Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

A director has no authority to act separately and independently. Only as a board, properly convened, does he represent his corporation. While this is the law, he can and does in fact often act singly, and his action becomes effective to bind his corporation by ratification. Such action plays a great part in the modern corporation.

Though a principal may at any time, as a general rule, revoke the authority he has given to an agent, this does not apply to the directors of corporations. Says Morawetz: "The majority of the board clearly have no power to expel an individual director, or to exclude him from inspecting the company's books and participating in its management, although they may believe him to be hostile to the interests of the association." A president or other official is chosen pursuant to the charter to serve for a year or other period, and is simply an agent in serving the corporation, he cannot be turned away like an ordinary agent. If he conducts fraudulently, he may be removed, but this is not an easy process as corporations long ago found out.

Directors in most cases receive no compensation though the practice is growing of rewarding them. Unless this is fixed by charter or by the stockholders they can get nothing, for they cannot legally vote salaries to themselves. A director who performs a different service, serves as an attorney, for example, may receive compensation for it. This is a salutary rule of the law, which the courts everywhere do not hesitate to enforce. By another rule, hardly less important, directors cannot bind their corporation by any contract made with themselves, or represent their corporation in transactions wherein they have an interest. This is only another application of a rule of agency, that an agent cannot act at the same time for both parties. Yet there is increasing difficulty in applying this rule because the business of corporations has become so intermingled, and also the business of directors, directly or indirectly, with that of the corporations they represent. From this state of things has come another rule, that the transactions between directors and their corporations are not actually void but voidable, in other words if they are tainted with fraud, they can be set aside provided proper action is taken as soon as the fraud is discovered.

Suppose directors had defrauded their corporation, but the fraud was not discovered until several years afterward. Once it was held that they could shield themselves behind the Statute of Limitations (see Statute of Limitations) if the discovery of the fraud did not occur until after the Statute had become effective to protect them. This is no longer the law. Action however must be begun against them within the proper time after discovering the fraud, otherwise the Statute may be interposed as a bar to proceeding against them.

The complication of business has led to the adoption of another principle in managing corporations. A majority of the directors may lawfully act as opposed to the minority; in other words if a majority are not interested in a matter that concerns one or more of the minority directors, the interests of the corporation are supposed to be properly safeguarded. Yet an illustration discloses the dangerous character of this method of doing business. Suppose each director of a bank wished to obtain a loan of money from it. They could not legally make such loans, for no one would represent the bank. Suppose a single director made such an application, that would be a proper thing for him to do and for them to grant, for the bank would be represented by all the directors except the applicant. Suppose it were agreed in advance that each would make an application at different meetings that should be favorably regarded, the series of loans would be in fact only a single transaction in which the bank was not represented.

The knowledge of a director or other officer is imputed to, or regarded in the law as known by the bank on all matters relating to it. Thus if a director knew that a note was signed by a minor which was afterwards presented for discount at a directors' meeting at which this director was present, and he forgot to tell the directors what he knew and it was discounted, the bank would be regarded as having knowledge that the maker was a minor, who of course could not be held on the note. This principle has a very wide application, yet is very difficult to apply. The tendency of the law is to narrow the application of the rule, for directors do not in many cases impart their knowledge, either through forgetfulness or other cause, and it is not just to hold their corporation always for their unintentional neglect. Often they are busy men, have greater interests of their own, and do not remember the things they learn about matters relating to their corporation, and if it were always held as knowing as much as they do on all occasions, the way of a corporation would be fraught with a grave peril.

A proper distinction is made in the imputation of knowledge between that of a bank director for example who is engaged chiefly in some other business, and that of its president whose chief employment is the management of his bank. Suppose he should learn about a defective note before it was presented for discount, the bank would be very properly charged with his knowledge, because it would be his clear duty to remember what he had learned and impart it to his fellow directors.

Directors sometimes go astray and cases are constantly arising to determine their liability. When a corporation has failed or passed a dividend nothing is more common than to accuse its directors of negligence, incompetence or fraud. The legal rule of liability is quite a different thing. Let us try to give this in the fewest words possible. The charters of corporations, or statutes that apply to directors, prescribe some definite things which they must do or not do, and if these are violated they are clearly liable. The directors of a bank are required to make a statement of its affairs to a government official at a stated period, and if they neglect to do it, or intentionally make a wrong and deceptive one, they are liable. By many statutes they are forbidden to make loans above a certain amount, or a fixed proportion of their bank's capital, and if they violate this plain law they are liable. In all other cases where by charter or statute a plain rule of duty is prescribed for directors, they are liable, should they disregard it.

Besides these clearly defined lines of duty are other lines of duty in which the proper course of action is not so clearly defined, indeed is largely discretionary. From the nature of the business of almost any kind of corporation, it is impossible to prescribe in detail the course of action directors must follow. Much must be left to their judgment. They must on all occasions be honest and free from fraud. This is one limitation. If they are guilty of doing things tainted or marked with fraud, they are liable. Fraud may be of two kinds, omission and commission. If a director knew that his fellow directors were doing fraudulent things, and he kept away from directors' meetings because he did not wish to participate in their wrongdoing, or dared not go and try to stop them, or kept silent when he should have exposed them, he must suffer in the end as one of the number though entirely innocent of actual participation in the fraud. Many a director knowing or suspecting with good reason that his fellow directors were running the corporation in an illegal manner, has quietly sold out leaving the stockholders to find out afterwards and from some other source about the wrongdoing of their agents. In all such cases of omission of duty a director is held responsible for the wrongs of his associates.

Recently a court has declared that a director who desires to escape further responsibility by resigning his position must make sure that his resignation reaches the board. If therefore he should send it to the secretary, who failed to deliver it to the board, his resignation would not be effective and he would still be responsible like the other directors for whatever the board might do.