Opinion
December 30, 1905.
Albert A. Wray, for the appellant.
J. Ralph Burnett, for the respondent.
The plaintiff sought to recover from the defendants, as trustees of a membership corporation, for goods manufactured and delivered to the corporation, judgment having been entered against the corporation and execution returned unsatisfied. Section 11 of the Membership Corporations Law (Laws of 1895, chap. 559, as amd. by Laws of 1899, chap. 292) provides that the directors of every membership corporation, with certain exceptions, "shall be jointly and severally liable for any debt of the corporation contracted while they are directors, payable within one year or less, from the date it was contracted, if an action for the collection thereof be brought against the corporation within one year after the debt becomes due, and an execution issued thereon to the county where its office is, or where a certificate of its incorporation is filed, be returned wholly or partly unsatisfied; and if the action against the directors to recover the amount unsatisfied be commenced within one year after the return of such execution." The corporation known as "The American Pet Dog Club" was organized on the 22d day of June, 1888, under chapter 267 of the Laws of 1875, as amended. The complaint alleges and the answer does not deny that the respondent was the president and one of the directors of the said corporation at the time the debt was contracted, November 25, 1899. The plaintiff proved the recovery of judgment against the corporation and the return of the execution unsatisfied, leaving the only question at issue whether the goods were sold and delivered to the corporation. The plaintiff then called a witness who testified that he was the veterinary for the show of the club for the year 1899; that the club held its show at the Metropolitan Opera House in December, 1899; that the witness attended the meetings of the directors during the years 1898 and 1899 at which the respondent presided. He was then asked: "At those meetings who, if anybody, was designated by the Board of Directors as Superintendent of this Club?" That was objected to on the ground that the records of the club were the best evidence, and the objection was sustained upon the ground that it involved the conclusion of the witness. The witness then testified that he knew a Mr. Schuyler C. Hodge who was in attendance at this show in 1899; that he attended to getting entries for the club and the general looking after things; that the show lasted four days and the witness was there every day, and Hodge was there every day, and the defendant Mrs. Stanton was present. The catalogue of the third annual show of the American Pet Dog Club, held at the Metropolitan Opera House, New York city, on November 29, 30 and December 1, 1899, was then produced, and the witness testified that he saw the paper at the opera house on the occasion of the show in 1899. This catalogue was then offered in evidence, objected to and the objection sustained, to which the plaintiff excepted. He was then asked: "Was any one put in nomination there as superintendent of the club at any of the meetings that you attended?" That was objected to on the ground that it was not the proper way to prove what was done at a meeting of a corporation. This objection was sustained and the plaintiff excepted. He then testified that Hodge's name was mentioned at the meeting of the directors and was asked how it was mentioned, and what was then said about Hodge, which was excluded. The witness also testified that the corporation had an office in Park Row. The salesman for the plaintiff testified that he knew Hodge in the years 1898 and 1899 and that his office was at No. 21 Park Row during that year; that he called at Mr. Hodge's at the Park Row building and saw on the door at that building, in the office he occupied, the name of the American Pet Dog Club, and directly underneath "S.C. Hodge, Superintendent," and that he delivered the goods at that address; that the goods were 125 bronze medals, 25 sterling silver medals and 870 ribbons for first, second and third prize dogs. The plaintiff then offered to prove the market value of these medals, which was objected to and the objection sustained.
I think this evidence was all competent and that it was error to exclude it. The objection to the evidence appears to be that the action of the board of directors of the corporation must be proved by the minutes of the meeting of the directors, and not by oral testimony of what happened at that meeting; but in this case there is no evidence that this corporation had any minutes or that there was any entry or writing which contained a record of the meeting or of the contract or employment of Hodge as an employee of the corporation. An act of the directors of the corporation employing a person to act on its behalf would be a perfectly valid employment whether or not a record of the meeting was kept. Hodge assumed to act for the corporation in ordering these goods for it. The goods were delivered at the office of the corporation by the plaintiff, and if Hodge had authority to order the goods and to receive them the corporation was liable.
I cannot find direct evidence that these medals were used by the corporation at its show. The corporation could ratify the act of Hodge in ordering the medals on its account, and a receipt of the medals and the use by the corporation would be such a ratification.
It was, however, error to exclude the evidence mentioned, and the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
O'BRIEN, P.J., McLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.