Opinion of the Court-Deady, J. [February, the execution of a mortgage upon the road and other property of said defendant, and also the execution of a mortgage by said Gaston upon the property situated in Washington and Yamhill counties, Oregon, known as "Wapatoo rauch," containing one thousand one hundred and sixty acres and fifty-eight hundredths acres; and on March 22, 1878, said agreement was duly ratified by said defendant, and thereafter the plaintiff, in pursuance thereof, delivered to said defendant rails and track fixtures for the construction of its road, to the value of sixty-two thousand seven hundred and twenty-four dollars and fifty-six cents. On November 5, 1878, at a special meeting of three of the directors of said defendant, without notice to the other two, there being five in all, it was unanimously voted that there was due the plaintiff on account of the delivery of the rails and fixtures aforesaid, the sum aforesaid with interest thereon at one per centum per month, and that the president and secretary thereof make fifteen promissory notes of said defendant, payable to the plaintiff, for said sum, and execute a mortgage on the road and all other property of said defendant, to secure the payment of the same, which was duly done on the same day-the first of said notes being for the sum of eight thousand dollars and payable on December 1, 1878, and the next thirteen for the sum of four thousand dollars each, payable, one upon January 1, 1879, and one on the first of each month thereafter, and the last one for the sum of two thousand seven hundred and twentyfour dollars and fifty-six cents, payable on February 1, 1880; and on the same day said Gaston signed said promissory notes also, and, to secure the payment thereof, together with his wife, duly executed a mortgage of the Wapatoo ranch aforesaid, which mortgages were duly recorded; the first on the seventh and the second on the sixteenth of the November following. On October, 31, 1878, said Gaston, as agent of said defendant, agreed in writing with the plaintiff for the purchase of the rails and track fixtures for the construction of the Dallas extension of said railway, a distance of about twelve miles, for the payment of which said defendant and 1881.] Opinion of the Court-Deady, J. Gaston were to make their promissory notes, secured by their several mortgages upon the road and all the real property owned by either of them, which agreement was unanimously ratified and adopted at the meeting of the three directors, held November 5th, as aforesaid. On December 4, 1878, at a special meeting of three of the directors of said defendant, without notice to the other two, there being five in all, it was unanimously voted that there was due said defendant on account of rails and track fixtures delivered under the agreement of October 31st, aforesaid, the sum of twenty-seven thousand one hundred and thirty-four dollars, with interest at one per centum per month, payable as follows: thirteen thousand five hundred and sixty-seven dollars on January 1, 1879, two thousand dollars on the first of each month thereafter to and inclusive of July, 1879, and one thousand five hundred and sixty-seven dollars on August 1st of the same year; and that the president and secretary of said defendant make eight promissory notes, payable, as aforesaid, to the plaintiff for said eight sums, and execute a mortgage on the road and all other property of said defendant to receive the payment of the same, which was duly done on the same day; and on the same day said Gaston signed said eight notes as maker, and to secure the payment of the same, together with his wife, duly executed a mortgage on certain parcels of real property, situate in Washington and Yamhill counties, Oregon, containing one thousand one hundred and sixty and fifty-eight one hundredths acres, which mortgages were duly recorded; the first on the twenty-third and the second on the fourteenth of December, 1878. On April 15, 1879, at a meeting of the directors, duly held pursuant to a call by the president, at which three directors were present, it was unanimously voted that the president and secretary of said defendant make a promissory note payable to the plaintiff for the sum of four thousand and fifty-eight 'dollars, payable on or before May 10, 1879, and execute a mortgage on the road and all other property of said defendant to secure the payment of the same; and on April 28, 1879, pursuant to a call by the pres Opinion of the Court-Deady, J. [February, ident and upon due notice to each director of said defendant, a meeting of said directors was held, at which four thereof were present, when it was unanimously voted that said sum of four thousand and fifty-eight dollars was due the plaintiff and the proceedings of the meeting of April 15th aforesaid duly approved; and on May 7, 1879, said defendant and said Gaston made their joint promissory note for said sum with interest at the rate of twelve per centum per annum, payable to the plaintiff, and on the same day said. defendant executed a mortgage on its road and all other property to secure the payment of the same, which was duly recorded on May 14, 1879. No payment having been made on any of these notes, the plaintiff on January 11, 1879, in pursuance of a stipulation in the mortgages, declared them all due; and on the twentythird of the same month commenced this suit to enforce the lien of the mortgages to secure the same. Upon the filing of the bill, an injunction was allowed and a receiver appointed. It is not necessary to state the grounds upon which the other parties were made defendants, further than that the Wallamet Valley Railroad Company became by purchase the successor in interest of the Dayton, Sheridan, and Grande Ronde Railway Company, in pursuance of a vote of directors of the latter on January 8, 1879, and a conveyance of its road and franchise on June 5th, thereafter; and that the others had or claimed liens upon the property for the value of services and materials furnished in the construction of the road. Upon the direction of the court, the receiver borrowed money wherewith to put the road in working order and pay the claim of the defendants, U. B. Scott & Co., allowed at one thousand seven hundred and nineteen dollars and five cents, for freight and storage of rails belonging to the road. The defendants, except the Dayton, Sheridan, and Grande Ronde Railway Company, .the Wallamet Valley Railway Company, and Joseph Gaston, answered, setting up their respective claims and liens by mortgage, judgment, and otherwise, and these three defendants answered jointly, admitting the purchase and delivery of the rails and fixtures, 1881.] Opinion of the Court-Deady, J. at the alleged price, but denying the validity of the first and second series of notes and the two mortgages to secure them, made in the name of the Dayton, Sheridan, and Grande Ronde Railway Company, for the reason that the directors were not all present at or notified of the meetings of November 5th and December 4th, at which they were authorized, but admitting the validity of the note and mortgage for four thousand and fifty-eight dollars, and all the notes and mortgages made by Gaston. By reason of a subsequent ratification of these acts, it is not necessary to decide the question-can a majority of the directors of an Oregon corporation exercise any of the powers vested in the directors without the presence of or due notice to the others? The plaintiff affirms that they can, relying upon the clause in section 11 of the corporation act (Or. Laws, p. 527), which reads "The powers vested in the directors may be exercised by a majority of them." But the defendant insists that while a majority may exercise any power vested in the directors, yet they can only do so. at a lawful meeting of the directors, that is, a meeting where all are present and may be heard, or have had due notice of the same and might be present if they would. By stipulation filed April 17, 1880, it was admitted that the plaintiff had received one hundred and nine thousand seven hundred and four dollars and fifty cents in payment. of the notes sued on, when the injunction was dissolved and the receiver discharged, but the suit was continued to determine the validity of the claim of the plaintiff to recover attorney's fees, upon which question the case has been argued and submitted. The claim arises in this way: In each of the mortgages made by the Dayton, Sheridan, and Grande Ronde Railway Company, and also those made by Joseph Gaston, there is a stipulation for the recovery of an attorney's fees, in the event of legal proceedings being taken to recover the same, thereby secured. The sums agreed upon to be recovered as such fee in each case are as follows: For the sum of sixtytwo thousand seven hundred and twenty-four dollars and fifty-six cents by the Dayton, Sheridan, and Grande Ronde Opinion of the Court-Deady, J. [February, Railway Company mortgage, four per centum-two thousand five hundred and eight dollars-of the amount, and by the Gaston mortgage, one thousand dollars; for the sum of twenty-seven thousand one hundred and thirty-four dollars, by the mortgage of the former and the latter, each one thousand dollars; and for the sum of four thousand and fifty-eight dollars, by the mortgage of the former two hundred dollars, in all the sum of five thousand seven hundred and eight dollars. On January 8 and April 28, 1879, meetings of the directors of the defendant, the Dayton, Sheridan, and Grande Ronde Railway Company, were held, which are admitted to have been duly called and valid. At each of these, action was taken to sell and convey the property and franchise of said defendant, to the defendant, the Wallamet Valley Railway Company, upon the condition that the latter would pay the debts of the former, in which these mortgages were referred to, recognized, and approved. This statement is substantially admitted by counsel for the defendants, but his contention and argument is, that an authority to the president and secretary of a corporation to make its note and mortgage for a specified sum does not include a contract to pay an attorney's fee, in case legal proceedings are taken to enforce the same. In this case, the vote of the directors only authorized the making of the mortgages for a specific sum, and is silent upon the subject of attorney's fees. But it is contended for the plaintiff that the subsequent recognition and approval of these mortgages must be taken and construed, as applying to every provision contained in them, as they were in fact executed, and not simply to the order in the records of the corporation directing the execution of a mortgage. As to the question-did the direction to the president and secretary to make the mortgage of the corporation, to secure the payment of a specific sum, also authorize them. to insert a contract therein, to pay an attorney's fee to the mortgagee in case the same was sued upon, my opinion is that it did not. They were the special agents of the corporation to do a particular thing-to execute a mortgage-and |