Bell & Co. v. Vogt

Mb. Justice Benson delivered the opinion of the court. 1. The one question for our consideration arises upon the action of the trial court in denying the motion for a nonsuit. The plaintiff’s evidence discloses that on May 21, 1915, the president and secretary of the defendant corporation undertook to make an assignment of all of its assets for the benefit of all its creditors. This action, however, did not have the authority of the board of directors. Defendant Vogt did receive moneys collected by Alan Bancroft, secretary and manager of the corporation, to the amount of $790.60 of which Vogt applied $470.75 to the payment of the claims of certain specified creditors, leaving a balance of $319.85 which he turned over to defendant Sumner, as president of the corporation. The only evidence of any assignment for the benefit of creditors which was introduced by plaintiff was the attempted written assignment above mentioned. This instrument cannot avail the plaintiff as the foundation of its suit, for the reason that it affirmatively appears from a reading of the evidence that the corporation had never authorized its president and secretary to execute the same and it has been decisively held by this court that under such circumstances the document is of no force or effect: Luse v. Isthmus Transit R. Co., 6 Or. 125 (25 Am. Rep. 506); Wilson v. Investment Co., 80 Or. 233 (156 Pac. 249). [105] 2, 3. Plaintiff urges, however, that proof of the assignment is not necessary for the reason that the several answers expressly admit an oral agreement to the same effect, and to establish this contention it points to the paragraph quoted verbatim in the statement, supra. We°have read the so-called admission with great care and all that we can find therein is the averment that the defendant Yogt agreed to receive moneys collected by the corporation’s collector and apply it to the payment of various creditors. There is nothing contained therein which admits an assignment for the benefit of all or of any particular creditor and nothing upon which the plaintiff could base a claim against the alleged trustee. To give the appellant any standing in court in a suit of this character, it must establish a valid assignment in which it has a beneficial interest. Failing to do this, the nonsuit should have been granted. The decree is reversed and one will be entered in accordance with the views expressed. Reversed. Decree Rendered. Rehearing Denied.