[§ 3055 §3055. - Manner and means of corporate action or knowledge; meetings, resolutions or agents. It need not ordinarily be alleged how or by whose agency the corporation made a contract or did an act which is the basis of the action.89 That is usually a detail of the evidence,90 and whether formal action was taken by meeting and resolution or the agent active in the transaction was formally authorized does not usually concern any outsider dealing with the corporation. It may be important when the adverse party is an officer or a stockholder, though not always then because of principles of estoppel, waiver, and many others affecting the internal rights of the parties.91 To some extent, but usually only as a matter of proof if issue be made thereon by answer, this involves the charter and by-law provisions and if they are essential fundamental facts they must be pleaded.92 A resolution may be pleaded as having been "duly adopted." 93 In pleading knowledge and estoppel against the corporation it suffices to allege knowledge by directors and a corporate record of the facts.94 The rules for pleading an act done or contract made by any natural person as principal also apply when a corporation is principal, and general works on such subjects should be consulted.95 It is sufficient to allege generally that the corporation made or executed an instrument, 96 or committed a tort, or did an act attributed to it 97 without

ation (Kansas) and not by the law
of a subsequent merging corporation
(United States). Western U. Tel. Co.
v. Union Pac. Ry. Co., 3 Fed. 1.
89 See cases this section, infra.
90 See 88 3095-3106, infra.

91 As to modes of corporate action, execution of instruments, and authority of officers and agents, and liability for torts, see Chapters 35, 39, 40, 42, supra, and the chapter on Torts, infra.

A resolution to make a lawful intra vires contract need not be averred; want of it is defensive. Arrington v. Savannah & W. R. Co., 95 Ala. 434, 11 So. 7.

General averment that the corporation "accepted" provisions of an act is sufficient to show acceptance in toto and without averment how it was accepted. State v. Newark & N. Y. R. Co., 34 N. J. L. 301.

92 See $3052, supra.

93 Maune v. Unity Press, 143 N. Y.

specifying the name of its officer or agent through whom it acted,98 or even that an agent acted at all in the matter.99 Indeed it is said to be better pleading to omit all reference to the agency through which the act was done, though it is common practice to state generally that it was done by an officer or agent. The commission of a trespass by the corporation may be alleged either by stating the manner in which it was done or simply that it was done or authorized by it. It

[§ 3055 need not be alleged in pleading negligence that it could have prevented the agent's neglect and failed to do so. A corporation sued for the fraud or duress of its officer must be implicated therein by the pleadings, and merely alleging his activity in the transaction sought to be annulled does not make a case against it as the ultimate holder of the title to the property involved. If specific name and description of the agent is desired it can be had on a motion for greater definiteness and certainty or obtained by special demurrer though this was denied in some courts." The agent's or officer's authority may have to be alleged, but this, too, is usually implied; and the want of it is a matter of defense. If the manner in which the right was created is too narrowly described the effect may be to exclude evidence of the actual facts. Thus, to allege that articles made a certain provision is not equivalent to stating that the pleaded contract was ratified

4 Nelson v. Crescent City R. Co., 49 La. Ann. 491, 21 So. 635.

5 In a suit to cancel a deed to its grantor, the allegations must implicate it in the fraud or duress. It is not sufficient to state that its grantor is its "active agent" and that he procured a "deed for the purpose of putting into the list of the property of said corporation." Pratt Land & Improvement Co. v. McClain, 135 Ala. 452, 93 Am. St. Rep. 35, 33 So. 185.

6 Allegation that acts were done "through its proper officers' requires more specific description of them on special demurrer. Georgia Engineering & Construction Co. v. Horton & Smith, 135 Ga. 58, 68 S. E. 794; Cherokee Mills v. Gate City Cotton Mills, 122 Ga. 268, 50 S. E. 82.

In action on open account against a corporation it is entitled on special demurrer to have plaintiff allege which agent made the contract and the time, duration and price agreed on. Southern Exp. Co. v. Cowan, 12 Ga. App. 318, 77 S. E. 208. To same effect Georgia, F. & A. R. Co. v. Parsons, 12 Ga. App. 180, 76 S. E. 1063. But the account being attached no greater particularity is required against a corporation than against an

IV Priv. Corp.-77

6

individual. The grounds of liability need not be set forth. Southern R. Co. v. Grant, 136 Ga. 303, Ann. Cas. 1912 C 472, 71 S. E. 422.

Pleading that defendant negligently operated an engine is sufficient. If a more specific allegation of the agencies of such negligence is desired, a motion is required. Ohio & M. Ry. Co. v. Collarn, 73 Ind. 261, 38 Am. Rep. 134.

Allegation of false representations by defendant "by its officers and agents' should on motion be made more definite by naming them. Schellens v. Equitable Life Assur. Soc. of United States, 32 Hun (N. Y.) 235.

7A complaint alleging trespass by the corporation will not be required to be made more definite by stating names of the particular officers and agents in the trespass. Common. wealth Co. v. Nunn, 17 Colo. App. 117, 67 Pac. 342.

A complaint for malicious prosecution need not be made more definite by alleging the name, authority and capacity of the agent who was active in the tort. Indiana Bicycle Co. v. Willis, 18 Ind. App. 525, 48 N. E. 646. 8 §§ 3057, 3078, infra.

by the corporation on its being formed. An allegation that the corporation as a co-partner committed a tort jointly with another corporation may be sustained as a simple allegation of joint tort-feasance, disregarding the legally impossible allegation of partnership.10

§ 3056. Declaring on instruments written or required to be written. The contract should be pleaded in the ordinary manner, preferably by setting it out in full.11 Whether or not appropriate power to enter into it should be pleaded, or the charter or by-law provisions involved in it should be pleaded, or the manner by which or agent by whom it was made should be pleaded, have already been discussed.12 A contract which the law requires to be written or sealed or executed, if by an agent, under sealed or written authority, must be pleaded according to the law which governs pleadings where the statute of frauds is involved, and that which governs pleading of specialties.13 Accordingly, where a contract for an interest in lands is set out without either a corporate seal or a written authority to the agent who also signed it, the complaint is bad.14 When the instrument is payable conditionally out of corporate funds, the existence of available funds must be pleaded.15

It has already been stated that the corporation may sue on a contract or be sued on one made by it but in the name of its officer or agent, the same rule applying as in agency.16 The contract should be alleged in the ordinary manner by substance or in precise words. together with an allegation that the corporation made the contract

9 Ratification of a contract with promoters. Park v. Modern Woodmen of America, 181 Ill. 214, 54 N. E. 932.

10 Allegation that two corporate defendants employed plaintiff and were co-partners operating a railroad on which he was injured by their negligence. El Paso & S. W. R. Co. v. Kelly (Tex. Civ. App.), 83 S. W. 855, rev'd 99 Tex. 87, 87 S. W. 660.

11 Consult standard works on Contracts.

A contract between plaintiff member and defendant corporation should be set forth (building association withdrawal contract). Crittenden v. Southern Home Building & Loan Ass'n, 111 Ga. 266, 36 S. E. 643. 12 See §§ 3052, 3054, 3055, supra.

13 That the contract is not in writing must be pleaded defensively, see Kenner & Greenfield v. Lexington Mfg. Co., 91 N. C. 421.

When the assumption of an agent's obligation is alleged it should allege a consideration and writing, it seems, to meet the statute of frauds. Turnham v. Calumet & Oregon Min. Co., 58 Ore. 453, 112 Pac. 711, judgment modified 115 Pac. 157.

As to requirement of a seal, see Chapter 19, supra.

14 Trust Co. of Georgia v. Wallace, 143 Ga. 214, 84 S. E. 538.

15 State Bank of Rock Island v. Pope, 179 Ill. App. 282, which was a creditors' suit against directors. 16 § 3032, supra.

[§ 3057 in that name which appears in it, or that the promise was made to or by it under that name,17 or other equivalent allegation to show that the corporation is the real party to the contract.18 It need not be alleged that defendant corporation's debt was the consideration for a note so given.19 A contract to assume the debt of an agent is a different matter, and entails the pleading of the original contract and also that by which it was assumed, which in turn involves a written contract to answer for the debt of another.20

§ 3057. Officer's or agent's character and authority, or rights and liabilities. In suits between the corporation and third persons the authority of the agent need not be stated, it being a matter of defense or of evidence,21 unless the presumption of authority is re