
    CORPORATIONS — EVIDENCE—JUDGMENTS— PARTNERSHIP.
    [Athens (4th) Court of Appeals,
    June 7, 1916.]
    Merriman, Walters and Sayre, JJ.
    Harry H. Jackson v. Nelsonville Foundry & Mach. Co., et al.
    1. Oral Evidence Admissible to Show Identical Plaintiff in Suit on Judgment and in Original Suit.
    In a suit on a judgment oral evidence is admissible to show that the plaintiff in the record of the judgment is identical with the plaintiff in such suit.
    2. Oral Evidence in Suit on Judgment that Plaintiff in Record Described as Corporation was Partnership Should not be Excluded.
    Where, from the oral evidence, it appears that in the record of the judgment the plaintiff therein was by mistake described as a corporation, when in fact the plaintiff was the partnership,, or its assignee, seeking to recover on the judgment, such evidence should not be excluded.
    3. Knowledge of Corporate Officer of Matter in his Charge Imputed to Corporation.
    The knowledge acquired by an officer of a corporation, when acting in his official capacity and in regard to a matter with which, he is especially charged by the board of directors, is the knowledge of the corporation for any and all judicial purposes.
    4. Knowledge of Secretary-Treasurer of Corporation that Notes for Overdrafts Contained Warrants of Attorney to Confess Judgments Chargeable to Corporation.
    The secretary-treasurer of a corporation, together with its president, having been authorized by the board of directors to make notes to banks to cover overdrafts, and having without authority executed notes with warrants of attorney containing power to confess judgment against the company and in favor of the obligee therein named, the knowledge of the secretary-treasurer thereby obtained that the notes contained such warrants is the knowledge of the corporation.
    
      5. Ratification by Acquiescence of Unauthorized Act of Corporate Officer.
    When knowledge is obtained by a corporation of an unauthorized act of its officer it may ratify the same by acquiescence, continued for a number of years, without any .formal action of its board of directors.
    6. Thirteen-Years’ Payment of Interest on Authorized Notes Containing Unauthorized Warrants to Confess, Ratification.
    When a corporate officer signs notes authorized by the board of directors containing unauthorized warrants of attorney for the entry of judgment by confession, and the notes remain unpaid, save the payment of the annual interest thereon, for more than thirteen years, such acquiescence on the part of the corporation is a ratification of the unauthorized acts of its officer.
    7. Corporation Bound if Stockholders Permit Directors to Surrender Powers to Executive Officer. ,
    If the stockholders of a corporation permit the directors to surrender their powers and functions to an executive officer of • the corporation as a continuous and permanent arrangement, the board of directors being entirely inactive and the officer discharging all of its duties, the acts of such officer under such circumstances are binding upon the corporation.
    8. Corporation Cannot Deny Liability for Unauthorized Acts of General Manager Knowing Directors Defunct.
    So, where the general manager of a corporation whose board of directors as such has become defunct with the knowledge and consent of the stockholders, and the general manager with their consent directs and controls all its business affairs, a note signed by the president of the corporation and by such general manager as secretary, containing warrants of attorney for the confession of judgment, is binding upon the corporation and it can not avoid a judgment obtained by confession in a suit on such note on the ground that the execution of the note by the general manager was unauthorized and void.
    9. Failure of Partnership as Judgment Creditor on Cognovit Notes to Aver Purpose of Partnership Does not Render Judgment Void.
    In an action by a partnership on notes containing warrants of attorney for the entry of judgment by confession failure to aver in the petition that the partnership was formed for the purpose of carrying on a trade or business in Ohio does not render the judgment void.
    [Syllabus by the court.]
    Appeal.
    March 23, 1914, plaintiff filed a petition in the court of common pleas of Athens county, in which he stated that the defendant was a corporation and indebted to him in the sum of $7950.-00, evidenced by three promissory notes due and unpaid; that it was engaged in manufacturing, was indebted to various persons in a sum exceeding $40,000.00, was insolvent and wholly unable to pay its debts; that it was not able to carry on its business and prayed, among other things, the appointment of a receiver.
    Subsequently W. S, Weitzell was1 appointed receiver, and on May 29,1914, filed in the case an application to sell property, in which it was stated that it was necessary to sell the real estate of the corporation to pay its debts. It was recited in the ap- ' plication that Emery Lattaner, as superintendent of banks of the state of Ohio, claimed some interest in such real estate, and there was a prayer that he as such superintendent might be made a party to the action. Lattaner, as superintendent of banks, answered, as also did his successor.
    The cause was tried in the court of common pleas and after-wards appealed.
    January 19, 1916, Charles L. Baird, trustee, filed his answer and cross-petition in this court, which reads in part as folio ws:
    “Now comes Charles L. Baird, as trustee of John C. Baird, Eugene J. Cable and Charles L. Baird, in the liquidation and settlement of the affairs of the Merchants and Miners Bank, a partnership, having been made a party defendant hérein and given leave to file this his answer and cross petition, and says:
    ‘ ‘ That on or about the 12th day of March, 1914, Emery Lat-taner, then superintendent of banks of the state of Ohio, took charge of the affairs and all of the assets of the.Merchants and Miners Bank of Nelsonville, Ohio, a partnership, then comprised of Charles A. Cable, Eugene J. Cable, Charles L. Baird and John C. Baird, and thereafter proceeded with the liquidation of the said bank and the administration of its affairs until he was succeeded in said office by Harry T. Hall; that the said Harry T. Hall continued in charge of the liquidation of the said bank and the administration of its affairs until the 14th day of January, 1916; that on said last named date the said Harry T. Hall, as superintendent of banks of the state of Ohio, with the approval and authority of the court of common pleas of Athens county, Ohio, in a certain proceeding therein pending, entitled in the matter of the Liquidation of the Merchants and Miners Bank, and numbered 10940 on tbe docket of tbe said court, assigned and transferred to this answering defendant all and singular tbe assets, cboses in action and claims due said Merchants and Miners Bank, including therein tbe judgment and claim against tbe Nelsonville Foundry and Machine Company hereinafter set forth.
    “This answering defendant further says that at all times hereinafter mentioned prior to the 17th day of February, 1914, one Charles A. Cable, together with Eugene J. Cable and C. Bobbins were partners carrying on a banking business at Nel-sonville, Ohio, in the firm name and style of the Merchants and Miners Bank; that on said 17th day of February, 1914, said C. Bobbins assigned and transferred his interest in the said partnership to Charles L. Baird and John C. Baird, and thereafter until the 12th day of March, 1914, the said Charles A. Cable, Eugene J. Cable, Charles L. Baird and John C. Baird, as partners as aforesaid, carried on the said banking business in the said name and style.
    “The defendant, the Nelsonville Foundry and Machine Company, a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, in consideration of money procured by it from said Merchants and Miners Bank, executed and delivered to the said Merchants and Miners Bank its several promissory notes as follows, to wit: * * *
    “That said Merchants and Miners Bank continued to hold and own said notes from the time of the execution and delivery of .each of them as aforesaid until the 18th day of January, 1911, when the said notes were merged in the judgment hereinafter set forth.
    “That on said 18th day of January, 1911, said Merchants and Miners Bank, in a certain action pending in the court of common pleas of Madison county, Ohio, entitled Merchants & Miners Bank v. Nelsonville Foundry & Mach. Go., and numbered 11306 on the docket of the said court, by the consideration of the said court recovered a judgment on the said promissory notes against the said The Nelsonville Foundry and Machine Company in the sum of $18,440.33, with interest from January 18, 1911, at the rate of seven per cent, per annum, and costs of suit taxed at $-. Said judgment is unreversed and unsatisfied and no part thereof has been paid, except the interest, thereon to January 1, 1914.
    “Pursuant to the said warrants of attorney said The Nel-sonville Foundry and Machine Company entered its appearance-in said cause, confessed said judgment and waived and released all errors therein.
    “This answering defendant further says that in the petition-filed in the said action in the court of common pleas of Madison county wherein the said Merchants and Miners Bank was plaintiff and the Nelsonville Foundry and Machine Company was defendant, numbered 11306 on the docket of the said court, it was alleged that the plaintiff, said Merchants and Miners Bank, was a corporation organized and existing under the laws of the state of Ohio and doing business in Athens county, in said state; that the said allegation of the corporate capacity of saidN'plaintiff was made and inserted in the said petition through inadvertence and mistake by the then attorney of the said Merchants and Miners Bank; that there never was any such corporation organized and existing under the laws of the state of Ohio and doing business in Athens county, Ohio;(that the plaintiff in the said action whose corporate capacity was erroneously alleged in the manner aforesaid was the partnership then comprised of the said Charles A. Cable, Eugene J. Cable and C. Robbins; * *
    There was a prayer that the Madison county judgment be declared the first and best lien.
    The name of the plaintiff stated in the caption in the Madison county case was: The Merchants and Miners Bank. There are five causes of action in the petition in that case, each of which sets up a promissory note executed by the Nelsonville Foundry and Machine Company and payable to Merchants and Miners Bank. Each cause of action contains the averment that, “plaintiff is a corporation organized and existing under the laws of the state of Ohio and doing business in Athens county, in said state. ’ ’
    This first note was for $1,000.00, dated August 25, 1892, ■due one day after date. The second was for a like sum, dated August 26, 1892, due one day after date. The third was for $3,700.00, dated February 6, 189/7, due ninety days after date„ The fourth was for $2,676.07, dated October 16, 1897, due-ninety days after' date. The fifth was for $10,000.00, dated December 31, 1910, due one day after date. The interest on the several notes, except the last, was paid annually.
    The note dated August 25, 1892, contained the following:-
    “And we hereby waive protest and notice thereof, and” authorize and empower any attorney at law, in the state of Ohio, or elsewhere, in our names and behalf, or in the name and" behalf of any or either of us, to appear before any court of record in said state of Ohio, or elsewhere, at any time after this obligation becomes due, and waive process and service thereof,, and without notice, confess judgment against us, or any or either-of us, in favor of the said payee for the amount that may appear to be due thereon, for the principal and interest, damages-, and costs of suit, releasing all errors in the judgment so confessed and waiving all right and benefit of appeal, and any and all proceedings to set aside, vacate, open, suspend or reverse-such judgments, * #
    Bach of the other notes contained language in effect the same as the language quoted.
    The two notes for $1,000.00, one dated August 25 and the other August 26, 1892, were executed on the authority of the board of directors of the Nelsonville Foundry & Machine Co.,, which authority was expressed in the following words: ‘ ‘ That the president and secretary be authorized to make a loan of $5,000.00 to meet overdraft in bank and for future requirements.” The note for $3,700.00 was executed on the authority of the directors expressed in the following language: “By motion the secretary was authorized to make notes to the banks-, to cover overdrafts.” The note for $2,676.07 was executed on the authority of the directors that “the president and secretary be authorized to give notes for same.” The board of directors-, gave no authority for the execution of the $10,000.00 note.
    Since prior to August 25, 1892, Charles A. Cable, Eugene J. Cable and C. Robbins were partners carrying on a banking business at Nelsonville, Ohio, in the firm name and style of: Merchants and Miners Bank, the payee in the above named notes. The notes .were given for money loaned the Nelsonville Foundry & Machine Co. At the date of the first and second notes, August 25 and 26, 1892, the directors of the Nelsonville Foundry & Machine Co. were Charles A. Cable (the same person who was one of the firm doing business as Merchants and Miners Bank), J. W. Jackson, R. Barnecut, Charles Robbins and C. E. Poston. These notes were signed: “The Nelsonville Foundry & Machine Co., by Chas. A. Cable, President, and C. E. Poston, Secretary-Treasurer.” In 3897, when the second and third notes above referred to were given, Charles A. Cable, C.. Robbins, C. E. Poston, J. W. Jackson and R. H. Jackson were the directors, and the note of February 6, 1897, was signed: “The Nelsonville Foundry & Machine Co., By J. W. Jackson, President, and C. E. Poston, Secretary-Treasurer. ” The note of October 16, 1897, was signed: “The Nelsonville Foundry & Machine Co., By C. E, Poston, Secretary-Treasurer.” The minutes of the Nelsonville Foundry & Machine Company recite that on April 29, 1909, there was held the annual meeting of its stockholders and “that the majority of the stock being present the meeting was called to order. * * * Stockholders present: C. A. Cable, C. Robbins, H. H. Jackson (plaintiff) and R. PI. Jackson.” Directors elected were: C. A. Cable,' C. Robbins, Fred Weymueller, PL IP. Jackson and R. IP. Jackson. At a meeting of the directors held the same day C. A. Cable was elected president, and R. H. Jackson secretary-treasurer. The same record recites that there was a stockholders’ meeting on August 22, 1912, at which time C. A. Cable, C. Robbins, H. H. Jackson and R. H. Jackson were elected directors and someone elected in the place of Wey-mueller. Neither the stockholders nor directors of the Nelson-ville Foundry & Machine Company have ever met since April 29. 1909, except on the one occasion, August 22, 1912, when the stockholders re-elected the old board of directors with one exception. Mr. R. H. Jackson has been secretary-treasurer of the Nelsonville Foundry & Machine Company since 1901 and general manager since prior to 1909, and during all that time has been tbe one salaried official of tbe company and its control bas been in bis bands.
    ■ Oral evidence was received at tbe trial in this court, over the objection of tbe Nelsonville Foundry & Machine Company, to show that Merchants and Miners Bank, described as a corporation in tbe Madison county suit, was tbe partnership composed of Charles A. Cable, C. Bobbins and Eugene J. Cable doing a banking business in Nelsonville, and whose assignee is Charles L. Baird, trustee. Oral evidence was also received, over the objection of such defendant, to show that there is no Ohio corporation by the name of The Merchants and Miners Bank. The Madison county judgment was taken January 18, 1911. The petition in that ease did not contain an averment that the plaintiff was a partnership formed for the purpose of carrying on a trade or business in Ohio.
    
      Grosvenor, Jones & Worsiell, and L. G. Addison, for *W. S. Weitzell, receiver.
    
      Foster & Wells, Webber, McCoy & Jones,'for Charles L. Baird, trustee.
   SAYRE, J.

The judgment record introduced in evidence shows that the plaintiff was described in the Madison county ease as a corporation. The introduction of the judgment record is objected to because it does not show that the plaintiff therein is identical with Merchants and Miners Bank, a partnership.

Oral evidence, introduced on the trial, shows that Merchants and Miners Bank, a partnership, employed a lawyer to take judgment for it on the cognovit notes in Madison county -against the Nelsonville Foundry & Machine Co., and that he by mistake described the plaintiff in that case as a corporation, and further that there is no Ohio corporation by the name of The Merchants and Miners Bank.

Should this evidence be excluded? The averments in the petition in the Madison county case that the plaintiff was a corporation were immaterial ones, Brady v. National Supply Co. 64 Ohio St. 267 [60 N. E. 218; 83 Am. St. 753], These are merely descriptive of the plaintiff and of no more consequence -than if the plaintiff’s name in the caption read: The Merchants .and Miners Bank, a corporation. ,

The precise question for this court then is: In a suit on a domestic judgment, where it appears that the name of the party plaintiff in the judgment sued on is not identical with the name of the party claiming to have secured the judgment, can parol evidence be received to show that the parties are, in fact, identical? A case can readily be imagined where the admission ■of such evidence would be absolutely necessary. If the name -of the plaintiff in a suit for recovery on a judgment was exactly the same as the name of the plaintiff in the transcript of the judgment sued on and there was an answer to the effect that they were not the same parties, parol evidence would be imperative. "While the authorities are not in accord on the subject the great weight of authority sustains the rule that- parol evidence is ad-jnissible to prove that the parties, are identical. A list of them .follows: .

State v. Hanousek, 10 Circ. Dec. 516 (19 R. 303); Missouri Glass Co. v. Gregg, 4 Wills. Civ. Cas. 92 [16 S. W. 174]; U. S. Nat. Bank v. Venner, 172 Mass. 449 [52 N. E. 543]; Fisher, Brown & Co. v. Fieldmg, 67 Conn. 91 [34 Atl. 714; 32 L. R. A. 236]; Boyden v. Hastings, 34 Mass. (17 Pick.) 200; Morris v. State, 101 Ind. 560 [1 N. E. 70]; Hollenbeck v. Stanberry & Son, 38 Iowa 325; Mobile & M. Ry. v. Yeates, 67 Ala. 164; James H. Barry & Co. v. Carothers, S. C. Rich. Law 331; Stevens v. Elizee, 3 Campbell 256; Farrar v. Fairbanks, 53 Me. 143; Stevelie v. Read, 2 Wash. C. C. 274 [Fed. Cas. No. 13389].

The rule is well estbalished that where the record of a former action, pleaded as a bar or estoppel, does not show that the parties to such action were the same with the parties to the action in which it is so pleaded this fact may be established by p'arol evidence (23 Cyc. 3542).

Counsel for the receiver say that a suit to recover on a judgment presents an entirely different situation from one in which ,a former recovery is pleaded, but they do not point out any .difference or cite any ease as authority for the position that there should be a difference. It seems to us there is no differ■ence. Both cases fall within or without the general rule that parol evidence will not be received to explain, contradict or interpret a judgment. In one case the judgment record is admitted to prove tbe existence of a cause of action; in tbe other it is admitted to prove tbe non-existence of a cause of action. The same record may be introduced to prove the one or tbe other. Since the same record can be introduced for either purpose it follows naturally and logically that if parol evidence can be introduced to show identity of parties in one case it may in the other. Suppose Merchants and Miners Bank, a partnership, had brought another suit on the cognovit notes sued on in Madison county and had served process upon the Nelsonville Foundry & Mach. Co., and the latter had answered and pleaded res ad-judieata and offered in evidence a transcript of the judgment of the first suit and it was objected to for the same reason that it is objected to in this suit, what difference would there be in the assumed case and the one under consideration ? If it be admitted that the transcript of the judgment was admissible in the ■assumed case and that the identity of the parties could be proven by parol evidence, what reason can be assigned for excluding such evidence in the ease under consideration? We are wholly at a loss to discover any reason, and conclude that the authorities which support the position that parol evidence may be received to identify the parties in a case where former recovery is pleaded are precisely in point in an action where it is sought to identify parties in a suit on a domestic judgment. The judgment record and the oral evidence were properly admitted.

It is contended that the Nelsonville Foundry & Machine Co. did not authorize the warrants of attorney contained in the several promissory notes, and that therefore the court of common pleas of Madison county did not have jurisdiction of the person of such company. It is true that the only authority extended by the directors was to make notes to cover overdrafts, except in the case of the note for $10,000.00 where no authority whatever was given by any positive act of the directors acting as such. However, the two notes for $1,000.00 each, dated August, 1892, had been existing contracts between Merchants and Miners Bank and the Nelsonville Foundry & Mach. Co., for eighteen years before they were reduced to judgment. The note dated February 6, 1897, and the one dated October 16, 1897, had been existing contracts between the same parties for thirteen years before they were reduced to judgment. During that entire time the company had paid interest on the notes. The notes executed in August, 1892, were signed by Charles A. Cable, President, and C. E. Poston, Secretary-Treasurer. The note dated February 6, 1897, was signed by J. "W. Jackson, President, and C. E. Poston, Secretary-Treasurer. The note of October 16, 1897, was signed by C. E. Poston, Secretary-Treasurer. While the knowledge acquired by Charles A. Cable, as he was one of the partnership composing Merchants and Miners Bank, as to the contents of the notes might not have been the knowledge of the. company yet C. E. Poston, who signed all four notes and had no interest in such partnership., was secretary-treasurer and his knowledge of the contents of the notes was the knowledge of the company. Poston was one of the officers authorized by the board of directors of the corporation to execute notes, and that matter was his especial business and within the scope of his authority. Knowledge of the officers and agents of a corporation within the scope of their official capacity and agency is the knowledge of the corporation. Thompson, Corporations (2 Ed.) Sec. 1646, First Nat. Bank of New Bremen v. Burns, 88 O. S. 434 [103 N. E. 93], In the case of Dickinson v. Zubiate Mining Co. (Col.), 106 Pac. 123, it is held that,

‘ ‘ Through the president and secretary who executed a written agreement in a corporation’s behalf, it must be deemed to have had notice thereof, when it was made.”
“The most comprehensive rule with reference to this subject which can be stated is that notice communicated to, or knowledge acquired by, the officers or agents of corporations when acting in their official capacity or within the scope of their agency becomes notice to or knowledge of the corporation for all judicial purposes. ’ ’ 10 Cyc. 1054.

Another rule equally well established is that:

“A corporation may ratify by passive acquiescence, as well as by affirmative action, the unauthorized acts of its agents, and the acquiescence with knowledge, if continued for a considerable time, operates as a ratification.” Knowles et al. v. North ern Texas Traction Co. (Tex.), 121 S. W. 232, Thompson, Corporations Sec. 1407.

All four of the notes could have been taken up long ago and renewals given without the warrants of attorney of the corporation had any desire to set right the unauthorized acts of its officers, but its acquiescence for so long a time without any objection whatever deprives the corporation of the right to now say that the warrants of attorney are without its authority. To say that the terms and stipulations contained in notes which have been owed by a corporation for more than thirteen years, and on which the interest has been paid, were unknown to the board of directors as a board, especially when the president and secretary of the corporation, both of whom were directors, signed the notes, is a proposition so much at variance with the ■ordinary knowledge and duties of corporate officers that it ought not to receive any serious consideration. The further argument that ratification by individual directors is not a ratification by the board is a proposition which would at once destroy the doctrine of ratification by acquiescence, which is well established. Ratification by acquiescence means, ordinarily, ratification without formal action. It means knowledge of the fact without any act of any kind for a considerable period of time.

It is further contended that the Madison county court had no - jurisdiction of the machine company because a warrant of attorney must be strictly construed, and as Merchants and Miners Bank was in fact a partnership the attorney at law who confessed the judgment in Madison county had no authority to confess a judgment in favor of the Merchants / and Miners Bank, a corporation, citing Spence v. Emerine, 46 Ohio St. 403 [21 N. E. 866; 15 Am. St. 634]; Mansfield Sav. Bank v. Post, 12 Circ. Dec. 577 (22 R. 644), and other eases of like import. It will be noticed that the payee in the notes referred to is Merchants and Miners Bank. If attention is directed solely to the record in the Madison county case the notes were strictly construed when judgment was entered for Merchants and Miners Bank because it was the payee and obligee named in the notes. "Whether it was a corporation or not can not be determined by the notes because they are silent as to that matter, and as Merchants and Miners Bank must necessarily have been either a corporation or partnership, an individual or individuals doing business in that name, there is nothing in the record in that case to show that in giving judgment for Merchants and Miners Bank, a corporation, the judgment was not given in strict accord with the terms of the notes. It is only when we go outside the record of the Madison county case that any reason can be found for saying that the notes were not strictly construed and judgment given for a party who was not entitled to it. It is only when the record in the instant ease comes into view that the authority of the attorney at law who confessed the judgment can be questioned. So the whole matter is reduced finally to whether oral evidence can be received to show that the plaintiff in the Madison county judgment was identical with Merchants and Miners, a partnership. If it can, as we have decided, then it at once appears that the judgment was confessed in favor of Merchants and Miners Bank, a partnership, for it was in fact the plaintiff in that suit.

The note for $10,000.00 was given within a month before it was reduced to judgment and was signed: The Nelsonville Foundry & Mach. Co., C. A. Cable, President, it. IT. Jacks.on, Secretary. The board of directors was not in session a single time in a period of almost five years prior to the appointment of a receiver for the machine company, the last meeting being April 29, 1909, and the records further show that outside of the annual meeting, at which times they elected officers, the board of directors did not perform a single act relating to the business of the corporation after some time in 1904. R. IT. Jackson since prior to 1909 has been secretary-treasurer and general manager of the corporation and made the following statement at the trial in the court of common pleas:

“Would you mind if I. would tell you that the directors and the stockholders in their yearly meeting would say they would turn over a new leaf every year, ‘now, we will get together and we will have meetings, regular meetings, and will look after business a little bit closer and will help you out, ’ and that is the last I would hear of them until the next meeting.”

But the next meeting after April 9, 1909, never came. So that for a period of almost five years prior to the appointment of the receiver on March 24, 1914, the board of directors never met. They ceased to direct the corporation and as directors became dormant. R. H. Jackson was the only officer connected with the corporation who was compensated. The business was being conducted at a loss.. The directors were not interested. They, by their acquiescence, allowed the business to be conducted by Mr. Jackson, and he had entire charge of the same during the period of five year's. The stockholders present at the annual meeting in 1906 were C. A. Cable, Fyed Weymueller representing stock of T. O. O. F., H. H. Jackson and R. H. Jackson. Those present at the annual meeting in 1907 were the same persons and C. Robbins. Those present at the annual meeting in 1908 were Cable, Robbins, Weymueller and R. H. Jackson. Those present at the annual meeting in 1909 were Cable, Robbins, H. H. and R. H. Jackson. Those present at the annual •meeting of August 22, 1912, were Cable, Robbins, H. H. and R. IT. Jackson, and two persons representing stock of the I. 0. 0. F. -So since 1906 the stockholders who attended the annual meetings were Cable and Robbins, both interested in Merchants -and Miners Bank, the two. Jacksons, and representatives of the stock of I. O. O. F., and of these Cable and the two Jacksons ■owned five-sixths of the stock.

Now the stockholders never held a meeting during that five year period either except on the one occasion, August 22, 1912, •when they elected the old board of directors, being the same persons (with one exception) -who had not met during the five year period. So the stockholders acquiesced in the action of the directors in allowing Mr. R. H. Jackson to manage and control the business of the company.

At the time of the execution of the $10,000.00 note on December 21, 1910, the directors had not met for one year and seven months, and the stockholders were allowing the general manager, Mr. R. H. Jackson, to assume and exercise the powers of the board of directors. Their attitude in the matter is clearly seen by the re-election of the same directors in 1912 with the single exception. This shows that they, the stockholders, were willing that the single officer should assume the duties of the board of directors, for they knew the board of directors was such only in name. Thompson, Corporations (2 Ed.) Sec. 1409 says:

“Generally where the stockholders, by their direction or acquiescence, invest the executive officers of the company with the power and functions of the board of directors, as a continuous and permanent arrangement, the board being entirely inactive, and the officer discharging all its duties, a transaction consummated in behalf of the corporation by such officer will be valid tho not specifically authorized by any vote of the stockholders or directors.”

In the case of Smead Foundry Co. v. Chesbrough, 6 Circ. Dec. 670 (18 R. 783), cited so frequently by counsel for the machine company, the fourth paragraph of the syllabus reads in part as follows:

‘ ‘ The president of a corporation has no power, by virtue of his office, to'execute a bond and warrant of attorney for the entry of judgment by confession against a corporation. Such power is vested in the board of directors only. But the president's authority may be charged beyond the powers inherent in his office by the consent and acquiescence of the directors in permitting him to take control of the business of the corporation. ’ ’

The evidence shows beyond dispute that the stockholders permitted the directors to surrender their offices to the general manager for a period of five years. The note of .December 31, 19.10, was executed nineteen months after the board of directors ceased to meet and as a board became defunct. The act of R. II Jackson in signing the $10,000.00 note was the act of the corporation. R. H. Jackson had succeeded to the power of the board of directors» They could have executed a judgment note to the bank on December 31, 1910. Hence, under the circumstances, he could. The note of December 31, 1910, was beneficial to the machine company, and it can not now say, under the circumstances as appear beyond dispute in the evidence, that the warrant of attorney contained in that note was without the authority of the company.

Does the failure to aver in the Madison county petition that the plaintiff was a partnership formed for the purpose of carrying on a trade or business in Ohio render the judgment void ?

In Beers v. Gurney, 7 Circ. Dec. 411 (14 R. 82), the court held that where the defendant fails to take advantage of such failure iby proper pleading the objection is waived. The case under consideration, however, is different from that one, in that the judgment here in controversy was taken on confession and the defendant had no opportunity to make any objection. Ilowi ever, the Madison county court of common pleas had jurisdiction of the parties and of the subject-matter, and the petition therein was such an one as could have been amended and the proper averment made,, as the record (outside the judgment record) shows that Merchants and Miners Bank was a partnership formed for the purpose of doing business in Ohio.

As said in Spoors v. Coen, 44 Ohio St. 497 [9 N. E. 132] :

“If the ease presented invoked the jurisdiction of the court, and could have been perfected by amendment, the judgment of the court then could not be treated as a nullity.”

An amendment could have been made showing the plaintiff had legal capacity to sue in the Madison county ease. Besides, the waiver of errors in the warrant of attorney would seem to be sufficient to waive just such an error as this. We have no doubt that had the defendant joined issue on some other averment in the Madison county case without raising objection to the failure to aver that the plaintiff was a partnership formed for the purpose of carrying on business in Ohio, and the plaintiff had recovered a judgment, that judgment would be valid. If this is true and the error could be waived under such circumstances, it was waived by the language of the cognovit note.

The decree will be in accordance with this opinion.

Decree accordingly.

Walters and Merriman, JJ., concur.  