Buck Creek Lumber Co. v. Nelson

SAYRE, J.

Appellees’ motion to strike the .bill of exceptions must be granted. It seems quite clear that *245 the bill was signed long after the expiration of the period prescribed by the mandatory terms of the statute, section 8019 of the Code. Affidavits submitted on behalf of the motion so state the fact, and it is not denied. The deposition of the presiding judge has not been taken, and he has refused appellees’ request for an ex parte affidavit, but the terms of that refusal, when construed in connection with the language of the request, leave no doubt that the judge, Avhile refusing the request for an affidavit, was careful not to deny the fact that the signing of the bill had been deferred beyond the statutory limit. Bather, he admits the fact by assigning a reason for it. Had the fact been otherwise, it cannot in reason be doubted that some sworn affirmation to that effect would be found in the record.

The statute is imperative in its requirement. The limit fixed by it cannot be extended to suit the exigencies of parties or cases. If a correct bill of exceptions had been presented, appellant might have established it by a proceeding in this court. That remedy he has not sought. According to our cases the failure to observe the statute may be shown by parol, and, being shown, must result in the bill being stricken.—L. & N. R. R. Co. v. Malone, 116 Ala. 600, 22 South. 897; Rainey v. Ridgeway, 151 Ala. 532, 43 South. 843; Baker v. Central of Ga. Ry. Co., 165 Ala. 466, 51 South. 796.

Answering the argument made in support of those assignments of error based upon the record proper, it was not necessary that the complaint should show that the contract alleged to have been breached was in writing.—Whilden v. M. & P. Nat. Bank, 64 Ala. 29, 38 Am. Rep. 1.

By several special pleas it was made to appear that defendant’s certificate of incorporation contained a provision as follows: “That no draft, bill of exchange,check, no bond or other evidence of liability or contract *246 creating any liabilty on the part of the company shall be valid unless the same be in writing signed by the president and countersigned by the treasurer; and provided expressly that any liability otherwise created shall be null and void.”

These pleas alleged that the contract mentioned in the complaint was not in writing signed by defendant’s president and countersigned by its treasurer, and hence, these pleas conclude, the contract was ultra vires, void, and its breach constituted no cause of action. Demurrers to these pleas were sustained. In these rulings there was no error.

Subdivision 10 of section 3446 of the Code is as follows: “The certificate [of incorporation] may also contain any other provision which the incorporators may choose to insert for the regulation of the business and for the conduct of the affairs of the incorporation, the directors and stockholders, or any class or classes of stockholders; provided, that such provision be not inconsistent with this article or the Constitution of the state.”

The argument for reversal goes upon the ground that those parts of the certificate of incorporation and of the statute appearing above have the effect of rendering the contract mentioned in the complaint void as being without the charter powers of the defendant corporation. We are not of that opinion. The requirement that contracts should be in writing, signed by the president and countersigned by the treasurer of defendant corporation, though appearing in the certificate of incorporation filed by the incorporators, is not a limitation upon the charter powers of the corporation, but is rather in the nature of a by-law, a rule of action prescribing merely a course or manner of corporate action without limiting the field in which such action may be taken. Strictly speaking, a corporate act is said to be ultra vires when *247 it is not within the scope of the powers of the corporation to perform it under any circumstances or for any purpose.—Miners’ Ditch Co. v. Zellerbach, 37 Cal. 543, 99 Am. Dec. 300. The limitation that corporate contracts should be expressed in writing, signed by the president and countersigned by the treasurer, has not been imposed by the state. It does not enter into the constitution of the corporation; it is in essential nature a mere internal regulation, and as such it does not affect the validity of contracts executed without due observance of its prescription so far at least as concerns persons dealing with the corporation without actual or imputed knowledge of its by-laws.—Lake Street, etc., R. R. Co. v. Carmichael, 184 Ill. 348, 56 N. E. 372. The question of corporate liability in such case is one of agency as affected by the apparent scope of the authority committed to the agent who acts for the corporation, and strangers are not held to notice of by-laws placing special restrictions on the apparent authority of corporate agents.

It is to be further observed, and this of itself is enough to dispose of appellant’s contention, that section 3446 of the Code relates to the mode of incorporation. The charter powers of corporations organized under the general laws of this state are laid down and fixed by article 5 of the Code which begins with section 3481.

For the reasons indicated above the demurrers to pleas 2, 3, and 4 were properly sustained.

In view of the principle adverted to above, replications, purporting to answer the pleas of the general issue and non est factum by showing that defendant, notwithstanding the alleged contract had not been reduced to writing, signed by its president and countersigned by its treasurer, did in fact thereafter recognize its validity, and in part execute the contract by which defendant’s *248 agent had attempted to bind it, did, in short, bind itself, were wholly unnecessary, since the facts alleged in them' were admissible under, and sufficient proof of, the complaint; but there was no reversible error in allowing their unnecessary reiteration in the form of replications.

No reversible error appears in the record, and the judgment will be affirmed.

Affirmed.

McClellan, de Graffenried, and Gardner, JJ., concur.