* Corpus Juris-Cyc. References: Corporations, 14aC.J., p. 353, n. 73; p. 354, n. 75; p. 447, n. 97, New, 1 New. H.E. and Lamar Bro, doing business under the firm name "Tire Service Repair Company," filed suit against the P.W. Electric Company, a corporation, in a justice of the peace court for fifty-eight dollars and forty cents. An offset for ninety-three dollars and ninety-five cents was filed. There was judgment for the plaintiff in the justice of the peace court, from which an appeal was taken to the circuit court.
It appears that there had been mutual dealings between the P.W. Electric Company and the Tire Service Repair Company; that Joe B. Ware was secretary and treasurer of the P.W. Electric Company; that in one of the alleged settlements between the two companies Ware gave a receipt for a certain amount owing by certain individuals to the Tire Service Repair Company, including one of his personal accounts. This account is shown in the record as follows:
"P.W. Electric Company, "In Account with Tire Service Repair Shop. "Statement Rendered.
On account
H.D. Lindley ........................ $14.75 J.A. Peeler ......................... 13.00 Joe B. Ware ......................... 60.00 Check ............................... 6.10 ______ $93.95
"Accepted credit on account for $93.95. P.W. Electric Co., by Joe B. Ware. 2/21/25," — and constitutes the subject-matter of the dispute.
It appears from the testimony that J.B. Ware and J.A. Peeler desired to establish a business, but needed some financial assistance to do so, and made application *Page 832 to one A.K. McInnis for same; that, after going over the proposition, McInnis entered into a partnership with them and furnished certain capital needed to establish the said business; that Ware and Peeler began to draw money out of the concern; that it became unsatisfactory as a partnership, as originally entered into, and was incorporated; that one of the by-laws passed by the corporation was that no money or moneys could be paid out without the approval of the president, who was A.K. McInnis. When the above-named items were presented to McInnis for approval as credits on the account of the P.W. Electric Company, he refused to allow them. Ware insisted that McInnis allow them, but McInnis stated to Ware that both Ware and Peeler were largely overdrawn on the books of the corporation and that he could not and would not consent thereto. The first presentation of the items for credit, and the discussion relative therto, was on January 25th. Subsequently and without the consent of McInnis, Ware signed the receipted account above set out, but it was never entered upon the books, and the check was never collected. Subsequently Ware resigned as secretary; Peeler had already disappeared; and each was largely indebted to the corporation, Ware in the sum of one thousand eight hundred dollars, and Peeler in the sum of two thousand four hundred dollars. H.B. Lindley appears to have been an employee of the P.W. Electric Company, but was indebted to this corporation.
The plaintiff sought to prove that other transactions had been made by Ware in which individual debts had been accepted in settlement of accounts due the P.W. Electric Company, but there is some dispute with reference to that.
At the conclusion of the testimony the circuit judge, on motion by plaintiff for a peremptory instruction, deducted the check for six dollars (which had never been collected) from the account and granted a peremptory instruction as to the balance of the amount sued for by *Page 833 the plaintiff, and from that judgment this appeal is prosecuted.
We think it was improper to grant the peremptory instruction. The acceptance as credits on the account of the P.W. Electric Company of the amounts due by these individuals was in violation of the by-law of the corporation, and beyond the apparent scope of the authority of Ware, as it was beyond the actual authority of the secretary and treasurer to allow such accounts.
There is no dispute about the other accounts embraced in the suit, and the circuit judge should have sustained the motion of the defendant and directed a verdict for the difference between the plaintiff's account sued on and the ninety-three dollars and ninety-five cents improperly credited by Joe B. Ware and used as an offset.
The judgment of the lower court will therefore be reversed, and judgment rendered here for the appellant for the difference between the account sued on and the said amount.
Reversed, and judgment here for appellant.