superintendent he purchased and shipped quartz-mill machinery to the mine; caused a ten-stamp mill to be erected, and crushed the ore extracted from the mine in this mill. Champion, as superintendent, also posted notices about the mine, and on the mill, to the effect that the Trinity Company was the owner of the property. He knew of Champion's authority only from statements, and from his actions as superintendent. James E. Isaacs testified that Champion had repeatedly told him he was managing agent and superintendent of the corporation. He had examined the record of conveyances of property, and of proceedings in a suit against the company brought by the defendant Shasta Bank. This suit was for money had and received. The complaint averred that Champion was the vice-president and managing agent, and, as such, was doing business by authority and direction of the Trinity Company. In this action the Shasta Bank accepted a waiver of the issuance of a summons, and an acknowledgment of service of the amended complaint, on behalf of the Trinity Company, defendant therein, from Champion, who described himself "as managing agent and superintendent" of the corporation, and upon this admission entered the default of the mining company, took judgment and sold the property. It is admitted that the Utah company did own the property. There was introduced in evidence the record of a lien filed by Champion against the company for a sum due him for services as superintendent and managing agent. There were introduced records of locations of water ditches and rights, and mining claims made by the company through Champion, its agent.

And

Nothing further was established by plaintiff. the evidence indisputably fails in showing direct authority from the company to Champion, or a direct ratification of Champion's acts. The situation then amounts to this: A foreign corporation owns mines in this state. In its name work is commenced upon these mines. Its so-called superintendent buys costly machinery, con

structs a mill, extracts and reduces ore, employs miners, millmen, and laborers; takes up water rights and mineral claims; enters into contracts; borrows money; acknowledges service of process in a civil action to collect this money; and, in general, by word and act, holds himself out and conducts himself as the duly and regularly appointed superintendent of the company.

It is unquestionably true that an agency may not generally be established by the declarations and acts of the alleged agent; but without discussing the question whether this evidence would be sufficient to establish an ostensible agency by reason of the failure of the mining corporation to exercise ordinary care (Civ. Code, sec. 2317), it is clear that under the provisions of our mechanics' lien law evidence of these acts and declarations is permitted to establish prima facie such agency. Section 1183 of the Code of Civil Procedure gives to the miner a lien for labor done at the instance of the owner of the building or his agent; "and every contractor, subcontractor, architect, builder, or other person having charge of any mining, or of the construction, alteration, addition to, or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for purposes of this chapter." These open declarations and continued acts of Champion and McCourt were thus admissible in evidence under this section to show the person in charge of the mining. By the rule of evidence declared by section 1183 this showing, if not dispelled or overcome, prima facie established the agency. It is quite true that the owner, or other person in interest, might overthrow this by proof of his want of knowledge and nonemployment of the alleged agent, coupled with a showing that he had exercised ordinary care in the premises; but in this case no one seeks to overcome it. The mining company made default, and the bank's claim is also founded upon the sufficiency of the agency of Champion, the very identical agency which, against this miner with a claim of

eighty-four dollars for labor, it is disputing and seeking to overthrow.

No counter-evidence having been introduced, it follows that the evidence introduced by plaintiff, standing uncontradicted, supports the findings of the court.

The judgment and order appealed from are therefore affirmed.

TEMPLE, J., and MCFARLAND, J., concurred.

[No. 15881. Department Two.-June 4, 1896.]

GEORGE S. ANDRES, RESPONDENT, v. JOHN D. FRY ET AL., APPELLANTS.

CORPORATIONS-AUTHORITY ΤΟ EXECUTE CONTRACT-SEAL-PRESUMTION- -PRIMA FACIE EVIDENCE.-A contract executed by the president and secretary of a corporation, and bearing the corporate seal, is presumed to have been executed by due authority; and the production of such contract in evidence, with proof of its signature, and of the corporate seal, makes a prima facie showing that the contract is the contract of the corporation. ID.-ACTION OF BOARD OF DIRECTORS-AUTHORITY TO EXECUTIVE COMMITTEE POWER TO MAKE CONTRACT.-The board of directors of a corporation may authorize an executive committee of the board to make arrangements with a person named for the transfer of patent rights from him to the corporation, and such authority empowers it to execute a contract with such person for that purpose; and it is not essential that such committee should formally report to the board before executing such contract, and attaching the seal of the corporation thereto.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. JOHN HUNT, Judge.

The facts are stated in the opinion.

W. H. L. Barnes, for Appellants.

Where it appears that there was no authority to exe. cute an instrument for a corporation, or to attach the corporate seal thereto, it is not admissible evidence. (Bliss v. Kaweah Canal etc. Co., 65 Cal. 502.) No pre

sumption of the authority of the president and secretary prevails when the act done by them does not fall within the scope of the powers conferred, and usually exercised by them. (Smith v. Smith, 62 Ill. 493; Mulligan v. Smith, 59 Cal. 224; Southern Cal. etc. Assn. V. Bustamente, 52 Cal. 196; Crescent City etc. Co. v. Simpson, 77 Cal. 290; Blood v. Marcuse, 38 Cal. 594.) The power of a corporation can only be exercised by the board when duly assembled (Civ. Code, secs. 305, 308, 377; Gashwiler v. Willis, 33 Cal. 12; 91 Cal. 607; Harding v. Vandewater, 40 Cal. 78; Bank of Healdsburg v. Bailhache, 65 Cal. 327.)

C. L. Tilden, for Respondent.

The corporate seal is prima facie evidence that it was affixed by proper authority. (Angell and Ames on Corporations, sec. 224; Miners' Ditch Co. v. Zellerbach, 37 Cal. 587, 596; 99 Am. Dec. 300; Crescent City etc. Co. v. Simpson, 77 Cal. 290; Union Water Co. v. Murphy's etc. Co., 22 Cal. 620-28; Boone on Corporations, sec. 50; 1 Potter on Corporations, sec. 39, p. 70; Burrill v. Nahant Bank, 2 Met. 163; 35 Am. Dec. 395.) Corporations are not compelled to contract by resolution. (Carey v. Philadelphia etc. Co., 33 Cal. 696; McKiernan v. Lenzen, 56 Cal. 61-3; Abbott v. '76 Land & Water Co., 87 Cal. 325-28.)

VANCLIEF, C.-The defendants were sued upon their personal liability as stockholders of the Eureka Manufacturing Company, a corporation organized under the laws of this state.

The cause was tried by the court without a jury, and the court found "that the agreement was duly executed and delivered by the corporation to the plaintiff, and that the officers of said corporation who executed said agreement were duly authorized so to do"; and further found in favor of plaintiff on all other issues, and rendered judgment accordingly.

The defendants have appealed from the judgment and from an order denying their motion for a new trial.

At the time of ordering judgment the court filed the following written opinion, which is incorporated in the statement on motion for a new trial:

"HUNT, J.-The only question presented in this case is, whether the contract sued upon was the contract of the corporation. It was signed by the president and secretary, and bore the corporate seal. The production of the contract, therefore, with proof of its signature and of the corporation seal, made out a prima facie case in favor of the plaintiff.

"The defense is founded upon the claim that the execution of the contract in question was not authorized by the corporation, and was therefore without authority. "After a careful examination of the evidence, I am of opinion that this defense cannot be sustained.

"The minutes of the board of directors (page 9) show that, upon motion of Garnett, the attention of the board of directors was called to the necessities of acting upon the proposition of the plaintiff, and the board then passed a resolution which, in my opinion, authorized the execution of the contract. This resolution, in terms, referred the matter to the executive committee, and empowered them to make the necessary arrangements with Andres for securing the transfer of his right to this company. It would seem, therefore, that, in the execution of the contract in question, it was entirely satisfactory to the executive committee; they were but carrying out the resolution of the board, which practically authorized and empowered them to close the transaction with Andres, and the sale and transfer of his rights to this company. The power thus delegated to the executive committee was exercised by them; the paper in question was properly signed by the president and secretary, and the corporate seal affixed.

"I am therefore of opinion that the act was binding upon the corporation, and that plaintiff is entitled to recover. It is therefore ordered that plaintiff recover judgment as prayed for.

"November 14, 1893."