Taylor v. Sutherlin-meade Tobacco Co

• Decision Date: 16 January 1908
• Citation: 60 S.E. 132,107 Va. 787
• Parties: TAYLOR et al. v. SUTHERLIN-MEADE TOBACCO CO. et al.
• Court: Virginia Supreme Court

60 S.E. 132

107 Va. 787

TAYLOR et al.

v.SUTHERLIN-MEADE TOBACCO CO. et al.

Supreme Court of Appeals of Virginia.

Jan. 16, 1908.

On Petition to Amend Order, Jan. 30, 1908.

1. Attachment—Affidavit—Sufficiency.

Under Code 1904, §§ 2959. 2964, requiring the affidavit in attachment to be made by "the plaintiff, his agent or attorney, " an affidavit signed by the "secretary and treasurer" of a corporation does not on its face show that it was made by the agent of the corporation; the court not taking judicial knowledge of the fact that such officer is. by virtue of his office, the agent of the corporation, and Code 1904, § 3225, allowing service or process on the president, treasurer, or other chief officer, etc., of a corporation, not being a legislative recognition of the authority of the treasurer as the legal representative of the corporation in all legal matters.

2. Corporations —Corporate Powers and Liabilities — Representation by Officers.

The powers of a private corporation, so far as its dealings with third persons are concerned, are primarily lodged in its board of directors, from which source the officers, either expressly or by implication, derive such authority as is" bestowed upon them.

3. Receivers—Claims—Distribution of Assets—Taxes—Priorities.

Under Code 1904. 8 492b, providing that no decree or order shall be entered directing the payment or distribution of any funds, etc., or other property under the control or in the handsof any receiver, etc., until all taxes, etc., on such funds or other property are paid, or unless the payment thereof be provided for in such decree or order, it was the duty of the court, before distributing the assets of an insolvent foreign corporation for which a receiver was appointed, to provide for the payment of taxes and levies due by the corporation as superior to the claims of the receiver or of attaching creditors.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 276, 277.]

On Petition to Amend Order.

4. Appeal — Determination — Attachment —Proceedings—Affidavit—Amendment. Courts acquire jurisdiction in attachments in equity alone by force of the affidavit, and on appeal, in a case founded on an insufficient affidavit, the appellate court cannot remand the case to permit an amendment of the proceedings on which the attachment was issued, but can only abate the attachment and dismiss the proceedings, in the absence of application to amend the affidavit in the trial court.

Appeal from Corporation Court of Lynchburg.

Bill in attachment by the Sutherlin-Meade Tobacco Company against the Commonwealth Tobacco Company, a foreign corporation chartered in New Jersey, but doing business in Virginia. Jerome Taylor, who was appointed both in New Jersey and Virginia receiver of defendant's property in creditors' suits against defendant by George P. Butler, filed his petition, claiming title as such receiver to defendant's property. The state of Virginia and the city of Lynchburg filed petitions, asserting claims against the assets for taxes. The attachment suit and the suit of George P. Butler against defendant were heard together, and from a decree upholding an attachment levied on defendant's property, the receiver and Geo. P. Butler appeal. Reversed.

Scott & Buchanan, for plaintiffs.

Caskie & Coleman and Wilson & Manson, for defendants.

WHITTLE, J. This is an attachment In equity, sued out by the appellee, the Sutherlin-Meade Tobacco Company, against the Commonwealth Tobacco Company, a foreign corporation, formerly engaged in the manufacture of tobacco at Lynchburg, Va., to attach the property of the defendant company in this state and subject it to plaintiff's debt.

There was a motion to quash the attachment, because the affidavit upon which it was issued does not show that it was made by "the plaintiff, his agent or attorney, " as required by the present statute (Va. Code 1904, §§ 2959, 2964), which motion was overruled, and the defendant appealed.

It may be well to notice, in this connection, that formerly the statute did not require the affidavit to be made by "the plaintiff, his agent or attorney, " but provided only that "on affidavit at the time or after the institution of the suit, * * * the clerk shall issue an attachment, " etc. Code Va. 1873, p. 1009, c. 148, § 2; Benn v. Hatcher, 81 Va. 25, 35, 59 Am. Rep. 645.

In this instance the affidavit was made by the secretary and treasurer of the attaching company, and the single question involved in this preliminary contention is whether the words "secretary and treasurer, " ex vi termini, import that such officer is the agent of the corporation.

The rule governing attachment proceedings is thus stated in McAllister v. Guggenheimer, 91 Va. 317, 319, 21 S. E. 475: "In this state statutes have been enacted declaring the manner in which the property of such debtors [nonresident debtors] may be subjected to the payment of their liabilities, when there is no lien upon the property for their payment. Independent of these statutes, a court of equity has no jurisdiction to subject such debtor's property in favor of a creditor at large. The remedy invoked in this case being one wholly derived from statute law, and one which is harsh in its operation toward the party against whom it is directed, and also toward the creditors of such debtor over whom the attaching creditor obtains priority, must upon its face show that the requirements of the statute have been substantially complied with"—citing 4 Min. Inst. (Last Ed.) 404, 405; Thatcher v. Powell, 6 Wheat. (U. S.) 119, 15 L. Ed. 221; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Tate v. Liggatt, 2 Leigh, 99, 100; Daniel on Attachments, §§ 11, 12.

In the recent case of Merriman Co. v. Thomas, 103 Va. 24, 48 S. E. 490, the court said, in construing an analogous statute requiring the affidavit of "the plaintiff or his agent" to an account filed with a declaration in assumpsit (Va. Code 1904, § 3286), that, in the absence of averment of agency in the affidavit, the plaintiff's "bookkeeper" would not be held to be his agent, observing: "The statute makes an innovation upon the established mode of procedure in such cases, and a plaintiff, in order to take advantage of it, must proceed in accordance with its provisions." The distinction is also drawn between an agent and other employe, and authorities cited to illustrate that distinction:

"An agent is one employed and authorized to represent and act for another, and the distinguishing features of the agent are his representative character and his derivative authority." Mechem on Agency, § 1.

The same author thus draws the line of demarcation between the relation of principal and agent and that of master and servant: "The true distinction is to be found in the Dature of the undertaking and the time and manner of its performance. Agency properly relates to transactions of business with third persons, and it implies more or less of discretion in the agent as to the time and manner of his performance. Service, on the other hand, has reference to actions upon or about things. It deals chiefly withmanual or mechanical execution, in which the servant acts under the direction and control of the master." Id. § 2.

The court, at page 28 of 103 Va., and page 491 of 48 S. E., remarks:

"In 2 Cyc. p. 5, concerning affidavits and who may make them, it is said that 'in determining this question reference must always be had to the statutes and rules of court governing the particular affidavit. Thus, where a statute specifically points out who may make a certain affidavit, it can be made by no other than those specified.'

"If the statute had prescribed that the affidavit should be made by the plaintiff in person, then it could have been made by no one else; and when it is declared that it must be made by the 'plaintiff or his agent, ' the courts must be content to construe the language employed.

"While a bookkeeper may be, and often Is, the agent of his employer, the word does not, ex vi termini, import that relation, and in the absence of averment in the affidavit that it exists the courts cannot by intendment enlarge the ordinary signification of the word, so as to bring it within a class to which it may or may not belong."

So in this case, unless the court is prepared to announce as a matter of law that the words "secretary and treasurer" necessarily denote the existence of the relation of agency between affiant and the attaching corporation, then the attachment must fall.

The general doctrine is well settled that the powers of a private corporation, so far as its dealings with third persons are concerned, are primarily lodged in its board of directors, from which source the officers, either expressly or by implication, derive such measure of authority as may be bestowed upon them.

Mr. Cook discusses the subject as follows: "The board of directors have the widest of powers. All of the various acts and contracts which a corporation may enter into are entered into by and through the board of directors. The board of directors make or authorize the making of the notes, bills, mortgages, sales, deeds, liens, and contracts generally of the corporation. They appoint the agents, direct the business, and govern the policy and plans of the corporation. The directors elect the officers, and in this connection it may be added that at common law there is no limit to the number of offices which may be held simultaneously by the same person, provided that neither of them is incompatible with any other. They institute, prosecute, compromise, or appeal suits at law and in equity which the corporation brings or has brought against it." 2 Cook on Corporations (5th Ed.) § 712; Morawetz on Private Corp. §§ 509-511.

With respect to the powers of the president of a corporation it is said: "The office itself, however, confers no power to bind the corporation or control its property. The president's power as an agent must be sought in the organic law of...