Tobin v. Roaring Creek & C. R.

86 F. 1020, 1898 U.S. App. LEXIS 3007

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: April 27, 1898
• Docket: No. 42
• Status: Published

Opinion

DALLAS, Circuit Judge.

This action was brought to recover $15,000, with interest, alleged to be due to the plaintiff by the corporation defendant, by virtue of an alleged contract by it with him that, if he (the plaintiff) would procure a loan of $150,000, to be made to the corporation, it would pay to him the sum of 10 per cent, of said $150,000. Two statements of plaintiff’s claim were filed, one upon June 29, 1896, and the other upon October 7, 1897. At the outset of each of them it is said:

“Tbe Roaring Greek and Charleston Railroad Oompany, by a resolution of tbe board of directors at a meeting of tbe board duly beld, authorized and empowered Samuel B. Diller, tbe president of said corporation, to make any and all contracts for tbe transaction of the business and the prosecution of th.e work of said corporation wbieb be; tbe said Samuel B. Diller, as president thereof, might see proper to make.”

This allegation is a material one. The plaintiff, upon the trial, attempted to present his case in accordance with it. He under-look to show that power to make the contract sued upon had been given to Samuel B. Diller in the manner stated; but he wholly failed to accomplish this undertaking. He offered to testify, as a witness on his own behalf, to the contents of a copy, under corporate seal, attested by the secretary, of a resolution of the board of directors, by which he” asserted the special authority relied upon had been conferred upon Mr. Diller. But this offer of oral evidence of the contents of a writing being objected to, I, in substance, said: Plaintiff is here setting up a contract which he alleges was made with him on behalf of the defendant corporation by an agent, whose authority to make that contract plaintiff says is evidenced by a certain resolution. Hence the fact now sought to be established is the existence of the authority alleged. The ordinary manner of showing that authority would be by the production of the minute book, and finding there a resolution vesting the power to make the contract in the person who made it. I do not think, and do not desire to be understood as holding, that the absence of such a resolution from the minute book would be conclusive upon the plaintiff, but the method by which he has sought to establish its existence is by showing that there was a certain certificate exhibited to him; and therefore it is essential for him to show that there was such a certificate. He proposes to prove- that there was, not by its production, but by secondary evidence of its contents of the lowest degree; that is, by the oral testimony of the plaintiff himself. Such evidence is not to be received until the trial judge is satisfied that notice to produce has been given, and that production is refused in answer to that notice, or, perhaps, that a witness having its custody has been subpoenaed to produce the writing, and has failed to do so. As neither of these necessary preliminary steps appears to have been taken, the proposed oral evidence must be excluded. I still entertain the opinion which was thus expressed, and think that the judgment of nonsuit, which was entered mainly upon the ground of failure of proof of Diller’s alleged authority to make the contract in suit, ought not to be disturbed. As I have said, the plaintiff, in his declaration and upon the trial, set up a specific authorization. Failing to establish it, he now contends that the necessary authority was inherent in Diller, as president of the company; but I cannot assent to this. The transaction which it is claimed the corporation employed the plaintiff to make was an extraordinary one, and quite beyond the sphere of its ordinary business and the customary scope of the agency of the president of such a corporation. There was no evidence of express, ratification of Mr. Diller’s alleged arrangement with the plaintiff, and the argument that the railroad company accepted the fruit of Mr. Tobin’s alleged services with knowledge that they had been rendered is, I think, wholly unsupported in point of fact; and it is by no means clear that Mr. Tobin ever obtained for the railroad company such a loan as he asserts he was employed to obtain. The defendants’ motion to strike off the nonsuit is denied.