Harding v. Oregon-Idaho Co.

110 P. 412, 57 Or. 34, 1910 Ore. LEXIS 8

Opinion

Mr. Justice Slater

delivered the opinion of the court.

1. We find in the record a motion by plaintiff to strike out defendant’s bill of exceptions. The motion is based solely upon the fact that the bill of exceptions was presented to the trial judge and settled and allowed by him a few days after the appeal was perfected. No argument in support of the motion, either in typewritten brief, as required by the rules of this court, or orally at the hearing on the merits of the whole cause, has been furnished to this court. Under such circumstances we would perhaps be justified in summarily overruling the motion as having been abandoned or waived. We have, however to the same extent looked into the question suggested by the motion, but find no merit in it. The judgment was entered on February 4, 1909, notice of appeal was served on the 16th, and the appeal was perfected on the 26th. The bill of exceptions was presented to the trial judge on March 13th, allowed on the 17th, and the transcript filed with the clerk of this court on April 3, 1909.

This court has pursued a very liberal policy in construing the power of a trial court to settle and sign a bill of exceptions; the rule adopted being that, because the statute has fixed no time in which the bill should be presented and allowed, the matter is within the discretion of the trial judge, and, when exercised, his decision or action will not be disturbed. In Henrichsen v. Smith, 29 Or. 475 44 Pac. 486: 44 Pac. 496) it was held that the failure of an appellant to submit his bill of exceptions within the time limited by the trial judge, after the expiration of the term, does not prevent the judge from thereafter signing it, if otherwise proper. For a general review of the Oregon cases on this subject, see Hayes v. Clifford, 42 Or. 568 (72 Pac. 1.) The service and filing of the notice of appeal, and the execution and service of the undertaking thereon, does not of itself deprive the lower court of jurisdiction or confer jurisdiction on this court; that is accomplished by filing within 30 days thereafter the transcript in the case with the clerk of this court. Section 553, B. & C. Comp. Under the circumstances presented by the motion, the judge had power to act, and, having acted, this court cannot disregard what was done. The motion is therefore overruled.

2. Considering the motion for nonsuit, the rule is well-settled in this State that if there is any evidence, however slight, fairly susceptible of an inference or presumption, tending to establish the material averments of the complaint, it is the duty of the court to deny the motion: Currey v. Butcher, 37 Or. 380 (61 Pac. 631) ; Perkins v. McCullough, 36 Or. 146 (59 Pac. 182; Putnam v. Stalker, 50 Or. 212 (91 Pac. 363.) But after a careful scrutiny of plaintiff’s evidence we are unable to discover any competent evidence from which an inference may be drawn that the defendant owned any interest in the mill, or had anything to do with its operation, or that Ferbrache, by express or implied authority, was authorized to contract for defendant. Nor does the evidence tend to show that he attempted to bind the defendant in any transaction connected with this case. There is evidence sufficient to show that the defendant is a duly organized and existing corporation, invested with power to engage in the manufacture of lumber, but there is no direct evidence that the defendant owned any sawmill, or was engaged in the business of manufacturing lumber, or in any branch of business connected therewith; nor do we think there is any competent evidence from which an inference might be drawn that it was so engaged.

3. It is admitted that the defendant owned considerable timber land in the vicinity of Glendale, and that one L. R. Ferbrache is the president of the defendant. Plaintiff, testifying in response to a question directed to him, to state whether he had had any agreement with the defendant through Ferbrache, president, to deliver goods from his store to the employees of the defendant, said that he had. This question assumes that the defendant was engaged in some business, and had employees, without any proof having been offered to establish such facts; but when plaintiff was asked to state what the agreement was, he said:

“He (Ferbrache) told me to let the men have anything that they wanted, not to exceed what they had coming to them, and he would see that it was held out of their pay.”

This tends to show only an agreement personal to Ferbrache, and not with defendant; and, unless some other competent evidence was offered, tending to show that the defendant was operating some business- under the management of Ferbrache, that the employees referred to were its employees, and that it received the benefit thereof, such an agreement would not bind the defendant. The merchandise furnished by plaintiff under this agreement was charged on his books of account to Ferbrache personally, and none of the items included in his demand were charged to the defendant. But it is sought to connect the defendant with these transactions by attempting to show that defendant was the owner of the mill, and that the business conducted by Ferbrache was its business. For this purpose' plaintiff testified that he saw where the name “Oregon-Idaho Company” had been painted on some of the machinery in the mill, and introduced a number of railroad way-bills, showing that material and parts of machinery had been shipped to Glendale, apparently by the defendant as consignor, and that such property had been received and receipted for by Ferbrache, as president of the defendant, and by one A. E. Shiria, who was acting as superintendent of the mill, and that such material and machinery had been used in the mill, but it was not shown that such things had been done by any one authorized to act for the company, nor that they were done with the knowledge, and acquiescence of any of the officers of the company other than Ferbrache, who it was admitted is, in fact, president of the defendant. A. E. Shiria, however, testified in plaintiff’s behalf that he constructed this mill for himself, and sold it to Ferbrache, and was thereafter employed to act as superintendent of the mill, but that he did not know who in fact owned the mill; that he had been directed by Ferbrache to order material and machinery for the mill either in his' (Ferbrache’s) name, or in the name of the Oregon-Idaho Company, saying that it made no difference; and that he, witness, caused the material and machinery, shown by the waybills, to be shipped in the name of the company. We find in the record another piece of evidence, consisting of a number of time checks, that had been issued to employees in and about the mill and logging business, showing upon their face a specified amount due for wages to the person named therein, and payable within thirty days. These time checks are upon a printed form, with the name of the defendant printed at the bottom. Some of them have been signed by Ferbrache, as president of the defendant, and also have written thereon, with pen and ink, his personal guaranty of payment. They are not connected with any transaction involved in this action, although some of them appear to have been issued to some of the same persons to whom plaintiff furnished goods. They are apparently offered as admissions by the defendant of its interest in the business and of its liability for the wages of the employees. But Shiria testifies that by direction of Ferbrache he prepared and submitted to him the form for these time checks, and that after they were printed and some of them had been signed by Ferbrache as president, he filled them out and issued them to employees working in the logging camp, as occasion required, but there is no direct evidence that Ferbrache had any express authority from defendant to issue such time checks, or that any other officer of the defendant corporation had knowledge thereof, or recognized the defendant’s liability on account thereof. Some of them came into plaintiff’s hands, and, not being paid, he brought a separate action against defendant and Ferbrache jointly to recover the amount acknowledged to be due thereon, and attached the mill property, a donkey engine and some other property. Plaintiff testifies that after the action was filed and the attachment was made, “they came in and paid” to his attorney, Mr. Orcutt, the amount demanded, and the action was dismissed. But it was not shown that payment was made by the corporation or by any one other than Ferbrache. After the present action was brought, a part payment, amounting to $1,000, was made to plain tiff upon the amount demanded by him, but it was paid by Ferbrache personally.

The foregoing is a brief statement of plaintiff’s testimony, upon which he relies to establish defendants interest in the business and its liability upon Ferbraehe’s dealings with plaintiff, excepting perhaps there were shown declarations of Ferbrache to plaintiff and to third parties to the effect that he was president of the corporation; that he owned 80 per cent of its stock; that he was the corporation, because he owned most of the stock, and that he had turned over to the corporation the mill and logging business. But there was other evidence that he owned no more than a bare majority of the stock, and that others, having no connection with the transactions in question, owned and held a substantial amount of the stock of the defendant corporation. Ferbrache is not a party to this action, and his acts and declarations, made while acting outside of his duties and authority as an officer of the defendant, are not competent evidence against it.

4. The authority of the agent cannot be shown by the alleged agent’s own statements or acts, unless it be shown that the principal knowingly acquiesced therein: Connell v. McLoughlin, 28 Or. 230 (42 Pac. 218) ; Harrisburg Lumber Co. v. Washburn, 29 Or. 150, 163 (44 Pac. 390) ; Wicktorwitz v. Ins. Co., 31 Or. 569 (51 Pac. 75) ; Hannan v. Greenfield, 36 Or. 97, 103 (58 Pac. 888) ; Sloan v. Sloan, 46 Or. 36, 39 (78 Pac. 893).

5. Neither does the office of president of a corporation confer authority to bind the corporation or control its property: 10 Cyc. 903; Wait v. Nashua Armory Ass’n, 66 N. H. 581 (23 Atl. 77: 14 L. R. A. 356: 49 Am. St. Rep. 630) ; Lyndon Mill Co. v. Lyndon Literary Inst., 63 Vt. 581 (22 Atl. 575: 25 Am. St. Rep. 783). The president’s power as an agent must be sought in the organic law of the organization — the by-laws — or in some special order of its board of directors, or must be implied by some acquiescence or ratification on the part of the corporation, whose powers are, under the law, exercised by the directors: Crawford v. Albany Ice Co., 36 Or. 535, 537 (60 Pac. 14).

6. In the present case it is not shown or attempted to be shown by plaintiff that Ferbrache ever claimed to be acting for the defendant in any of the transactions involved in this action, or that the business he was conducting belonged to the defendant, or that it had any interest therein, or that he attempted to bind it by contract. Plaintiff, however, invokes the rule announced in Bennett v. Northern Pac. Express Co., 12 Or. 49, 68 (6 Pac. 160), to the effect that where defendant, after motion for nonsuit has been overruled, goes into his defense, and the defects in plaintiff’s case are supplied, the appellate court will not review the ruling upon the motion. This case was followed and applied in Trickey v. Clark, 50 Or. 516, 519 (93 Pac. 457) ; Freeman v. Trummer, 50 Or. 287 (91 Pac. 1077), and Patty v. Salem Flouring Mills Co., 53 Or. 350, 363 (96 Pac. 1106: 98 Pac. 521: 100 Pac. 298). There can be no question about the principle enunciated, but how it is to aid plaintiff in this case we are unable to ascertain.

7. No particular testimony offered by the defendant has been pointed out by plaintiff’s counsel as supplying the apparent deficiency in his case. We presume, however, that some reliance is put upon the written contract offered by the defendant, for it appears that it was upon such contract that the lower court based its findings. This contract was executed between Ferbrache and Shiria and has to do with the construction and operation of the mill. The proof preliminary to its introduction shows that at the time of it execution Ferbrache was the owner of some 3,000 acres of timber land, known as the Abraham tract, which fact is also recited in the contract, and that A. E. Shiria wished to construct a mill to saw all timber thereon into lumber. He agreed in the contract to construct on the land within ninety days a sawmill of a certain specified capacity, and when completed to operate it and cut the timber into lumber. Ferbrache agreed to furnish the timber at $1.00 per M. stumpage, and to do the logging and deliver the logs at the mill for the price of $4.00 per M. board measure. Shiria guaranteed that the mill cost of manufacturing the logs into lumber should not exceed $3.00 per M.

The foregoing items were to be paid first in the order mentioned out of the proceeds derived from the sale of the lumber. Then the contract declares that Ferbrache and Shiria were to be equal partners in the profits arising from the manufacturing of the timber into lumber under this contract. The former built the logging roads and furnished the machinery and equipment necessary to do the logging. The latter built the mill, but before its completion he sold it to Ferbrache. In the meantime Ferbrache organized the defendant corporation, and sold and conveyed to it the timber, and assigned to it his interest in the above-mentioned contract, but reserved to himself the obligation to do the logging and to receive the profits arising therefrom. The result of all these transaction was to leave the defendant the owner of the timber, but obligated by the Shiria contract to sell it to Ferbrache for $1.00 per M. stumpage, and one-half of the net proceeds of manufacturing it into lumber; while, on the other hand, Ferbrache, by purchasing Shiria’s interest, was to do the logging, cut the timber into lumber at a cost not to exceed $7.00 per M. board measure, and to sell and dispose of the lumber. It must be plain from this relation of the parties that the defendant assumed no liability by virtue of the contract for the expenses incurred, either in the logging operations or in the opera tion of the mill, and that the only interest it had in such enterprise was in the net profits derived from the sale of the lumber.

8. Nor do we find any other evidence tending to show that it ever authorized Ferbrache to use its name or credit in conducting such business, or that it held him out as its agent, or in any manner acquiesced in the acts of Ferbrache in the use of its name upon the time checks issued, or in purchasing or shipping machinery in its name. All the payments made to the creditors of the mill or logging business appear to have been made by Ferbrache, at least it is not affirmatively shown that anything was ever paid by the corporation.

It follows that the court erred in denying the motion for a nonsuit, and the judgment must be reversed and the cause remanded for a new trial. Reversed.