Pratt v. Oshkosh Match Co.

Cassoday, J. The eyidence tends to prove the facts of which a summary is given in the foregoing statement. The question here presented is whether those facts were sufficient to take the case to the jury. [409] The theory upon which the nonsuit was granted, it would seem, is to the effect that the contract, as originally made and sued upon, was between the plaintiff and Jones and Wyman, and that Jones, as agent of the old firm and superintendent of the defendant, could not, by his own volition and his own act, transfer or assign that contract to the defendant so as to make it binding upon and enforceable against the defendant. In other words, that he could not act as agent for the sellers and the purchaser at the same time and in the same transaction. We cannot say, as a matter of law, that the case is open to such objection. It is true the order for the lumber was originally given by Jones and Wyman. They were promoters of the defendant corporation, and the change in the dimensions of the lumber agreed upon by Jones and the plaintiff, August 4,1883, was for the benefit of the proposed corporation. The business of the proposed corporation, it would seem, was to be, and in fact became, substantially of the same general character as had previously been conducted by Jones and Wyman. It is true a corporation is not responsible for acts performed or contracts entered into, before it came into existence, by promoters or other persons assuming to bind the company in advance. 1 Morawetz, Priv. Corp. § 541; Mechera,. Agency, § 15. “A corporation may, however, make itself responsible for such acts and contracts by subsequently adopting them. The liability of the corporation, under these circumstances, does not rest upon a supposed agency of the promoters and a ratification of their acts, but upon the immediate and voluntary act of the company.” 1 Mora-wetz, Priv. Corp. § 548. Such an agreement with the promoters usually constitutes an open offer, which may be accepted by the corporation after it is formed. Ibid. If the contract is within the corporate powers of the corporation, the corporation may, when organized, expressly or impliedly assume the responsibility of the same, and thus make it a valid obligation of the corporation. Mechem, Agency, [410] §75. “The right of the agents of a corporation to adopt an agreement originally made by its promoters depends upon the purposes of the company and the nature of the agreement.- If the agreement appears to be a reasonable means of carrying out any of the company’s authorized purposes, the usual agents of the company have implied authority to adopt it; but they have no authority to adopt it under any other circumstances.” 1 Morawetz, Priv. Corp. § 519. As indicated, the contract originally existing between the plaintiff and Jones and Wyman was, at the time the defendant was organized and so far as it was concerned, a mere open offer on the part of the plaintiff. The mere fact that Jones had been a party to the original contract did not prevent him, as superintendent and in behalf of the defendant, from accepting such offer and assuming such responsibility. The complaint alleges, in effect, that the plaintiff manufactured the lumber according to the agreement as modified in pursuance of the order of the defendant, and the evidence tends to support the allegation. We are constrained to hold that the evidence in the record is such that the case should have been submitted to the jury. By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.