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on the strength of these contracts, and cannot, while retaining the same, be heard to say that its officers had no authority to make the contracts under which it was received. This is hornbook law. The contract being under the seal of the corporation, and the signature of the corporation and its officers being undenied, it will, of course, be presumed not only that the contract was in fact executed, but that its officers had power to make it."

In Lemmon v. East Palestine Rubber Co. (1918) 260 Pa. 28, 103 Atl. 510, the plaintiff, by a contract in writing signed by himself and the defendant company by its treasurer and to which its seal was attached, purchased of the defendant certain shares of its treasury stock, and there was a stipulation in the contract that the defendant would furnish plaintiff a buyer for the stock within six months, if desired, at a price to net the plaintiff a certain profit per share; the plaintiff gave his note for the stock, which was paid at maturity, and the money went into the treasury of the company; the stock remained in its custody. It was held that the contract was entire and indivisible, that there had been a complete and perfect performance of the contract by the plaintiff, of which the defendant company had received and still retained the benefit. "It is," said the court, "therefore, not in a position and will not be permitted to deny either the authority of its agent in negotiating the contract or its liability to comply with its terms."

In Dennette v. Boston Securities Co. (1910) 206 Mass. 401, 92 N. E. 498, the plaintiff brought a bill for a rescission of a contract with the defendant, whereby she had bought shares of its stock under an agreement that the corporation would, on her order, resell the shares taken by her for a similar price. The ground of her action was that it later appeared that the contract was made on terms on which the defendant's agent had no authority to contract. The plaintiff had made the purchase relying on a letter delivered to her written on

the letterhead of the defendant corporation, headed with its name and the names of its president, secretary, treasurer, and fiscal agent, and signed in the individual name of the fiscal agent, who had acted in good faith in the matter; but the president, secretary, and treasurer of the defendant claimed that they knew of no authority ever having been given to the fiscal agent sufficient for him to make the agreement of resale. It was held that the plaintiff was entitled to a decree directing the defendant to pay her, on surrendering her stock, the price stated in the agreement, with interest, etc. The case seems to have been decided upon the authority of Rackemann v. Riverbank Improv. Co. (1896) 167 Mass. 1, 57 Am. St. Rep. 427, 44 N. E. 990, a case beyond the scope of this annotation, where it was held that the defendant corporation could not retain what was beneficial in a transaction made through an agent, while disclaiming what was onerous, provided that it could be restored to its former position.

In Whaley v. O'Grady (1912) 22 Manitoba L. R. 379, the plaintiff purchased from the defendant company certain shares of another corporation, through a stock salesman in the employ of the defendant company; at the time of the sale, the salesman signed the name of the company to an agreement to repurchase the stock, if desired, on a certain date at an advance in price; he had authority in writing from the vice president. It was held in the trial court that the corporation was not bound by the agreement, and that the action, which was to recover damages for its breach, must be dismissed. On appeal the judgment was reversed and it was held that the defendant must restore the plaintiff to his original position, and, on an assignment of the stock to it, must repay the plaintiff the sum that he paid for the stock, with interest.

Re National Piano Co. (1918) 252 Fed. 950, a stockholder transferred to the company all his stock in exchange for new preferred stock and a contract to repurchase it executed in the name of the corporation by its

president. All the important stockholders knew of the contract and made no objection to it, and all the directors apparently approved of it, but there was never any vote of the directors authorizing or ratifying the contract. It was held that the corporation was bound without any formal vote, and the claim of the stockholder was allowed in bankruptcy against the corporation.

In Swartz v. Burr (1919) 43 Cal. App. 442, 185 Pac. 411, the plaintiff made an agreement with one Burr, reciting the payment of cash and the giving of a promissory note by the plaintiff, and reciting also the delivery by Burr to the plaintiff of certain shares of stock of the Burr Creamery Company, "to be held for a period of one year by" plaintiff, and stating that if, at the expiration of that time, the plaintiff desired to sell such stock, he agreed to sell only to Burr, who agreed to pay him a certain sum, with interest, and providing, further, that after one year, if he remained a stockholder, he would participate in all dividends, etc. It was alleged and found that, though the agreement was executed in the name of Burr, it was made for and as the contract of the defendant Burr Creamery Company, of which corporation Burr was the president and general manager. The court took the view in affirming a judgment for the plaintiff against the corporation, that it might reasonably be inferred from the evidence that both Burr and the plaintiff entered into this contract on the understanding that Burr spoke for the corporation; that the corporation was presumed to know of the execution of the contract and its terms; that the corporation had notice that this was a contract for the transfer of a block of its unissued capital stock; that it had received the cash payment, and that the note was made payable to it. The court further pointed out that the contract indicated that the sale was executory or conditional, and said: "If this appeared on the face of the agreement to be a completely executed sale of

the shares of stock, and the consideration paid, with the only condition a condition subsequent,-that if after a year the purchaser was dissatisfied E. Burr would repurchase the shares from him,-doubtless the only remedy of the plaintiff would be on such new and independent contract to repurchase. But if the agreement for the sale of the stock to plaintiff can be considered executory, and its consummation dependent on the condition precedent that at the expiration of one year plaintiff elects to retain it, then the corporation, which has received the money and the note, with knowledge of the contract, holds them subject to the exercise of plaintiff's option, and must repay the money, and cannot collect the note, but must surrender it for cancelation in the event plaintiff decides not to retain the stock. It cannot accept the benefits and repudiate the obligations."

In Dickinson v. Zubiate Min. Co. (1909) 11 Cal. App. 656, 106 Pac. 123, the plaintiff purchased stock of a corporation under an agreement that it would, on demand, repay and refund to him the purchase price after he had examined its property; he did so demand; thereafter the parties made another agreement, whereby the company agreed to refund to the plaintiff the purchase price, together with a certain assessment, six months from date, which agreement was signed by the president and secretary, "subject to the ratification of the board of directors;" within two months thereafter it was formally submitted to the board for action, but no action was taken thereon until after the expiration of the six months, and nearly six weeks after the plaintiff had made formal demand for repayment, the demand being then refused by the corporation, which by its formal resolution disaffirmed the agreement. The court considered that if there was not a technical ratification of the contract, the facts were sufficient to estop the corporation from pleading want of ratification as a defense.

Miscellaneous.

It may be noted that in Eichelber

ger v. Mann (1914) 115 Va. 774, 80 S. E. 595, an action on a subscription to the stock of a corporation, the court, in sustaining the rejection of certain evidence offered on behalf of the defendant, stated that the effect of that evidence, if true, was to establish a collateral agreement between the defendant, on the one part, and certain promoters of a company acting in their individual capacities only, on the other part, to the effect that such promoters, under certain contingencies, would take the stock off his hands, and said: "In this transaction these parties in no way represented the corporation or other stockholders. It was a private arrangement between parties acting in their own behalf, and concerning which neither the corporation nor other subscribers had notice, and which was in no way binding upon them."

While without the scope of this annotation, it may be noted that in Gavazza v. Plummer (1909) 53 Wash.

14, 42 L.R.A. (N.S.) 1, 101 Pac. 370, where the treasurer of a corporation, so described in a contract signed by him "Treas.," agreed that he would, on demand, accept a return of stock and refund to the subscriber the amount paid, it was held that, by the manner and form of the signature, he had made himself personally liable on the contract.

It may be noted that in Clayton v. Western Nat. Wall Paper Co. (1912) Tex. Civ. App. —, 146 S. W. 695, where an agent agreed with an intending buyer that, if he would give him his order for such goods as he wanted and his note for the same, the principal would take back all of certain former purchases that the buyer had left on hand or such as he could not use, at the original price and freight charges, and give him credit on his note for the same when they had inventoried the same, it was held that the agent had the implied authority to make the contract. B. B. B.

ZILLAH L. RANDOLPH, Appt.,

V.

CITY OF SPRINGFIELD, Respt.

Missouri Supreme Court (Division No. 1)- December 31, 1923.

(— Mo. 257 S. W. 449.)

Statute construction notice of injury.

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1. A statute requiring notice of injury within thirty days in case of injury on a city street due to the negligence of the city does not apply to one injured so severely as to be unable to give the notice.

[See note on this question beginning on page 619.]

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APPEAL by plaintiff from a judgment of the Circuit Court for Greene County (Patterson, J.) in favor of defendant in an action brought to recover damages for personal injuries, alleged to have been sustained through its negligence in permitting a sidewalk to become and remain defective. Reversed.

The facts are stated in the Commissioner's opinion

Mr. A. B. Lovan, for appellant: Section 8182, Revised Statutes 1919, closes the court against a person who has been injured by the negligence of the city, unless he notifies the mayor within thirty days of the occurrence for which damage is claimed. violates § 10 of article 2 of the Constitution of Missouri.

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The statute is unconstitutional because it is in conflict with § 53, ¶ 31, of article 4 of the Constitution.

Louisville v. Kuntz, 104 Ky. 584, 47 S. W. 592; Louisville v. Hegan, 20 Ky. L. Rep. 1532, 49 S. W. 532; Louisville v. Seibert, 21 Ky. L. Rep. 328, 51 S. W. 310; Louisville v. McGill, 21 Ky. L. Rep. 718, 52 S. W. 1053; Richardson v. Mahler, 111 Ky. 408, 63 S. W. 962; Union Cent. L. Ins. Co. v. Spinks, 119 Ky. 261, 69 L.R.A. 264, 83 S. W. 619, 84 S. W. 1160, 7 Ann. Cas. 913; Edmonds v. Herbrandson, 2 N. D. 270, 14 L.R.A. 727, 50 N. W. 970; Henderson v. Koenig, 168 Mo. 372, 57 L.R.A. 659, 68 S. W. 72; State ex rel. Harris v. Herrmann, 75 Mo. 353; Hamman v. Central Coal & Coke Co. 156 Mo. 241, 56 S. W. 1091; Cooley, Const. Lim. 7th ed. 556.

It is unconstitutional because such a short time as thirty days is an unreasonable provision.

5 McQuillin, Mun. Corp. p. 5124; Durham v. Spokane, 27 Wash. 615, 68 Pac. 383; Born v. Spokane, 27 Wash. 719, 68 Pac. 387.

Under the ordinary statute of limitations the statute does not run against one who is incapacitated from bringing the action; and it would work a miscarriage of justice to hold that one who is injured should be barred from collecting damages by reason of the fact that he was incapacitated from filing his claim until after the time prescribed had expired.

Born v. Spokane, supra.
Mr. D. M. Nee for respondent.
Small, C., filed the following opin-
ion:

I. Appeal from the circuit court of Greene county. Plaintiff sued the city of Springfield for $7,500 damages for personal injury alleged to have been sustained through the negligence of the city in permitting a sidewalk to become and remain defective. She lost below on demurrer to her petition, because it failed to allege that she gave the city notice. required by the statute within thirty days after the accident occurred. The petition, however, contained the following allegations: "That on the 10th day of April, 1921, the plaintiff, while walking along said sidewalk, using due care and caution, caught the heel of her shoe in said hole and was thrown backwards to the ground with such force as to

strain her back and spine to such an extent as to cause her great suffering and pain, and was hurt so severely that she has not yet recovered; that for more than thirty days she was unable to get away from her home; that at the time of her injury plaintiff was pregnant; that the injury caused her to miscarry and lose the unborn child. Plaintiff further states that she notified defendant's mayor in writing, verified by affidavit, stating the place where the injury occurred and when it occurred, and the character and circumstances of the injury, and that plaintiff would claim damages for such injury; also stating in said notice. that, because of her injury, she had not been able to notify the mayor sooner; that the injury occurred on the 10th day of April, 1921, and the notice was served on the mayor on the 29th day of June, 1921. That said notice is attached hereto and made a part of this petition."

The plaintiff standing on her demurrer and refusing to plead further, the court rendered judgment against her, and, failing to obtain a new trial, she appealed to this court. In her motion for a new trial plaintiff alleged, among other things, that the demurrer was sustained for the reason that such petition shows on its face that she failed to notify defendant of the injury sued for within thirty days, as provided for by § 8182, Mo. Rev. Stat. 1919; that the plaintiff contends that said section is void because it violates § 10, art. 2, of the Constitution of Missouri; that her petition shows that she was severely injured, and that because of such injury she was unable to notify defendant sooner than June 29, 1921, which was more than thirty days after the injury, and that the action of the court in construing said § 8182, and sustaining defendant's demurrer, deprived plaintiff of her rights under said § 10, art. 2, of the Constitution.

II. We think that plaintiff's petition, in effect, alleges that the injuries she sustained for which the suit is brought rendered her unable

to notify the mayor sooner than the 29th day of June, 1921. The accident happened April 10, 1921. The petition states that, on account of her injuries for more than thirty days, she was unable to get away from her home, and that she notified the mayor in writing of the injury on the 29th of June, 1921; that said notice, among other things, stated "that because of her injury she had not been able to notify the mayor sooner, and that said notice is attached to and made part of her petition."

While the mere attachment of the notice to the petition and recital in the petition that it was made part thereof would not make it a part of the petition, still, in this case, the portion of the notice stating that "because of her injury she had not been able to notify the mayor sooner" was set forth in the petition itself and made a part thereof. So that we may assume that there was a sufficient allegation in the petition that because of the plaintiff's injury sustained on account of the negligence of the city she was unable to notify the mayor, as required by the statute, within thirty days after the injury was received, and was not able to give such notice until June 29, the date she gave such notice. Indeed, learned counsel for the city in his brief does not contend to the contrary. So that the question is fairly presented to us whether, under the statute, in view of the constitutional provision referred to by appellant, the disability of the injured party to give the required notice, when caused by the injury sued for, affords an excuse for the plaintiff for not literally complying with the express words of the statute as to giving such notice.

Said § 8182, Rev. Stat. 1919, is as follows: "No action shall be maintained against any city of the second class on account of any injuries growing out of any defect in the condition of any bridge, street, sidewalk, or thoroughfare in said city, unless notice shall first have been given, in writing, verified by affida

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