by the salesmen; the difference in number and personnel of salesmen; the total failure and conceded inability to show the cash received from the sales in the grand stand on the different days, all inject elements of uncertainty. Taking the record as a whole I am unable to find any evidence upon which any person could base an intelligent guess whether, or to what extent, plaintiff was injured by reason of the alleged breach of contract. In my opinion there is no data upon which an intelligent estimate as to injury or its extent could be based. And, taking the evidence as a whole, it seems inconceivable that any evidence could be adduced upon a new trial upon the question of damages, which would warrant any jury in awarding more than nominal damages,

On Rehearing.

1

ROBINSON, J. (after rehearing had). In this case the petition for rehearing is not based on the decision as a whole, nor on any matter overlooked in the decision. It is based on eight points covered by eight separate sentences of the decision, and unfortunately it is true that the reasoning of the case is not all expressed in one sentence. As the decision shows, the plaintiff bargained for the exclusive grandstand privileges during the fair week to sell eats, drinks, candy, and such like to the patrons of the fair on the grand stand inclosure. We say the plaintiff had such privileges, and he had all he bargained for, and there is no claim that he did not have the usual and exclusive sale privileges of the grand stand. His license was on printed form which had been prepared for general use by the directors and managers of the fair association. He bought it from a salesman or special agent of the fair association. His claim is that he had a special oral contract with the special agent that the fair association should keep open the aisles of the grand stand so as to give him ready access to the people for the purpose of selling his eats and drinks-and this they failed to do and his offer of proof to that effect was rejected. He made no offer to prove that the directors had given the special agent any authority to make such a special contract, The obvious and unusual purpose of the grand stand is to make money by seating patrons on the stand, both on the seats, and when necessary in the aisles. This obvious.

right and purpose the holder of special privileges had no right to limit or vary. The judgment is clearly right, and it is affirmed.

GRACE, J. I concur in the result.

BIRDZELL, J., being disqualified, did not participate.

SECURITY STATE BANK OF STRASBURG, NORTH DAKOTA, a Corporation, v. S. A. FISCHER.

(164 N. W. 326.)

against such issue of fact.

Banks assistant cashier instructions to- by president and director-to give him credit in certain sum — - conversion action for former president — ratification by directors - evidence · 1. Defendant, acting in the capacity of president and director of a bank, gave assistant cashier directions to credit him with $1,500 on account of salary and expense, which was done. He later sold his stock in the bank at book value. Subsequent to this he was sued by the bank for the conversion of its funds. The evidence is examined and held to present an issue of fact as to ratification of defendant's acts by the board of directors.

2. F-vidence examined and held to substantiate the verdict of the jury, which found for the defendant.

3. Where the board of directors of a bank, consisting of all the stockholders of the bank, ratifies an act of an officer in paying to himself an allowance as salary and expenses, the ratification, though informal, is binding.

NOTE. On the general rule that a stockholder may vote to ratify his own act as director, although he has a personal interest in the ratification of such act and owns a controlling share of the stock, where such a ratification would not be fraudulent or unreasonable and oppressive as to minority shareholders, see note in 36 L.R.A. (N.S.) 199, on ratification of acts of directors by vote of stockholders including those who are directors.

Trial

by

testimony - introduction of -subjects of inquiry — presented party — issue raised — submission to jury- cannot complain-instructions - pleadings — issues.

4. Where, in the trial of a case, a party, in introducing his testimony, opens up a subject of inquiry and introduces testimony relative thereto, he cannot later complain of the submission of the issue of fact thus presented to the jury, where it is fairly presented under appropriate instructions, nor can he complain that the issue is not within the pleadings.

Opinion filed July 28, 1917. Rehearing denied September 24, 1917.

Appeal from Emmons County District Court, W. L. Neussle, J.
Judgment for defendant.

Plaintiff appeals.

Affirmed.

Lynn & Lynn and C. F. Kelsch and Langer & Nuchols, for appellant.

Ratification must be pleaded as an affirmative defense, and, if not so pleaded, evidence thereof cannot be offered. Comp. Laws 1913, § 7448, subd. 2; Erickson v. First Nat. Bank, 44 Neb. 622, 28 L.R.A. 577, 48 Am. St. Rep. 753, 62 N. W. 1078; 31 Cyc. 218, § 2.

No ratification can take place in the absence of a full and complete knowledge of all the facts concerning the act or matter involved. 10 Cyc. 1063 (4, 5), and 1073 (e); 7 R. C. L. §§ 665, 666.

And ratification must be clearly established, either by positive acts or by conduct from which it clearly appears that ratification was intended, and this with a full knowledge of all the facts. 10 Cyc. 1080 (2).

The directors of the bank could not legally ratify that which they had no power to authorize. 10 Cyc. 787, 919; Comp. Laws 1913, §§ 7986, 7987; 5 Thomp. Corp. §§ 5482, 5877; 2 Thomp. Corp. 2d ed. & 1768.

The president of a corporation is liable for his torts, fraud, and conversion. 2 Thomp. Corp. 2d ed. §§ 1489, 1490, 1765.

Where a party is a stockholder of a corporation, and renders services to such corporation, he cannot recover therefor except under express contract. He cannot recover under an implied contract. 10 Cyc. 921 (1) and (2); Winfield Mortg. & T. Co. v. Robinson, 89 Kan. 842,

132 Pac. 979, Ann. Cas. 1915A, 451; Lowe v. Ring, 123 Wis. 370, 101 N. W. 699, 3 Ann. Cas. 731; National Loan & Invest. Co. v. Rockland Co. 36 C. C. A. 370, 94 Fed. 335; First Nat. Bank v. Drake, 29 Kan. 311, 44 Am. Rep. 646; Accommodation Loan & Sav. Fund Asso. v. Stonemetz, 29 Pa. 534; Thomp. Corp. 2d ed. §§ 1715, 1728; 26 Am. & Eng. Enc. Law, 2d ed. 905; Kilpatrick v. Penrose Ferry Bridge Co. 49 Pa. 118, 88 Am. Dec. 497; Monmouth Invest. Co. v. Means, 80 C. C. A. 527, 151 Fed. 159; Hayes v. Canada, A. & P. S. S. Co. 104 C. C. A. 271, 181 Fed. 289; Title Ins. & T. Co. v. Home Teleph. Co. 200 Fed. 263; Notley v. First State Bank, 154 Mich. 676, 118 N. W. 486; McMullen v. Ritchie, 64 Fed. 253.

The case at bar does not come within the exception to the rule above noted, that where an officer or director, while a stockholder, gives all his time and renders valuable services outside the line of his duties, and where it is eventually understood that he is to receive compensation therefor. Bassett v. Fairchild, 132 Cal. 637, 52 L.R.A. 611, 61 Pac. 791, 64 Pac. 1082.

Even if there was a so-called ratification it was illegal for the reason that the board of directors had no power to authorize an allowance as compensation for services after their performance, in the absence of a positive agreement or resolution. National Loan & Invest. Co. v. Rockland Co. 36 C. C. A. 370, 94 Fed. 335; Jones v. Morrison, 31 Minn. 140, 16 N. W. 858; Wood v. Lost Lake Mfg. Co. 23 Or. 20, 37 Am. St. Rep. 651, 23 Pac. 848; First Nat. Bank v. Drake, 29 Kan. 330, 44 Am. Rep. 646; Holder v. Lafayette, 71 Ill. 106, 22 Am. Rep. 89; Winfield Mortg. & T. Co. v. Robinson, Ann. Cas. 1915A, 454 and note, 89 Kan. 842, 132 Pac. 979.

Chas. Coventry, and Armstrong & Cameron, for respondent.

A defeated party in the lower court will not be permitted in the supreme court, for the first time, to urge matters not raised and considered in the lower court, nor will he be permitted for the first time to urge a reversal on the ground that ratification had not been pleaded. Nor will he be permitted to urge a new or different theory from that upon which the trial proceeded in the lower court. Delaney v. Western Stock Co. 19 N. D. 630, 125 N. W. 499; 2 Cyc. 670-672.

On motion for new trial the party is confined to those objections noted

in his specifications of error served with the notice of motion. 29 Cyc. 944 et seq.

The sufficiency of the evidence cannot be raised on appeal unless the question was presented to and considered by the trial court on motion for new trial. First Nat. Bank v. Comfort, 4 Dak. 167, 28 N. W. 855; 29 Cyc. 747, 748; Henry v. Maher, 6 N. D. 413, 71 N. W. 127.

"The right to take advantage of errors in the admission or rejection of evidence will be deemed waived unless a new trial is demanded on that ground, even though exceptions to the rulings claimed erroneous have been taken." 29 Cyc. 742.

Appellant having voluntarily and without objection by defendant entered into the question of approval of defendant's acts, it thereby waived any objection to that question being considered by the jury, and waived the right to object to evidence on that question being offered by defendant. 3 Cyc. 244.

Plaintiff having offered evidence of ratification, it thereby opened the door for defendant to avail himself of that defense even though ratification had not been pleaded. Under such circumstances, and where evidence on that point has been offered and received, and submitted to the jury, and the jury having passed upon the same, the question becomes settled. 2 Enc. Pl. & Pr. 1029; Esshom v. Watertown Hotel Co. 7 S. D. 74, 63 N. W. 229.

The principle is settled, that any person capable of contracting can ratify any act that he would have the right to authorize. 10 Cyc. 1072B. A ratification may be made, whether by formal action or by passive acquiescence, by any corporation, body, or agency that might have authorized the act in the first instance, and so with the directors of a corporation. 10 Cyc. 1073 (D); Edwards v. Fargo & S. R. Co. 4 Dak. 549, 33 N. W. 100.

BIRDZELL, J. This action is for the recovery of $1,500 which was alleged to have been wrongfully taken and converted by the defendant. From a judgment of dismissal and costs, rendered upon the verdict of a jury, and from an order of the trial court denying a motion for a new trial, the plaintiff appeals to this court. The facts are as follows: The defendant, when president and a director of the plaintiff bank, made a claim of $1,500 for services and expenses as an official of the bank.