Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/243

PART II.] ACTS WITHIN THE CORPORATE POWERS. [§ 262. on the party impeaching its regularity. 1 Further, the recital in a resolution that notice of a meeting of the board was served on all the directors, is evidence, though not under all circumstances conclusive, of the regularity of the notice. 2 Finally, although want of the service of due notice on all the directors may be pleaded by the corporation as against any person acting with knowledge of the facts, 3 yet such omission, according to principles already stated, will not affect the rights of a person dealing with the directors on the bona fide and reasonable assumption that their action has been regular. 4 § 262. The general rules above stated regarding the notice of directors' meetings, tind the number of directors necessary to concur in the acts of the board, may be provisions, modified by provisions in the constitution or by-laws of the corporation, and also, it seems, by custom. 5 Thus, if the constitution requires the concurrence of a certain number of directors to the doing of a given action or the making of a con- tract, the act or contract, if not concurred in by the requisite number, will not in itself bind the corporation. 6 1 Sargent e. Webster, 13 Mete. (Mass.) 497; Lane v. Brainerd, 30 Conn. 565; Chouteau Ins. Co. v. Holmes, 68 Mo. 601 ; Levitt v. Oxford, etc., M. Co., 3 Utah, 265; Singer v. Salt Lake Copper M. Co. 17 Utah 143; Barrell v. Lake View Land Co., 122 Cal. 129; Budd v. Walla Walla Printing Co., 2 Wash. Ter. 347; Wells v. Rodgers, 60 Mich. 525. 2 Granger v. Original Empire Mill Co., 59 Cal. 678. 3 Kersey Oil Co. v. Oil Creek, etc., R. R. Co., 12 Phila. 374; Far well v. Houghton Copper Works, 8 Fed. Rep. 66. 4 See § 251. There seems no reason to doubt that the general rules stated in regard to notice and the requisite majority will ordinarily apply to the meeting of directors 1 committees. A directors 1 committee may act by a majority. McXeil v. Chamber of Commerce, 154 Mass. 277; Barrell v. Lake View Land Co., 122 Cal. 129. Contra, Liverpool Household Stores Ass'n in re, 59 L. J. Ch. 616. 5 Thus, it is held in England that when the articles do not state the number of directors necessary to con- stitute a quorum, the number usually acting in the business of the corpora- tion will suffice. In re Tavistock Iron Works Co., Lyster's Case, L. R. 4 Eq. 233. 6 Beatty v. Marine Ins. Co., 2 Johns. 109; Ridley v. Plymouth Baking Co., 2 Exch. 711; see Daws v. North River Ins. Co., 7 Cow. 462, overruled in Conover v. Mutual Ins. Co., 3 Denio, 254; Kirk v. Bell, 16 Q. B. 290; Card v. Carr, 1 C. B. N. S. 197. But it seems where a statute prescribes the whole number of directors, and also what number shall constitute a quo- rum, that the quorum may act, although the whole number is defi- cient. Thames Haven Dock Co. v. Rose, 4 M. & G. 552. 223