Buttrick v. Nashua & Lowell Railroad

Carpenter, J. A transfer of stock in a dividend paying corporation, not recorded by the proper officer in the record-book kept for the purpose, is ineffectual to pass the property as against attaching creditors without notice. G. L., c. 148, ss. 10-12; c. 158, s. 6; Pinkerton v. Railroad, 42 N. H. 424; Scripture v. Soapstone Co., 50 N. H. 571, 585-589; Fisher v. Essex Bank, 5 Gray 373; Blanchard v. Gas Light Co., 12 Gray 213; Shipman v. Ins. Co., 29 Conn. 245, 253; Johnston v. Laflin, 103 U. S. 804. If the defendants had no notice of the assignment to the plaintiff, they acquired by the attachment a valid lien. Whether the agreement between Wood and the plaintiff made in May was valid nnder the statute of frauds ( Whittemore v. Gibbs, 24 N. H. 484, Bro. St. Fr., ss. 296—298), and whether Wood’s knowledge of it could be imputed to the defendant (Bank v. Neass, 5 Denio 330, 337, Platt v. Birmingham Co., 41 Conn. 255, 264-266), are questions which need not be considered. The validity of the agreement and' the defendants’ knowledge of it may be assumed. *418 The contract was not executed, but executory. It was not a sale, but an agreement of Wood to sell, and of the plaintiff to buy. If equity would enforce its specific performance against Wood and all claiming under bim with notice, it would only do so upon a payment of tbe purchase-money. The legal title, together with a right to receive the stipulated price, remained in Wood. A purchase, or an attachment of the stock, subject to the contract, would not injure» the plaintiff. No steps were taken to transfer the legal title to the plaintiff, and nothing was paid until June 19. A creditor attaching the stock at any time before that day, with a full knowledge of all the facts, would have held Wood’s right to the agreed price. Whether the defendants can levy upon and sell anything more than the legal title, subject as well to a right in the plaintiff to receive a transfer upon payment of the price, as to the pledge to the bank, is a question not raised by the case. The agreement was executed, the price paid, and the legal title as between the parties transferred to the plaintiff, June 19. If before the attachment the defendants had notice of this transaction, the plaintiff must prevail; otherwise, the defendants. Inasmuch as Wood was not the defendants’ acting treasurer, or otherwise in their employ, after June 6, the defendants are not chargeable with his knowledge of the transaction of June 19. They had, prior to the attachment, no notice of the transfer of the title to the plaintiff, unless they are to be charged with the knowledge of their director Graves. It does not appear that Graves had any authority except as one of seven directors, who, as such, can act in behalf of the corporation only as a board. Their power is not joint and several, but joint only. G. L., c. 148, s. 3; Despatch Line of Packets v. Bellamy, 12 N. H. 205; Edgerly v. Emerson, 23 N. H. 555, 566-569; Bank v. Norton, 1 Hill 572; Bank v. Canal Co., 4 Paige 127; D'Arcy v. Railway Co., L. R. 2 Ex. 158. They may appoint officers and agents, with such powers as they may find convenient or necessary. G. L., c. 148, s. 3. They may confer on one of their associates a special or general authority, or, without their action, the corporation may make one of their directors a special or general agent by their course of dealing, and by holding him out to the world as such. In the absence of such authority, a director cannot by his individual action bind or affect the rights of the corporation. Notice to him is not in law notice to the corporation. Bank v. Lewis, 22 Pick. 24, 31; Bank v. Cunningham, 24 Pick. 270, 276; Bank v. Savery, 82 N. Y. 291; Railroad v. Chatham, 42 Conn. 465, 480. They are not affected by his knowledge unless they move in the business to which the knowledge is material through the agency of such director acting either alone or as one of the board. Bank v. Cushman, 121 Mass. 490; Bank of U. S. v. Davis, 2 Hill 451, 463; Bank v. Cornen, 37 N. Y. 320; Holden v. Bank, 72 N. Y. 286, 294; Bank v. Payne, 25 Conn. 444; Foundry v. Dart, 26 Conn. 376. *419 It does not appear that Graves took any part in causing the attachment to be made, or that he had knowledge of it, or of Wood’s indebtedness to the defendants. Bill dismissed. Stanley, J., did not sit: the others concurred.