The opinion
Hill, J.
(concurring in part and dissenting in part) — I agree, for the reason stated in Judge Millard’s dissent, that we should accept the version of Mr. Funkhouser regarding the agreement of May 31,1944. It does not follow, however, that Mr. Kramer could, by such an agreement, bind the Slate Creek Mining Company to deliver 12% per cent of its common stock to Messrs. Twohy and Funkhouser.
It is my view that, while the president of a corporation can obligate the corporation for attorneys’ fees
(McKevitt v. Golden Age Breweries, Inc.,
14 Wn. (2d) 50, 126 P. (2d) 1077 ), he cannot, without express authority so to do, obligate the corporation to pay attorneys’ fees in corporate stock or any other medium except legal tender. There is here no evidence of express authority to agree to pay the attorneys for the corporation in stock, and, while ratification of the agreement to pay attorneys’ fees may be inferred, there is no evidence from which a ratification of an agreement to pay them in corporate stock can be so inferred.
It may well be, as argued in the briefs, that attorneys who incorporate mining companies frequently take their compensation in whole or in part in corporate stock. However, we are here concerned with services rendered during a period four years subsequent to incorporation. For the benefit of
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those members of the bar who prefer to be paid in coin of the realm, the rule should be — and I believe is — that an agreement to pay for legal services rendered a corporation in anything except legal tender is sufficiently unusual that it is not to be assumed that the president of a corporation has authority to obligate it to make payments in any other medium.
Since the Slate Creek Mining Company was not bound by the agreement made by Kramer, as its president, to deliver one hundred twenty-five thousand shares of stock to Twohy and Funkhouser, the decree of specific performance against the corporation should be reversed. Thus, I arrive at the same conclusion as the majority on that phase of this case, but for a different reason.
The majority affirmed the judgment of the trial court dismissing Kramer from the case. A substantial part of the services rendered by Twohy and Funkhouser had been for Kramer individually. The parties to the agreement knew that, if 125,000 shares of stock were to be delivered in accordance therewith, it must come from stock in Kramer’s name or which he could dispose of as he pleased. I see no question of guaranty here. Kramer was not agreeing to guarantee a delivery of stock by the corporation; he was agreeing to “send the stock along.” Specific performance of the agreement by Kramer should have been decreed.
Mallery, C. J., and Beals, J., concur with Hill, J.