First --That there was no evidence tending to show that defendants were ever at any time indebted to the Whitney Quartz Mining Company.
Second --That the sale and transfer of the note of the Whitney Company to defendants was by a majority of the Trustees of the corporation, and was afterwards ratified and acquiesced in by the corporation. (Bank of Vergennes v. Warner & Storrs, 7 Hill 91; Aken v. Blanchard, 32 Barbour, 527; Bank of U.S. v. Dandridge, 12 Wheat. 70; Pixley v. Western Pacific R. R. Co., 33 Cal. 183; Hoyt v. Thompson, 19 N.Y. 215; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326; Olcott v. Tioga R. R. Co., 27 N.Y. 556; Barnes v. Ontario Bank, 19 N.Y. 155.)
Third --If the transfer is voidable, then the defendants having paid full value for the note, it operates as an equitable assignment, and the money in defendants' hands cannot be garnisheed. (Drake on Attachments, 510, 610.)
Fourth --The action of the Court in the case of M. A. Marcuse, as assignee of the Whitney Quartz Mining Company v. The Crescent Company, judicially determined that the transfer was legal, and the Whitney Company and its privies are bound by such judicial determination.
Fifth --That the plaintiff is not shown to have been a creditor of the Whitney Company at the time of the transfer.
Sixth --There is nothing in the record to show that either of the defendants ever received any moneys belonging to the Whitney Quartz Mining Company.
JUDGES: Rhodes, J., delivered the opinion of the Court. Crockett, J., did not participate in the decision.
OPINION
RHODES, Judge
The note of the Crescent Company was assigned by the Secretary of the Whitney Company in his official capacity. The assignment purports to be made by the Whitney Company, but it was not executed by the corporation. It is not, therefore, a corporate act, unless the Secretary was not only authorized to make the assignment, but also to make it in his official capacity. The Secretary is not vested with such authority by virtue of his office, and no delegated authority from the corporation is shown; and under the authority of Gashwiler v. Willis, (33 Cal. 11), and the cases therein cited, the assignment was void. No ratification, by the corporation, of the assignment is shown. The alleged settlement made between the corporation and Bollinger, and the giving of the credit by the latter to the corporation, was only an arrangement between Bollinger and the Secretary of the company, but it does not purport to be a corporate transaction; and no corporate authority to the Secretary to conclude such an arrangement appears; nor has the corporation adopted the act of the Secretary in that behalf.
The money received by the defendants on the note, or rather on the judgment obtained by them on the note, was the money of the Whitney Company, unless the latter was estopped by the judgment from setting up a claim to the money. An action had been commenced by the Whitney Company against the Crescent Company, the maker of the note, before the attempted assignment of the note to the defendants, and judgment was afterward rendered in the action against the Crescent Company and in favor of one of the present defendants, the assignee of the note, but for the benefit of both defendants. The position of the defendant as to the effect of the judgment is fully met by either of these considerations: It does not appear that the fact of the assignment of the note was in issue between the Whitney Company and the alleged assignee; and if that fact was in issue, and was determined in favor of the assignee, the estoppel is not pleaded in this cause.
For these reasons we think the Court was in error in granting a nonsuit.
Order reversed and cause remanded for a new trial.