Walworth County Bank v. Farmers Loan & Trust Co.

By the Court, Paine, J. When this case was formerly here, we decided that the -president of the railroad company had no power, either by virtue of his office, or of the resolutions of the board of directors which were then relied on, to sell the property in question. On the second trial, the plaintiff introduced a further resolution as follows: “ Resolved, That the president and vice president be and they are hereby authorized and empowered to enter into such arrangements with the creditors of this company, and the holders of any of its securities, for such relief as the circumstances and necessities of [632] the company require; and that they make such stipulations and agreements in the premises as they may deem proper and expedient.” Although the language of this resolution, is not the most apt that could be used to express án authority to pay off claims of creditors in whole or in part, by an absolute sale of the property of the company, yet we are unable to say that it does not confer that- authority. If a. creditor is pressing for payment, and the company has any property which it can transfer to him in part satisfaction of his claim, it cannot be said thatv it is not such an arrangement as the “ circumstance and necessities of the company ” required. It certainly would come within the language of the last clause of the resolution, that the officers named, might “ make such stipulations and agreements in the premises, as they should deem proper and expedient.” But this resolution confers a joint authority on the president and vice president. And the proof shows that in the execution of this authority, the president alone acted in behalf of the railroad company, the vice president, being the president of the bank which purchased the ties, and acting in the transaction entirely in behalf the bank. The court charged the jury that the resolution gave the president the power to make the sale, the vice president being present and assenting as he did. This was erroneous. The instruction correctly assumes that the authority conferred was a joint authority, and that both must concur in its exercise. But the error consists in saying that the assent to the sale, by the vice president, while acting as the purchasing agent for the bank, was such an assent as amounted to a valid execution of the authority conferred by the resolution, in behalf the rail road company. It is well settled that no person can act as agent for two principals in the same transaction, where interests are antagonistic, so that the duties of the agent to the one are in conflict with his duties to [633] the other. Acting as agent both for the buyer and seller is usually given as a plain case, falling within the rule, for the reason that there “ is a natural incompatibility between the interest of the buyer and that of the seller.” Story on Agency, §§ 9, 10, 210, 211. For this reason the vice president of the company could not act as its agent in selling, and as the agent of the bank in buying, and the sale stands therefore as made by the president alone, and would not be within the authority conferred by the resolutions. Still there was enough evidence upon which the question of ratification should have been submitted to the jury. If the fact that the sale has been made, was communicated to the board of directors, and openly talked of at one of their meetings, and they did nothing to disaffirm it, it would be deemed to be ratified by them. The judgment must be reversed, and the cause remanded for a new trial.