Sawyer v. Winnegance Mill Co. , 26 Me. 122 ( 1846 )

The opinion of the Court was drawn up by

Tenney J.

— The defendants are a private corporation, and were duly organized under their charter, and established a code of by-laws for their regulation. The officers, who are chosen annually, are a president, secretary, treasurer and a board of five directors, the president being one, ex officio. “ All notes given by the agent, for the purchase of logs, or other property connected with the business of the company, shall be countersigned by a majority of the directors, provided the same shall exceed five hundred dollars.” Nothing further appears in the charter or by-laws, of the corporation, touching the appointment of the agent and his duties, than the language above quoted from the by-laws. William M. Rogers, who resided in Bath, about two miles from the place where the mills are situated, and where most of the business is done, has been a stockholder, since the time of the organization of the company, and other stockholders at the time of the trial lived in Hallo-well and Augusta. He was duly chosen treasurer, director and agent, from the year 1839 to'that of 1845, inclusive, and it did not appear by the books, that any other person was ever chosen or appointed agent of the company, or acted as such.

By the direction of Rogers, Randall and Whitman signed the name of their firm, “ Randall and Whitman, Attorneys of said Mill Company,” to an agreement dated Sept. 15, 1843, which is also signed by “ J. S. Sewall, attorney of said proprietors,” wherein the plaintiffs, as proprietors of the Lilly Cove Township, are one party, and William M. Rogers, and John Agry, the latter being president of the Mill Company, “as owners of the Winnegance Mills,” are the other, submitting to the determination of three men named, all claims existing between said proprietors and said Mill Company; and the referees were authorized to take into their account and include in their award all claims of said proprietors, and of said Mill Company against, each other, although other persons besides these parties may be or may have been joint proprietors, or members of said company, and these parties, severally agree to be accountable therefor. The referees awarded against “ William M. Rogers, and John Agry and others, who may be owners and proprietors of the Winnegance Mill Company, the sum of sixteen hundred dollars.”

Upon this award, the present action is brought against the defendants as a corporation ; and they contend, that it cannot be maintained, insisting that they were not a party to the submission ; 1st, Because Rogers had not authority to give direction to those, who executed the agreement, to bind the company. 2d, Because the submission itself does not make them a party to it. Another ground of defence is, that the award does. not follow the submission.

Whether the first or the last grounds of defence would avail, vve give no opinion. But we are satisfied, that upon a fair construction of the submission, the defendants are not a party thereto. By its terms, the parties are the proprietors of the Lilly Cove Township, individually named, on the one side, and William M. Rogers and John Agry, as owners of the Winne-gance Mills, on the other. The agreement states that the referees were to consider “ the claims of said proprietors, and of said Mill Company, although other persons besides these parties, may be, or may have been proprietors, or members of said company, and the parties to the agreement severally agree to be accountable therefor.” This language cannot be misunderstood; it is free from doubt or ambiguity. If it were the intention of Rogers to bind the company acting as agent, why was the name of Agry inserted, who it is not contended, could bind any other than himself? Although Rogers and Agry were owners in the mills, and the words follow their names in the submission, “ as owners of Winnegance Mills,” yet the agreement shows that others were interested as stockholders ; there was a propriety in its appearing that Rogers and Agry were owners, because if they were entire strangers to the company, it might be doubtful whether the agreement could have validity, for want of consideration.

The addition to the names of “ Randall and Whitman,” upon the submission, is at least equivocal in its meaning. But this can have no greater effect, than would the name of Rogers with the addition of Agent of the Mill Company; which, on the authority of numerous cases, would not control language in the agreement, clearly indicating, that Rogers intended to -be individually bound, and not otherwise.

By the agreement of the parties, the default is to be taken off and a nonsuit entered.