recognized by the members of a company may supply the place of express authority. And, again, an agent may have implied power to do many things, as necessarily incidental to the powers expressly conferred.o A general agent clothed with authority to pay the corporate debts, may make a novation of a debt due from the corporation.

1 De Bost v. Albert Palmer Co. 35 Hun, 386.

2 Rice v. Peninsular Club, 52 Mich. 87.

3 Kelsey v. Sargent, 40 Hun, 150.

4 New York etc. R'y Co. v. Bates, (Mo. 1888).

5 Indianapolis Rolling Mill Co. v. St. Louis etc. R. R. Co. 120 U. S. 256; Page v. Fall River etc. R. R. Co, 31 Fed. Rep. 257; Fifth Ward etc. Bank v. First National Bank, 43 N. J. 513; Hannibal Bank v. North Missouri Coal Co. 86 Mo. 125; Flynn v. Des Moines etc. R'y Co. 63 iowa, 490; Topeka Primary A. U. B. v. Martin (1888), 39 Kan. 750.

6 Hannibal Bank v. North Missouri Coal Co. 86 Mo. 125.

7 Flynn v. Des Moines etc. R'y Co. 63 Iowa, 490.

8 Page v. Fall River etc. R. R. Co. 31 Fed. Rep. 257; Fifth Ward etc. Bank v. First National Bank, 48 N. J. 513; Flynn v. Des Moines etc. R'y. Co. 63 Iowa, 490; Topeka Primary A. U. B. v. Martin (1888), 39 Kan. 750,

9 New York etc. R. R. Co. v. Schuyler, 34 N. Y. 30, 65, et seq., and cases there reviewed, q. v. for a general discussion of the scope of authority of corporate agents; Whitaker v. Kilroy (Mich. 1888), 4 R'y & Corp. L. J. 197. 10 Mulcrone v. American Lumber Co. 55 Mich. 622.

502. The same subject, continued-Certain acts held not incidental to powers of agents.— But the secretary and treasurer of a corporation has no implied power to release without consideration any of several makers of a note owned by the company; nor is the superintendent and treasurer of a corporation empowered to mortgage its property or to confess judgment against it from the fact that he is in the habit of borrowing money for the use of the corporation;" nor, unless especially authorized, the secretary of a corporation has no power to give a "due-bill" binding on the corporation to a stockholder in return for stock surren dered by him; nor are the declarations of a super

3

intendent, in acknowledgment of a claim against the company, admissible when no evidence appears to show his authority to bind the company by his admissions, and the authority is expressly denied. In order that the declaration of an officer may be admissible as evidence it must be shown either that he had authority to make the statement, or that he was held out as the proper officer to whom to apply for information, or that he had some duty to perform in the premises." Declarations of a director as to whether a certain person is the agent of the company, are not sufficient to bind the company.

6

1 Moshannon etc. Co. v. Sloan (Pa. 1887).

2 Stokes v. New Jersey etc. Co. 46 N. J. 237.

3 Gregory v. Lamb, 16 Neb. 205.

4 Blain v. Pacific Express Co. 69 Tex. 74.

5 Tuthell Spring Co. v. Shaver Wagon Co. (1888), 35 Fed. Rep. 644. 6 Florida etc. R. R. Co. v. Varnedoe (Ga 1838).

§ 503. The same subject, continued-Acts apparently within the agent's authority. It is sufficient that the act be apparently within the scope of the agent's authority. But where the authority of the agent depends upon some fact outside of the express terms of his power, and which from its nature rests particularly within his knowledge, the principal is bound by the representation of the agent, although false, as to the existence of such fact.1 When the general manager of a railroad company retains a practicing attorney to attend to legal business for the company, the company is liable for the services of the attorney, unless the general manager had authority to make the employment, and the attor

no

2

ney knew, or might have known by using ordinary diligence, that he had no such authority. In cases of emergency requiring immediate action, it will in some cases be presumed that a servant of the company on the spot has authority to enter into a contract on behalf of the company.3 Thus, a general manager and a police inspector, whose duty it was to proceed to the place of an accident, have been hell authorized to bind the company for medical services, hotel expenses, etc., of injured passengers.* A station-master has been held not to have such authority. Nor has the general manager of a corporation any authority to bind the company by engaging the services of a physician for one of its employees injured in a private quarrel.*

1 Griswold v. Haven, 25 N. Y. 601; 82 Am. Dec. 380; New York etc. R. R. Co. v. Schuyler, 34 N. Y. 30, 63; Story on Agency, 452; Lloyd's Paley on Agency, 4904, 301, 307; Bacon Abr. tit. Master and Servant, K.; 2 Kent Com. 620, notes; 1 Blackstone Com. 432.

2 St. Louis etc. R. R. Co. v. Grove, 39 Kan. 731.

3 Browne & Theobald's Railway Law, 108.

4 Walker v. Great Western R'y Co. Law R. 2 Ex. 228; 36 Law J. Ex. 123; Langan v. Great Western R'y Co. 30 Law T. N. S. 173; Browne & Theobald s Railway Law, 108.

5 Cox v. Midland Counties R'y Co. 3 Ex. 268, a case which would probably not now be followed; Browne & Theobald's Railway Law, 108. 6 Dale v. Donaldson etc. Co. (1887) 48 Ark. 188.

§ 504. Of the ratification of unauthorized acts. A corporation may ratify any unauthorized act of its agents which it had the power in the first instance to authorize.1 Thus the shareholders of a corporation may ratify and affirm a lease of its land to its president, made by the president and treas-, urer without authority. And taking possession of a leased road in accordance with a lease executed by its officers without due authority, and operating the same, and paying the rent therefor, as reserved,

BEACH ON RAILWAYS-52

So, the

in the lease, is a sufficient ratification. act of the treasurer of a railway company in using the corporate seal on notes will be deemed as ratified by the company, where the notes have been declared genuine by a committee of the directors, where interest has been paid on them, and where reports reciting this fact have been approved. In a recent action on a contract, entered into on behalf of a corporation by its president, who had no authority so to do, where a ratification of the directors was relied upon, it was held that actual knowledge of the contract and its terms, and acquiescence therein, must be shown on their part, and that it was erroneous to charge the jury that "all directors are presumed to know what it is their duty to know, what they are able to know, and what they undertook to know when they accepted their position," and "that, in the absence of direct and positive evidence of the knowledge of the directors, jurors have the right to assume that they are doing what they were appointed to do, and that they know what they were appointed to know." A corporation, by alleging that the contract was entered into "with the plaintiff," and by setting forth the contract in terms by which it appeared to have been made by the president in behalf of the corporation, has been held to admit the authority of its president to make the contract. Where a corporation reserved to its board of directors, by a by-law, power to control the president and superintendent whenever it deemed proper, and the president made a release of a contract and reported it to the board, which took no steps to disaffirm the release until two years after, and about

a year and a half after the institution of suit on the original contract, the disaffirmance was held to be too late. The ratification of the unauthorized acts of directors, and of such corporate officers as are elected directly by the shareholders, is with the shareholders.8 For this purpose a majority vote of the shareholders is sufficient where the act is merely unauthorized, and not ultra vires nor illegal.

It is with the directors to ratify the unauthorized! acts of corporate agents appointed by them, 10 or the acts of corporate officers which should not have been: done without authority first obtained from the directors." And so on down the line, each superiorofficer or agent may ratify such unauthorized acts. of his subordinates as he might in the first instance have given authority to do."

1 Fleckner v. Bank of United States, 8 Wheat. 338, 363; Greenleaf v. Norfolk Southern R. R. Co. 91 N. C. 33; Planters' Bank v. Sharp, 12 Miss. (4 Smedes & M.) 75; 43 Am. Dec. 470; First National Bank v. Ficke, 75 Mo. 178; 42 Am. Rep. 397; Kelsey v. National Bank, 69 Pa. St. 426.

2 Mount Washington Hotel Co. v. Marsh, 63 N. H. 230.

3 Oregonian R'y Co. v. Oregon R'y etc. Co. 28 Fed. Rep. 505.

4 St. James Parish v. Newburyport R. R. Co. 141 Mass. 500.

5 Murray v. Nelson etc. Co. 143 Mass. 250.

6 St. Paul etc. Co. v. Dayton (1887), 37 Minn. 361.

7 Indianapolis Rolling Mill Co. v. St. Louis etc. R. R. Co. 120 U. 8. 256.

8 Payson v. Stoever, 2 Dill. 427; Crum's Appeal, 66 Pa. St. 474. In re New Zealand Banking Co. Law R. 3 Ch. 131; Lane's Case, 1 De Gex, J. & S. 504.

9 See cases cited supra.

10 Fleckner v. Bank of United States, 8 Wheat. 338, 368; Scott v. Middletown etc. R. R. Co. 86 N. Y. 200; Lyndeborough Glass Co. v. Massachusetts Glass Co. 111 Mass. 315; Sherman v. Fitch, 98 Mass. 59.

11 Sherman v. Fitch. 98 Mass. 59: Perry v. Simpson etc. Co. 37 Conn. 520; Darst v. Gale, 83 El. 136.

12 Pacific R. R. Co. v. Thomas, 19 Kan. 256.

§ 505. Accepting the fruits of the contract a bar to pleading want of authority in the agent.— A corporation accepting the benefit of a contract