con

The plaintiff sued the Company on an agreement above the
prescribed value, made by parol with the chairman, who
with his own hand had entered a memorandum of it in the
minute book of the Company. It was recognised in corres-
pondence with the secretary, and the plaintiff did work and
received payments under it, which were audited and allowed
in the accounts of the Company, but there never was any
contract signed by three directors or under the seal of the
Company. The Court of Queen's Bench held that the
tract was ratified, if not authorized, by the Company, and
binding. Here a parol contract with the directors may be
presumed: Pauling v. The London and North Western Rail-
way Company (a). In that case the agent of an incorporated
Company agreed by parol with the plaintiff to purchase of
him certain sleepers. The sleepers were received and used
by the Company; and it was held that there was evidence
from which a jury might find a contract by the Company; the
97th section of the 8 & 9 Vict. c. 16, having provided that the
directors may contract by parol on behalf of the Company
where private persons may make a valid parol agreement.
Smith v. The Hull Glass Company (b) is to the same effect.
These cases plainly shew that there may be an adoption of an
act not formally done. (They then argued that on the facts
there was evidence of a ratification). [Channell, B.-If the
Company could make the act of the promoters their act, by
any ratification, it is clear that they have done so. Bramwell,
B.-Suppose the directors had called the plaintiff into their
room, and said "We have appointed you managing agent."
Would it not be strange to say "That is not enough; you
must add 'we do appoint you.""?] Lastly, the execution of
the contract was the completion of it within the meaning
of the resolution of the 9th of February.

(a) 8 Exch. 867.

(b) 11 C. B. 897.

1860.

BROWNING

บ.

GREAT

CENTRAL MINING CO.

1860.

BROWNING

v.

GREAT CENTRAL MINING CO.

Carter and C. F. Turner in support of the rule.—The 19 & 20 Vict. c. 47, s. 41, provides for actual contracts, either by parol or in writing, but not for implied contracts. The resolution by the promoters on the 12th of February was not made by them as agents for the Company; for at that time the Company was not in existence. The directors never entered into any contract with the plaintiff, and there never was any contract with him, except that of the 12th of February, in respect of which the parties to it, viz. the promoters, would be alone liable. There was not, nor could there be any ratification by the Company of an act not done on their behalf. The relation of principal and agent never existed between the Company and the persons who entered into the contract of the 12th of February. Wilson v. Tumman (a) shews that when a man does an act, not as agent for another, and without communication with him, the latter cannot by afterwards adopting that act make the former his agent, and thereby incur any liability, or take any benefit, under the act of the former. [Pollock, C. B.-No doubt, a person cannot ratify an act not done in his name.] The directors had no power to ratify a contract made by the promoters, so as to make the Company liable upon it, and the case, therefore, rather falls within the principle on which Dickinson v. Valpy (b), Ridley v. The Plymouth, &c., Grinding and Baking Company (c), and Ernest v. Nicholls (d) were decided, than that of the cases cited on the other side. Preston v. The Proprietors of the Liverpool, Manchester and Newcastle-upon-Tyne Junction Railway (e) shews that a contract with the promoters of a Company does not bind the directors. There can be no waiver by the directors of the stipulations of a Com

(a) 6 Man. & G. 236.
(b) 10 B. & C. 128.
(c) 2 Exch. 711.

(d) 6 H. L. 401.
(e) 5 H. L. 603.

pany's deed of settlement, unless it appears that the body of shareholders have made the directors their agents for that purpose: In re The Vale of Neath and South Wales Brewery Company (a). A Company is not bound by admissions made by directors not at a board meeting: Glover v. The London and North Western Railway Company (b).—Secondly, the contract with Ross never was completed. That entered into between him and the promoters, on the 9th of March, was not a contract with the Company. The 54th of the articles of association authorized the directors to carry out the contract with such variations as they might think necessary that shews that it was never complete. The completion of the contract means, not the entering into but the perfecting of it; therefore, the period at which the plaintiff's salary was to commence never arrived.

POLLOCK, C. B.-We are all of opinion that the rule must be discharged. The ground of the application is that there was no evidence for the jury of any appointment of the plaintiff as manager, so as to entitle him to recover the amount claimed. We think that there was evidence. The question is, whether he actually filled the office. He was announced in the prospectus of the Company as manager, and we think that is some evidence of his appointment. But then it is said that he never acted under the appointWe think that there was abundant evidence of his having so acted. The jury have decided that he did not act for Ross but for the Company. There was certainly evidence for the jury that he filled the office, and acted under it for a certain time, and the learned Judge not being dissatisfied with the verdict, the rule will be discharged.

ment.

1860.

BROWNING

17.

GREAT

CENTRAL MINING CO.

(a) 3 De Gex, M'N. & G. 272.

(b) 5 Exch. 66.

1860.

BROWNING

v.

GREAT CENTRAL MINING CO.

BRAMWELL, B.-I also think that the rule ought to be discharged. It is not necessary to express any opinion as to the propriety of the finding of the jury, and the only question is, whether there is any evidence to support it. I think there was. I do not rely on the resolution; that of itself would certainly not bind the Company; but it was accompanied with other matters. The minutes were read, and after the Company was incorporated they were approved. I do not say that alone would suffice; but, after the minutes were approved, the Company took the plaintiff as their manager. The first objection is, that the Company could not ratify an act not done in their name. But I do treat what was done by them as a ratification, and therefore that point does not arise. The next objection was that the Company should have elected its officers, and there was no election by them. I agree with what was said by Lord Wensleydale in Ernest v. Nicholls (a), that we must look to the authority given to the directors by the deed of settlement, and cannot go beyond it; but I do not know that there is any particular mode in which a person is to be elected. There was a nomination and appointment of the plaintiff as manager, and that is evidence that the Company elected him. If they did not, we ought to say that there was no evidence for the jury, because there was no formal mode of election. The objection comes to this, that the Company, having elected the plaintiff, did not enter the resolution in their books. But they took a formal resolution of the shareholders, and the conduct of the defendants in afterwards issuing a prospectus and treating the plaintiff as manager of the mine, precluded them from saying that he was not elected. The next objection was, that assuming the plaintiff to be elected or

(u) 6 H. L. 401.

nominated, it was on the terms of the original resolution, and that under such resolution the plaintiff is not entitled

to sue, as there was no conveyance of the mine. But I think that the plaintiff was not elected on those terms. He knew of the original resolution, and there was evidence of his appointment and that he acted as manager. In the result I view the case thus:-No formal mode of appointment or election being necessary, and a sufficient number of directors having done an act which, being communicated to the plaintiff, led him to understand that he was manager of the mine-that was an election or appointment; and the fact, that he acted under it and not under Ross, was a matter for the jury to determine. For these reasons I think that the rule ought to be discharged.

CHANNELL, B.-I am also of opinion that the rule ought to be discharged. The first question is, whether there was any evidence of a contract between the plaintiff and the Company, so as to bind the Company to remunerate the plaintiff as the manager of the mine. I am of opinion that there was. On the 12th of February, 1859, there was a meeting of the promoters of the Company, at which it was resolved that the plaintiff should be appointed manager of the mine. On the 28th March the Company was registered. Up to that time there was no Company in existence. On the 31st March, the minutes of the preceding week were read, and the prospectus which had issued before the Company was in existence was submitted and approved. The proper number of persons being present, and the appointment of the plaintiff being by the proper parties, was valid, if made with sufficient formality in other respects. Now, the appointment is not required to be under seal or in writing, and there was a prospectus describing the plaintiff as manager of the mine, and he was afterwards

1860.

BROWNING

v.

GREAT

CENTRAL MINING CO.