Glovin v. Eagle Clothing Co. , 247 Mass. 215 ( 1924 )

Crosby, J.

This is an action on a promissory note for $1,000, payable to the order of the plaintiff and signed “ Eagle Clothing Co., Inc., by David H. Davidoff, Pres.” The defendant admits that it is a corporation and that Davidoff was its president in July, 1921, when the note was executed and delivered to the plaintiff. The by-laws of the corporation in part are as follows: “ Except as otherwise provided by these by-laws or by vote of the board of directors, the treasurer shall have the sole and exclusive right and power to make, sign, endorse and accept for and in the name and behalf of the corporation, promissory notes, drafts and checks, and then only in the regular course of its business.”

The note in question was payable at the Commonwealth Trust Company in Boston, which company, by express vote of the directors of the defendant corporation, was authorized and instructed to honor checks drawn in the name of the defendant on the trust company bearing the signature of the president of the defendant.

There was evidence tending to show that the corporation was a close one in which few persons were interested and most of whom were actually engaged in the management of its business. Davidoff, the president of the corporation, testified that he and Isaac Wolf, husband of Esther Wolf, the secretary and a stockholder, were the persons active in the affairs of the company, and that he (Davidoff) signed all the checks for the defendant and made the deposits in its account in the bank. He further testified that there was a conversation between those active in the conduct of the business, relative to borrowing money, as a result of which he went to New York, saw the plaintiff, borrowed $1,000 from him, and on July 15, 1921, returned to Boston; that on the same day he deposited to the defendant’s account in the trust company the $1,000 so borrowed. There was also evidence that the note in question was carried on the books of the defendant as an obligation of the company under the heading “ List of loans payable.”

While under the by-laws the authority to sign notes was vested exclusively in the defendant’s treasurer, and no express authority was conferred on its president so to act, yet there was ample evidence to warrant a finding that the corporation, acting through its managing officers, ratified the acts of the president in securing the loan of $1,000 from the plaintiff and in executing in its name a note for that amount. A verdict could not properly have been ordered for the defendant; whether the act of Davidoff, as president, in signing the note was ratified by the corporation was a question of fact to be determined upon all the evidence and the fair inferences to be drawn therefrom. Nims v. Mount Hermon Boys’ School, 160 Mass. 177, 182. Beacon Trust Co. v. Souther, 183 Mass. 413, 417. North Anson Lumber Co. v. Smith, 209 Mass. 333, 338. Albiani v. Evening Traveler Co. 220 Mass. 20.

The decision in Murray v. C. N. Nelson Lumber Co. 143 Mass. 250, relied on by the defendant, is not at variance with the conclusion here reached; in that case the issue whether there was sufficient evidence of ratification was not considered; the only question decided being whether the instructions given by the trial judge were, correct.

In October, 1921, Davidoff sold his stock in the corporation to one Goldberg and thereafter ceased to be connected with the company. The defendant offered in evidence, to affect the credibility of Davidoff, copy of an agreement signed by Goldberg in which the latter was to pay four accounts therein referred to and due from the defendant; this evidence was excluded subject to the defendant’s exception. Neither of the parties to this action was a party to the agreement; it related to a matter not involved in the present suit; and it is difficult to see that it had any bearing whatever upon the credibility of the witness. If this agreement, or the question put to Davidoff on cross-examination respecting Goldberg’s promise to pay the four accounts referred to, might have affected the credibility of the witness, its admission was within the sound discretion of the presiding judge. Jennings v. Rooney, 183 Mass. 577, 579. Fisher v. Ford, 232 Mass. 56.

Exceptions overruled.