Practice, Civil, Exceptions, Requests for rulings. Corporation, By-laws, Officers and agents.
An action of contract was heard in the Superior Court by a judge without a jury and the defendant made in writing requests for rulings. The judge filed a statement of findings and rulings denying the requests and finding for the plaintiff. The docket contained an entry showing that, three days after the filing of the statement by the judge, the defendant filed a "claim of exceptions." Later, the defendant filed a bill of exceptions which incorporated the statement by the judge of his findings and rulings, but contained no allegation that a written statement of exceptions had been filed as required by Rule 45 of the Superior Court (1923) and which in its concluding paragraphs stated, "The court found for the plaintiff in the sum of $1,112.02 and filed a certain memorandum of findings containing the court's rulings on the foregoing requests, a copy of which is annexed and made a part hereof. The defendant being aggrieved with the rulings and findings of the court herewith presents its bill of exceptions and prays the same may be allowed." Held, that (1) There was nothing in the bill to show compliance with said Rule 45 as to any ruling of law by the judge; (2) The defendant by his bill of exceptions did not show that this court had jurisdiction. No exception lies to a refusal by a judge, hearing an action without a jury, to grant a request for a finding of fact. At the hearing by a judge without a jury of an action by a printing corporation against a publishing corporation upon an account annexed, there was evidence that a representative of the plaintiff had oral and written negotiations with the president of the defendant, as a result of which the plaintiff printed books of the defendant. The defendant's president was dismissed from its employ while work by the plaintiff on some books was in process and the defendant, having stopped the work, refused to pay for the unfinished work on the ground that its former president had no authority to agree with the plaintiff with regard thereto. The defendant introduced in evidence a by-law defining the duties of its president as follows: "He shall be the chief executive officer of the corporation and shall have the general oversight, care and management of all the property and business of the corporation in all departments," and also providing that the president should sign "all special contracts of the Company except when the directors shall otherwise provide, but no contract shall be binding on the corporation until it is approved by one other director." There was evidence and the judge found that the plaintiff had no notice of a limitation placed by the defendant corporation upon its president's authority, and that the acts of the defendant's president were within the apparent scope of his authority; and there was a finding for the plaintiff. Held, that it was proper for the judge to refuse to rule in substance that, unless the plaintiff showed that the agreements it relied on were entered into by the defendant's president with the approval, actual or tacit, of one other of its directors, the plaintiff could not recover.
WAIT, J.
The defendant, by its bill of exceptions, does not show that this court has jurisdiction. The requests for findings and rulings, the denial of which underlies the defendant's right to be heard here, were filed at the end of a trial without a jury in the Superior Court; and there is nothing in its bill to show that any exception was saved at the trial or within three days after receipt of a notice from the clerk. Rule 45 of the Superior Court (1923).
If we assume that the exceptions were duly claimed, they must be overruled. There is no exception to a refusal by a trial judge to make a finding of fact. Rogers v. Abbott, 248 Mass. 220, 225. James Elgar, Inc. v. Newhall, 235 Mass. 373, 377.
The requests for rulings of law were refused properly. Requests 1 and 4 are rendered immaterial by the findings of fact made by the judge. Requests 2 and 3 do not state the law accurately.
The by-law, Article V, which states the duty of the president of the defendant corporation, provides that "He shall be the chief executive officer of the corporation and shall have the general oversight, care and management of all the property and business of the corporation in all departments. . . ." This gave him the powers of a general manager in addition to the ordinary and simple duties of a president. There was no evidence that there was any other general manager; and there was evidence from which it could be found that the president conducted the business as a general manager.
It is well within the ostensible authority of a general manager of a publishing business to decide what books are to be published and to contract for printing them as agent for the corporation. We cannot say the judge was wrong in so finding.
The ostensible powers of such an agent are his real powers, so far as persons other than himself, the corporation principal, and those who have actual notice of limitations upon his ostensible power are concerned. Danforth v. Chandler, 237 Mass. 518, 522. General Dredging Co. v. Bethlehem Shipbuilding Corp. 247 Mass. 162, 167. Hartford v. Massachusetts Bowling Alleys, Inc. 229 Mass. 30. Parrot v. Mexican Central Railway, 207 Mass. 184, 187, 190.
The judge has found, upon evidence which we cannot review and which, as matter of law, can support his finding, that the plaintiff had no notice of the limitation placed by the defendant's by-laws on the power of its president to bind the corporation by contract.
It follows that the defendant was not entitled, upon the case presented, to the rulings 2 and 3 for which it asked.
Exceptions overruled. Judgment on the finding.