Spongberg v. First Nat. Bank of Montpelier

• Decision Date: 28 July 1910
• Citation: 110 P. 716,18 Idaho 524
• Parties: G. SPONGBERG, Appellant, v. FIRST NATIONAL BANK OF MONTPELIER, Respondent
• Court: Idaho Supreme Court

110 P. 716

18 Idaho 524

G. SPONGBERG, Appellant, v. FIRST NATIONAL BANK OF MONTPELIER, Respondent

Supreme Court of Idaho

July 28, 1910

SPECIFICATION OF ERROR-POWERS OF THE BANK CASHIER-RATIFICATION OF UNAUTHORIZED ACT OF CASHIER.

(Syllabus by the court.)

1. Held, that under the facts of this case the specifications of insufficiency of evidence to sustain the decision are sufficient to authorize and require the court to examine the evidence on appeal.

2. In contemplation of law, the leasing of property belonging to a national banking association is not within the ordinary powers and duties of the cashier of the bank.

3. Where the cashier of a national bank has entered into a contract to lease certain of the bank property for a term of years and it does not appear that he had any express authority from the board of directors to do so, but it does appear that the contract signed by the cashier and the lessee has been in possession of the bank for eighteen months, and that at least a majority of the directors of the bank had knowledge of the contract and its terms and conditions, and that the cashier was exercising the power and authority of leasing the bank property, and especially vacant rooms in the bank building, and that the bank's building committee or its board of directors made changes in the plans and specifications of its building on the suggestion of the lessee and incorporated the same in the building as erected and finished the room to be occupied by the lessee in accordance with his request and suggestions, and the board of directors never repudiated the contract or notified the lessee that they would not live up to the same until after the expiration of eighteen months and the completion of the building, held, that such acts and conduct on the part of the board of directors amounted to a ratification of the action of the cashier and rendered the contract entered into by him the contract of the bank.

APPEAL from the District Court of the Fifth Judicial District of the State of Idaho, in and for the County of Bear Lake. Hon Edward A. Walters, Judge of the Fourth Judicial District presiding.

Action for specific performance. Decree for defendant, and the plaintiff appealed. Reversed.

Reversed and remanded, with direction. Costs awarded in favor of appellant.

T. L. Glenn, for Appellant.

The plaintiff claims that E. A. Burrell, who entered into the contract for a lease with the plaintiff, being the vice-president, acting president, director and cashier of the defendant bank, member of the building committee for the erection of the bank building, and general manager and sole agent for the purpose of leasing and renting all the rooms in the said building, had authority to bind the defendant in the execution of the said agreement for a lease. (Bank v. Dandridge, 12 Wheat. 64, 6 L.Ed. 552; Martin v. Webb, 110 U.S. 7. 3 S.Ct. 428, 28 L.Ed. 49; Caldwell v. Bank, 64 Barb. (N. Y.) 333; Bank of Vergennes v. Warren, 7 Hill (N. Y.), 91; Payne v. Commercial Bank, 6 Sm. & M. (Miss.) 24; State v. Commercial Bank, 6 Sm. & M. (Miss.) 218, 45 Am. Dec. 280; City Bank v. Perkins, 4 Bosw. (N. Y.) 420.)

The act of an officer of a corporation is the act of the corporation. (Carroll v. St. John Society, 125 Mass. 565; Cohn v. Borst, 36 Hun (N. Y.), 562; 12 Am. & Eng. Ency. 997, note 8.)

A lease by an officer of the corporation is ratified by the silence of the directors. (Clark & Marshall, Corp., p. 3774, sec. 716.)

Acts of officers are binding unless timely steps are taken to disaffirm such contracts. (Elliott, Private Corp., pp. 204, 206; Augusta T. & G. R. Co. v. Kittel, 52 F. 63, 2 C. C. A. 615; Penn. Ry. v. Keokuk & H. Bridge Co., 131 U.S. 317-381, 9 S.Ct. 770, 33 L.Ed. 157; Fitzgerald etc. Const. Co. v. Fitzgerald, 137 U.S. 109, 11 S.Ct. 36, 34 L.Ed. 608; Indianapolis Rolling Mill v. St. Louis etc. R., 120 U.S. 256, 7 S.Ct. 542, 30 L.Ed. 639.)

Long acquiescence with full knowledge of the situation amounts to a ratification. (Egan v. Grece, 79 Mich. 629, 45 N.W. 74, 77; 7 Words and Phrases, 5931; Duggan v. Pacific Boom Co., 6 Wash. 593, 36 Am. St. 182, 34 P. 157; Hoosac Min. & Mill Co. v. Donat, 10 Colo. 529, 16 P. 157; Williams v. Uncompahgre Canal Co., 13 Colo. 469, 22 P. 806; Currie v. Bowman, 25 Ore. 364, 35 P. 848.)

Clark & Budge, for Respondent.

"The brief of appellant must contain a distinct enumeration of all errors relied on." (Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789; Kyle v. Craig, 125 Cal. 107, 57 P. 791; Penny v. Fellner, 6 Okla. 386, 50 P. 123; First Nat. Bank v. Brown, 20 Utah 85, 57 P. 877.)

"Where appellant's brief contains no specifications of error as required by supreme court rule, the judgment will be affirmed." (Hickey & Co. v. Kaufman, 34 Mont. 106, 85 P. 870; 1 Dec. Dig. sec. 758 (1), and cases cited; Smith v. Alphin, 150 N.C. 425, 64 S.E. 210; Ferguson v. Bank (Okl.), 99 P. 641; Lehane v. Railway Co., 37 Mont. 564, 97 P. 1038; Kansas etc. Livestock Co. v. Hartstein, 6 Kan. App. 864, 50 P. 510.)

Appellant's brief discloses that no attempt has been made to assign or specify any errors whatsoever. He simply argues the case as a whole without calling attention to any particular finding or findings, or any particular ruling upon the evidence. This is not sufficient to entitle him to a consideration by the court of errors committed, if there happen to be any in the record. (Hannan Bros. v. Waltenspiel, 29 Utah 466, 82 P. 859.)

The appellant must specify particularly the particulars in which the evidence is insufficient before the court will concern itself with the question as to whether or not the decision is justified by the evidence. (Rev. Codes, sec. 4428; Gaffney v. Hoyt, 2 Idaho 199, 10 P. 34; Hollister v. State, 9 Idaho 8, 71 P. 541.)

The following specification, "The evidence as a whole is insufficient upon which the decision is rendered, and the judgment made and entered thereon," is not sufficient to authorize the court to examine the evidence to find out whether it sustains the decision. (Parker v. Reay, 76 Cal. 103, 18 P. 124; In re Strock, 128 Cal. 658, 61 P. 282; Hughes v. Meehan, 84 Minn. 226, 87 N.W. 769; Van Pelt v. Park, 18 Utah 141, 55 P. 381.)

The other so-called specifications are mere recitals of what appellant contends the evidence shows, but are not specifications of the particulars in which the evidence is insufficient. (Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871.)

The particulars in which it is claimed the evidence is insufficient must be pointed out. (Robson v. Colson, 9 Idaho 215, 72 P. 951; Hole v. Van Duzer, 11 Idaho 79, 81 P. 109.)

The alleged specifications should, because of their insufficiency, be disregarded. (Humphrey v. Whitney, 17 Idaho 14, 103 P. 389.)

The officers of the corporation, as such, have no power to bind it by assuming to enter into obligations or contracts important and far-reaching in their effect without the direction and authorization of the board. (Tulley v. Citizens' Bank, 18 Ind.App. 240, 47 N.E. 850; Grant v. Railroad Co., 66 Minn. 349, 69 N.W. 23; Bank of Commerce v. Hart, 37 Neb. 197, 40 Am. St. 479, 55 N.W. 631, 20 L. R. A. 780; Dycus v. Traders' Bank & Trust Co. (Tex. Civ.), 113 S.W. 329; United States v. City Bank, 21 How. (U. S.) 356, 16 L.Ed. 130.)

To justify the acts of an agent of a corporation to enter into contracts for it, the authority by resolution is an indispensable requirement in order to make the contract binding. (Johnson v. Sage, 4 Idaho 758, 44 P. 641; Barney v. Pforr, 117 Cal. 987, 48 P. 989; Salfield v. Land Co., 94 Cal. 546, 29 P. 1105; Alta Min. Co. v. Alta Placer Co., 78 Cal. 629, 21 P. 373; Nason v. Lingle, 143 Cal. 363, 77 P. 71.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

A motion has been made to strike from the transcript certain portions thereof on various grounds, the principal one of which is that the statement contains no enumeration of errors or specifications of the insufficiency of the evidence to sustain the decision of the trial court. The specifications of insufficiency of evidence are to the following effect: "(1) That the evidence as a whole is insufficient upon which the decision is rendered and the judgment made and entered. (2) The evidence shows that, etc." This is followed with some five pages of recital as to what the evidence does show and which statements, if correct, would clearly show the appellant entitled to judgment in his favor, and would likewise show that the defendant was not in fact entitled to the judgment it recovered in the trial court. The objections made to these specifications fall under the provisions of sec. 4428 of the Rev. Codes. The statute provides that, "When the exception is to the verdict or decision, upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient. The objection must be stated, with so much of the evidence or other matters as is necessary to explain it, and no more." It is contended by counsel for respondent that the specifications are wholly insufficient, for the reason that they fail to point out the particulars in which the evidence fails or is insufficient, and, on the contrary, purport to set out what the evidence does show. Many authorities are cited in support of this position. (Gaffney v. Hoyt, 2 Idaho 199, 10 P. 34; Hollister v. State, 9 Idaho 8, 71 P. 541; Van Pelt v. Park, 18 Utah 141, 55 P. 381; Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871; Parker v. Reay, 76 Cal. 103, 18 P. 124; In re Strock, 128 Cal. 658, 61 P. 282; Hughes v. Meehan, 84 Minn. 226, 87 N.W. 768.)

It is the common practice, and that which is apparently contemplated by the statute and court rule,...