CATTARAUGUS WATER CO.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 430

38 N.E. 461

OAKES

v.CATTARAUGUS WATER CO.

Court of Appeals of New York.

Nov. 2, 1894.

Appeal from supreme court, general term, fifth department.

Action by Frank S. Oakes against the Cattaraugus Water Company on a written contract for services. There was a judgment of nonsuit, and a motion for a new trial on exceptions ordered to be heard in the first instance at general term. From an order at general term (21 N. Y. Supp. 851) denying the motion, plaintiff appeals. Reversed.

William H. Henderson, for appellant.

D. E. Powell, for respondent.

O'BRIEN, J.

The trial court nonsuited the plaintiff, and the principal question presented by the appeal is whether there was proof made which should have been submitted to the jury. The plaintiff made a request to that effect, which was denied, and an exception taken. The defendant is a corporation organized under the provisions of chapter 737 of the Laws of 1873, and the acts amendatory thereof and supplementary thereto, for the purpose of supplying the village of Cattaraugus with water. The certificate of incorporation was executed on the 3d day of March, 1890, but not filed in the proper office until the 19th day of May following, at which date it is assumed on both sides that the defendant's corporate existence begun. The statute requires the consent of the town authorities of the town, where the operations of the corporation are to be carried on, as a preliminary condition of its creation, and this was procured by the parties promoting the organization of the defendant on the 22d day of February, 1890. The application for this consent was in writing, signed by the seven persons who afterwards became the incorporators, and bears date February 5, 1890, and proves that at that date, if not before, they intended, in case the application was granted, to form the corporation. One George N. Cowan, an attorney at law, seems to have been the principal promoter of the whole enterprise. His name appears first upon the written application to the town authorities for the consent, and in the certificate of incorporation, and is followed by that of his wife and brother, with four other persons. Upon the organization of the defendant, he and his wife and brother became, respecitively, the president, secretary, and treasurer of the corporation. This action was brought by the plaintiff to recover the sum of $1,000 upon a written agreement bearing date February 18, 1890, signed by the plaintiff and by Cowan as attorney for the defendant. The plaintiff's difficulty in the case arises from the fact that this paper was executed, as will be seen from the dates, before the defendant had any corporate existence; and therefore, in its inception, it was not the defendant's contract, or binding upon it in any form. By the terms of the instrument the defendant agrees to pay to the plaintiff the sum of $1,000 for his services to defendant in securing right of way, hydrant rental, and placing investments, and things pertaining to the construction of the waterworks for the village, to be paid at the completion of the work. It was further stated that unless the defendant constructed the works the agreement was to be considered and treated as null and void, but, if it did construct, then the plaintiff's services, for which the compensation was to be paid, should consist in aiding and helping the defendant in the matters above specified, without cash expense to him. It was shown at the trial that the defendant, in its corporate capacity, did construct and complete the system of waterworks for the village. The work was commenced about June, 1890, and completed before the commencement of this action. The defendant established an office in the village, and retained it while the work was in progress. Cowan was the president and manager of the business, and had full direction and charge; his wife acting as secretary, and his brother as treasurer, of the corporation. The plaintiff, upon the request of Cowan, the president, performed services for the defendant of the kind and character described in the contract above mentioned. They do not appear to have been of a very important character, and no proof was given in regard to their value; but, so far as appears, he performed all that was required of him. After the completion of the waterworks, Cowan, on several occasions, acknowledged the indebtedness to the plaintiff, and promised to pay it. There is no proof in the record tending to show that the general powers possessed by Cowan as the president of the defendant were limited or restricted by bylaws, or in any other way, and we must assume that he had all the power that the president and general managing agent of such a corporation could exercise in the transaction of the corporate business at the place where its operations were being conducted. The general powers of such an officer may be limited or restricted by the charter or by-laws of the corporation. These restrictions may not be binding on all persons dealing with the corporation under all circumstances, as secret and unknown instructions to a general agent of a natural person do not always bind persons dealing with the agent in ignorance of his actual powers. In this case the president, having full personal charge of the business which the defendant was organized to transact, represented the corporation, and prima facie he had power to do any act which the directors could authorize or ratify. Hastings v. Insurance Co., 138 N. Y. 473, 34 N. E. 289;Conover v. Insurance Co., 1 N. Y. 290;Booth v. Bank, 50 N. Y. 396;Leslie v. Lorillard, 110 N. Y. 519, 18 N. E. 363;Holmes v. Willard, 125 N. Y. 75, 25 N. E. 1083;Patterson v. Robinson, 116 N. Y. 193, 22 N. E. 372;Rathbun v. Snow, 123 N. Y. 343, 25 N. E. 379; Railroad Co. v. Dixon, 114 N. Y. 80, 21 N. E. 110; Mor. Priv. Corp. §§ 251-253. There can be no doubt, I think, that the contract which is the basis of this action was of such a character, and the objects expressed upon its face were of such a nature, that the president and general manager of the enterprise had the power to make it in behalf of the corporation, whenever it attained a legal existence. The corporation had resolved to do the work, which was put in charge of the president, who was the principal promoter in organizing it. He was on the ground, directing the operations, and must be assumed to have the power to do whatever was necessary in executing the corporate objects. It cannot be doubted that he had power to employ engineers and workmen to construct the works, and to bind the company by contracts for labor and materials. He could also employ men to secure for the company rights of way, rentals for hydrants, and the other things necessarily pertaining to the business; and, if he could make contracts for that purpose, why could he not adopt and ratify one made by himself, self, though before the corporation was legally created, but in anticipation of what subsequently occurred in obtaining the consent and filing the certificate of incorporation? We think this was fairly within his general powers, and if he intended, in behalf of the corporation which he represented, by calling upon the plaintiff to do the things which he had agreed to do in the writing, to adopt and ratify the agreement made before the incorporation, instead of making a new one, and the plaintiff intended to and did perform for the corporation the things specified in the agreement, there is no good reason why the corporation did not become bound by his action. Whether this was the intention and purpose of the president of the defendant and of the plaintiff was, under the circumstances of the case, a question of fact, which should have been submitted to the jury. Ratification is largely a question of intention, to be determined from facts and circumstances as one of fact; and the court was not warranted, under the circumstances, in disposing of the question as one of law.

But it is insisted that the contract, even if regarded as the corporate obligation, is...