Paphro D. Pike Co. v. Baty , 69 N.H. 453 ( 1898 )

There was competent evidence before the jury from which they might properly have found that Pike was authorized by the plaintiffs to sell the goods named in the specification to the defendant, upon the terms alleged by him. One of the purposes of the corporation's existence was to manufacture plumbers' supplies, and it had authority to acquire real estate for its uses. Pike was one of its three directors, and was also its president, treasurer, and apparently general manager. January 17, 1897, its stockholders unanimously voted to sell all the stock and assets of the corporation to the new Paphro D. Pike Company, organized under the laws of this state, for $10,000 of the stock of the new company and an assumption by it of all the corporation's liabilities. The new corporation referred to was organized on or about December 29, 1896, by Pike, Rounds, O'Brien, one Troy, and the defendant, for the same purposes as the plaintiffs were organized, but with a capital of $100,000. Rounds was another of the three directors of the plaintiff corporation, and O'Brien succeeded Pike as its treasurer. The evidence tended to show that the defendant's connection with the new corporation was for Pike's accommodation, and was understood to be merely nominal. Some three weeks prior to that time Pike, as trustee, had secured an option giving him the right to purchase the Amsden property at any time within sixty days upon certain terms. In the following March and April, after Pike had ceased to be treasurer, the plaintiffs, in their correspondence with the defendant as to the claims in suit, used letter-heads bearing an engraved card designating the corporation as "Manufacturers of Plumbers' Specialties," and a picture of the Amsden buildings under the words, "Factory at Penacook N.H." It would be a natural inference from all this testimony that at some time prior to January 17 the corporation formed the purpose to engage in the manufacture of plumbers' supplies, and that the organization of the new corporation and the acquisition of the Amsden property were steps taken in executing that purpose. The corporation would necessarily act through its officers or agents, and the jury might think that no one would be more likely to be clothed with authority for the purpose than the person who occupied the fourfold relation to it of director, president, treasurer, and general manager, and whose influence at the organization of the corporation had been such as to cause it to take his name. This testimony tended to corroborate the statements made by Pike to the assignee of the Amsden estate while negotiating for the purchase of the manufacturing plant, and to the defendant when he was employed to make repairs upon the same. If the jury found, as they reasonably might, that the plaintiffs authorized Pike to act for them in these matters, the representations made by him in connection with his acts would be competent; for example his representation to the assignee of the Amsden estate when he took the agreement in his own name as trustee that he represented the plaintiffs, but wanted the agreement in that form for a special reason. Moreover, Pike's testimony that he had the general management of the plaintiffs' business was competent. Caldwell v. Wentworth, 16 N.H. 318; Kent v. Tyson, 20 N.H. 121; Goodwin v. Screw Co., 34 N.H. 378, 379; Dow v. Epping, 48 N.H. 75, 82. According to this view, the creation of the new corporation was in effect an amendment of the charter of the old corporation, increasing its capital stock, accompanied with a removal of the corporation to New Hampshire, rendered necessary by the determination to engage in the manufacture of plumbers' supplies and the consequent necessity for a manufacturing plant. One purpose of the plaintiffs' organization being to manufacture such supplies, they had authority to increase their capital and change their location to carry the purpose into effect, and might do it by promoting the formation of a new corporation instead of amending their old charter, — at least, if all the stockholders favored the plan, as they did in this case. The engraved letter-heads justify an inference that the Amsden property had been acquired by or for the use of the plaintiffs in some way. But whether actually acquired, or not, there was competent' evidence before the jury of an attempt by the plaintiffs to acquire it. The repairs upon the property appear to have been a mere incident in the promotion of the main purpose. Whoever was to have the property desired to have it in suitable condition for use at a date as early as practicable. That there was testimony in conflict with these views does not affect the question before the court. If the case had gone to the jury, it would have been necessary for them to sift the truth from the conflicting testimony and decide the case according to the facts as found by them. But the plaintiffs' motion to direct a verdict in their favor simply raised the question whether there was competent evidence before the jury from which they might properly find for the defendant. Dailey v. Blake, 35 N.H. 29; Hazelton v. Batchelder, 44 N.H. 40; Caverly v. Balcom, 55 N.H. 566. As there was such evidence, by the agreement of the parties, there must be

Judgment for the defendant.

PARSONS, J., did not sit: the others concurred.