Wehrung v. Portland Country Club

Mr. Justice Bean delivered the opinion of the court. 1. It appears from the evidence that after the contract sued upon was signed the plaintiff entered upon his duties as general manager of the association, acting in conjunction with the other officers of defendant, until the close of the fair. The validity of the contract does not appear to have been questioned by any of the officers until that time. The gist of the objections of defendant to the contract introduced in evidence is that the corporation did not authorize the execution of the contract by its officers. In an action upon a contract, executed by one assuming to act in behalf of the corporation, where plaintiff has rendered services in accordance with the agreement, and with the knowledge of the officers of the corporation, without notice that the contract is not recognized by it as valid, such corporation will be held to have ratified the contract, and will [52] be liable for the services rendered according to the agreement. Odd Fellows Association v. Hegele, 24 Or. 16 (32 Pac. 679) ; Re Assignment of Pendleton Hardware Company, 24 Or. 330 (33 Pac. 544) ; Branson v. Oregonian Ry. Co., 10 Or. 278; McMahan v. Canadian Ry. Co., 40 Or. 148 (66 Pac. 708). 2. The ratification by the corporation need not be by formal vote or resolution of the board of directors. Finnegan v. Pacific Vinegar Co., 26 Or. 152, 154 (37 Pac. 457. In this case, Mr. Chief Justice Bean quotes from the case of Campbell v. Pope, 96 Mo. 468 ( 10 S. W. 187), as follows: “If this were not so, it would lead to very great injustice; for it is notorious that the transaction of the ordinary business of railways, banks and similar corporations in this country is without any formal meetings or votes of the board. Hence there follows a necessity of giving effect to the acts of such corporations according to the mode in which they choose to allow them to be transacted.” See, also, Calvert v. Idaho Stage Co., 25 Or. 412 (36 Pac. 24) ; Columbia Nav. Co., v. Vancouver Trans. Co., 32 Or. 532 (52 Pac. 513) ; Schreyer v. Turner Fl. Co., 29 Or. 1, 8 (43 Pac. 719, 721). In the latter case, Mr. Justice Wolverton, speaking for the court, uses the following language: “But it is not necessary that such adoption, ratification, or acceptance be expressed, as it may be inferred from acts or acquiescence on the part of the corporation or by its authorized agents in its behalf, as similar original contracts may be established (citing a number of cases). We adopt this exposition of the rule, as we believe it to be sustained by the weight of authority, as well as founded upon the better reason. It will have to be conceded that the agreement must be one which the corporation itself could enter into, and one which the usual agents 'of the company have expressed or implied authority to make. But where, with full [53] knowledge of all the facts, the corporation assumes the contract, and agrees to pay the consideration, or accepts and retains the benefits, it will be bound thereby.” 3. Where a contract is executed by the proper officers of the corporation, with the corporate seal affixed, the authority of the officers to execute such instrument is presumed (10 Cyc. 1000, subd. a2), and such instrument becomes prima facie evidence that such officers had due authority from the corporation to execute the contract, so as to cast the burden of proof upon the party challenging its validity. 10 Cyc. 1018 (II). 4. In this case, however, it was shown by the records of the corporation introduced in evidence that the directors of the association authorized the making of a contract with plaintiff, and that a committee for that purpose was appointed, with power to act. This power appears to be general; while the instruction in regard to the making of the contract with Mr. Wehrung was to the effect that it should be made upon the basis indicated, or upon the proposition made by plaintiff to the directors of the corporation. The' resolution does not purport to give all the details of the contemplated contract. And if the agreement, as executed, did not conform in all respects to the resolution authorizing the same, from the evidence in the case, the jury could find that the contract had been ratified by the corporation in toto. This question was plainly submitted to the jury by the trial court. 5. It is claimed, however, on the part of defendant that the contract and resolution introduced in evidence was at -variance with the allegations of the complaint. If we consider the evidence as a variance, Section 97, L. O. L., provides that no variance between the allegations of a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense [54] upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled. 6. At the trial of the cause, nothing was alleged or proved tending to establish the fact that the defendant was in any way misled in making its defense; but counsel for defendant, in making their objection, relied solely upon the form of the contract and resolution. Neither does it appear, so far as we have been able to discover, that there were not sufficient funds realized from the receipts of the fair of 1909 with which to compensate plaintiff. It is possible that the money may have been used for other purposes; but it will be noticed that the proposition made by plaintiff does not purport to contemplate that he should be paid only from the net proceeds, or that, in case such receipts were insufficient for that purpose, that he should receive no compensation whatever. It is within the discretion of the trial court to disregard a variance between an allegation and the proof, and nothing short of an abuse of such discretion can be assigned as error upon an appeal. Brown v. Moore, 3 Or. 435, 438. A variance between the allegation of a pleading and the proof is not material, unless the adverse party has been actually misled to his prejudice upon the merits; and the party claiming or alleging that he was so misled must prove to the satisfaction of the court in what respect he was misled. Dodd v. Denny, 6 Or. 156, 158; Hill v. Mellon, 3 Or. 542. In such case, in the absence of proof showing that the party has been so misled, it is the duty of the trial court to treat the alleged variance as immaterial. Moore v. Frazer, 15 Or. 635, 638 (16 Pac. 869). Where the party has not proved that he has been misled, the court may either direct the fact to be found according to the evidence, or may order an immediate amendment with [55] out costs. Section 98, L. O. L.; Stokes v. Brown, 20 Or. 530 (26 Pac. 561) ; Denn v. Peters, 36 Or. 486, 490 (59 Pac. 1109); Creecy v. Joy, 40 Or. 28, 31 (66 Pac. 295). In the case at bar, there is an absence of proof showing that the defendant, upon the trial of the cause, was misled to its prejudice in making its defense. Therefore, on this appeal, there is nothing upon which to base a finding that the trial court abused its discretion in this regard. Finding no errors, the judgment of the lower court is affirmed. Affirmed.