Meating v. Tigerton Lumber Co.

89 N.W. 152, 113 Wis. 379, 1902 Wisc. LEXIS 63

Opinions

jBaedeeN, J.

Tbe court evidently directed a verdict for defendant on tbe ground that there was nothing in tbe ease to show authority on tbe part of Swapke to contract on behalf of tbe defendant. He was president of tbe defendant corporation. Tbe plaintiff and one witness testify that be hired the-former to work for tbe defendant. These facts alone would! not be sufficient to establish liability. Tbe general rule is: that the president of a corporation ex officio bas no power to-contract for tbe corporation. 2 Cook, Stock, § 716. Such-authority may be expressly given by tbe articles of incorporation, or by tbe board of directors, or it may arise from bis having assumed and exercised tbe power in tbe past. Being invested with such authority within tbe lines mentioned, be-may enter into such contracts as pertain to tbe regular course-of tbe corporate business under bis direction, and no more. "When be goes outside of bis express or implied authority, his-acts will not be binding upon tbe corporation. Recent cases in which there is a discussion of this question are as follows : Ford v. Hill, 92 Wis. 188; McElroy v. Minn. P. H. Co. 96 Wis. 317; Northwestern F. Co. v. Lee, 102 Wis. 426; Calteaux v. Mueller, 102 Wis. 525; Hiawatha I. Co. v. John Strange P. Co. 106 Wis. 111; Heinze v. South Green Bay L. D. Co. 109 Wis. 99.

There was no attempt in this case to show that Swank’e bad express authority from tbe board of directors. There-was, however, testimony tending to show that for two years prior to tbe time of tbe contract in question be was tbe president and acting bead of tbe defendant corporation. Tbe inference is plainly justified from tbe testimony of Mr. Ed■wards tbat be was its managing officer wben be was at borne. As sucb be would bave tbe power and authority of similar .agents under like circumstances. Roche v. Pennington, 90 Wis. 107. From tbe testimony before tbe court tbe jury would bave been justified in finding tbat be bad authority ■to make tbe contract sued upon; hence a direction of a verdict for defendant was erroneous.

Tbe objection tbat tbe complaint does not state a cause of .action because it is not alleged tbat tbe amount earned by plaintiff has not been paid is not tenable. There is no presumption of payment within tbe period of tbe statute of limitations. Payment is an affirmative defense, and must be set up in tbe answer, or evidence of tbe fact will be excluded.

By the Gourt. — Tbe judgment is reversed, and tbe cause is •remanded for a new trial.