Union Gold Mining Co. v. The Bank

• Decision Date: 01 February 1873
• Citation: 2 Colo. 226
• Parties: UNION GOLD MINING COMPANY v. THE BANK.
• Court: Colorado Supreme Court

2 Colo. 226

UNION GOLD MINING COMPANY v. THE BANK.

Supreme Court of Colorado

February, 1873

Appeal from District Court, Jefferson County.

THIS was a motion to dismiss an appeal for defect of authority to execute the appeal bond. The bond was subscribed in the name of the corporation by one Becker, its president, and the corporate seal, or what appeared to be such, was affixed.

The authority of Becker to use the corporate seal, or execute the bond in the name of the corporation, did not appear, and the motion went upon this ground: no affidavit or other evidence of want of authority was given.

Messrs H. M. TELLER, GORSLINE & CHARLES, for the motion.

Messrs BUTLER and G. B. REED, contra.

BELFORD J.

The appeal bond in this case is signed in the name of the Union Gold Mining Company, by Theodore H. Becker, its president and is attested by the seal of the corporation. The appellee moves to dismiss the appeal, because it is not shown that Becker had authority as president to execute the bond. When the common seal of a corporation appears to be fixed to an instrument, and the signatures of the proper officers are proved or admitted, courts are to presume that the officers did not exceed their authority, and the seal itself is prima facie evidence that it was affixed by proper authority; the contrary must be shown by the objecting party. The presumption of authority to affix the common seal, from the fact that it is affixed to the instrument, will not be overcome by the mere fact that no voto of the directors authorizing it is shown since it often appears that large powers are exercised by corporate officers with the tacit approval of the principals of the corporation, although the nature and extent of their authority have never been defined by any direct act of the corporation. Ang. & Ames on Corp., s 124; Lovet v. The Steam Saw-mill Association, 6 Paige, 60; Kochler v. Black River Falls Iron Co., 2 Black. 716. This presumption, however, is not conclusive. The bond in this case was approved by the judge, and we must presume, in the first instance, that Becker submitted to him the evidence of his authority to execute the same, and to attach to it the corporate seal. The authority to execute the bond cannot be questioned on a mere motion. The existing presumption cannot be disproved by this method. If the appellee seeks to question this authority, it must do so by affidavit, showing that...