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Wells, Fargo & Co. v. Van Sickle.

nized acknowledged fact, universally acted upon in business circles, becomes an important element in the construction of any contract made with reference to its existence. A contract not illegal is to be construed and enforced so as, if possible, to attain the intention of the parties thereto, and for such attainment it is always proper to look at the general circumstances surrounding its making. Viewed in this light, what is the natural reading of the contract in question?

It would seem that neither lawyer nor layman could differ on that proposition. The contract made as portion of a mercantile transaction, attempts to secure the payment of a particular kind of legal currency, gold coin; acknowledged to have more intrinsic value in such transactions, dollar for dollar, than legal tender paper notes; and it attempts to provide for a compensation in event of default of such payment, by securing the payment of an equivalent. What sort of an equivalent? And here is the key, if key be needed, to the whole matter. Certainly, not the equivalent suggested by the Supreme Court of California, which is merely nominal, but an actual, practical, mercantile equivalent; that which would buy as much as the gold; that which would sell for as much in open market; that which in the ordinary use of language is worth as much. Such is the interpretation which must be given this contract, or else it must be admitted that many superfluous words have been used, or that the intention being apparent, the words used are so inapt that the intention must be disregarded.

To adopt the first suggestion would be to unwarrantably interfere with the language used. To follow the second, would be to torture from their plain, ordinary meaning, words which no business man would misunderstand.

It remains to be seen if this contract can be enforced. It was said in the case cited, that one similar could not, because there was no conventional standard of comparison of rules between the two currencies adopted in the agreement; but the same Court held in Lane v. Gluckauf, that in case such standard was agreed upon, there would be no difficulty about the form of judgment, saying: "It is, then, an alternative contract, and provides for payment in either of the two kinds of money, at the election of the defendant,

Wells, Fargo & Co. v. Van Sickle.

both of which are therein specified. The precise amount to be paid, if paid in one kind, is fixed; if paid in the other kind, the mode by which the amount is to be ascertained is clearly defined, and by that mode can be readily determined with certainty. Such being the case, the judgment by the terms of the Act in question · ought ordinarily to follow the contract, and fix the amount to be paid, if paid in gold coin, and the amount to be paid, if paid in legal tender notes. The defendant could then have it paid off in either kind of money. If he did not pay voluntarily the execution would have followed the judgment, and alternatively directed the sheriff to collect in either kind of money. At the sale, the defendant could have directed the sheriff to sell for gold or legal notes at his option. If he did not so direct, the plaintiff or the sheriff could have elected." (Lane v. Gluckauf, 28 Cal. 288.) proceeds upon the basis of a fixed standard agreed upon, and the Specific Contract Act, neither is necessary to the conclusion.

Although this case

If the parties do not agree upon a standard by which the relative values of the two currencies can be measured, the law fixes it for them; and in the present instance there being no specified place of payment, the place of trial would be the market where the values should be estimated at its time.

There is no need of a Specific Contract Act, (so-called) to empower a Court to enforce a contract like the one in suit. It follows as the natural result of the propositions first stated in this opinion. In conclusion, then, this contract is not illegal.

It is in the alternative. If default be made in the payment of gold coin, then as compensation there for the market value of such gold coin, at the time and place of trial, is to be assessed upon proper proof made, in legal tender paper dollars; and judgment should be entered accordingly, as suggested in the case last cited.

The judgment of the District Court being simply and solely for gold coin is erroneous. It is reversed, and the case is remanded with directions to proceed as indicated herein.

JOHNSON, J., did not participate in the foregoing decision.

Hillyer v. The Overman Silver Mining Co.

CURTIS J. HILLYER et al., RESPONDENTS, v. THE OVERMAN SILVER MINING COMPANY, APPELLANT.

CONTRACTS OF CORPORATIONS-UNAUTHORIZED STATEMENTS OF OFFICERS. Officers of a corporation, who cannot bind the company in a contract by directly executing it on its behalf, cannot impose any such liability upon it by stating or persuading a person that the company itself had done so, when in fact it had not.

EVIDENCE OF CONTRACT-DIRECT PROOF AS OPPOSED TO PRESUMPTION. Where an attorney proposed to do the legal business of a Mining Company for a certain period at a certain rate per month, the mere fact that his bills at that rate for several months had been allowed and paid, though sufficient to raise a presumption of the acceptance of his proposition, would not overbear direct evidence that the proposition was not submitted to or acted upon by the company, and consequently never accepted. CONTRACTS-MEETING OF MINDS. There can be no valid executory contract un

less there be a meeting of the minds of the respective parties upon its terms and conditions; they must assent to the same thing in the same sense. CORPORATION TRUSTEES CAN ONLY ACT AS A BOARD. The trustees of a corporation can only bind it when they are together as a Board, acting as such.

APPEAL from the District Court of the First Judicial District, Storey County.

This action was commenced October 12th, 1869, by C. J. Hillyer, W. S. Wood and W. E. F. Deal, composing the law firm of Hillyer, Wood & Deal, against the defendant, a corporation organized under the laws of California, but engaged in the business of mining in Storey County. It appears that the law firm of Hillyer & Whitman had been employed by the defendant as its attorneys for the year 1868, at the rate of $250 per month. On being notified near the end of that year that the contract was about to run out, the company declined to make any change. In November, 1868, Hillyer & Whitman dissolved, after which Mr. Hillyer continued to act as defendant's attorney. At the beginning of 1869, the new firm of Hillyer, Wood & Deal was formed, and soon afterwards the proposition referred to in the opinion was handed by it to the defendant's superintendent. In July, 1869, a new board of trustees assumed office, and among other things, changed the attorneys of the company.

Hillyer v. The Overman Silver Mining Co.

In addition to the points of counsel noted below, the interesting question as to whether a board of trustees can employ an attorney for a period to extend beyond the term of its own existence was discussed at some length; but as the Court did not pass upon it, the heads of argument upon that subject are omitted.

Williams & Bixler, for Appellant.

I. Plaintiffs do not pretend to the right of recovery for services rendered, as none were performed during the months of July and August, for which time they claim the salary mentioned in their complaint.

II. No such contract as is alleged was ever made. None was made with McCullough, the superintendent, nor was any made with the board of trustees. All McCullough pretended to do in relation to it was to transmit plaintiffs' proposal to contract to the office in San Francisco, and verbally communicate to them the answer which he had received. Afterwards, in execution of a supposed contract, he paid plaintiffs $250 per month. McCullough did not pretend or attempt to contract with plaintiffs; on the contrary, his whole action shows a disavowal of any such intention. He simply said: "If you will make a proposition, I will send it to the office in San Francisco for action there," and afterwards said: "I am informed that your proposition has been accepted."

No contract was made with the board of trustees, because they never knew of the proposition and consequently could not have acted upon it; and the only fact which can be claimed to have ever come to their knowledge was, that McCullough, their superintendent, paid at the end of each month, out of the company's funds, the sum of $250 to plaintiffs for professional services rendered during the preceding month. This, notwithstanding the fact that the receipt to McCullough stated that the money was for services as per contract, did not, we submit, constitute a contract to retain plaintiffs as counsel for one year, and to pay them $3,000.

III. The main features of this case are very similar to those of The Yellow Jacket Co. v. Stevenson, 5 Nev. 224. There the president, being also a trustee and superintendent, actually made

Hillyer v. The Overman Silver Mining Co.

the contract in writing and signed it for the company, so there was an unauthorized contract to ratify; but the Court held the company not liable. In that case the contract was in the company's vault, which fact was known to the president and secretary; in this, only a proposition to contract was in the company's safe, which was known to the president and secretary. In that case, four of the seven trustees knew that Stevenson was acting upon some sort of a contract; in this, only one knew that the proposition to contract had been made. In that case, the board knew that money was received for ores without knowing the particulars, and approved the action of the superintendent in receiving it; in this, the board knew money had been paid for legal services without knowing the particulars; and in that case, the other party had been led by the action of the president in contracting with him, to invest money and labor in the venture, while in this the other party have invested neither.

IV. The company could only contract through its board of trustees or an authorized agent, except in case an authorized agent assumed to act, and that act was afterwards ratified by the board of trustees by direct action, or by non-action, within reasonable time after full knowledge of the facts. A board, as such, can only act when assembled and organized as such. (Angell & Ames on Corporations, Secs. 297–8; Blen v. Bear River Co., 20 Cal. 602; Fulton Bank v. N. Y. & S. C. Co., 4 Paige, 132; Haight v. Thompson, 1 Seld. 322; 7 Conn. 219; 12 N. H. 205, and 20 Vt. 446.)

V. To recover at all, it devolved on plaintiffs to show a legal contract, which they failed to do. (15 Barb. 324; Finley v. Bristol, 9 Eng. Law & Eq. 483; Pixley v. W. P. R. R. Co., 33 Cal. 196.)

Hillyer, Wood & Deal, for Respondents.

I. The defendant must be held to have had official notice of plaintiffs' proposition, because it was sent to the president, through whom the superintendent communicated with the board. The proposition was received by the president, and remained in the

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