in sustaining a demurrer to the evidence of plaintiff, for the reason that limitation is an affirmative defense and must be proven by the party interposing it. The contention made by counsel for plaintiff is true as a general proposition of law, but there is a well-defined exception to this rule, which is that, where a petition or bill of particulars shows on its face that more than 2 years have elapsed since the cause of action accrued and the answer sets up the statute of limitation, the burden is on the plaintiff to show, if possible, that the running of the statute has been suspended, where a period of 2 years constituted a bar to the action. In the instant case the bill of particulars filed by plaintiff is as follows: "Plaintiff, further complaining, states: That on or about the -- day of September, 1911, the following described cow, when but 10 months old, was left by her in the possession of Perry House, to care and keep for her, and that said cow, which was then about 10 months old, disappeared, she either having been stolen or strayed from the premises of Perry House in Osage county. That after diligent search for said heifer, which is now described as a yellow Jersey cow, 5 years old in March, 1916, marked with dark hair on knees and with wire cut scar in left flank, this plaintiff was unable to find or locate said cow or heifer, and did not hear or learn anything of the whereabouts of said cow until about 2 months prior to the date of this petition, when plaintiff ascertained the fact that said cow was in the possession of the defendant above named; that she went to home of the defendant, there found her cow as hereinabove described, and made demand upon the defendant for the possession of said cow, which possession said defendant refused to give." without the introduction of the note, but, on the contrary, introduced the second note in evibeen barred by the statute of limitations. The dence, which, upon its face, was shown to have evidence having been introduced and the statute of limitations having been pleaded, the court should have instructed the jury in accordshown by affirmative evidence that the action ance with the evidence. The plaintiff having was barred, it became unnecessary for the defendant to introduce any evidence, and he had the court and jury. This evidence showing af a right to rest his case upon the evidence before firmatively that the action was barred by the statute of limitations, the verdict of the jury and the judgment of the court should have been in favor of the defendant." shows upon its face that the cause of ac- prior to the time the suit was instituted. To the foregoing bill of particulars a writ. ten answer was filed, in which the 2-year statute of limitation was specifically pleaded. It will be seen from the foregoing bill of particulars that the cause of action accrued in 1911, and that this action was instituted in 1916. There is no pleading or allegation in the bill of particulars that shows that the statute of limitation was ever suspended. Was the court warranted in sustaining a demurrer to the evidence offered the evidence offered by plaintiff, a demurrer by plaintiff in this case? This question was was interposed on his demurrer, and appealpassed on in the case of Bradford v. Bren-ed to this court. In an opinion written by nan et al., 12 Okl. 333, 71 Pac. 655. In this Commissioner Rummons, the rule applicable case an action was instituted on a note for to the burden of proof in such a case was the sum of $216. At the trial of the cause stated as follows: plaintiff introduced the note in evidence, which showed on its face that it was barred by the statute of limitations. At the close of the evidence a demurrer was interposed, which was by the court sustained. The court, in speaking of the question as to the burden of proof, stated the following rule: "One of the defenses was the statute of limitations. The execution of the note sued on, as set out by the exhibit to the plaintiff's petition, was not denied. The plaintiff was under no obligation to offer the note in evidence, and might have rested his case, requiring the defendant to show affirmatively if he could, that the note was barred by the statute of limitations, that question not appearing upon the face of the record. But the plaintiff did not see fit to rest his case * of the plaintiff shows on its face that his cause the evidence." Vanselous v. McClellan, 157, ment of the county court of Osage county be Pac. 923. affirmed. PER CURIAM. Adopted in whole. We therefore deduce the rule to be in this state that when a plaintiff states a cause of action, which is shown by the petition or bill of particulars to be barred by the statute of limitation applicable to such a cause of action, and the defendant interposes a plea of the statute of limitation, the burden (Supreme Court of Oklahoma. Oct. 8, 1918.) is on the plaintiff to plead and prove facts relieving such action from the bar of the statute of limitation. In the case of Mason v. Henry, 152 N. Y. 529, 46 N. E. 837, this question was before the Court of Appeals of New York, and Judge Gray, speaking for the court, stated the following rule: GRANTZ v. JENKINS et al. (No. 9324.) (Syllabus by the Court.) 1. APPEAL AND ERROR 900, 1031(1) SHOWING ERROR-PRESUMPTION AND BURDEN OF PROOF. Error will never be presumed on an appeal of a civil action, but must affirmatively appear, or it will be presumed that no prejudicial error was committed by the trial court. 2. APPEAL AND ERROR 706(3) — GROUNDS OF MOTION FOR NEW TRIAL-CASE-MADEREVIEW. A mere allegation in a motion for a new trial of irregularity in the jury and the abuse of discretion of the court, by which the defendant was prevented from having a fair trial, is not sufficient to warrant a consideration, when there is nothing in the case-made that affirmatively shows the acts complained of occurred. 3. TRIAL 260(1) REQUESTED INSTRUCTIONS GIVEN INSTRUCTIONS. It is not error to refuse special instructions requested by a party, when the questions covered by the special instructions are included in the general instructions. (Additional Syllabus by Editorial Staff.) 4. FRAUDS, STATUTE OF 23(3) - SALE OF GOODS-ORIGINAL PROMISE TO PAY. "The only other point which it is necessary to notice upon this appeal is that which is made by the appellant, that there is no finding of fact or of law upon which the claim that this action is barred by the 6-year statute of limitations can be supported. The appellant argues that the burden was upon the defendants, who interposed the defense of the statute, to show that the action was not commenced within 6 years after the cause of action accrued, and, as it would not accrue until the discovery of the fraud, a finding was necessary, to help out the defense that such a discovery was made prior to the appointment of the receiver, in March, 1877. The provision of the former Code, that the cause of action should not be deemed to have accrued until the discovery of the fraud, was, however, only applicable to the cases theretofore solely cognizable in chancery. But the answer to the point made by the appellant is that, as the answer sets up the statute of A promise to pay for merchandise furnished limitations, the burden was thereby placed upon to a third person, when it is furnished on the the plaintiff of proving that the fraud was not faith of such promise, makes the promisor pridiscovered until within 6 years of the com-marily liable; and such promise is an original mencement of the action. If this were not and not a collateral promise. so, the defendant would have to prove a knowledge in the plaintiff, which, in most cases, would be impossible. The burden of showing that the running of the statute had been arrested ought to be upon the plaintiff, as was the rule in equity. A carefully considered opinion in Baldwin v. Martin, 14 Abb. Prac. (N. S.) 9, discusses this question quite thoroughly. In the complaint in the present case it appears upon its face that more than 6 years had elapsed since the misapplication of the funds of the Widows and Orphans' reserve occurred. When the answer made the special plea of the statute of limitations, it became incumbent upon the plaintiff to repel the presumption of the action being barred by showing matter in avoidance. The burden was upon the plaintiff to show in what way the running of the statute had been suspended. The views expressed lead to the conclusion that the order appealed from should be affirmed, and that judgment absolute should be ordered against the plaintiff pursuant to his stipulation." Commissioners' Opinion, Division No. 2. Error from District Court, Garfield County; James B. Cullison, Judge. Action by D. L. Jenkins and G. W. Jenkins, partners doing business under the name of Jenkins & Son, against A. R. Grantz. Judgment for plaintiffs, motion for new trial overruled, and defendant brings error. Affirmed. Daniel Huett, of Enid, for plaintiff in error. Carl Kruse, of Enid, for defendants in error. DAVIS, C. This action was begun by defendants in error, hereinafter referred to as plaintiffs against the plaintiff in error, hereinafter referred to as defendant, before J. V. Ratcliffe, a justice of the peace of Garfield county, Okl., to recover the sum of $147.87 alleged to be due plaintiffs from defendant. It appears that plaintiffs are engaged in the mercantile business at Hunter, Okl. Clarence F. Meyers, a son-in-law of defendant,' was doing business with plaintiffs and had become indebted to them in the sum of about $25. Plaintiffs refused to extend any further credit to Meyers, and on this fact being communicated to Mr. Grantz he went to plaintiffs and made arrangements for his We therefore recommend that the judg- son-in-law to buy his goods and merchandise This rule seems to be the one enforced in a large majority of the states. Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S. W. 305; Paine v. Dodds, 14 N. D. 189, 103 N. W. 931, 116 Am. St. Rep. 674; Dielmann v. Citizens' National Bank, 8 S. D. 263, 66 N. W. 311; Capen v. Woodrow, 51 Vt. 106. The contention of the counsel for plaintiff must, under the condition of record in this case and the evidence, be denied. from plaintiffs. There is a conflict in the evidence as to what this arrangement was, but it is alleged by plaintiffs that defendant came to them and personally agreed to pay for the goods and merchandise furnished his son-in-law, and that upon this express promise and agreement they continued to furnish Mr. Meyers goods and merchandise to the amount of $182.72. Mr. Meyers afterwards made a payment on this account, and reduced it to the amount of $147.87. Defendant refused to pay this sum when requested, and this action was instituted to force collection thereon. It is not denied by defendant that he had a conversation with plaintiffs in regard to the credit to be extended to Mr. Meyers, but his testimony is that he never agreed at any time that he would pay the indebtedness. His version of the transaction is that he told plaintiffs to make Meyers give them security. On the issues thus formed the cause was submitted to a jury, and a verdict rendered in favor of plaintiffs for the sum of $147.72. A motion for a new trial was duly filed and overruled and from the action of the court in overruling said motion an appeal has been prosecuted to this court to have the action of the trial court reviewed. [1, 2] The first assignment of error that demands consideration is that the court erred in communicating with the jury after its retirement and in the absence of counsel. The assignment is as follows: "That the court erred and abused the discretion of the court to the prejudice of the defendant, plaintiff in error herein, in this, to wit: That after the cause had been submitted to the jury the jury sent a note to the judge of said court in words and figures as follows: 'Hon. Judge: We want one question where the court ruled out the communication where Grantz and Cake, that you will have to pay that obligation. "No,' says Grantz, "he took the mortgage on the wheat and that releases me from that obligation." Foreman.' That the trial judge wrote the word 'No' and signed the communication 'James B. Cullison, Judge,' and caused the same to be returned to the jury, over the objection of the defendant." This assignment of error must be denied, for the reason that there is not incorporated in the case made any evidence to show that the alleged transaction took place. If defendant desired to predicate an assignment of error on this transaction, and have the same reviewed here, he should have made a proper showing that said transaction did in fact take place. Aside from the allegation made in the motion for a new trial, there is nothing before this court to show what the real facts are that did transpire. Were this allegation supported by an appropriate showing that such communication did in fact occur, then it would present a question meriting consideration. But how is this court to know that Hon. James B. Cullison signed any note, or that any note was sent to him by the jury seeking any information, or that counsel was absent when this occur red? This could have been properly incorporated in the case-made by requesting the trial judge to have dictated into the record a statement of the transaction complained of. Should he have refused, then defendant was not without a remedy. He might have supported said allegation by the testimony of the jury, or the bailiff in charge of them, or any other person who was cognizant of the facts. Yet neither is done, and this court is asked to presume that the bare allegation in the motion for a new trial shall be taken as true, and this cause reversed. It has been repeatedly held by this court that error is never presumed, and any one seeking to have a judgment set aside must affirmatively show that error was committed. The record is silent as to what did take place, and in the absence of any evidence supporting this assignment of error we are constrained to hold that it cannot be considered. If we are to be governed by what the record shows, we must conclude that counsel for defendant was in the court at the time, for it is stated in the motion for a new trial that defendant objected and excepted to the action of the court. How could an objection and exception have been taken, unless counsel was present in court? In the case of Cox et al. v. Warford, 34 Okl. 374, 126 Pac. 1026, Commissioner Sharp, speaking for the court said: "Error will never be presumed on appeal in a civil case, but must be made to appear affirmatively, or it will be presumed that no prejudi-. cial error was committed by the trial court. Grand Lodge v. Furman, 6 Okl. 649, 52 Pac. 932; Mulhall v. Mulhall, 3 Okl. 304, 41 Pac. 109; Grand Lodge v. Edmonson, 6 Okl. 671, 52 Pac. 939; Board v. Hubble, 8 Okl. 169, 56 Pac. 1058; Farmers', etc., Bank v. Sharum, 21 Okl. 863, 97 Pac. 555." In the case of Joseph v. National Bank, 17 Kan. 256, the Supreme Court of Kansas had this question before it for consideration and announced the following rule: "But it is claimed that the record does now show that the defendants or their counsel were present at the time these instructions were given, and does not show that any notice was given * * * But the record does not show to them. that the defendants and their counsel were absent and that they had no notice. From anything appearing in the record, the defendants and their counsel may have had ample notice, and may have been present at the time the instruc tions were given. The record is merely silent upon the subject. Now the defendants themselves brought the record to this court and in* record, stead of bringing the entire they brought only what is termed 'a case-made for the Supreme Court.' And it always devolves upon the plaintiff in error, the party complaining, the party who makes the case, to see that enough is put into his casemade' to show affirmatively the errors of which he complains. Error is never presumed from mere silence in the record, and certainly not in favor of the plaintiff in error whose record is If the defendants were merely a 'case-made." not present, and had no notice when said instructions were given, they should have made their 'case-made' show that fact affirmatively." * In the instant case, if counsel for de- the president and general manager of said corfendant was absent when this alleged trans-poration for the year 1914. The president and action occurred, he should have made this general manager was one of the directors attending said meeting. Held, that said resolufact affirmatively appear, as well as all tion was void for the reason that a quorum other facts pertinent to it. of the directors qualified to vote on said resolution was not present at said meeting. 3. CORPORATIONS 316(4) ACTS OF OFFI CERS RATIFICATION. [3] The next error assigned for consideration is error of the court in refusing to give two special instructions offered by defendant. There was but one question to submit to the jury in this case. Did defendant authorize plaintiff to furnish goods and merchandise to Meyers, and were said goods and mer-rectors of such corporation. chandise furnished on the express promise 4. CORPORATIONS 308(1)-SALARY OF OFFIof defendant to pay for them? Defendant denied that he made any promise whatever. Plaintiffs averred that he did, and this controverted question was submitted to the jury for determination. An examination discloses that the trial court instructed the jury that they must believe and find by a fair preponderance of the evidence that the defendant agreed and promised that if plaintiffs would sell the goods to Meyers that defendant would pay for them, and that plaintiffs sold said goods under such circumstances as to render defendant a principal debtor. The special instructions offered by defendant were covered by the general instructions given by the court. Hence there was no error in refusing said instructions. Moore v. Johnson, 39 Okl. 587, 136 Pac. 422. [4] It has been repeatedly held by this court that a promise to pay for merchandise furnished to a third person, when said goods are furnished on the faith of said promise, makes the promisor primarily liable for said debt; that such promise is an original and not a collateral promise. Kesler v. Cheadle, 12 Okl. 489, 72 Pac. 267; Lindley v. Kelly, 47 Okl. 328, 147 Pac. 1016. The foregoing assignments of error are the only ones that demand consideration, and as it does not appear that prejudicial error was committed in the trial of said action, we recommend that the judgment of the trial court be affirmed. PER CURIAM. Adopted in whole. FIELDS v. VICTOR BUILDING & A corporation cannot ratify an act of its officers of which it had no knowledge, so as to be estopped in an action between such corporation and one of its officers, who has withheld knowledge of such acts from the board of di CER-RIGHT OF ACTION. A president and general manager of a corporation cannot maintain an action based on a quantum meruit for past services rendered as president and manager when no compensation for such services is provided in the charter or by-laws and no compensation is fixed by any of such services, providing for compensation for valid resolution passed, prior to the rendition such services. Commissioners' Opinion, Division No. 2 Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by the Victor Building & Loan Company against William P. Fields, with counterclaim by defendant. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Affirmed. Ezra Brainerd, Jr., and William Hatch Davis, both of Muskogee, for plaintiff in error. Rutherford & Cosgrove, of Muskogee, for defendant in error. DAVIS, C. This action was begun in the superior court of Muskogee county, Okl., by defendant in error, hereinafter referred to as plaintiff, against plaintiff in error, hereinafter referred to as defendant, to recover the sum of $1,915.84. It is alleged in the petition that plaintiff is a building and loan association with its principal place of business at Muskogee, Okl.; that it was organized on or about the month of March, 1912; that defendant was its active president from the date of its organization until the 20th day of January, 1916; that defendant was the promoter and moving spirit of said organization, and, as an inducement to others to buy stock therein, defendant promised and represented that he would perform any and (Supreme Court of Oklahoma. Oct. 8, 1918.) all services rendered by him gratuitously TORS-VALIDITY-QUORUM. and would keep the office of plaintiff corporation in defendant's office until he had built up and expanded plaintiff's business and acquired for it such increased financial strength that plaintiff, in the judgment of its directors, could afford to pay for such services; that on or about the month of March, 1915, defendant presented to plaintiff a claim for services rendered as man 2. CORPORATIONS 308(5)-VOTE OF DIREC-ager and for alleged items of expense, office rent, telephone, and light charges alleged V. B. & L. Co., a corporation, had a board to have been paid by defendant for the years of directors consisting of five members. Three members of the board of directors held a meet- 1912, 1913, and 1914, which claim amounted ing and passed a resolution fixing the salary of to $1,700; that when said claim was pre For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sented defendant represented to plaintiff ant and appropriated to his own use. But that he had received no compensation for defendant has attempted to justify his achis services or for money expended in the tion in this matter by reason of a purportbusiness, and that, despite the agreement ed and alleged resolution of the board of under which defendant procured the sub-directors made on the 28th day of January, scriptions for stock, the plaintiff, acting by 1914, at which time a resolution was passed and through its officers, allowed defendant allowing the defendant the fines and memberthe sum of $800 as payment in full of all ship fees collected for 1914 as his compenitems claimed by defendant. It is further sation for acting as president and manager averred that, after defendant severed his of said company for said year. The validity relation with said company, an examination of this resolution is attacked by plaintiff on of the books and records disclosed that de- the ground that it was a void act, in that a fendant had during the year 1914 received quorum was not present at the time it was and paid to himself the sum of $1,423.42; passed, and that it conferred on defendant said sum representing fines and membership no authority to thus appropriate this fund fees for the year 1914. Defendant filed an to his own use as a salary. On the date answer consisting of a general denial and when this resolution was passed, the board also a counterclaim for $1,800, which sum of directors consisted of Mr. Fields, Mr. defendant alleges to be due for services ren- Gibbons, Mr. Duncan, Mr. Merchant, and dered plaintiff as president and manager of Mr. Fink. Those present when said resoluplaintiff for the year 1915. On the issues tion was passed were Mr. Field, Mr. Gibthus joined, the cause was tried to the court bons, and Mr. Merchant. The court made a without the intervention of a jury. At the finding of fact and conclusion of law at the conclusion of the evidence, judgment was trial. The finding of fact in reference to rendered in favor of plaintiff for the sum this meeting is as follows: of $1,423.42. A motion was filed for a new trial and overruled. Defendant, feeling aggrieved at the action of the court, prosecutes an appeal to this court to have said cause reviewed. "The purported resolution of January, 1914, defendant for the year 1914, appears to have attempting to provide for compensation for the been passed at a meeting of the directors at which only Fields, Merchant, and Gibbons, three of the five directors of the plaintiff company, were present, and so far as the evidence in this case shows, this was the first attempt of the directors of said company to fix any compensation for the defendant. Such purported resolution was invalid because the presence of Fields, the beneficiary, was necessary to make a quorum of the board of directors at that meeting, and without him there was no quorum, and because the defendant Fields, although a director, was ing the consideration of the purported resolu disqualified from acting as such director durtion on account of his personal interest therein and should not be counted in making up a quorum for the consideration of such resolution." There is no controversy but that the finding of the court as to the number of directors present when said resolution was passed is correct and that there were five directors of plaintiff at that time. Was this resolution valid? Could the defendant claim any right to appropriate the money which he admits he took for the year 1914 under and by virtue of this resolution? This must be answered in the negative. It appears from the evidence that the defendant was the promoter who organized the Victor Building & Loan Company in 1912 and became its first president and general manager and continued in this capacity until the 20th day of January, 1916. The first difference appears to have arisen between plaintiff and defendant in the early part of 1915. This was occasioned by a claim which defendant presented to plaintiff in the sum of $1,700. When this item was presented to the board of directors, it was rejected until such time as defendant might call a meeting of the stockholders and secure their recommendation for the payment of this claim. There seems to have been a meeting of the stockholders pursuant to a notice published in a newspaper. When the matter was finally presented to the directors on the 26th day of May, 1915, a considerable protest was made on the ground that the defendant had promised and agreed to perform the services, for which he was then seeking pay, free of charge; but after considerable wrangling it was finally agreed that as a compromise defendant should be allowed the sum of $800. This sum was accepted by defendant, and no further trouble arose until defendant severed his relations with plaintiff, and it was then ascertained for the first time by the board of directors that debe holders of stock therein in an amount to fendant had received and paid to himself the sum of $1,423.42 during the year 1914. This sum consisted of fines and membership fees collected for that period. [1, 2] It was agreed at the trial of this Section 1252, Rev. Laws 1910, was taken from the Dakota statute, and reads as follows: erty of all corporations formed under this chap"The corporate powers, business and propter must be exercised, conducted and controlled by a board of not less than three nor more than holders of stock; or where there is no capital eleven directors, to be elected from among the stock, then from the members of such corporation. Directors of corporations for profit must rectors of all other corporations must be membe fixed by the by-laws of the corporation. Dibers thereof. Unless a quorum is present and acting, no business performed or act done is valid as against the corporation." In the case of Crocker v. Cumberland Min |