If parties do not duly request a referee to report the facts found by him proved, his report will not be recommitted for such purpose unless the party asking it show good cause for his delay.
A treasurer of a corporation has no authority to pay himself a claim he holds against it, unless the claim has been approved and its payment authorized by the corporation.
When there is no ambiguity in a recorded vote of the directors of a corporation, it is to be construed by its terms alone, and parol evidence of the understanding of a majority of the directors as to its meaning or effect is not admissible.
Under the bankrupt act of 1867, a debt arising from the misappropriation to his own use of the funds of a corporation by the treasurer thereof, was not affected by his discharge in bankruptcy.
BLODGETT, J.
I. The defendants' motion for a recommitment of the report, with instructions to the referee to state the facts as to the matters set forth in the motion, was properly denied. The statute imposes upon referees the duty of "stating specifically their rulings upon all questions of law, and stating all matters of fact found by them proved, if either party shall so request." G. L., c. 231, s. 11. So far as appears, the defendants made no such request, nor is any reason assigned for their neglect to do so, and consequently no case is made for a recommitment of the report. Nor is any question of law raised by the exception to the denial of the motion.
II. Wood had no authority by virtue of his office to pay himself his bill of $4,261 against the corporation until it was approved and its payment authorized by the corporation (Brown v. Weymouth, 36 Me. 414); and as there was no imperfection or ambiguity in the language of the vote by which the adjustment of the bill was referred by the directors to a committee, it must be considered as expressing the entire and exact meaning of the parties to it: hence no evidence of their understanding could be received to vary or control it, or was admissible for the purpose of explaining its meaning or effect. Gould v. Norfolk Lead Co., 9 Cush. 338, 345.
III. The plaintiffs are not estopped to deny the correctness of Wood's bill, or the validity of its payment, because it was entered by him on the corporation books of which he had the charge, or because, on a subsequent examination of his accounts as treasurer by a committee of the corporation and of the Nashua Lowell Railroad to ascertain the cost of the plaintiffs' road, and thus fix the amount of rent to be paid by the N. L. road, the item in question was included, and the rent has since been reckoned and received by the plaintiffs accordingly; for the referee finds "that the above proceedings were had without there being any knowledge, until afterwards, on the part of the directors of the corporation, or of the committee, of the transactions by said Wood relative to said bill, or of the entry of the payment, c., in the accounts of the corporation, or of its being included in the cost of construction as above mentioned, and without any such neglect to examine the accounts of the corporation so as to see what they included, as; should bar them or the corporation from now alleging such want of knowledge." Every element of an estoppel is thus wanting as between these parties.
IV. The plaintiffs' cause of action, being for Wood's misappropriation to his own use of trust funds while acting in a fiduciary capacity, must be regarded as a fiduciary debt within the intent and meaning of s. 33 of the bankrupt act of 1867, and therefore is not barred by his discharge in bankruptcy. The exceptions are overruled.
Judgment for the plaintiff on the report.
CLARK, J., did not sit: the others concurred.