Opinion
1 Div. 260.
October 18, 1923.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
Smiths, Young, Leigh Johnston, of Mobile, for appellant.
Defendant's president and general manager had no authority to make the contract in question by virtue of their offices. W. A. Handley Mfg. Co. v. International, Rec. Co., 6 Ala. App. 219, 60 So. 557; Clark v. Minge, 187 Ala. 97, 65 So. 832; Sampson v. Fox, 109 Ala. 662, 19 So. 896, 55 Am. St. Rep. 950. Readiness and ability to perform must be alleged and proven, even though it is alleged that defendant refused to comply on its part. Moss v. King, 186 Ala. 475, 65 So. 180; Long v. Addix, 184 Ala. 236, 63 So. 982; Barney Coal Co. v. Davis, 1 Ala. App. 595, 55 So. 1023; Lawrenceburg R. M. Co. v. Jones Co., 204 Ala. 59, 85 So. 719; Terrel v. Nelson, 177 Ala. 596, 58 So. 989. Plaintiffs failed to comply with the contract by shipping a car a day, and there was no evidence that they could comply with the stipulation for inspection. Hence they had no cause of action. Clauss Shear Co. v. Ala. Barber Sup. Co., 1 Ala. App. 664, 56 So. 49; Norrington v. Wright, 115 U.S. 188, 6 Sup. Ct. 12, 29 L.Ed. 366; J. C. Lysle Co. v. Nor. Ala. Gro. Co., 201 Ala. 222, 77 So. 748; Robinson v. Bullock, 66 Ala. 548; Frankfurt-Barnett Co. v. Prym, 237 Fed. 21, 150 C.C.A. 223, L.R.A. 1918A, 602; Cleveland R. M. v. Rhodes, 121 U.S. 255, 7 Sup. Ct. 882, 30 L.Ed. 920; Home Guano Co. v. International, Agri. Corp., 204 Ala. 274, 85 So. 713. A question calling for the declaration of a corporate officer as to a past transaction is objectionable. Meador v. Standard Oil Co., 196 Ala. 365, 72 So. 34; B. A. Ry. v. Campbell, 203 Ala. 296, 82 So. 546.
Stevens, McCorvey, McLeod Goode, of Mobile, for appellees.
Where a defendant's obligation is subject to a condition precedent, the complaint is sufficient if it alleges that plaintiff was ready, able, and willing to perform, but was excused from performance by unwillingness of the defendant to perform in his turn. Long v. Addix, 184 Ala. 236, 63 So. 982; 2 Williston on Contracts, 1586; 13 C. J. 662; Cort v. Ambergate, 17 Q. B. 126, 15 Jur. 877, 20 L. J. Q. B. 460, 79 E. C. L. 126. The averment of the plaintiffs' readiness and willingness to perform their part of the contract is proved by showing that they called on the defendant to accomplish its part. Notes to Cutter Powell, 2 Smith, Lead. Cas. (9th Ed.) p. 18; Id. (11th Ed.) p. 15; 2 Williston on Contracts, 1586, 13 C. J. 662. If a vendor is to manufacture goods, and there is a repudiation of the contract while the goods are being manufactured, the vendor is not bound to complete the manufacture, and may measure his damages by the difference between the contract price and the cost of production, or of performance. Crandall-Pettee Co. v. Jebeles Colias Conf. Co., 195 Ala. 152, 69 So. 964; 2 Williston, 1588; Root v. Johnson, 99 Ala. 90, 10 So. 293; Allegheny Valley Co. v. Raymond Co., 219 Fed. 477, 135 C.C.A. 189. If a corporation clothe a particular officer or agent with an apparent authority to act for it in a particular business or transaction, and persons deal with him in good faith, it will be bound to the same extent precisely as if such apparent authority were real. Ala. Fuel Iron Co. v. Rice, 187 Ala. 458, 65 So. 402; St. Louis S. F. R. R. Co. v. Hall, 186 Ala. 353, 65 So. 33; First National Bank of Birmingham v. First National Bank of Newport, 116 Ala. 520, 22 So. 976; Case v. Citizens' Bank of La., 10 Otto (100 U.S.) 446, 25 L.Ed. 695; 3 Fletcher, Cyc. Corporations, 3100; C. J. 14a, 94.
According to plaintiff's testimony, the contract sued on was made by plaintiff's agent, Dill, with J. H. Sheip, the president, and E. F. Johnstone, the general manager, of the defendant corporation, which was engaged in the manufacture of cigar box lumber, for which purpose it bought and resawed one-inch boards.
Defendants' chief contentions are that the evidence failed to show (1) that either Sheip, the president, or Johnstone, the general manager, had authority from defendant to make the contract in question for it; (2) that plaintiff was ready, able, and willing to make delivery of the lumber in accordance with the terms of the alleged contract, whether as to quantity and sizes, or with the certificate of a national association inspector. For these reasons it is insisted that defendant was entitled to the general affirmative charge, as requested, on counts 3, 4, and 5. A further contention is that, as to count 4, defendant was entitled to the general charge for the reason that it alleges that plaintiffs complied with all the provisions of the contract on their part, whereas the evidence shows that they merely offered to perform.
The mere fact that one is president of a corporation does not raise any implication of law, nor permit any inference of fact, that he is clothed with authority to make contracts in the name of his company. Sampson v. Fox, 109 Ala. 662, 671, 19 So. 896, 55 Am. St. Rep. 950; Clark v. Minge, 187 Ala. 97, 65 So. 832; 14a Corpus Juris, 93, § 1858; Id. 356, § 2217. But "the general manager of a corporation has general charge, direction, and control of the affairs of the company for the carrying on of which it was incorporated" (14a Corpus Juris, 94, § 1859); and, "unless his authority is especially restricted, the authority and power of a general or managing officer or agent are coextensive with the powers of the corporation itself, and he has authority to do any act on its behalf which is usual and necessary in the ordinary course of the company's business (Baird Lbr. Co. v. Devlin, 124 Ala. 245, 27 So. 425; Rhodes Fur. Co. v. Weeden, 108 Ala. 252, 19 So. 318), or which he is held out to the public as having authority to do, and may exercise all the powers which the board of directors could exercise or authorize under the same circumstances in the general management of the corporation business. * * * The fact that he occupies the position of general or managing agent implies, without further proof, his authority to do anything that the corporation itself may do, so long as the act done pertains to the ordinary business of the corporation." Id. 360, § 2221.
If the contract sued on was in fact made by the president and the general manager of the defendant corporation, as Dill testified it was, the corporation was bound, and this objection cannot prevail.
Dill's testimony, if believed, showed that there was sufficient timber of the kind contracted for on the yards of the Magazine Hardwood Sawmill Company to fill the contract with defendant, and that plaintiffs had contracted with that company to take its entire output of lumber. Other testimony showed that the hardwood company was ready and waiting to ship the rest of defendant's order whenever defendant was willing to receive it. This met all requirements, so far as plaintiffs' readiness and ability were concerned.
With respect to the contractual requirement that each car of lumber loaded and shipped to defendant should have a national inspector's certificate, it is sufficient to say that plaintiffs were under no obligation to actually load the lumber on cars in the face of defendant's refusal to accept any more lumber, and hence there was no occasion for inspection and certification. At any rate, inspection and certification was a part of actual performance, and not of readiness and ability to perform, and it was waived by defendant's refusal to accept performance.
The contract did not specify when shipments should begin, nor the sequence of daily carload shipment. But, if it had, under plaintiffs' version of the evidence, those specifications would have been clearly waived by defendant's requests for delay, and time ceased to be of the essence of the contract, if it ever was.
Count 4 of the complaint, taken as a whole, cannot be construed as alleging that plaintiffs had actually performed the contract by delivery of the lumber sold. It alleges that defendant refused to accept 134,742 feet of the lumber, in which case the only obligation on their part was to be able, ready, and willing to make the delivery. Moreover, it is to be observed, the matter of actual delivery was not an issue in the case, as the jury were bound to understand, and, the true issues being fully and aptly covered by other counts, and by appropriate instructions to the jury, the refusal to charge out count 4 could not have been prejudicial to defendant.
The general rule is, of course familiar, that the declarations of an officer or agent of a corporation are not competent evidence against the principal unless made within the scope of his authority and while in the discharge of his duties in and about the particular transaction of which they constitute a part of the res gestæ. Meador Son v. Standard Oil Co., 196 Ala. 365, 72 So. 34, and cases cited. But, where the officer or agent is clothed with full and general authority to do everything that the corporation is authorized to do, as is a general manager or general superintendent, so that he is in fact the alter ego of the corporation, a different rule prevails, and "any declarations or admissions made by him relating to the subject-matter of the controversy, would be binding on the defendant, although subsequent to the negotiations." Home Ice Factory v. Howells Mining Co., 157 Ala. 603, 606, 48 So. 117, 118. This principle is applicable to the conversations between the witness Overcast and defendant's general manager, Johnstone, as testified to by Overcast.
As to the conversations between the witness Thayer and defendant's president, J. H. Sheip, they were very clearly competent as being in rebuttal of Sheip's testimony, or else as contradictions of Sheip's version of those conversations. In such cases a predicate need not be laid; but, taking Sheip's testimony on cross-examination as a whole, we think a sufficient predicate was laid for his contradiction.
Charge 10, refused to defendant, was fully covered by given charge 11, and error cannot be imputed to its refusal even if it were a correct charge under the evidence.
We have examined the record with due care, and find no error of which defendant can justly complain, and, as the evidence supports the verdict, the judgment must be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.