Baker v. Cotter , 45 Me. 236 ( 1858 )

The opinion of the Court was drawn up by

Goodenow, J.

The case finds that the defendants admitted the execution of the note declared on, but did not admit the indorsement to the plaintiffs.

They admit, then, the existence of the “ Tremont Mutual Insurance Company,” as a corporation properly organized to do business, on June 1, 1855, at the date of the note; and tbe note was for value received, by its terms. It was for the sum of $1250, payable in twelve months after date, to the company, or order. It was indorsed as follows: “ John G. Nazro, Pres.” “Pay B. E. Shaw, Esq., cash, or order.”

In Milledge v. Boston Manuf’g Company, 5 Cush. 119, it was held that, “ the powers of agents, as well as any other fact necessary to charge a corporation, may be proved by corporate acts, and by acts of persons professing to be their agents and servants, and the tacit acquiescence of the corporation.”

“And, inasmuch as the powers of agents may be proved by extraneous evidence, the extent and limitation of their powers may be proved in the same manner.”

Nazro deposes that he derived his authority to indorse from the by-laws, and the uniform usage of the company. Corporations can act, usually, only by agents. The means must be proportioned to the end. The agents must necessarily have power to accomplish the business for which they are appointed. The president had power, by the sixth section of the by-laws, “ to adjust and pay all losses.” Eor this purpose, he must use the means which the company have placed in his hands. If these means are negotiable notes, in order to be used and transferred, they must be indorsed. If no provision has been made for their indorsement by a treasurer, or other agent of the company specially authorized, it seems reasonable to infer that the company must have understood that it would be the duty of the president, ex officio, to indorse and transfer them, from time to time, as they should be needed, in the performance of the legitimate business of the company. Erom the testimony of the president, we are authorized to conclude that such had been his practice, and that it had been acquiesced in by the company.

There is an essential difference, in our opinion, between the power to contract a debt, and the power to use the means of the company to discharge a debt already existing. In the one case, they are free to act or not to act, as they please. In the other, the obligation is upon them, and the wide field of unlimited discretion and judgment is taken away. The testimony of Nazro was competent to prove his agency de facto.

We are of opinion that the depositions of the plaintiffs were properly admitted in evidence.

A default must be entered, and judgment for the plaintiffs for the amount of the note, and interest from the time it became due, and for costs.

Tenney, C. J., Hathaway, Cutting, May, and Davis, J. J., concurred.