would not be valid unless it was executed by the authority of some by-law, or under the charter, directly or indirectly, or by some resolution duly passed."

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. 560.*]

5. EVIDENCE (§ 353*)-DocUMENTARY EVIDENCE-ADMISSIBILITY.

In connection with the evidence touching the making of the transfer, the securing of money thereon, and its use for the benefit of the corporation, and the knowledge of the stockholders and directors and the recital in the mortgage taken by them, it was error to reject such transfer from evidence.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 1401-1428, 1430, 1431: Dec. Dig. 353.*]

in deed, together with the property described therein, to Bank of Garfield, Garfield, Ga. This 26th day of June, 1906. [Signed] The Farmers' Mercantile Company. [L. S.] J. A. Parrish, President. [L. S.] W. C. Tucker, G. M., Sect. and Treas. [L. S.] Signed, sealed, and delivered in presence of us, the day and year above written. C. R. Gay. R. J. Walsh, N. P., E. Co., Ga." This was recorded on December 9, 1907. On July 9, 1908, the company executed a mortgage to stockholders, some of whom were also directors and officers, reciting that they had indorsed a note to the bank and other described notes, and that the mortgage was given to secure them against loss. It covered the same lot

6. CORPORATIONS (§ 560*)—RECEIVERSHIP-as that to which the bank claimed to hold PROCEEDINGS.

The assets of the corporation having been placed in the hands of a receiver, and, on his application and by agreement, an order having been passed for a sale of the real estate free from incumbrances, leaving questions of priority for subsequent determination, a statement, in the application of the receiver for leave to sell, and that the transferee held the title to the land as security, was not admissible to prove that fact as against stockholders and creditors contesting the validity of the trans

fer.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. 560.*]

7. EVIDENCE (§ 182*)-BEST AND SECONDARY EVIDENCE-MINUTES OF CORPORATION.

Ordinarily the minutes of a corporation show the formal actions of its directors and stockholders; and before parol evidence thereof can be introduced, they should be produced or accounted for. If such action was taken, but not entered on the minutes, this should be shown.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 601-604; Dec. Dig. § 182.*] 8. SUFFICIENCY OF EVIDENCE-DIRECTION OF VERDICT.

The evidence in support of the contention that the transfer of the corporate property to secure an indebtedness was infected with usury, and was therefore void, was not such as to authorize the direction of a verdict on that ground.

Error from Superior Court, Emanuel County; B. T. Rawlings, Judge.

Action by the Bank of Garfield against W. W. Clark and others. Judgment for defendants, and plaintiff brings error. Reversed.

title as security, and recited that "this mortgage is a second lien on the lot last described." There was some evidence tending to show that the note payable to the bank and claimed to be secured was a renewal of the one originally given and for which the transfer was made as security. A witness also testified that, when the first loan was made by the bank, it was made to improve the property, and that it was agreed that when the improvements were made the bank would transfer its deed as security, which was done; also, that the directors and stockholders had notice of the receipt of the money from the bank and the transfer to it. Much evidence tending to prove these facts was ruled out by the court, but some was admitted. The stockholders and directors who held the mortgage to secure themselves against loss set up the mortgage as a lien, and attacked the security claimed by the bank, on the ground that it was infected with usury and was made without authority. Certain creditors also attacked it on the ground that it was infected with usury and that the transfer to the bank was dated before the note, and did not secure it. Some creditors who held notes indorsed by holders of the mortgage also sought to have the proceeds applied to their claims. When the transfer was offered in evidence, it was rejected by the judge, as well as other evi

dence above mentioned. At the close of the evidence, the judge directed a verdict upholding the mortgage of the directors and stockholders, and finding against the claim of the bank as a secured creditor. The bank moved for a new trial, which was refused, and it excepted.

Hill

Under equitable proceedings begun by stockholders, the property of the Farmers' Mercantile Company was by consent placed in the hands of a receiver, and various creditors set up their claims for payment. The Bank of Garfield claimed to be a creditor holding a security on real estate. On DeSaffold & Larsen and F. H. Saffold, all cember 19, 1905, one C. R. Gay executed to of Swainsboro, for plaintiff in error. the Farmers' Mercantile Company a deed. & Anderson and Dixon & Dixon, all of MilOn the back of this was entered the follow- len, and Smith & Kirkland, Williams & Brading transfer: "Georgia, Emanuel County. | ley, Lee Godfrey, and Saffold & Larsen, all For and in consideration of twenty-six hun- of Swainsboro, for defendants in error. dred and eight and 89/100 dollars, being value received, we hereby transfer all our rights, title, and interest in and to the with

LUMPKIN, J. (after stating the facts as above). [1, 2] The whole case revolves about

the question of the validity of the transfer of whether the money was used in improving the deed made to secure the bank. It did the very property which these stockholders not recite that it was a sealed instrument, and directors are now seeking to subject to nor was the corporate seal of the company their mortgage. If the company was insolattached to it. The name of the company vent when the mortgage was given to the was signed, followed by that of its president stockholders and directors, the ruling in and its "G. M." and secretary and treasurer. Atlas Tack Co. v. Exchange Bank, 111 Ga. Presumably "G. M." stood for general man- 703, 36 S. E. 939, would apparently apply. ager. Opposite each were the letters "L. It is unnecessary to take up each of the S.," inclosed in brackets. This was not grounds of the motion where evidence on this enough to make the instrument admissible as subject was rejected, and deal with it sepprima facie importing authority on the part arately. After rejecting several pieces of of the officers of the company who executed evidence, an objection was made to certain it. Brooks v. Kiser, 69 Ga. 762. In Jones v. questions as not being competent, and the Ezell, 134 Ga. 553, 68 S. E. 303, under a court said: "I don't think so. Under my creditor's bill against a corporation, stock-view of it, I will have to hold that the transholders intervened and attacked a mortgage fer would not be valid, unless it was exeon the ground that the officers of the cor- cuted by the authority of some by-law, or poration were without authority to execute under the charter, directly or indirectly, or it. In the opinion (on page 556 of 134 Ga., by some resolution duly passed. Unless you page 305 of 68 S. E.) it was said: "If on the can show that, I will have to exclude all trial of the case it should appear that the evidence along the line as to the debt. I unofficers were without authority to execute derstand that it is admitted; so it looks like the various contracts, but did in fact exe- it is consuming time practically for nothing cute them, and the fruits thereof were ap- to travel along this line that is being travplied to the proper corporate use, the corpo-eled now." ration will still be liable, notwithstanding its [5] Some of the evidence offered was obofficers may have been without specific authority to execute the particular form of contract. The corporation cannot retain the property or money of the creditor, and successfully defend because it was obtained by an ultra vires act of its officers." The intervening stockholders in that case had no greater right to defend than the corporation itself. See, also, Towers Excelsior, etc., Co. v. Inman, 96 Ga. 506, 23 S. E. 418; Johnson & Harrold v. Mercantile Trust, etc., Co., 94 Ga. 324, 21 S. E. 576; Butts v. Cuthbertson, 6 Ga. 166, 171.

jectionable in the form in which it was tendered. Thus it is not competent for a witness to testify broadly what another person knew, or that the company was benefited, or that the officers had authority, or the like. These things are matters of conclusion. But the presiding judge evidently did not base his ruling on such matters of form, but on the ground that, in the absence of specific authority, the company would not be bound. There was some evidence in the record tending to support the contention that money was advanced when the transfer of the deed [3] If it should be proved that the com- was executed and on the faith of it, and pany obtained the bank's money by means of that the later note was a renewal. In conthis transfer of title as security, and used nection with the recital in the mortgage to it, the company would not be permitted to the stockholders and directors, and the othkeep the fruits of its officers' acts, and at er evidence in the record, the transfer to the same time repudiate the contract, al- the bank was admissible in evidence, withthough there may have been no formal res-out discussing its attestation or registration. olution authorizing the giving of the securi- [6] The statement of the receiver, in an ty. Nor would the directors and stockhold- application to sell, in which he referred to ers of the company, who took a subsequent the bank as holding title, was not admissible mortgage to secure themselves against loss by reason of indorsing the bank's notes, and who had notice of the facts, be allowed to repudiate the transfer and successfully assert a priority over it by virtue of the junior mortgage held by them. Especially is this true where their own mortgage recited that it was a second lien. It does not appear that there was any other lien claimed on the real estate, except that asserted by the bank and the mortgage held by these stockholders and directors.

[4] It was competent to introduce evidence to prove the facts of the transaction: Whether the company obtained the money upon the transfer, whether the stockholders and directors had notice of the fact, and

as binding on the stockholders and creditors. The presiding judge did not adjudicate this to be true, but an interlocutory order for the sale of the property free from incumbrances was granted, reserving the question of the claim or priority for future adjudication. What has been said above covers in substance the rulings of the court in erroneously excluding evidence, on the theory that nothing would suffice to make the transfer to the bank good, except the production of a specific charter provision or a resolution on the minutes.

[7] If it be sought to show formal action by the directors or stockholders, the minutes should be produced or accounted for. If a resolution was in fact passed, but not enter

ed on the minutes, this should be shown. It and since his death from the defendants; is not competent, without laying a sufficient that neither L. W. Singletary nor any perfoundation therefor, to introduce parol evi- son for him, nor the defendants, ever paid dence that directors acted on a certain trans- plaintiff the value of the cross-ties, or any action, or that the corporation "agreed" to part thereof, or restored to him the cross-ties, a certain thing, where the issue is whether or any part thereof. the officers or agents who acted had author- The defendants demurred to the petition, ity to bind the corporation in the transaction. on general and special grounds-the special The difficulty in dealing with certain grounds being that it did not disclose what grounds of the motion for new trial is in- personal property of the value of $500 the creased by the absence of a statement as to the objections which were made and sustained, so that the exact ruling of the court is left to inference.

amendment to the petition is not set forth in the bill of exceptions, but is sought to be brought to this court as a part of the record; wherefore it cannot properly be considered, and without it no question is presented to this court on which it can undertake to pass."

Sheffield & Askew, of Arlington, for plaintiff in error. Glessner & Park, of Blakely,

for defendants in error.

HILL, C. J. (after stating the facts as above). [1] 1. The motion to dismiss the writ of error is denied. The amendment to the petition was filed under the order of the judge, though he subsequently struck it for legal insufficiency. In such case the amendment may be specified as a part of the record. McCall v. Herring, 116 Ga. 235, 42 S. E. 468; McGarry v. Seiz, 129 Ga. 298, 58

S. E. 856.

The second ground of the demurrer attacks the petition because "it does not disclose what personal property of the value of $500 the defendants possessed and converted to their own use, or the nature of such property, or how, or when, or in what manner, it was possessed and converted to their own use." The amendment, which was filed and disallowed, we think, very fully meets this ground of the demurrer. It alleges that the personal property sought to be recovered, or the value thereof, consisted of a certain number of cross-ties in the county of Early, located along the right of way of the Central of Georgia Railway Company, from Hilton, to Arlington, Ga., of the value of 35 cents each. But, irrespective of this amendment, the petition as originally filed was not subject to special demurrer on this ground. Paragraph 9 of that petition specifically alleged that 1,500 cross-ties, aggregating the value of $500, for which the suit was brought, were taken by the deceased with

ed, to wit, "upon and along the right of way
of the A. & N. Railway Company, at or near
The allega-
Philema, in Lee county, Ga."
tions of the original petition and the amend-
ment are inconsistent, it is true; but this
inconsistency can be explained by evidence,
and the plaintiff would have the right, un-
der the allegations of the petition as amend-
ed, to claim any or all of the cross-ties which
had been converted by the deceased, to the
extent of $500.

Counsel for movant relies upon the case of Schaeffer v. Central of Ga. Ry. Co., 6 Ga. App. 282, 64 S. E. 1107, followed in Ledbet-out authority from where they were locatter v. Savannah Brewing Co., 8 Ga. App. 282, 68 S. E. 950. A casual reading of these two opinions suggests an apparent conflict with the ruling in McCall v. Herring, supra. But in the two cases in this court it appeared that the trial judge did not order the amendment to be filed, but simply held that an amendment was necessary to meet the demurrer, and granted time for the amendment to be made, and subsequently disallowed the amendment on the ground that it was insufficient to meet the requirements of the order previously passed. In the instant case the judge distinctly granted permission to file the amendment, although he subsequently disallowed it; and Judge Powell, in the Schaeffer Case, supra, states that it is held that, if an amendment is filed under order of the judge, it becomes a part of the record, though he subsequently strike it for legal insufficiency, and fn such case the amendment may be specified as a part of the record. Judge Powell's reference to Atlantic & B. R. Co. v. Southern Pine Co., 116 Ga. 225, 42 S. E. 500, as holding this, is evidently a miscitation; it doubtless being his intention to refer to McCall v. Herring, supra, which is in the same volume.

While in our opinion, therefore, it was not necessary to amend the petition to meet the demurrer, as the allegations in the original petition set forth a cause of action, yet the amendment as filed, amplifying the allegations of the petition, was within the right of the plaintiff, and the petition as amended was sufficient to let in proof of the allegations made, and the judgment dismissing the petition was erroneous. Judgment reversed.

POTTLE, J., disqualified.

EMINENT HOUSEHOLD OF COLUMBIAN
WOODMEN v. GEORGE E. BENZ
& CO. (No. 4,271.)

[2] 2. The judgment sustaining the special grounds of the demurrer is of peculiar phraseology. It sustains the second, third, and (Court of Appeals of Georgia. Oct. 22, 1912.)

fourth grounds of the special demurrer, with the proviso that if an amendment is offered by the plaintiff within ten days, meeting the second ground of the demurrer, then the demurrer would be overruled in toto. Construing this ruling all together, it is manifest that the trial judge meant that, if the amendment subsequently filed by the defendant was sufficient to meet the second ground of the demurrer, it would also meet the third and fourth grounds of the demurrer.

(Syllabus by the Court.) 1. CORPORATIONS (§ 400*)-POWERS AND LIA

BILITIES REPRESENTATION BY OFFICERS.

Where an officer of a corporation makes a contract for it within the scope of his appropriate duties, the corporation cannot relieve itself of liability on the contract by reason of any by-law or other limitation on the power of the officer not known to the other party to the

contract.

tions, Cent. Dig. §§ 1587, 1590, 1591; Dec. Dig. [Ed. Note. For other cases, see Corpora§ 400.*]

3. NEW TRIAL (§ 57*) - GROUNDS - IRREGULARITIES-TAKING PAPERS TO JURY ROOM.

2. CORPORATIONS (§ 399*)-POWERS AND LIA- | J. B. Frost, who had been what was called BILITIES-REPRESENTATION BY OFFICERS. "Eminent Consul" of the Columbian WoodWhere a corporation, through its executive officers constituting the board of directors, for men since the foundation of the order about years and by a long course of dealing intrusts six years before. During that time he had the management of its business to a particular performed all the duties outlined in the conofficer, and permits him to make contracts for stitution and laws of the order relating to it in connection with its business, and especially contracts similar in character to the one his position, had general supervision of all under consideration in this case, such a con- the supplies and secret work, produced the tract would be binding on the corporation, ir-ritual and supervised its work and demonrespective of whether or not it was expressly authorized by the by-laws or by formal action stration throughout, and determined on the of the executive officers or board of directors. supplies and ordered them. No one else con[Ed. Note. For other cases, see Corpora- | nected with the organization ordered supplies tions, Cent. Dig. §§ 1588, 1602-1610; Dec. Dig. of a general character, except the "Eminent § 399.*] Consul." Frost testified that in "supplies" were included such things as "badges, ritual supplies, general paraphernalia, tools, and implements that were used in producing the ritual and exemplifying it." He testified that all these things were ordered by him during the entire period, and that he approved the bills, and they were paid; and in pursuance of a uniform custom, which had always been approved by what was known as the "Eminent Council" of the corporation, he ordered the badges in question from the plaintiff; that these badges contained the emblem of the order, the names of special conventions that were being held, and were used at the conventions of the order; that what was called the "Eminent Council" of the order was analogous to a board of directors of an ordinary corporation, and this "Eminent Council" was the executive board of the corporation. According to Frost's testimony, The numerous objections made to excerpts while the "Eminent Council" looked generally from the charge of the court and to rulings on evidence are wholly without merit. after the business of the order, to him as The law applicable to all the issues in the case was ful- "Eminent Consul" was intrusted the duty of ly, clearly, and fairly presented in the instruc-purchasing the property that the order needtions. No error of law whatever appears in the trial, and the verdict is fully supported by

Where certain portions of interrogatories, with exhibits attached, which the trial judge had excluded from the evidence, were, by inadvertence, left in the possession of the jury, and were taken out by them when they retired to consider the case, and, on their return to the courtroom with the verdict, the attention of the judge was called to the matter, and he interrogated the foreman of the jury for the purpose of finding out if these interrogatories or exhibits had been read or considered by the jury in their deliberations, and in reply the foreman stated that neither the interrogatories nor the exhibits had been read or considered by any member of the jury, and that the papers (meaning the interrogatories and exhibits) had "not even been opened by any member of the jury," there was no error in refusing to grant a new trial on this ground.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 120; Dec. Dig. § 57.*] 4. OBJECTIONS TO CHARGE-SUFFICIENCY OF EVIDENCE.

the evidence.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by George E. Benz & Co., a corporation, against the Eminent Household of Columbian Woodmen. Judgment for plaintiff, and defendant brings error. Affirmed.

ed in connection with its routine business and conventions, and of doing many other things that were not specifically set forth by the by-laws and constitution. There was no evidence that any officer of the corporation had ever bought badges or other paraphernalia for the order, except the "Eminent Consul,” Frost, and Frost testified that all of the bills made by him of this character had been approved by the "Eminent Council," and that this bill had been disapproved, simply because of friction that had arisen between him and the "Eminent Council."

This was a suit against the Eminent Household of Columbian Woodmen, a corporation, to recover the purchase price of 280 badges, sold and delivered to it on or about November 16, 1909, for 40 cents each, and aggregating the sum of $112. The verdict was for the full amount sued for, and the defendant excepts to the refusal of a new trial. It is admitted that the badges were duly delivered to members of the corporation and were used by them, and the defense relied upon was that its agent, who had ordered the badges for the corporation, was not authorized to do so, and that therefore the corporation was not bound to pay for them. The evidence on the question of authority is practically uncontroverted, and shows in substance the following facts: The badges in question were ordered for the corporation by

The testimony introduced in behalf of the defendant, as to the lack of authority on the part of Frost to order the badges in question, was to the effect that the purchase had not been approved by the "Eminent Council." This evidence, however, discloses the fact that the giving of the order by Frost for the purchase of the badges, their reception by the corporation, and their use by the members thereof, were known to the "Eminent Council," and were not disapproved. The Eminent Clerk of the Supreme Secretary of the Eminent Household of Columbian Woodmen testified that he refused to pay the bill for the purchase of the badges, because he