Kiebler Realty Co. v. Miller

July 14, 1922, articles of incorporation were issued to the George J. Kiebler Realty Company, located at Toledo, Ohio. These articles show that the corporation was formed for the purpose of buying, selling, and dealing in real estate, subject to the provisions of Sections 8648, 8649, and 8650, General Code of Ohio, and the doing of all things incident thereto, including the constructing, erecting, and maintaining of buildings and other structures thereon, and the purchasing, holding, using, and mortgaging of such real estate. Shortly thereafter the organization of the corporation was completed, and George J. Kiebler was elected a member of the board of directors and president of the corporation. Among the regulations adopted by the stockholders was the following:

"The president shall preside at all meetings of stockholders and directors, sign the records thereof and all certificates of stock, deeds, mortgages, and other similar papers, and perform generally all the duties usually performed by presidents in like companies, and such further duties as may be from time to time required of him by the stockholders and directors."

From the time George J. Kiebler was elected president, he was not only president, but the active managing agent of the corporation, and had charge of the buying and selling of real estate. The following contract was entered into March 31, 1926, by the parties:

"Toledo, Ohio, Mar. 30, 1926.

"Received of A.L. Miller (purchaser) $50.00 account purchase of lot No. 20 Glenview to the city of Toledo, Lucas county, Ohio, this day by him agreed to be purchased at a price of $9,000.00, balance to be paid as follows: $2,000.00 in cash, purchaser to assume $5,000.00 mortgage at Home Bldg. Sav. Co. to give back second mortgage for balance payable 10% per month, interest 6%, when warranty deed is furnished, together with statement or opinion of title showing property clear and free from material defect or incumbrance, subject to taxes and assessments due and payable after June, 1926, payment.

"If this proposition is accepted by the owner it shall constitute a binding contract for the purchase and sale of said property upon these terms.

"If the owner fails to accept this proposition upon the terms above set forth, the said deposit of $50.00 shall be returned to the purchaser without any liability upon the part of Geo. J. Kiebler Co. to either party.

"Geo. J. Kiebler, Agent, "By Herbert Sitzenstock,

"A.L. Miller, Purchaser.

"Accepted and conveyance agreed to be made: The Geo. J. Kiebler Realty Co. by Geo. J. Kiebler,

"Owner."

On the property described therein was located a two-story house with a two-car garage, both built about two years previous to the execution of the contract.

After this contract was entered into, a warranty deed was executed by the Geo. J. Kiebler Realty Company, by Geo. J. Kiebler, president, and Herbert Sitzenstock, secretary, under date of April 20, 1926, purporting to convey the property so sold to the purchaser. Thereupon the deed, with an opinion of title, which was approved by counsel for the purchaser as showing a clear title, was tendered to the purchaser, who refused to accept the deed and carry out the contract. Thereupon an action was brought in the court of common pleas of this county by the company against the purchaser for specific performance of the contract. Upon trial, the prayer of the petition was denied, and the plaintiff appealed the cause to this court.

It is contended here that the contract was insufficient in form to bind the defendant, A.L. Miller. The agreement quoted constituted a valid, subsisting and enforceable contract between the parties to this action, and, as to form, was sufficient in law to be binding upon both.

It is also contended that the plaintiff corporation, the Geo. J. Kiebler Realty Company, could only sell real estate, and execute and deliver a deed to the purchaser therefor, by lawful action of the board of directors, authorizing and approving such sale, and that the deed, in not reciting authority for that purpose from the board of directors, is defective.

The deed of a corporation which is in due form carries with it a presumption of authority for its execution. Cincinnati, H. D.Rd. Co. v. Harter, 26 Ohio St. 426; Bank v. Flour Co., 41 Ohio St. 552,

557. However that may be, under the regulation adopted by the stockholders, quoted above, the president of the company was expressly authorized to sign deeds and similar papers and such authorization would carry with it the power to have his own signature acknowledged before a notary public and to perform the other things incidental to the signing and complete execution thereof.

The plaintiff corporation, being a corporation engaged in the buying and selling of real estate, the president, who is also managing officer of the corporation, as George J. Kiebler was, would have power to make sales of real estate without having each separate transaction expressly authorized or ratified by the board of directors. The sale of the property in question by the president, and the consummation thereof by the execution of proper instruments, was within the authority of that officer, he being also managing officer of the corporation in charge of its business of buying and selling real estate, which was, so to speak, the stock in trade of the corporation. The deed tendered, if it had been accepted, would have conveyed good title to the purchaser, and the plaintiff corporation fully performed its part of the contract.

The plaintiff is therefore entitled to specific performance.

Decree accordingly.

RICHARDS and LLOYD, JJ., concur.