Condé Nast Press, Inc. v. Cornhill Publishing Co.

152 N.E. 240, 255 Mass. 480, 1926 Mass. LEXIS 1194

Opinion

Wait, J.

The defendant, by its bill of exceptions, does not show that this court has jurisdiction. The requests for findings and rulings, the denial of which underlies the defendant’s right to be heard here, were filed at the end of a trial without a jury in the Superior Court; and there is nothing in its bill to show that any exception was saved at the trial or within three days after receipt of notice from the clerk. Rule 45 of the Superior Court (1923).

If we assume that the exceptions were duly claimed, they must be overruled. There is no exception to a refusal by a trial judge to make a finding of fact. Rogers v. Abbott, 248 . James Elgar, Inc. v. Newhall, 235 Mass. 373, 377.

The requests for rulings of law were refused properly. Requests 1 and 4 are rendered immaterial by the findings of fact made by the judge. Requests 2 and 3 do not state the law accurately.

The by-law, Article V, which states the duty of the president of the defendant corporation, provides that “He shall be the chief executive officer of the corporation and shall have the general oversight, care and management of all the property and business of the corporation in all departments . . . .” This gave him the powers of a general manager in addition to the ordinary and simple "duties of a president. There was no evidence that there was any other general manager; and there was evidence from which it could be found that the president conducted the business as a general manager.

It is well within the ostensible authority of a general manager of a publishing business to decide what books are to be published and to contract for printing them as agent for the corporation. We cannot say the judge was wrong in so finding.

The ostensible powers of such an agent are his real powers, so far as persons other than himself, the corporation principal, and those who have actual notice of limitations upon his ostensible power are concerned. Danforth v. Chandler, 237 Mass. 518, 522. General Dredging Co. v. Bethlehem Shipbuilding Corp. 247 Mass. 162, 167. Hartford v. Massachusetts Bowling Alleys, Inc. 229 Mass. 30. Parrot v. Mexican Central Railway, 207 Mass. 184, 187, 190.

The judge has found, upon evidence which we cannot review and which, as matter of law, can support his finding, that the plaintiff had no notice of the limitation placed by the defendant’s by-laws on the power of its president to bind the corporation by contract.

It follows that the defendant was not entitled, upon the case presented, to the rulings 2 and 3 for which it asked.

Exceptions overruled.

Judgment on the finding.