Chamberlain v. Pac. Wool-Growing Co.

Department No. 2, Myrick, J.: This, is an action upon a promissory note, dated July 29th, 1875, for $850, and interest at one per cent, per month. The note is signed, “D. P. Sackett, President Pacific Wool-Growing Company,” and is, in terms, made payable to the order of plaintiff. The complaint alleges that the note was executed for money loaned by plaintiff to defendant through its then president, D. P. Sackett; that the money was used by Sackett for the use and benefit of defendant; and that, after the loan and use of the money, defendant assumed the loan, and ratified and confirmed the action of the president in making the loan and giving the note. Another count is added for $850 lent and advanced to defendant. The jury rendered a verdict for plaintiff for $850, and interest at one per cent, per month, total $1,046.40. [105]Defendant moved for a new trial, which was denied, and defendant appealed.

From the bill of exceptions contained in the transcript, it appears : From January 1st, 1875, to October 14th, 1875, Sackett was the president of defendant, and during that time, and until commencing this suit, he was the agent of plaintiff, who has been, ever since January, 1875, traveling in Europe. Sackett, as the agent of plaintiff, claimed to have made the loan of @850 to defendant by himself, as its president, without consulitng with any of the directors or trustees of the corporation, or with plaintiff, and he (Sackett) executed the note in suit. He kept the note in his possession until this suit was commenced, when he placed it in the hands of an attorney for collection.. There had been no action of the corporation fixing any compensation of Sackett as its president, but he applied @507 of the @850 towards payment for his services. There were five trustees of the defendant, of whom Sackett was one. At a meeting of the trustees held September 25th, 1875, the five were present; and “ it was moved and seconded that the action of the president be ratified in making the loan of @850 to Mrs. M. Z. Chamberlain.” The record continues: “ Carried. Ayes—McChesney, Hawlsey; noes—Durkin and Hallinan; Mr. President (Sackett) gives the casting vote.”

Sackett testified that he had been the agent of plaintiff to _ loan money for several years, and had loaned at least @20,000 for her without special instructions, and this loan was made in the usual way. He says that @507 of the @850 was used to pay his salary as president, at the rate of @125 per month; that the balance was used to pay bills of the corporation: @1,059 is charged for his salary from January 1st, 1875, to October 14th, 1875, when lie “ sold out to Mrs. Hawes and resigned.” Taking the testimony together, it appears that the whole @850 was taken by Sackett on account of his salary.