McAllister

As receiver of Nehalem Timber & Logging Company, an Oregon corporation (hereafter called Nehalem), S. A. Mc-Allister, a citizen of Oregon (hereafter called plaintiff), brought this action against Clark & Wilson Lumber Company of Delaware, a Delaware corporation (hereafter called defendant), to recover damages in the sum of $510,000, with interest, for alleged conversions of shares of defendant’s capital stock belonging to Nehalem. From a judgment in plaintiff’s favor for $145,000, with interest, both parties have appealed.

Nehalem was organized in 1905 and, until 1927, was engaged in the timber and logging business in Oregon. It was one of a group of six affiliated corporations (hereafter called the Nehalem group) of which, at all pertinent times, Henry Turrish was the executive head and largest individual stockholder. Turrish was president and A. J. Keith was secretary and treasurer of Nehalem. Both were members of its board of directors.

In 1927 the Nehalem group of corporations conveyed their property and assets to defendant in exchange for 50,000 shares of defendant’s capital stock, 2 of which Nehalem received, for its property and assets, 17,735 shares. Thereafter,…

(dissenting in part).

That Turrish had no express authority to make any of the questioned transfers is conceded. Did he have implied authority? Authority to act for a corporation may be implied from its long continued acquiescence in a course of conduct pursued by an officer or other person assuming to act as its agent. Martin v. Webb, 110 U.S. 7, 14 , 3 S.Ct. 428 , 28 L.Ed. 49 ; Calvert v. Idaho Stage Co., 25 Or. 412, 414 , 36 P. 24, 25 ; Neppach v. Oregon & California R. Co., 46 Or. 374, 392 , 80 P. 482, 485 , 7 Ann.Cas. 1035. Though implied, not express, such authority is actual, not merely apparent. 2 C.J.S., Agency, §§ 91, 99, pp. 1186, 1227.

Here, we have an unchallenged finding 1 that, over a long period of years, including the period of the questioned transfers, Nehalem’s business and affairs were handled by Turrish, and that his handling of them was acquiesced in and consented to by Nehalem. There is, however, no finding, nor any evidence which would have warranted a finding, that Nehalem acquiesced in or consented to any act or thing done by Turrish otherwise than in the ordinary course of handling its business and affairs. I conclude, therefore, as did the trial…