Hillyer v. The Overman Silver Mining Co.

keeping of the officer of the company whose business it was to keep such papers. Defendant ratified the contract by its silence, after being informed as to its terms. It had notice at the end of every month up to the fifth of July, 1869, that two hundred and fifty dollars per month was being paid plaintiffs upon a contract, the terms of which were known to it. The superintendent, in the usual course of his business, sent these vouchers to the office at San Francisco, and they were allowed by defendant. The plaintiffs were not informed of any desire to recede from this contract until July 10th, 1869, after the election of the new board. Between January and July, both the president and secretary personally consulted with plaintiffs in regard to the pending cases which they had been attending to. It follows that the contract was ratified by defendant. (12 Metcalf, 343; 16 Wisconsin, 120; 5 Cushing, 179; 1 Black. 539; 6 McLean C. C. R. 109; 15 Barb. 324.)

II. A corporation acting through an agent is held to the same liability as an individual. If it allows its agent to transact certain business, and by its silence leads those dealing with it to believe he acts under authority, it is bound by the acts of such agent just as any other principal would be by the acts of his agent. The acts of defendant are inconsistent with any other supposition than that it fully knew of the contract. In such a case, the presumption of a ratification is conclusive. (Story on Agency, Sec. 253; Bank of the U. S. v. Dandridge, 12 Wheaton, 70.)

III. The question of ratification being a question of fact, if there is a conflict in the testimony, this Court will sustain the finding of the Court below.

IV. In The Yellow Jacket Co. v. Stevenson, 5 Nev. 320, the one thing essential to support a contract was lacking. The board had no knowledge whatever that Stevenson was holding under a lease. The money paid by him to the Yellow Jacket Company was returned as for ore sold. If it had been shown that during the time Stevenson held a portion of the mine, accounts had been brought before the board at the end of every month, showing so much money paid by him as rent, and that such accounts had been examined and passed upon by the board, the

Hillyer v. The Overman Silver Mining Co.

Court would have been warranted in holding that the relation of landlord and tenant existed between him and the company.

V. The contract was an executed contract. Nothing remained to be done by defendant to render it binding upon plaintiffs.

By the Court, LEWIS, C. J.:

A judgment was recovered by the plaintiffs in this case against the Overman Silver Mining Company for the sum of five hundred dollars, upon a contract claimed to have been entered into between themselves and the defendant, by the terms of which the Company agreed to pay them a salary of two hundred and fifty dollars a month, during the year 1869, for transacting and attending to its legal business. This salary was regularly paid up to the month of July, at which time the defendant refused to make any further payment, claiming that it had entered into no such contract with plaintiffs as claimed by them. The only question now in the case is, whether any agreement to continue for the term of a year was in fact executed by the defendant. The Court below found there was, and thereupon rendered the judgment from which this appeal is taken, but we find the evidence does not warrant such a result. It appears that at the request of the defendant's superintendent the plaintiffs, in the month of December, A.D. 1868, submitted a written proposition to the defendant, whereby they agreed to transact and attend to all the legal business in which the defendant might be interested in the State of Nevada during the year 1869, for the sum of two hundred and fifty dollars per month. It is not claimed by the superintendent, nor does it appear to have been the understanding of plaintiffs, that that officer had the authority to execute a contract of that kind on behalf of the defendant. Neither was there any attempt on his part to do so. The evidence shows that he asked plaintiffs to make a proposition so that he might submit it to the company, and not with a view to acting upon it himself. The proposition was given to the superintendent, who sent it to the president or secretary at San Francisco.

As the superintendent did not pretend to execute the contract, or employ plaintiffs, it is necessary only to determine whether the

Hillyer v. The Overman Silver Mining Co.

board of trustees, who alone were the authorized agents of the company to represent it in the making of such contract, executed it. It is not claimed that any contract was made, except by the acceptance of the proposition submitted by plaintiffs. Was it accepted by the board of trustees? We think it is not proven that it was, but the converse rather is established by the defendant. The secretary of the company, whose duty it was to be present at the meeting of the board, and to keep minutes of its proceedings, testifies that the proposition of plaintiffs was never brought before the board, or acted on by it. Several of the officers undoubtedly knew of the proposition, and may have led plaintiffs to believe, by conversations and otherwise, that their proposition had been accepted; but these officers, who could not bind the company in a contract of this kind by directly executing it on its behalf, certainly could not impose any such liability upon it by simply persuading a person that the corporation itself had done so, when in fact it had not. As the case is presented here, neither the president, superintendent, nor both, had the power to execute the contract sued on. That authority is by law vested in the board of trustees, and it is not claimed that it had been delegated to those officers, or that they had been authorized by the board to act for them.

It is shown by plaintiffs that bills were presented to the board for the salary claimed by them, and that they were allowed, and, indeed, paid. This evidence would doubtless raise the presumption that the plaintiffs' proposition had been accepted by it, and was sufficient to justify that conclusion, were it not overborne by direct evidence that such was not the case. Here it is affirmatively shown that the proposition was not submitted to or acted on by the board, and thus the presumption which might otherwise arise from its action allowing the bills is entirely destroyed. Why the claims were allowed and the money ordered paid to plaintiffs, is a question not necessary to be inquired into. It is sufficient here that they did not accept the proposition.

There can be no valid executory contract unless there be a meeting of the minds of the respective parties upon its terms and conditions. "There is no contract," says Parsons, "unless the parties thereto assent, and they must assent to the same thing in the same

Cahill v. Hirschman.

sense.' (1 Parsons on Contracts, 399.) Can it be said that the board of trustees of the Overman Company assented to the terms proposed by the plaintiffs in their proposition, when it is sworn the proposition was never brought before it, or in any way acted upon by it, and indeed the board did not know of its existence, as appears to be the case? The trustees can only bind the corporation under our law when they are together as a board, acting as such. (See The Yellow Jacket Company v. Stevenson, 5 Nev. 224.) The plaintiffs' proposition not having been brought to the knowledge of the board, it cannot be presumed it knew anything of it, and consequently cannot be held to have accepted it. The burden of establishing the contract was upon the plaintiffs; having failed to do this, the judgment must be reversed.

EDWARD CAHILL et al., RESPONDENTS, v. A. HIRSCHMAN, APPELLANT.

PLEADING AFFIRMATIVE MATTER IN ANSWER CONSIDERED DENIED. Under the practice in this State, all affirmative matter in an answer is taken as denied. STOCK-BROKERAGE-WAIVER OF DELIVERY OR TENDER. Where a broker buys stock for his principal, and the principal before receiving it orders the broker to sell it again on the principal's account, this amounts to a waiver of any delivery or tender of the stock by the broker to the principal.

BOOKS OF ACCOUunt-Ledger as EVIDENCE. A stock-broker's ledger is not a book of original entry, and is not competent to prove an original purchase or transaction; but it is competent testimony in rebuttal in explanation of a bill sent by the broker to the principal, and to supplement the broker's own testimony that such bill was not general, as claimed, but only a partial bill. EVIDENCE OF SALES OF STOCK FOR ASSESSMENTS. An indorsement by the secretary of a company on a certificate of stock, to the effect that the same had been sold for assessments, as well as evidence that the secretary had made statements to the same effect, is mere hearsay, and not competent to prove the fact of any sale for assessments.

NO REVERSAL FOR ERROR WHICH DOES NOT PREJUDICE. A judgment will not be reversed on account of error in admitting immaterial or incompetent testimony, when it appears that the appellant could not have been prejudiced thereby..

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

Cahill. Hirschman.

Edward Cahill and Dennis Driscoll, the plaintiffs, were stock brokers in San Francisco, California; where most of the business referred to in the opinion was transacted in the year 1868.

Williams & Bixler, for Appellant.

I. Plaintiffs claim that the fact that defendant, before the commencement of the action, ordered or directed them to sell the stock changed the status of the parties, and constituted plaintiffs from that time the mere agents of defendant, to hold the stock subject to his orders.

In what respect did such change occur? Certainly the title to the property still rested in plaintiffs, and defendant had no more right to its custody than previous to that time. They still had the right to hold it, or to foreclose as against it by sale or process of law, while his only right was to have it when he paid for it. In the first instance the legal title to the stock was in plaintiff, while defendant merely had an equitable interest in it. If their relations changed, then the legal title passed to him while they merely held an equitable lien on the property. But no such change could have been effected, because plaintiff could have as effectually passed the legal title to a third party after the order to sell as before.

II. Tender was necessary before suit. (Merwin v. Hamilton, 6 Duer, 244, and cases cited on page 250; Dunham v. Mann, 4 Seld. 512; Lester v. Jewett, 1 Kern. 456; Callowell v. Briggs, 1 Salk. * 113; Thorpe v. Thorpe, 1 Salk. * 172; Bank of Columbia v. Hagner, 1 Peters, 464; Danar v. King, 2 Pick. 157; Kane v. Hood, 13 Pick. 282; Currie v. White, 37 How. P. R. 350 ; Suffolk Bank v. Worcester Bank, 5 Pick. 105; Sherwood v. Sissa, 5 Nev. 349.)

III. The Court erred in admitting proof of contents of plaintiffs' ledger; because the same was not a book of original entries. (4 Strob. 193; 1 Phil. on Ev., Cowen & Hill's Notes, 4th Am. Ed. 385; Landers v. Turner, 14 Cal. 573.)

IV. The Court erred in admitting hearsay testimony concerning the American stock. There being no proof of any sale of that stock for assessments, defendant was not responsible for the