Concurrence of a majority of a qualified quorum is sufficient,16 unless the statute provides otherwise. And a statute requiring unanimous concurrence is satisfied by concurrence of all of the directors present at the meeting, provided they constitute a quorum of the board.17

§ 174. Presumptions and Burden of Proof.

It will be pre

sumed that a meeting was a lawful one, though it does not appear whether it was a regular or a special meeting;18 and there is no presumption that it was a special one under such circumstances. 19

It is not incumbent upon a person relying upon the regularity of acts done at a special meeting to show affirmatively that the meeting was in fact called and noticed in the manner specified in the code and the by-laws,20 but the burden of showing that no notice or insufficient notice of a meeting was given is upon him who would impeach the regularity of the meeting.1 It will be presumed that due notice was given where the minutes recite that the meeting was called, or that the directors were notified of it.? But it is not necessary for the records to show that notice was given. And in the absence of evidence to the contrary it will be presumed that notice was given though the

16. Smith v. Los Angeles Immigration etc. Assn., 78 Cal. 289, 12 Am. St. Rep. 53, 20 Pac. 677; McLane v. Placerville etc. R. Co., 66 Cal. 606, 6 Pac. 748; Pennington v. George W. Pennington Sons, 27 Cal. App. 57, 148 Pac. 947.

17. Tidewater Southern Ry. Co. v. Jordan, 163 Cal. 105, Ann. Cas. 1913E, 1293, 41 L. R. A. (N. S.) 130, 124 Pac. 716.

18. Aetna Indemnity Co. v. Altadena etc. Min. Co., 11 Cal. App. 165, 104 Pac. 470.*

19. Barrell v. Lake View Land Co., 122 Cal. 129, 54 Pac. 594.

20. Sferlazzo v. Oliphant, 24 Cal. App. 81, 140 Pac. 289.

1. Balfour-Guthrie Inv. Co. v. Woodworth, 124 Cal. 169, 56 Pac. 891; Barrel v. Lake View Land Co., 122 Cal. 129, 54 Pac. 594; Stockton Combined Harvester & Agr. Works v. Houser, 109 Cal. 1, 41 Pac. 809; La Habra Oil Co. v. Francis, 35 Cal. App. 168, 169 Pac. 401; Sferlazzo v. Oliphant, 24 Cal. App. 81, 140 Pac. 289.

2. Robinson v. Blood, 151 Cal. 504, 91 Pac. 258; Turner v. Fidelity Loan Concern, 2 Cal. App. 122, 83 Pac. 62, 70.

3. Stockton Combined Harvester & Agr. Works v. Houser, 109 Cal. 1, 41 Pac. 809. And see supra, § 146.

record of the meeting does not show that such was the case, and even though a resolution adopted at the meeting recites that one of the directors was absent. It will also be presumed that notices mailed to directors were received, where there is no showing to the contrary. Where the minutes show that the directors assembled at a later hour than that fixed for the meeting, it will be presumed that they met as soon after the hour fixed as a quorum assembled."

8

A finding that there were directors' meetings, or that a meeting was duly and regularly convened, implies that the required notice was given. But it cannot be presumed on appeal that more than three directors were present at a meeting at which the directors authorized a conveyance to one of their number, where there is a finding of the trial court, based on sufficient evidence, to the contrary.10

Selection and Removal of Officers and Agents

§ 175. Selection and Qualifications.

Civ. Code, § 354. "Every corporation, as such, has power: . . 5. To appoint such subordinate officers or agents as the business of the corporation may require, ...

Civ. Code, § 308, as Amended by Stats. 1927, Chap. 39, Approved March 31, 1927. "Immediately after their election the directors must organize by the election of a president, who must be one of their number, one or more vice-presidents, a secretary and treasurer.

The selection of corporate officers is a duty devolving upon the board of directors, and they cannot be selected by the or

4. Balfour-Guthrie Inv. Co. v. Woodworth, 124 Cal. 169, 56 Pac. 891; Stockton Combined Harvester & Agr. Works v. Houser, 109 Cal. 1, 41 Pac. 809; Granger v. Original Empire Mill & Min. Co., 59 Cal. 678; Whitcomb v. Giannini, 43 Cal. App. 229, 184 Pac. 887.

5. Mills v. Boyle Min. Co., 132 Cal. 95, 64 Pac. 122.

6. Stockton Combined Harvester & Agr. Works v. Houser, 109 Cal. 1, 41 Pac. 809.

7. Whitcomb v. Giannini, 43 Cal. App. 229, 184 Pac. 887.

8. Lowe v. Los Angeles etc. Gas Co., 24 Cal. App. 367, 141 Pac. 399.

9. Younglove v. Steinnan, 80 Cal. 375, 22 Pac. 189.

10. Hotaling v. Hotaling, 193 Cal. 368, 224 Pac. 455.

ganizers of the corporation by naming them in the articles of incorporation.11 The board is at liberty to elect a president of its own choice, and the choice cannot be controlled by the courts, nor can they direct the vote of a particular director.12 Under the code provision above quoted, no person is eligible to the office of president unless he is a director, and hence the president must necessarily be a director,13 and subject to the fiduciary obligations of directors.14

§ 176. Term of Office, Resignation and Removal of Officers and Agents. It does not follow from the fact that directors must be elected annually that clerks, servants and officers of the corporation selected by them hold their appointments for the same length of time. So, in the absence of a provision to the contrary in the by-laws, the office of secretary is not an annual office, and where he is not appointed for any definite period he will continue in office until he is removed. 15 And under such circumstances the directors have power to appoint a secretary to hold until the further order of the board.16

One who has been duly elected president and has not resigned continues to be president de jure though he has left the county and retired from active participation in the corporate affairs, and though another person is acting as president de facto.17 Whether an officer has resigned may be a question of fact.18

Courts have no power to remove officers of a corporation, but that power rests with the corporation alone.19 The corporation may at any time remove agents who have no interest coupled

11. Rideout v. National Homestead Assn., 14 Cal. App. 349, 112 Pac. 192.

12. Dulin v. Pacific Wood etc. Co., 103 Cal. 357, 35 Pac. 1045, 37 Pac. 207.

13. Sims v. Petaluma Gas Light Co., 131 Cal. 656, 63 Pac. 1011; Dulin v. Pacific etc. Co., 103 Cal. 357, 35 Pac. 1045, 37 Pac. 207.

14. See infra, §§ 213-222.

15. Humboldt Sav. & Loan Soc. v. Wennerhold, 81 Cal. 528, 22 Pae. 920. 16. Fresno Enterprise Co. v. Allen, 67 Cal. 505, 8 Pac. 59.

17. Eel River Nav. Co. v. Struver, 41 Cal. 616.

18. Mott Iron Works v. West Coast Plumbing S. Co., 113 Cal. 341, 45 Pac. 683.

19. Neall v. Hill, 16 Cal. 145, 76 Am. Dec. 508. See, as to removal of directors, supra, § 164.

with their agency and appoint others in their place.20 And it may rescind a contract employing a person to manage, take charge of and conduct its business along such lines as he may deem expedient, and discharge him before the expiration of the contract period, where he refuses to obey the instructions of the board of directors, and uses corporation moneys for improper purposes.1

§ 177. Refusal to Deliver Property to Successor.-Mandamus will lie to compel an officer to deliver books, records and other personal property of the corporation in his possession to his successor. And the writ will issue for this purpose at the suit of a foreign corporation, where the officer is a resident of California, and has the property in his possession and control here, so that the courts of the foreign state cannot obtain jurisdiction.3 And where the defendant in such a proceeding, after service of the alternative writ on him, delivers the property to a third person, the peremptory writ may run against the latter, on his being made a party by supplemental petition. If the official character of the petitioner in such a proceeding is put in issue, the burden is upon him to establish the same and that he is entitled to the custody of the property in question.5

Where a person employed as manager of a corporation, and placed in peaceable possession of real property belonging to it, refuses to surrender the same on termination of his employment by notice in accordance with his contract, and forcibly resists dispossession, he is guilty of a forcible detainer, and the corporation may recover possession and damages in an unlawful detainer proceeding. But the mere termination of the contract by notice does not ipso facto place the corporation in actual pos

20. San Joaquin L. & W. Co. v. West, 94 Cal. 399, 29 Pac. 785. 1. Oliphant v. Home Builders, 34 Cal. App. 720, 168 Pac. 700.

2. Guaranty Loan Co. v. Fontanel, 183 Cal. 1, 190 Pac. 177; Guaranty Loan Co. v. Treadwell, 53 Cal. App. 538, 200 Pac. 653; Potomac Oil Co. v. Dye, 14 Cal. App. 674, 113 Pac. 126, 130; Potomac Oil Co. v. Dye, 10 Cal. App. 534, 102 Pac. 677. And see Saline Valley Salt Co. v. White, 177 Cal. 341, 170 Pac. 820.

3. See infra, § 622.

4. Potomac Oil Co. v. Dye, 14 Cal. App. 674, 113 Pac. 126.

5, Potomac Oil Co. v. Dye, 14 Cal. App. 674, 113 Pae. 126.

session so as to make the manager guilty of a forcible entry. The corporation has no right to forcibly take possession of the premises under such circumstances, and is guilty of a forcible entry if it does so, even though it is legally entitled to possession.7

d. De Facto Officers and Directors-Trying Title to Office

§ 178. Who are Officers De Facto.-In order to constitute a person an officer de facto, he must hold the office under some appearance or color of right.8 A person elected to an office by former directors after they have ceased to be directors by the election of their successors does not acquire even a color of right to the office. But persons chosen as directors after an attempted increase in the number of directors by the stockholders are directors de facto, even though the stockholders' meeting at which the increase was authorized was invalid, the rule that there cannot be a de facto officer unless there is a de jure office for him to hold being inapplicable to such a case.10

A person may be a de facto director though he is not a stockholder at the time of his election,11 or though he ceases to be a stockholder during the term for which he is chosen,12 or though the stock held by him was illegally issued,13 or though his election is for any other reason illegal,14 or though he holds

6. San Francisco & Suburban Home Bldg. Soc. v. Leonard, 17 Cal. App. 254, 119 Pac. 405.

7. San Francisco & Suburban Home Bldg. Soc. v. Leonard, 17 Cal. App. 254, 119 Pac. 405.

8. Potomac Oil Co. v. Dye, 14 Cal. App. 674, 113 Pac. 126.

9. Potomac Oil Co. v. Dye, 14 Cal. App. 674, 113 Pac. 126.

10. Chandler v. Hart, 161 Cal. 405, Ann. Cas. 1913B, 1094, 119 Pac. 516. 11. Rozeerans Gold Min. Co. v. Morey, 111 Cal. 114, 43 Pac. 585; Jones v. Peck, 63 Cal. App. 397, 218 Pac. 1030; Hygienic Health Food Co. v. Grant, 187 Cal. 431, 202 Pac. 653.

12. Seal of Gold Min. Co. v. Slater, 161 Cal. 621, 120 Pac. 15; Robinson v. Blood, 151 Cal. 504, 91 Pac. 258; San Jose Sav. Bank v. Sierra Lumber Co., 63 Cal. 179.

13. O'Dea v. Hollywood Cemetery Assn., 154 Cal. 53, 97 Pac. 1.

14. Guaranty Loan Co. v. Fontanel, 183 Cal. 1, 190 Pac. 177; Sherwood v. Wallin, 154 Cal. 735, 99 Pac. 191; Balfour-Guthrie Inv. Co. v. Woodworth, 124 Cal. 169, 56 Pac. 891; Barrell v. Lake View Land Co., 122 Cal. 129, 54 Pac. 594; Ellsworth v. National Home etc. Builders, 33 Cal.