Mountain Home maverick. [volume] (Mountain Home, Idaho) 1906-1911, 1910-03-10


able and would be proper conduct for
plaintiff to control the possession Of
these deeds and to direct that they
be recorded He, the plaintiff, how
ever, steadfastly asserted he did not
control the possession of them, other
wise than that they might have been
left in his Office safe, and that he did
not correspond with the auditor in
reference to such water deeds being
recorded.
Another significant feature is that
Mr.. Garrett did not have these water
rights charged to Mr.. Hewitt until
September 30 1908, and long after
the controversy between Mr.. Hewitt
and himself and less than a month
prior to his disposing of his interest
in the defendant corportion. If Mr..
Garrett's deposition is true, it seems
to me he would have charged them
against the mortgage at the time Of
sale, not from a year and "a half 70
several months after sale.
WAS THE HEWITT MORTGAGE
AUTHORIZED BY PROPER RES
OLUTION OF THE BOARD OF
DIRECTORS. OR LATER RATI-
FLED BY SAID BOARD OR
BOTH? 1871
Relative to this question, l have
determined;
(D That said mortgage was
properly authorized by due resolution
of the Board of Directors. and,
CD. That the execution of such
mortgage was also later ratified by
the proper corporate power
Defendants and noncompliance
have again asserted an affirmative
defense and to substantiate this posi-
ton have only shown the Court that
the minute book of this corporation
at the time of the trial did not have
/ therein a resolution, authorizing this
mortgage. They offer no evidence
that as a matter of fact no such res
olutiOn was passed, but simply rely
on it's absence from the minute book
at the time of trial to prove this de-
Tense. which would without doubt be
ample if no counter showing was
made.
But on the contrary, it appears
from the evidence of Mr.. Bell, Mr.
Soliss and Mr. Garrett that at the
time of the execution of this mort
gage such a resolution was in the
book of minutes of the directors
meetings, and Mr.. Garrett says fur
Their that such resolution was duly
passed. Let us examine the evidence
submitted which does bear upon this
question.
There was introduced on behalf OF
plaintiff his Exhibit Number ! ,, pur-
porting to be a certificate by the
Ficst Vice President and Secretary
under date of July 80, 1906, to the
effect that the Board of Directors on
the 9th day of March, 1905, had
duly authorized, empowered and in
structed John H. Garrett to do GER
tain things for the successful con
duct of the corporation S affairs" The
minute book of the corporation failed
to show such a resolution. and ] am
convinced that plaintiff Exhibit No
10 is not proper evidence and can
have no weight in determining this
question, and, in short, proves moth.
ing for plaintiff in this matter.
Then as to the testimony of the
witnesses introduced, we have the
testimony of Mr. Bell and Mr. SOliss
to the effect that a resolution of some
nature, pertaining to the subject was
shown them, properly placed in the
minute book of the corporation al
the time the mortgage was given, to-
wit: January 80, 1907.
The testimony of MIR. Bell is indie
finite as to what the resolution may
have contained. In fact. it does no
purpOrt to give the language of tn,
resolution nor the substance of it
but does say that upon inquiry by Mr.
SOliss from Mr.. Garrett as to whether
or not such a resolution had beer
passed. that Mr. Garrett brough
forth a book containing typewriter
sheets pasted in it-showed then
such resolution and gave it to then
to read.
Mr. Soliss testifies that at thi
time. the latter part of January
1907, and upon closing up this mort
gage matter, he asked Mr.. Garrett /
he or someone on behalf of the com
pany as authorized to execute tn,
mortgage, to which he Responded
that they had a resolution authoriz
ing the execution of this mortgage
that the same was shown to him ant
that he glanced over such minute
hurriedly and read that portion o
the minutes having reference to thi
matter
Mr. Garrett, in his deposition. cor
rebates these two witnesses, and OF
Page - of his deposition testife
that at the time mentioned by Bel
and Soliss, in January, 1907, Mr.
Hewitt:
; Agreed to let me have the
money, but wanted a first mort
gage on the entire irrigation
: system at Mountain Home for
the amount; also for the subse-
} quent loans. The matter was
satisfactorily arranged. The
money was given to Seymour
= Bell, after which Mr.. Bell and
] went to Ontario. Oregon.
where the mortgage was drawn.
, and on the following day. as
= recall it, the directors of the
Beet Sugar Company had a
2 meeting in Mountain Home.
, authorizing the mortgage. at
5 which time it was executed and
delivered and the money paid
over