1851. JONES v. JOHNSON. true construction of the 133rd section of the 5 & 6 Will. 4, PARKE, B.-I am of the same opinion. I think that the words "all actions," in the commencement of the clause, are to be read in their natural and ordinary sense; but as one of the provisions following is not applicable to actions of replevin-for a month's notice of action could not be given in that action, in which the plaintiff seeks to recover his goods-that provision is to be considered as not having any application to that action; and therefore, in the action of replevin, the provision becomes ineffective, because it is altogether inapplicable. But, with the exception as to the notice, the other provisions are as equally applicable to the action of replevin as they are to all other forms of action. ALDERSON, B., and MARTIN, B., concurred. Rule absolute. 1851. HOMERSHAM V. THE WOLVERHAMPTON WATERWORKS COMPANY. Jan. 29. DEBT for goods sold and delivered, for work and labour, An incorpormoney paid, and on account stated. Plea, never indebt- ated Comed; and issue thereon. At the trial, before Pollock, C. B., at the Middlesex Sittings after last Michaelmas Term, it appeared that the defendants were incorporated by the 8 & 9 Vict. c. cxxxv.; and that a contract under seal had been duly made between the plaintiff and the Company for the supply by the plaintiff of certain pumps, engines, and machinery, according to the terms of a specification, which also contained certain provisions with respect to extra work. The work contracted for was executed, and also much additional work, but which could not be considered as falling within the provisions of the contract under seal which had reference to the extra work. This additional work was executed under the directions and with the approval of the standing engineer of the Company. Disputes having subsequently arisen between the plaintiff and the defendants, the plaintiff sent in a claim for the extra work, for a considerable sum beyond that stipulated for by the contract. A sum of 1000l. was thereupon paid to the plaintiff by the defendants on account; but it was not proved to have been paid by the order of three directors. Upon this state of facts it was objected, on the part of the pany entered into a contract under seal with A., for the execution of certain works according to the terms of a spe cification an nexed, which provisions for A. entered up per under such su under the superintendence of the Company's engineer, and also perintendence, approbation of the engineer, tain extra works, which, however, could not be consi and with the executed cer dered as com ing within the provisions of the contract under seal. A. afterwards made a claim upon the Company to a much larger amount than that specified by the contract, and the directors paid him a large sum, generally on account. By the 8 & 9 Vict. c. 16, s. 97, the directors of such a Company may make parol contracts, without the same being reduced into writing, where such contracts would, if entered into between private persons, be valid; and, by the 98th section of the same Act, the directors are bound to enter minutes of such contracts in a book, and, by one of the clauses of the special Act of the Company, three directors constituted a quorum:-Held, that, as there was not any evidence that the Company had contracted for this extra work under seal, or that they had entered into a contract for the same under the terms of their special Act, or of any general Act authorising the same, they were not liable to A. for the extra work so performed by him. 1851. HOMERSHAM V. WOLVERHAMP TON defendants, that the Company could be bound only by an express contract under seal, or by a contract which complied with the requisites of the 8th section of their Act, which required three directors to constitute a quorum; and WATERWORKS that there was no evidence of any implied contract, even if there could be an implied contract to bind the Company. The Lord Chief Baron was of that opinion, and nonsuited the plaintiff, reserving leave to him to move to set aside the nonsuit and enter a verdict. Co. In the present Term (January 16), Sir F. Thesiger moved in pursuance of the leave reserved. There was some evidence in the present case, upon which the jury would have been warranted in finding the defendants liable for the extra work which was executed by the plaintiff upon their property and for their benefit. It may be admitted that, according to the old rule of the common law, a corporation is unable to contract except in certain small matters, without the intervention of a solemn instrument under the corporate seal. That question was much discussed in The Mayor of Ludlow v. Charlton (a), and in Paine v. The Strand Union (b); but by the 97th section of the Companies Clauses Consolidation Act, 8 & 9 Vict. c. 16 (c), the directors or committee are enabled to (a) 6 M. & W. 815. (c) The 97th section of that -With respect to any contract, which, if made between private persons, would be by law required to be in writing and under seal, such committee or the directors may make such contract on behalf of the Company in writing, and under the common seal of the Company, and in the same manner may vary or discharge the same. With respect to any contract which, if made between private persons, would be by law required to be in writing, and enter into contracts by parol and without writing, where such a contract, if made between private parties, would be valid. In the present case, if the question had been one between private individuals, the contract, though not reduced to writing, would have been sufficient, as it does not fall within the operation of the Statute of Frauds. [Parke, B.-Does not that section mean that the contract is to be an express contract, entered into by the proper number of directors assembled at a meeting?] The payment of the sum of 1000l. by the directors on account was a recognition of the contract, or was evidence from which a contract might be implied. A contract, whether express or implied, is in point of law the same thing. The rule in support of this proposition is to be found laid down in Burn v. Miller (a), and Cooke v. Munstone (b). Here the work was done for the benefit of the Company, and under the superintendence of their engineer, who is to be considered as the agent of the Company; and the contract was recognised by the payment on account. [Parke, B. The payment by the proper number of directors at signed by the parties to be charged therewith, then such committee, or the directors, may make such contract on behalf of the Company in writing, signed by such committee or any two of them, or any two of the directors, and in the same manner may vary or discharge the same. With respect to any contract which, if made between private persons, would by law be valid although made by parol only, and not reduced into writing, such committee, or the directors, may make such contract on behalf of the Company by parol only, without writing, and in the same manner may vary or discharge the same. And all contracts made (a) 4 Taunt. 748. 1851. HOMERSHAM V. WOLVERHAMP TON WATERWORKS 1851. HOMERSHAM V. WOLVERHAMP TON WATERWORKS Co. a meeting, assuming such to have been the fact, would only admit the liability of the Company upon some contract to the extent of the sum paid, and would be referable to the contract under seal. That payment, therefore, does not operate as a recognition on the part of the defendants of the particular work for which the plaintiff seeks to recover. And, with respect to that branch of the argument that the Company has received the benefit of the work, if such an argument were held good, a corporation would be liable for work done upon their property at the request of a stranger. In the case of The Mayor of Ludlow v. Charlton, Lord Cranworth, in delivering the judgment of the Court, points out the true grounds upon which the corporate seal is required to be affixed to contracts for the purpose of binding the corporation, being principally for the protection of the interests of the individual members of the corporation. And for this reason, a contract, to be binding upon the corporation, is required to be entered into in a specific manner. Martin, B.-In Diggle v. The London and Blackwall Railway Company (a), it was held that the Company were not bound by a contract which was neither under seal nor complied with the formalities pointed out by their special Act.] But here it would seem that a contract, good as between private individuals, would bind the Company. [Alderson, B.-By the 98th section of the 8 & 9 Vict. c. 16, the directors are bound to enter notes, minutes, or copies of all contracts made by them in a book; by which it appears that there must be an express contract.] Cur. adv. vult. POLLOCK, C. B., now said-This case stood over for the Court to consider whether they would grant a rule or not. The application was made on the ground that there was (a) 5 Exch. 442. |