SAMUEL GRANGER v. THE ORIGINAL EMPIRE MILL AND MINING COMPANY, 59 Cal. 678

Thornton, J.: This is an appeal by defendant from a judgment in an acitrón on a note and mortgage, for foreclosure, etc., and from .an order denying its motion for a new trial in the cause. The chief question to be considered in the cause relates to "The execution of the note and mortgage sued on. The auThority to execute the note and mortgage was given at a special meeting of the Board of Directors of the corporation «(defendant).

The resolution of the Board of Directors, as .put'in evidence, states as follows: "Pursuant to the call of the President, a special meeting i of The Board of Directors of the Original Empire Mill and Mining Company was held on Thursday, January 22, 1880, at the ¡hour of eleven o’clock A. M., written notice having been served upon each Director, and there were present William B. Bourne, President, and Alpheus Bull and J. B.

Fargoe, and there were absent Robert Sherwood and Delos Lake.” With particular reference to the note and mortgage sued on, a resolution was moved, seconded, and adopted at the meeting, authorizing the President and Secretary to borrow a sum of money, not exceeding ten thousand dollars, on the note or notes of the Company, secured by a mortgage or mortgages on the Company’s property at Grass Valley, California, at a rate of interest not to exceed ten per cent, per annum. The meeting appears to have been held at the office of the Company in San Francisco on the twenty-second of January,1880.

The note and mortgage above mentioned were executed, in the name of the corporation, by the President and Secretary, and affixing the corporate seal. This was done by virtue of the above resolution, and by its authority. It is contended that there was no authority to execute the instruments in question vested in the President and Secretary by the above resolution, because the meeting at which it was passed was a special one, and there was no evidence that such a notice of the meeting as was required by law (C. C., § 326) was served on the Directors. This question was presented in Sargent v. Webster, 13 Metc. 497.

In that case the Board of Directors at a meeting passed a vote authorizing an assignment of all its property to one of the creditors of the corporation, who bound himself by a counter bond to apply the proceeds of the property so assigned to the payment of the debts and obligations to him, and to pay over to the corporation any balance that remained. There were five Directors, and three only were present at the meeting which passed the resolution authorizing the assignment.

It was contended that the assignment was,not binding on the corporation because it did not appear that notice of the meeting was given to all the Directors. The Court, per Shaw, C. J., thus disposed of the point: “ Another objection of this same kind is, that it does not appear that notice of the meeting was given to all the Directors. But the contrary does not appear; and it would be hazardous to decide that every vote passed by an aggregate body is void, if it do not appear by the record that all were notified. We believe it is not usual in corporate records to state how members were notified.

The presumption ‘ omnia rite acta’ covers multitudes of defects in such cases, and throws the burden upon those who would deny the regularity of a meeting, for want of due notice, to establish it by proof.” (Sargent v. Webster, 13 Metc. 504.) But it does appear in this case, from the record of the meeting, which differentiates it from Sargent v. Webster, that written notice had been served on each Director. It is urged that the notice of the special meeting to be served on each Director must designate the purpose of the meeting. To sustain this position,

Section 320 of the Civil Code is cited. We do not so interpret the

section referred to. A notice that the meeting will be held, the place where, and the time when it is to be held, is sufficient. In Harding v. Vandewater, 40 Cal. 78, cited by the appellant’s counsel, it did appear affirmatively that two of the Directors had not been notified. We are of opinion that the action of the Board was regular and binding on the corporation.

It is further contended that the note and mortgage are Void, because five thousand dollars were borrowed under the resolution and the note and mortgage included one thousand one hundred and fifty dollars due to the plaintiff by the President of the corporation. But this amount (one thousand one hundred and fifty dollars) can be severed from the amount for which the note and mortgage were given, and was severed from it, and disallowed by the Court below. It being sever-able, it did not render the note void as to the whole .amount. (C. C., § 1599.) It was valid for the balance.

We find no error in the record, and the judgment and order are affirmed. Morrison, C. J., and Sharpstein, J., concurred.