Smith v. Sinbad Development Co.

TAGGART, J.

Action to recover for services rendered at an agreed salary. Judgment for defendant, and plaintiff appeals from judgment and order denying his motion for a new trial.

Plaintiff was employed by P. G. Downey, claiming to act as secretary and general manager of the defendant corporation, in and about the preparations for oil-well drilling opera

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tions in which defendant was about to engage. He rendered three months’ services, and at the close of the third month received a paper, which he pleads as an account stated, in the words and figures following: “There is due to G. L. Smith for services performed for the Sinbad Development Company, in accordance with terms of hiring: 3 mos. at $225 per mo.

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expenses, $675; Expenses paid out by Smith, 75. Dated Nov. 30, 1907. (Signed) F. G. Downey, Sec. & General Manager of Sinbad Development Co.” When this instrument was offered in evidence it was objected to by defendant on the ground that it had not been shown “that he [Downey] had authority to make the contract.” Which objection was sustained by the court and this ruling is assigned as error.

At the time of the tender of the instrument F. G. Downey, who employed plaintiff and who signed the paper in question, was asked: “Were you or were you not general manager of the Sinbad Development Company at the time you employed Mr. Smith?” Whereupon the court said: “There is no question but what he was. The articles of incorporation show that he was at that time, and he states that he didn’t resign. That fact was proven, that he was general manager.” Counsel for defendant then stated that he should contend that there was no office of that kind authorized by the by-laws, to which the court replied: “The articles of incorporation name him as general manager. . . . His duties might be fixed by the by-laws, but he was general manager according to the articles of incorporation until the annual meeting.” Counsel for defendant then admitted that Downey was secretary, but contended that there was no such officer as general manager. The witness then stated that he signed the paper in question (designating it as the pay-roll) and delivered it to Smith, and the offer of the writing was renewed. Counsel for defendant objected to its introduction without stating any grounds, and the objection was sustained.