We have bestowed an unusual amount of care and labor upon this important case, and have been desirous, if possible, to arrive at some conclusion upon which we might direct such judgment to be entered as we might feel confident would do substantial justice to the parties, and avoid the delay and cost of further litigation, but we have been unable to do so with the material before us. The functions of this court, with few exceptions, are appelate only. We cannot permit the burden of the duty of trial courts to examine and pass upon cases before them to be cast upon us in the first instance, without proper opportunity for such examination, burdened as we are with a constantly increasing number of appeals. We cannot stop, if we were disposed to do so, to enter into elaborate computations and comparisons, and examine critically voluminous bills of exceptions, with numerous manuscript exhibits, sometimes supplemented with a box filled with books and papers. All this great bulk of matter should be reduced to reasonable compass, and arranged in proper order, before being brought to this court. As the judgment of the circuit court must be reversed for the errors already noticed, we think it is but justice to both parties to order a new trial, and to direct that the cause be referred upon all the issues therein, upon the proofs already taken and such as may be produced hereafter, to some attorney being a competent accountant, to report special findings upon all the issues, and to take and state an account of the transactions in question, and report the same to the court, to the end that such judgment may be rendered thereon as shall be just and proper. The action must be regarded as an equitable one, and ot er necessary or proper parties may be brought in, if it be deemedh necessary by the plaintiff or by the court, in order to secure a just and proper determination of the entire controversy. If it shall be thought proper to amend the pleadings so as to charge these defendants in equity as ex-officio members of the board of directors, it may be that all the directors during the period in question will be necessary parties, (Sherman v. Parish, 53 N. Y. 483,) on the ground that the defendants, if chargeable as such, are entitled to have contribution of and from such directors. (Nickerson v. Wheeler, 118 Mass. 295; Baynard v. Woolley, 20 Beav. 584; Ashhurst v. Mason, L. R., 20 Eq. 225, 236.) There are authorities which take a contrary view, and, as these quesquestions, thus suggested, were not argued at the hearing, we do not express any opinion in respect to them. The question whether the corporation plaintiff has not so far taken and enjoyed the benefits of the transactions complained of, and ratified them, that it has lost the right to complain of them, was ably and vigorously pressed upon our attention, but we express no opinion on

this point, as additional evidence may be produced materially affecting the rights of the parties in respect to it. The judgment of the circuit court is reversed, and the cause is remanded for a new trial, and for further proceeding in accordance with the opinion of this court.

MCARTHUR V. TIMES PRINTING CO.

SUPREME COURT OF MINNESOTA, 1892.

(48 Minn. 819.)

Contracts Made by Promoters-Adoption by the Corporation.

Mitchell, J.: The complaint alleges that about October 1, 1889, the defendant contracted with plaintiff for his services as advertising solicitor for one year; that in April, 1890, it discharged him in violation of the contract. The action is to recover damages for the breach of the contract. The answer sets up two defenses: (1) That plaintiff's employment was not for any stated time, but only from week to week; (2) that he was discharged for good cause. Upon the trial there was evidence reasonably tending to prove that in September, 1889, one C. A. Nimocks and others were engaged as promoters in procuring the organization of the defendant company to publish a newspaper; that, about September 12th, Nimocks, as such promoter, made a contract with plaintiff, in behalf of the contemplated company, for his services as advertising solicitor for the period of one year from and after October 1st,-the date at which it was expected that the company would be organized; that the corporation was not, in fact, organized until October 16th, but that the publication of the paper was commenced by the promoters October 1st, at which date plaintiff, in pursuance of his arrangement with Nimocks, entered upon the discharge of his duties as advertising solicitor for the paper; that after the organization of the company he continued in its employment in the same capacity until discharged, the following April; that defendants board of directors never took any formal action with reference to the contract made in its behalf by Nimocks, but all of the stockholders, directors, and officers of the corporation knew of this contract at the time of its organization, or where informed of it soon afterwards, and none of them objected to or repudiated it, but, on the contrary, retained plaintiff in the employment of the company without any other or new contract as to his services.

There is a line of cases which hold that where a contract is made in behalf of, and for the benefit of, a projected corporation, the corporation, after its organization, cannot become a party to the contract, either by adoption or ratification of it. Abbott v. Hapgood, 150 Mass. 248, 22 N. E. Rep, 907; Beach, Corp. 198. This, however, seems to be more a question of name than of substance; that is, whether the liability of the corporation, in such cases, is to be placed on the grounds of its adoption of the contract of its promoters, or upon some other ground, such as equitable estoppel. This court, in accordance with what we deem sound reason, as well as the weight of authority, has held that, while a corporation is not bound by engagements made on its behalf by its promoters, before its organization, it may after its organization make such engagements its own contracts. And this it may do precisely as it might make similar original contracts; formal action of its board of directors being necessary only where it would be necessary in the case of a similar original contract. That it is not requisite that such adoption or acceptance be express, but it may be inferred from acts or acquie scence on part of the corporation, or its authorized agents, as any similar original contract might be shown. Battelle v. Northwestern Cement and Concrete Pavement Co., 37 Minn. 89, 33 N. W. Rep. 327. See also Mor. Corp. § 548. The right of the corporate agents to adopt an agreement originally made by promoters depends upon the purposes of the corporation and the nature of the agreement. Of course, the agreement must be one with the corporation itself could make, and one which the usual agents of the company have express or implied authority to make. That the contract in this case was of that kind is very clear; and the acts and acquiescence of the corporate officers, after the organization of the company, fully justified the jury in finding that it had adopted it as its own.

The defendant, however, claims that the contract was void under the statute of frauds, because, "by its terms not to be performed within one year from the making thereof,' which counsel assumes to be September 12th,-the date of the agreement between plaintiff and the promoter. This proceeds upon the erroneous theory that the act of the corporation, in such cases, is a ratification, which relates back to the date of the contract with the promoter, under the familiar maxim that "a subsequent ratification has a retroactive effect, and is equivalent to a prior command." But the liability of the corporation, under such circumstances, does not rest upon any principle of the law of agency, but upon the immediate and voluntary act of the company. Although the acts of a corporation with reference to the

contracts made by promoters in its behalf before its organization are frequently loosely termed "ratification," yet "a ratification properly so called, implies an existing person, on whose behalf the contract might have been made at the time. There cannot, in law, be a ratification of a contract which could not have been made binding on the ratifier at the time it was made, because the ratifier was not then in existence. In re Empress Engineering Co., 16 Ch. Div. 128; Melhado v. Porto Alegre, N, H. & B. Railway Co.. L. R., 9 C. P. 505; Kellner v. Baxter, L. R., 2 C. P. 185. What is called “adoption," in such cases, is, in legal effect, the making of a contract of the date of the adoption, and not as of some former date. The contract in this case was, therefore, not within the statute of frauds. The trial court fairly submitted to the jury all the issues of fact in this case, accompanied by instructions as to the law which were exactly in the line of the views we have expressed; and the evidence justified the verdict.

The point is made that the plaintiff should have alleged that the contract was made with Nimocks, and subsequently adopted by the defendant. If we are correct in what we have said as to the legal effect of the adoption by the corporation of a contract made by a promoter in its behalf before its organization, the plaintiff properly pleaded the contract as having been made with the defendant. But we do not find that the evidence was objected to on the ground of a variance between it and the complaint. The assignments of error are very numerous, but what has been already said covers all that are entitled to any special notice. Order affirmed.

PITTSBURG MINING CO. V. SPOONER.

SUPREME COURT OF WISCONSIN, 1889.

(74 Wis. 307.)

Promoters.

This action was brought by the Pittsburg Mining Company for the purpose of recovering $70,000 of money had and received by the defendants for the use of the company. The material allegations in the complaint are:

(1) That in February, 1887, the defendants conceived the idea and agreed together to promote the organization of the plain

tiff corporation for the ostensible purpose of carrying on the busi ness of mining iron on the Gogebic range, so called, in the state of Michigan, but for the real purpose of cheating those who might deal with said corporation, and by so doing enrich themselves.

(2) That in pursuance of such scheme the defendants obtained for the purpose of purchase or temporary control a mining option on said range, conferring the right to prospect, explore, and mine for iron on a tract of land described in the complaint. This option was owned by certain parties named in the complaint, and the price demand by them for it was $20,000, and no more.

(3) That, having obtained the control of such option for the purposes of the corporation, the defendants proceeded to obtain subscriptions to the capital stock of the proposed corporation, to raise the money to buy it; that to induce subscriptions to said capital stock the defendants falsely and fraudently represented to divers persons, and to all persons who became and now are stockholders in said corporation, that the price demanded by the owners of said option was $90,000, and that it could not be bought for less; that the defendants were themselves desirous of buying it, but were unable pecuniarily to pay so much money, but desired to organize a corporation to purchase it; that they would themselves become stockholders in the corporation to the extent of their ability to pay for the same; that there was no speculation in the purchase price; that the defendants were making nothing out of it,-not even their expenses, unless the corpor ation saw fit to reimburse them,-except what all stockholders would make alike through the operation of the proposed corporation in mining the ores covered by said option.

(4) The defendants also represented that for the purpose of the successful operation of the business of mining on said tract of land it would be necessary for the corporation to raise the sum of $100,000 in money,-$90,000 for the purpose of purchasing the option from the owners thereof, and $10,000 to be put in the treasury of the company for the purpose of developing the mines.

(5) In futherance of said fraudulent scheme the defendants drew up, and by said fraudulent representations procured to be signed, a subscription paper, of which the following is a copy: "The undersigned hereby agree with A. H. Main, of the city of Madison, Dane county, Wisconsin, the owner of a mining option upon, in, and to all of the north half of the south-west quarter of section number 11, town 47, range 45 east of the Michigan meridian, situate, lying, and being in the county of Ontonagon, state of Michigan, and with each other, that they will take of and from the said A. H. Main the number of shares of non-assessable