Bangor Boom Corp. v. Whiting , 29 Me. 123 ( 1848 )

Sheplev, J.

The action was assumpsit on an account annexed to the writ for driving, booming, rafting and delivering “ certain mill logs and lumber.” A verdict was found in favor of the corporation, and the case is presented on a report for the consideration of several objections, taken by the counsel for the defendants to the rulings and instructions of the Court.

1. The first is, that an amendment was allowed to be made by erasing the word “ driving.” It is said this changed the form of action. The declaration t contains no count on a special agreement; the effect was only to diminish the claim by excluding from the contest a matter, for which the corporation could not recover. It was not liable to the objection, that it divided the plaintiffs’ claim and deprived the defendants of credits as in the case of Dodge v. Tileston, 12 Pick. 328.

2. The second is, that testimony to prove, that Thomas M. Moody, professing to act for the corporation, made a special contract with George W. Washburn, who had made a conveyance of the lumber to the defendants in mortgage, respecting the rafting, booming and driving of the logs, was excluded.

The counsel for the corporation, in opening the case to the jury, had stated that Moody was the sole corporator, and that he had made such a special agreement. The counsel for the defendants had objected, that the corporation could not recover upon it, for it “ was beyond the scope of the charter.” There does not appear to have been any evidence that Moody was authorized by the corporation to make such a contract. The remarks of counsel, that he was the sole corporator are relied upon; but if such remarks were to be regarded as testimony in the cause, the administration of justice would be greatly changed, and it is to be feared not for the better.

If the corporation had by a vote attempted to confer such an authority upon Moody, it would have failed to do so ; for it was not authorized by its charter to make such a contract. If Moody made the contract he alone would be bound to execute it. The corporation having no legal connexion with it could not be affected by it. Its right to claim compensation for boomage of logs, which it was by its charter authorized to collect and receive, could not be affected by an attempt to connect it with the performance of other unauthorized acts.

The testimony was properly excluded.

3. It is alleged, that the instructions respecting the application of the payments made to Moody for “ boomage” and for services performed by him were erroneous. The argument is, that if the special agreement be invalid, the law will infer, that all payments were made on account of the claim, for which the defendants were legally liable. This would be correct, if the payments had been made to the corporation on account of what was supposed to be due it. But they were made to Moody; and some of them expressly on account of matters, with which he could not connect the corporation. Such payments could not be considered as made to the corporation. Receipts are liable to explanation by parol testimony. Testimony for this purpose was introduced, and the jury were instructed in substance to allow the defendants to have the benefit of whatever sums had been paid at any time on account of boomage, and that payments made to Moody for other purposes should not be considered as payments made to the corporation. These instructions appear to have been correct.

4. It is alleged, that the instructions respecting the description of logs, on which the toll, or boomage as it is called, could be legally collected, were erroneous. They were in substance, that the corporation could recover the toll only upon such logs, as had been rafted from the boom and delivered to the defendants or to their agents. It is insisted, as the men, who received the logs, were employed by Moody, they were acting as the servants of the corporation, and not as the servants of the defendants. This would depend upon the capacity in which they acted. If they were employed by Moody, acting under an agreement made by him with the defendants to float the logs to their mills, an agreement with which the corporation could have no legal connexion, such men would become for that purpose the agents of the defendants. It could make no difference, if the same persons were also at the same time the agents of the corporation, while employed about its business to raft and deliver tlio logs. A person may be the servant and agent of one person or corporation for one purpose, and of another for another purpose respecting the same property at the same time. There does not appear to have been any error in these instructions.

5. It is said, that the defendants were mortgagees not in possession, and that the instructions respecting their liability were erroneous. The instructions were, “ that the plaintiff was entitled to receive of the defendants the boomage on the logs mortgaged, upon which the lien had been given up by the plaintiffs to the defendants, and for which boomage credit had been given by the plaintiffs to the defendants.” The argument is, that the lien upon the logs for toll was relinquished by Moody, that the credit was given by him, and that the promise to pay was made to him. That if he had no authority to act for the corporation, it could claim no benefit from an agreement made with him. But the corporation might authorize or ratify his acts to the extent of its corporate power and no further. This power was sufficient to embrace contracts respecting the toll upon logs.

Judgment on the verdict.