author: Pociié, J.

text:
    No. 10,013.
    H. Reary, For the Use, etc., vs. The Louisville, New Orleans and Texas Railway Company.
    It. is not witliin the scope of the employment of a baggage-master connected with a railway {•rain, but not shown to have been put in charge of the same, to invite or permit any person or persons to enter and ride on a coach of such train. Permission given in such circumstances cannot create the relation of carrier and passenger between the company and the person thus riding on such oar. The company is not liable to such persons for injuries which they may receive, unless for negligence or tortious acts on the part of the company.
    A railway company is not hound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it.
    A railway company is not liable to a person, whether passenger or trespasser, who in a state of panic or fear jumps out of a train in motion, and is injured thereby, in the absence of proof that such panic or fear was caused or inspired by word or act by an agent or employee of the company.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Brcmglm, Buck, Bmkelspiel & Hart for Plaintiff and Appellee.

      Farrwr & Krutsehniit for Defendant and Appellant:
    Railway companies owe no duties to persons who go upon their engines, cars or other moans. of transportation, as trespassers, and are, therefore, not liable to them for anything less than wilful injury. If the trespasser’s injuries «are the result simply of a failure to perform that duty which the railway company owes to every one who is rightfully upon its-cars or other means of transportation, he cannot recover, for he was not rightfully there;- and the railway has not failed to perforan any duty which it owed, to him. Patterson's"Railway Accident Law, pp. 188 to 190; Duff vs. A. Y. R. R., 91 Pa. St., 458: C. & H. W. R’y Co. vs. Smith, 46 Mich. 504 (4 A. & 33. R>. R. cases, 535): Canley vs. P. C. & St. L. Rjy, 95 Pa. St.. 395: 98 Id., 498; Hestonville Passenger R’y Co. vs. Conaiell, 88 Pa. St., 520; Central Br. XT. P. R'y Co. vs. Henigh, 2& Kansas, 347; and aramerous cases cited in the decisions and «authorities above listed.
    If a child, whilst playing with other cliildron. enters a car forming part of a train of a railway company, which is being shifted from one track to another in or near its depot, yards and not about to start upon a trip over the railway of such company, and whether the child enters such car with or without tho peranission of the company s agont in charge off the train, the relations of passenger and carrier do not arise. If such permission ho given,, the child is a mere licensee; if not given, it is a trespasser. But in no event, under such circumstances, eaai it become a passenger, and the law governiaig tlie relations between1 carriers and their passengers has no hearing on the caso. Same authorities as above j . and also, Thompson on Carriers of Passengers, p. 42, et seq.

    If a child, whilst playing about a depot of a railway company, is invited upon, or even placed upon, a train of such company by a baggage-master, or person in charge of tho baggage upon such train, but not- in charge or control of the train, then the company is not liable for injuries due to the entry of such child upon, or its egress from the cars. In order that a person be liable for the acts of its agonts, such acts must be done by such agents in the course of their employment, and within the line of their duties. The mere fact that a wrongful act is committed by a servant, even whilst actually engaged in tho performance of the service he has been employed to render, cannot malee the master liable Something more is required. The act must not only be done whilst so employed, hut it must pertain to the particular duties of that employment — must ho within the scope of his employment. Pierce on Railroads, p. 277; I-Iansen, tutor, vs. Mansfield, etc., Co., 38 Ann. Ill: Snyder vs. Hannibal and St. Joseph R’y Co., 60 Mo.413; Blower vs. Petra. R. R. Co., 69 Pa. Staff, 210; Chicago R’y. Óo., etc., vs. Micliie, 83 HI. 427.
    The proximate cause of the damages in this case was the negligence of the injured child in jumping, and of its elder sister in allowing it to jump, from a car in motion: and also the act of that sister in interfering with the child whilst so jumping, and thus dragging it under the car.
   The opinion of the Court was delivered by

Pociié, J.

Suing for the use of Lis minor child, plaintiff claims damages in the sum of ten thousand dollars for personal injuries inflicted on his child by one of the defendant’s trains, through the alleged carelessness and negligence of the company’s employees.

Defendant appeals from a judgment of $3000, based on the verdict of a jury.

The evidence is very conflicting on the salient.features of the case, but from our reading of the record we find the following pertinent facts from the preponderance of the testimony.

The accident occurred at the company’s depot, which is situated on, and occupies the neutral ground or space included between two streets- or thoroughfares, known as North and South Poydras streets, in this city, on a train of passenger cars which had just arrived, had discharged its passengers and their baggage, and was being switched out of the main track, in order to be set at rest on a side track for the night.

While plaintiff’s daughter, between eight and nine years of age, was playing in and around the depot, with four other girls a little more advanced in years, one of whom was her sister of about thirteen years of age, the girls took a child’s notion of riding on that train, while it was under the operation of being switched off, at about 7 o’clock in the evening in the month of November, 1886.

One of the girls asked and obtained permission so to do, of the baggage-master of the train, who was standing near by preparatory to his leaving for home.

Pour of the girls entered one of the passenger coaches and took seats at the end towards the baggage car, and the fifth child caught on, and remained outside on, the steps of the coach. As the train was in the act of being moved out of the main track, at a pretty rapid rate, the girls became alarmed at the belief and fear that the train was running out of the city, and going, as several of them say, “out to Baton Rouge,” whereupon they ran out of the coach and precipitately jumped out of the car. It was in that flight that plaintiffs youngest daughter fell, and that her foot was seriously injured by being run over by one of the wheels of the coach.

Under that condition of things the defendant makes the point that the baggage-master had no authority, within the scope of his employment, to grant the request of the children for permission to ride on the train, so as to render the company liable for injuries resulting from such permission. The record shows that the train was not under the charge or control of that employee, but that it was under the responsibility of another and entirely different person, who had no knowledge of the presence of the girls on that train. The record is conclusive on that point, and the authorities are equally clear on the law. The baggage-master has no duty or authority with the train, whether running or at the depot; and his permission to the girls to ride on that train cannot bind or affect the rights or obligations of the company. Pierce on Railroads, p. 277; Snyder vs. H. & St. J. R’y Co., 60 Mo. 413; Gillett vs. Mo. Valley R. R. Co., 55 Mo. 315; Hanson vs. R. R. Co., 38 Ann. 111.

It is in proof that vigorous orders had been given by the management of the company to drive away children who came to play in and around their depot, and that to the knowledge of the girls many children have thus been ordered away. It is thus made clear that the permission given by the baggage-master was unauthorized under the «cope of his employment, and in direct violation of the company’s rules and regulations.

It is also in proof, beyond a donbt, and it is not disputed by plaintiff, that the train was not in use or motion, at the time of the accident, to carry passengers under its purpose as a common carrier, but that it was being pulled back and forth, merely and exclusively with the intention of removing the coaches from the track on which they had entered the depot, and of preparing them for the formation of another train for use in the company’s business on the next day. Hence, it ■clearly follows that the relations of carrier and passenger did not arise between the defendant and plaintiff’s child.

Now, in one of the cases very strenuously relied on by plaintiff, the case of Railroad Company vs. Stout, 17 Wallace, 657, the Supreme Court of the United States laid down the following pertinent rule:

That while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers arising from its negligence or from its tortious acts.”

The rule is not only supported by authority but it finds its sanction in principles of reason, common sense and natural justice. It is in fact a universal rule on the subject of the responsibility of common carriers.

But under the circumstances of this case we feel warranted to extend the scope of the rule still further, and to hold tlie defendant company to the same degree of care towards the children who were in that coach, that it would owe, to passengers_being conveyed by it on _a journey, afterpayment of their .fare.

Our reading of the record has entirely failed to disclose any act of negligence, or dereliction of any duty, on the part of the company, which it owed to those girls, even if they had been regular passengers on a journey over its road. An attempt has been made to show that the panic among the girls and their precipitate flight from the coach were caused by the act of one of the company’s employees, who suddenly and without warning blew out the lights in the car, and his act is qualified as reckless and mischievous.

But that contention finds no support in the record. In their testimony, two of the girls state that they (lid not notice whether there were any lights in the coach or not; and not one of them is certain of having seen any person or persons put out the lights.

We are entirely satisfied from the evidence that the panic among-the girls was caused by the fear that they might have made a mistake,, and had entered a train which was going to Baton Rouge. Hence, im~ 'pelled by that fear, they attempted to jump out while the train was in motion. Now, supposing that any passenger on a regular train should, labor under a similar mistake, in believing, for instance, that the train was passing by the station'to which he was destined, and fearing that he might be carried beyond the same, should jump out as the train -was pulling out of the station, and be injured by falling, could the company be held liable for injuries thus received? Evidently not. .

In that case as in this, there would be no ground to conclude that the company had been guilty of any negligence towards the passenger-on its train. Where is the duty which the defendant corporation owed, to plaintiff’s child and which it did not-discharge or perform?

By remaining on the coach until it had been switched off on the sidetrack, she would have been perfectly safe; and could have stepped out,, as she and her companions had doubtless intended to, and as they knew that they could, do without the slightest danger.

Who is responsible for the ungrounded fear of the girls that the-train-was being run out of the city, or perhaps to Baton Rouge, and which is beyond a doubt the proximate cause of the accident ? They were alone in a coach, where they had entered voluntarily, with the childish intention of taking a ride while the train was being switched off. They say themselves that after they had taken their seats in the coach, the baggage-master moved from the platform in front of them,, and entered the baggage-car, where his duty called him.

There is no pretence that a single word was spoken to them after they had taken their seats in the coach by any officer, servant or other employee of the company, or that they were ordered off the train by any one. In running out, and jumping off, they were impelled by motives with which the company had not the remotest connection or agency.

And in that feature the circumstances of the case are much more favorable to the company that in any of the reported cases on which her counsel rely in their brief. Cauley’s case, 95 Pa. St., 395; 98 id. 498; Duff vs. A. V. R. R., 91 Pa. Stat. 458.

Under our view of the case, and from our solution of the pertinent facts flowing from the weight of evidence, we hold that the pivotal: ■question does not hinge on-the contributory negligence of the passen.ger, but exclusively on the entire absence of negligence of the company. Flowers vs. Penna. R. R. Co. 69, Penna. Stat. 210.

Our opinion is that the verdict, of the jury is manifestly erroneous, and that in justice, it must be set aside.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment of the district court annulled, ■avoided and reversed, and it is farther ordered that plaintiff’s demand ■he rejected and his action dismissed at his costs in both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,034.
    James A. Renshaw vs. His Creditors.
    Powers of attorney to sell and transfer tlie property pledged, given by the pledgor to the pledgee, as an adjunct to the contract of pledge itself, are notrevoked by the insolvency of the pledgee or other causes stated in C. C. Art 3027.
    The Art. 3027 is derived from the Code Napoleon and expresses a" general principle of universal jurisprudence on the law of mandate, and the construction has been uniform under all systems that it did not apply to powers coupled with an interest in which the mandatary was made a procurator in remsuam.

    The amendment of the article by Act No. 19 of 1882 is considered and construed as not inconsistent with the foregoing principles or preventing their continued application.
    ‘The right of retaining possession of the thing pledged until payment of his debt, conferred on the pledgee by Art. 3164 O.C. is an essential constituent of the juspignoris and not affected by the cession of the pledgor. The syndic may, on proper showing or proper proceeding, compel the liquidation of the pledge by sale so as to ascertain any possible resichvum applicable to other creditors ; but he does not acquire the right to demand the surrender of the pledged property into his official control and administration and subject to the costs and charges thereof.
    APPEAL from the Civil District Court for the Parish of Orleans ■ Tissot, J.

      A. J'. & Omer Vüleré. for the syndic, Plaintiff and Appellant.
    1. Powers of attorney, to transfer stocks on the books of corporations, expire by the failure of the principal. Act 19 of 1882.
    2. The syndic of an insolvent has the exclusive right to administer upon the property surrendered aud to sell the same subject to the claims of privileged creditors. 34 A. 389; 31 A. 868; 1 N.S.417; 2 N. S. 22; R. S. 1813; C. O. 3166; 31 A. 870; 14 A. 560.

      Henry Denis, for the Hope Insurance Company, Defendant and Appellee :
    -Apledgee, under ordinary circumstances, cannot he compelled by the syndic of the insolvent debtor to surrender the pledge to him. ¿Tacquet vs. Creditors, 38Ann. 863.
    .A power of attorney, coupled with an interest, is not revoked by the insolvency of the principal. .Tacquetvs. Creditors, 38 Ann. 863; Allen, Bush & "West-vs. Nettles, Adm., 39 Ann. 791.

      Act Ho. 19 of 1882, embodying Article 3027 of the Civil Code, does not affect the rule that a power of attorney, coupled with an interest, is not revoked by the insolvency or death of the principal.
    The pledge and power of attorney of this Appellee being anterior to the Act of 1882, could not, in any case, be impaired by it.

      Leovy dh Blair, for the Sun Mutual Insurance Company, Defendant- and Appellee:
    “ If, among the assets of the insolvent-, there he a thing pledged, the possession of it does-not pass to the creditors, being vested in the pledgee. Ho man can transfer a greater right than he himself has.” Jacquetvs. His Creditors, 38 Ann. 804.
    “ The obligation of pledge is contractual. It vests in the creditor the right of possession and of privilege on the thing pledged. The light of detention being as much a part of the security as the thing pledged are a part of the guaranty, the creditor cannot he de. prived of same by the voluntary act (bankruptcy) of bis debtor, nor by the insolvent laws of the State. The obligations of contracts cannot be impaired. Id.
    “ notwithstanding the pledgor’s insolvency, the pledgee can proceed to sell the pledge in the way stipulated by the contract.” Id.
    “ A power of attorney, coupled with an interest, is not revoked by the death or bankruptcy of the principal. Article 3027 of the Civil Code applies to a gratuitous mandate.” Id.
    Act Ho. 19 of 1882 does not affect the above stated rights of a pledgee under a contract of' pledge conferring the right to sell.
    For, 1. It is simply an amendment of Article 3027, C. C., which this Court, in the case of Jacquet vs. His Creditors, held to apply only to gratuitous mandates.
    2. It does not expressly repeal prior laws which gave to the pledgee of any kind of property, including shares of stock, the right to sell according to the stipulation of the contract, notwithstanding the insolvency of the pledgor. It does not repeal these laws by implication, for the continued existence of the mandate to transfer shares of stock is-not at all incompatible or inconsistent with the continued existence of the power to retain and sell pledged stock after the failure of the pledgor.
    3. It is not reasonable to presume that the Legislature intended to put pledgees of shares-of stock in duriori earn than pledgees of all other kinds of property, especially when this particular species of property is, by reason of its negotiable character, the most usual form of security, and the necessities and conveniences of commerce require that the power to realize on such collaterals should be as free and untrammeled as possible.
    4. In this case thepledgee’s right to retain and sell the pledged stock does not depend upon the power to transfer stock. It is conferred by the contract of pledge. The separate power to transfer given by the pledgor is not necessary to the existence or exercise of the right to retain or sell, stipulated in the contract of pledge.
   The opinion of the Court was delivered by

Fenner, J.

This is.a proceeding by the syndic in this insolvency to compel the Sun Mutual Insurance Company and the Hope Insurance Company to surrender to him certain shares of stock in various corporations which belonged to the insolvent, and liad been pledged to said companies before his cession to secure certain debts due by him to them.

The validity of neither the debts nor the pledges is assailed by the syndic, nor is it even pretended that the value of the securities exceeds the debts for which they are pledged.

The simple contention is that, by virtue of the cession, the syndic is entitled to take the pledged property from the possession of the pledgees and to administer and dispose of the same and to distribute the proceeds according to law.

It appears that at the time of the pledges, the insolvent executed powers of attorney in favor of the pledgees, authorizing them, in case of the non-payment of the debts at maturity, to sell the pledged stocks at public or private sale, and to-make all necessary transfers thereof.

The syndic bases his proceeding upon the claim that under act 19 of 1882, amending article 3027 Rev. C. C., the powers of attorney to transfer the said stocks are revoked.

The article, as amended, reads as follows :

C. C. 3027, “ The procuration expires :
u u u “ By the death, seclusion, interdiction or failure of the agent or “ principal.”
“ But poxvers of attorney by public act or by xoritings xmder px-ivate “ signatxvre, or by letter to transfer on the books of stock ooxpox'ations, “ bonds or shax-es of stock ixi said corpox'ations, shall be irx-evocable, and shall xiot expire by the death, seclusion, interdiction or failure of the “ px-ixieipal, WHERE THE SAID BONDS OR SHARES OF STOCK HAVE BEEN “ PREVIOUSLY SOLD TO THE PERSONS HOLDING THE SAID POWERS OF “ ATTORNEY, FOR VALUE RECEIVED AND SAID FACTS ARE SET FORTH IN SUCH POWERS OF ATTORNEY.”

From this last clause the syndic infers that, on the principle melxisio unius exclusio alterius, powers of attorney to transfer shares of stock which have not been “previously sold to the persons holding the powers,” are revocable, and expire on the cession of the principal.

The principle invoked, if applied, would go much further, and would involve the revocation of all other powers of attorney whatever by the causes stated save the single exception mentioned.

In a recent case we held that art. 3027 only applied to gratuitous mandates, and not to mandates coupled with an interest like the mandate to sell given to the pledgee as a condition and integral part of the contract of pledge itself. Jacquet vs. Creditors, 38 Ann. 864.

In that case, however, our attention was not called to the act of 1882, And we must admit that, lurking in the statutes of that year, it escaped • our notice. After due consideration of the amendment, however, we • are inclined to adhere to the opinion in the Jacquet ease.

The article 3027, as it stood before the amendment, was copied from article 2003 of the Code Napoleon, and was a principle equally of the Roman law and of universal jurisprudence. It has been universally held that it did not apply to what, at common law, are known as ‘‘ powers coupled with an interest” corresponding to those which, in the terminology of the Roman law, made the mandatary a “procurator in rem swam.” Hunt vs. Rousmanier, 8 Wheat. 174; Story on Agency, §§ 164, 173, 477, 483, 489; Livermore on Agency, § 30; 3 Zachariæ, p. 134; 18 Duranton, No. 284; Troplong, Mandat, No. 728, 737.

Thus the French Court of Cassation held that a mandate conferred in the interest of the agent as well as of the principal, and as a condition of a contract passed between them, is essentially irrevocable, and as not revoked by the failure of the principal. Journal du Palais, 12 And 19 August, 1831.

The same principle applies-in every case where the mandate is granted as a condition of the contract, or as a means of executing it. In such case the mandate, forming an element of a synallagmatic conract, is impressed with the qualities of such a contract, and is irrevocable. 2 Delamarre & LePoitviu, No. 445; Troplong No. 737; Journal du Palais, 7 July 1837.

The principle is so just and conservative and so essential in the business transactions of life, that it is impossible to believe that the Legislature intended to abolish it or to confine its application to a single case.

The principle inclusio unites exclusio alierius, is, after all, only one of many rules of interpretation, not intrinsically obligatory, but only serving as aids in arriving at the legislative will.

We consider that as art. 3027 stood, prior to the amendment of 1882, jurisprudence exempted such mandates as we have just referred to as conclusively as if the exception had been written in the statute. The question is whether the Legislature intended to alter or repeal this exception. The statute does not express such intention, and we are only asked to infer it by implication under a particular rule of statutory, construction. But this rule clashes, in this case, with another of equal force, viz : That which reprobates the constructive repeal of laws by implication in any case except where the new statute and the old are so inconsistent that they cannot stand together. N. O. & Carrollton R. R. vs. City, 34 Ann. 441.

No such inconsistency exists here.

We are satisfied that the Legislature only intended, out.of excessive caution, to give the sanction of express law to the particular exemption from revocability mentioned in the amendment without interfering with any other exemptions which jurisprudence had always recognized.

It is plain that the powers of attorney here involved belong to the «lass which we have described, forming important adjuncts of the contracts of pledge themselves and stipulated in the interest of the manadataries; that the mandator had no power to revoke them, and hence they were equally irrevocable for the other causes mentioned in ■art. 3027.

We may add that, even if the powers of attorney were revoked, that would not deprive the pledgees of the protection accorded them by art. 3164 R. C. C., which declares': The creditor who is in possession of the pledge, can only be compelled to return it, when he has received the whole payment of the principal as well as the interest and •.•costs.”

This right of retention is an essential constituent of the jus pignoris.

It has been held that this right is not operative, as against creditors of the pledgor, to prevent them from seizing and selling the pledged property so as to liquidate the debt and secure any possible surplus. Kirkpatrick vs. Oldham, 38 Ann. 553; Augé vs. Variol, 31 Ann. 868; Pickens vs. Webster, Id. 870; Case vs. Kleppenburg, 27 Ann. 484; Gleises vs. McHatton, 14 Ann. 560.

No doubt the syndic of an insolvent pledgor might, on proper showing, and by proper proceeding, force a similar liquidation so as to secure any possible resichmm for the creditors, as was done by the decree of the court in the case of Brother vs. Saul, 11 Ann. 225.

But it is entirely inconsistent with the pledgee’s right of retention» and has never been held in this State that, by mere virtue of the cession, the syndic acquires the right to demand the surrender of pledged property to he officially administered by him and subjected to the costs and burdens of such administration.

Judgment affirmed.


text:
    No. 10,015.
    City of New Orleans vs. The Great Southern Telephone and Telegraph Company.
    An. annual charge of §5 per pole upon the poles of a telephone company already established.’ imposed by a municipal ordinance as “a consideration for the privilege” is not a tax either on property or as a license and cannot be sustained as an exercise of the taxing-power.

      It is not an exercise oí* the police power, as it involves no consideration oC public order,, health, morals or convenience.
    A municipal ordinance granting to a particular company, authority to construct and maintain telephone lines on the streets, without any limitation as to time and for consideration stipulated, when accepted and acted on by the grantee by a compliance with all its conditions and the construction of a valuable and expensive plant, acquires thereby the features of a contract which the city cannot thereafter abolish or alter in its essential terms without the consent of the grantee; and the imposition of new and burdensome considerations is a violation thereof.
    A proviso in the ordinance to the effect that “ the acts and doings of the company under this ordinance shall be subject to any ordinance or ordinances that maybe hereafter passed by the city.” does not convert the grant into a mere revocable permit. On the contrary’ it assumes that the ordinance is to continue in full force and effect, and recognizes the-right of the grantee to do and to act under and in accordance with it, and only subjects such 11 acts and doings” to future municipal regulations hob inconsistent with the ordi. nance itself.
    APPEAL from the Civil District Court, for the Parish of Orleans. Yoorhies, J.

      Walter H. Bogers, City Attorney, and Bra/nch K. Miller, Assistant-City Attorney, for Plaintiff and Appellant.

      Bayne, Denegre & Bayne, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The defendant is the assignee and successor of the-New Orleans Telephonic Exchange referred to in the following ordinance of the city of New Orleans, adopted February 18, 1879 :

An ordinance authorizing the construction and maintenance of a. telephonic telegraph line through the streets of the City of New Orleans.

Section 1. Be it ordained by the City Council of the City of New Orleans, That the New Orleans Telephonic Exchange is hereby authorized to construct and maintain a line or lines of telegraphs through the streets of this city, the line or lines to be constructed along such-streets, at such points, and in such manner as to the kind and position of the telegraph poles, the height of the wires above the streets, and in all other particulars, as the Administrator of the Department of Improvements of this city may direct.

Provided, however, that the said company shall connect their wires with the Mayor’s office, Chief of Police’s office, and fire alarm telegraph office, and place and keep telephones therein free of charge to-the city, so that said telephones may be used in connection with all-" wires under the control of said company.

Sec. 2. And be it further ordained, etc., That all the acts and doings of said company under this ordinance shall be subject to any ordinance or ordinances that may hereafter be passed by the City Council concerning the same.

Under this ordinance defendant constructed and has since maintained telephonic lines through the streets, built according to the directions of the Administrator of Improvements, and with his approval, and has furnished the city with the free telephonic service stipulated, and has complied in all respects with the terms of the ordinance.

The plant established by defendant is expensive and valuable. The defendant pays a tax upon this plan.t as property, and also pays a license tax levied on its business.

In April, 1880, the General Assembly of the State passed Act No. 124, authorizing corporations formed for the purpose of transmitting intelligence by magnetic telegraph or telephone, to construct and maintain telegraph, telephone and other lines along all State, parish or public roads or public works, and along and parallel to any of the railroads in the State, and along and over the waters of the State; provided that the ordinary use of such roads, works, railroads and waters be not thereby obstructed, and along the streets of any city, with the consent of the Oouneil or Trustees thereof.

The defendant having the prior consent of the city certainly came under the protection of this act as to the maintenance of its lines from the date of its passage.

In December, 1883, the City Council passed an ordinance to regulate and control the erection and maintenance of poles for supporting wires of the telephones within and on the streets, ways and public places of the city of New Orleans, “ containing various provisions on the general subject, with none of which have we any present concern except the following : That “ no poles shall be allowed to be erected, or any existing poles he allowed to remain in that portion of the city embraced by Jackson street, Elysian Fields, Roman street, and the Mississippi River, except upon the payment of $5 per annum per pole for every such pole erected, or at present in use within that section of the city * * * said payments to be in consideration of the privilege and advantage of entering upon, using and permanently occupying the streets, ways and places of the city for private property, and to be paid annually in advance, commencing January 1, 1884.”

Defendant had 600 poles within the section designated, on which the sum of $3000 is claimed to be due, and the object of the present action is to enjoin defendant from using or maintaining said poles for telephonic purposes, until payment thereof be made.

It is not pretended that the exaction claimed is a tax, either on property or as a license, or that it is an exercise of the taxing power in any respect.

The ordinance qualifies it as a pi ice or consideration for the privileges enjoyed. It is not even alleged that defendant has ever consented or contracted to pay such consideration, and the attempt made to prove such consent was not only ultra petitionem, but the evidence offered for the purpose was manifestly insufficient and illegal, and was properly rejected.

There is, therefore, entire absence of any legal tie binding the defendant as a debtor for the amount claimed, and if the city were suing simply for a money judgment, the petition would set forth no cause of action.

The real relief claimed by the city, however, is found in the injunction prayed for, based on the theory that the provision of the ordinance referred to is a regulation or condition imposed upon the maintenance of the poles and exercise of the privileges which the city had the right to impose, and without compliance with which the defendant •could not lawfully continue to maintain and exercise them.

The question for our determination is whether ihe city had the right to make such a regulation or impose such condition.

It is not seriously contended that the provision is a police regulation, and, indeed, such contention is silenced not only by the nature, but by the express terms of the provision itself, which qualify the exaction as a consideration for the privilege.” No consideration whatever of public morals, health or convenience is involved. It is not proposed to abolish the use of poles or to alter their location, construction or manner of use in any way, to subserve the public comfort. The simple requirement is the payment of a price, on payment of which the status quo continues, while, without such payment, rt must cease. The case presents no feature of an exercise of the police power.

The only remaining question is, whether, after granting the defendant the authority to construct and to maiutain its lines without limitation as to time, and with no other consideration than the furnishing of certain free telephonic facilities to the city; after the defendant has, at great expense, established its plant, and constructed its lines, and when it has fully complied with all the conditions imposed, the city can now exact this large additional consideration for the continued enjoyment of privileges already granted.

If tlie city can do this now, she could have done it the very day after the defendant had completed its lines, when it had incurred all the expense and before it had reaped a particle of return. If she can impose a charge of $5 per pole, she can, with equal power, impose one of $1000,. and, for that matter, she could arbitrarily revoke the grant at her pleasure.

Either she is bound according to the terms of her proposition accepted and acted on by defendant or she is not bound at all.

Obviously, upon the clearest considerations of law and justice, the grant of authority to defendant when accepted and acted upon, became an irrevocable contract, and the city is powerless to set it aside or to interpolate new and more onerous considerations therein. Such has been the well recognized doctrine of the authorities since the Dartmouth College case, 4 Wheat. 518.

The main contention of the city, however, is that the second section of the ordinance Vobs it of the features of a contract and converts the authority granted into a mere revocable permit. The section is as follows : “That all the acts and doings of said company under this ordinance shall be subject to any ordinance or ordinances that may hereafter be passed by the City Council concerning the same.”

The city’s construction of this section is strained and unreasonable and conforms neither to its spirit or letter.

It is not conceivable that the grantee would have invested its means in such an enterprise, had it imagined that the term and conditions of its enjoyment of the privilege lay at the entire mercy of the city. If any such unreasonable intention lurked in the minds of the Council which passed the ordinance, the grantor, under familiar rules of construction, came under the obligation of expressing it clearly and unambiguously.

But what is it that is subject to regulation and control by future ordinances Í

It is, “ the acts and doings of said company under this ordinance.’ This assumes that the ordinance itself is to continue in full force and effect, and certainly reserves no power to repeal, destroy or alter it in any of its essential features and considerations. It recognizes the right of the company to act and to do under and according to the ordinance, only subjecting such “ acts and doings” to municipal regulations not conflicting with the ordinance itself.

We consider that the imposition of the additional and burdensome consideration here involved is not within the scope of the rights reserved.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10021.
    Widow Patrick Dwyer vs. James J. Woulfe, et als.
    A suit for hypothetical damages, not yet sustained and which may never be suffered, cannot be countenanced.
    In a suit against the succession and the surety of a notary, to hold them liable on account of the latter’s failure to register seasonably an act of mortgage, another act having been in the meantime recorded, cannot be sustained, when it is not alleged that the property has proved insufficient to pay the claims, or that the drawer of the note and the succession of the notary are insolvent; that the debt has not been paid, in whole or in part, and that injury has been suffered.
    It is not until such facts are alleged and proved and the dereliction of duty by the notary is established that damages, like those claimed, can he recovered.
    APPEAL from the Civil District Court for the Parish of Orleans; Bightor, J.

      Posey & Ker, for Plaintiff and Appellant.

      Breaux <& Hall, James Timony and Sam. L. Gilmore, for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

Plaintiff appeals from a judgment dismissing her suit on exceptions of prematurity, misjoinder and no cause of action.

The petitioner sets forth that on the 24th of October, 1884, she loaned Woulfe $5000, for which he issued his note, securing it by mortgage on certain real estate before Castell, notary; that said act was not recorded by the latter until the 24th November, 1885 ; that in the meantime said Woulfe secured another loau for $1500 by mortgage, on the same property, by act before the same notary, which was recorded on the 30th of October, 1885.

She avers that, in consequence of the failure of the notary to record her act without delay in the mortgage office, she may suffer damages to the extent of $5000, for which the drawer of the note, the succession of the notary and the surety of that official, are jointly and severally bound to her. She cites them and asks for judgment accordingly. To this petition, the exceptions mentioned were filed and sustained.

The plaintiff has already recovered judgment against Woulfe, the drawer. She does not allege that execution has been issued and returned nulla bona against him ; or that the succession of Castell is insolvent, and that, in consequence, the surety on the latter’s bond has become liable to her, for the amount of her note and that she has really suffered the injury.

Suing in advance for hypothetical damages which, as an abstract proposition, may never be sustained, cannot be countenanced; courts ■have enough to deal with actual wrongs.

It will be ample time for the plaintiff to revindicate what rights she may have, when the property mortgaged shall have been sold and shall have failed to realize sufficiently to satisfy, in part or in whole, the judgment on the note, and eventually when the succession of the notary will be shown to be insolvent and execution returned unsatisfied against the drawee of the note.

On the assumption of the notary’s liability, it is only, if the property does not satisfy the debt, or the drawer of the note and the succession of the notary fail to pay it, that the surety on the latter’s official bond can be called upon for indemnity, under the terms of the obligation which he has signed. R. S. 354.

There is surely no cause of action shown against the drawer of the note, who has already been condemned to pay it.

Judgment affirmed.


author: Pochb, J.

text:
    No. 10,041.
    Gabriel Rawitzky vs. Louisville and Nashville Railroad Company.
    A railroad company is not responsible in damages for ejecting a passenger on tbe ground that tlie ticket which he tenders for his fare had expired by limitation under its very terms, at the time that it was tendered,
    A stipulation in a ticket sold as good for thirty days, that the purchaser shall have himself identified as such at the terminal point of his journey, and that the ticket shall be good fifteen d.iys only after date of identification, is not illegal or unreasonable, but is binding on the party who thus contracts with the company.
    A party suing on such a contraot, and • alleging the same will not be allowed by parol to prove a different contract.
    APPEAL from tbe Civil District Court for tbe Parish of Orleans j Bightor, J.

      Leonard, Metrics & Bruenn, for Plaintiff and Appellee :

    1. Parol evidence to allow statements of company’s regular ticket agent is admissible. 2 Lea (Xenn.) 594 ; 76 Penna. 66 ; 63 Me. 298, 302.
    2. Representations concerning rights under ticket made by agent are within the scope of his authority and the company is bound by them. 10 Neb. 250; 11 Red. Rep. 698.
    3. Actual as well as exemplary damages will be allowed for wrongful expulsion from railway train, and courts are to take into consideration the humiliation to personal feelings, the degradation, as well as the loss occasioned by such expulsion and resulting, therefrom. 19 Ohio St. 157 ,- 68 Mo. 329; 79 111. 584; 55 111., 185; 46 Tex, 272 ; 90 III. 126
    4. The carrier is bound to make good wliat the ticket imports on its face, and the passenger is not bound by any rulo or usage of the company, not positively shown to have been made known to him. 47 Y. Sup. (Jones & S.) 282.
    5. The damage caused by the unwarranted expulsion of plaintiff, shown to have resulted in the destruction of his entire business and credit, and tbe judgment of the lower court should be affirmed.

      Bayne, Denegre <& Bayne, for Defendant and Appellant:
   The opinion of the Court was delivered by

Pochb, J.

Plaintiff claims damages in the sum of ten thousand dollars on the ground that he was illegally and wrongfully ejected from one of the defendant company’s trains on which he was a passenger.

The defence is substantially that the ticket which plaintiff tendered to the conductor for his fare had expired by limitation under the very terms stipulated therein, as accepted by plaintiff under his signature; and that when called on to pay his fare as an ordinary passenger, plaintiff had refused compliance, preferring to leave the train at a way station.

Defendant appeals from a judgment of $5,000 in favor of plaintiff.

The facts, as we gather them from the preponderance of the evidence, are as follows :

In the summer of 1886, the defendant company offered for sale tickets to go from New Orleans to Toronto, Canada, and return, at the reduced rate of $42 for the round trip, good from the first of June to the 31st of October of that year; and at the same time offered tickets for the same trip good for thirty days from the date of purchase, at the still further reduced rate of $26 75. On the 8th of July plaintiff bought a ticket of the latter description, and left for his journey on the same day. Written length ways on the face of his ticket, in red ink, were the words: “Limited to August 8, 1886’’; and the ticket also contained the signature of the company’s agent and that of plaintiff, as well as mention of the date of sale. Among numerous other conditions of the contract printed on the ticket, was the stipulation which hound the purchaser, on his departure returning, to identify himself as such by writing his name on the back of the contract in the presence of the ticket agent at the point to which the ticket was sold, and by which the purchaser agreed “that this ticket and coupons shall he good, returning, fifteen days only, after such date.”

It is then shown that plaintiff was thus identified at the ticket office jn Toronto on the 14th of July, and that he was ejected from the eompany’s-train at a point between Cincinnati and Louisville on the third of August of that year, under the following circumstances :

A short time after leaving Cincinnati, on his way to New Orleans, when plaintiff was called on for his fare by the conductor in charge of the through train from Cincinnati to Louisville, Ky., plaintiff tendered the ticket herein above described, and on which he had travelled from Toronto to Buffalo, N. Y., and thence to Cincinnati, whereupon he was informed by the conductor that the ticket could no longer avail him, for the reason that under its terms, it had expired by limitation, as more than fifieeu days had run from the date of identification at Toronto, July 14th, to the day on which the ticket had been tendered by' plaintiff in payment of his fare. After considerable discussion, during which, plaintiff insisted that his ticket was yet good, as it was limited to August 8th, and during which he was advised by the conductor to pay his fare, about $3 50 to Louisville, where he might make suitable arrangements at the general office of the company, at which place only, he could find an officer empowered to revive the extinct contract, offering at the same time to give him a printed receipt of the amount paid, which he might perhaps recover at that office, and on the persistent refusal of plaintiff to pay such fare, lie was ejected at a way station at about an hour’s run west of Cincinnati. At that point he telegraphed the facts to a friend in this city, who made necessary arrangements to secure a ticket to carry Mm from Louisville to New Orleans, informing him by telegraph that he would find such ticket at the company’s general office in Louisville.

Plaintiff then bought a ticket to the latter point where he found his ticket for New Orleans, at which place he arrived in due time, having been detained twenty-four hours by the unpleasant incident. There is no proof or even an intimation that violence or harsh means were used in ejecting plaintiff from the train. Hence the pivotal question in the ease, is to ascertain whether the company through its agent, had the legal right to conclude that by the acts of plaintiff its contract with him had expired on file third of August, thereby justifying the defendant in refusing to carry' him further on the ticket which he had bought from it on the 8th of July previous. That question suggests the discussion of two propositions :

First — Whether the stipulation contained in the contract, by' which a ticket sold as good for thirty' days may expire before that time, by the act of the purchaser, if he happens to have himself identified at the point of terminus of Ms journey, more than fifteen days before the expiration of the thirty days or before the time at which he seeks to use the ticket, is in law a reasonable condition.

Second — Whether that clause was inlaw and in fact a part of plaintiff's contract with the defendant company.

I.

We do not understand that plaintiff’s counsel, either in their pleadings or in their argument, contest or dispute the legal and binding force and effect of the clause as part of a carrier’s contract; and at this stage of railroad jurisprudence, such a contention would be of little or no avail.

All the writers on railroad law, and numerous decisions of the courts of the country, concede the right of common carriers to include such restriction in their contracts for the transportation of passengers.

Thompson on Carriers, pages 70 and seq., p. 375; Hutchinson on Carriers, §575, 581; Woods on Railroad Law, p. 1407, 1438, 1439; 37 Michigan 342, Frederick vs. Marquette, etc.; 67 Illinois, Churchhill vs. Chicago Railroad, p. 390; 54 Wisconsin, Yorton vs. Milwaukee Railroad, p. 234; Pennington vs. Philadelphia, Wilmington and Baltimore R. R. Co., American and English railroad cases, p. 310; Howard vs. Chicago, St. Louis and New Orleans R. R. Cos., American and English railroad cases, 313, same p. 345.

It appears from the record in this case that the object in requiring the identification of the purchaser, and of the limit of use of tickets after fifteen days from the date of such identification, is to check, as much as possible, any speculation or trading in tickets which are sold at greatly reduced rates. And although the compliance with such a condition entails considerable annoyance on the purchaser, it does not appear that the condition is reprobated by law, or is liable to the objection that it is unreasonable. A regulation of similar import was recently submitted to judicial test in this State, and on that occasion it was held by this court that:

‘‘The rules of a city railroad company, acting under a contract with the city, which requires the company to carry passengers over two sections of its line for one fare, which require such passenger to keep and show, undetached by him, a coupon ticket as a voucher of his right to •continue on the car beyond a given point, are reasonable in law.”

•In that case the company was justified for having ejected a passeuger udio had tendered the required voucher, but already detached, and who refused to tender an undetached voucher or to pay regular fare. A partial compliance with the rules of the company was held insufficient to entitle the passenger to continue his ride on the second section of the company’s line. De Lucas vs. Railroad Company, 38 Ann. 930 and authorities cited therein.

We therefore hold that the stipulation contained in a ticket, by which the use of the same is restricted to fifteen days after the identification of the original purchaser at the terminus of his .journey, as evidenced by the ticket in this case, is binding on such purchaser. As a part of the contract it must be enforced, and a refusal of compliance by the purchaser exposes him to be ejected from the company’s trains or cars.

“A party who refuses to comply with the mode of paying his fare as agreed upon between himself and the carrier is under the same condition of one who refuses absolutely to pay any fare at all; and hence, the only alternative is to carry him for nothing, or to eject him if he refuses ,to leave when requested so to do.” De Lucas’ case, 38 Ann. 533.

But plaintiff’s contention is that the clause was not a part of his agreement with the company, and this leads us to the consideration of the seeond point of discussion.

II.

According to the views taken of their case by plaintiff’s counsel, that contention is the crucial text of the controversy, for, as we have already said, they do not put directly at issue the right of a common carrier to incorporate such a condition in a contract of transportation.

Plaintiff’s point is that the clause in question was intended as a part of the contract under the company’s original plan or scheme, which consisted in selling tickets to Toronto and return at the rate of $42 for the round trip, and good from the date of purchase, which could be June the first to the 31st of October following, and that although, for convenience sake, the printed form of tickets under said original scheme, was used to evidence his contract with the company, the clause in question was not a part of his obligations under his contract, which came under a special and a different scheme, by means of which all tickets sold were good for thirty days independently of the date of identification at the terminal point of the journey. But the argument is not sustained by the record. Under a proper construction of his own pleadings, plaintiff is estopped from urging that contention.

For there he in terms admits that the clause ia question was a part of his contract.

His petition contains the following unambiguous averment:

“Your petitioner represents that after his arrival at the said Toronto, Ontario, he being desirous of returning to the said city of New Orleans, petitioner repaired to the ticket office of the Grand Trunk Railway, as in his said ticket directed, and as under his contract with the said Louisville and Nashville Bailroad Company he was bound to do, and then and there identified himself as the original purchaser of the said ticket issued to him as above set forth, signed his name in his-proper hand-writing, and which signature was witnessed by the said ticket agent at said Toronto, who also signed his name below that of petitioner, all of which more fully appears from the said ticket hereto-annexed as part hereof.”

Now, from an inspection of the ticket it appears as hereinabove stated, that the requirement of identification is a part of the clause which limits the validity of the ticket to fifteen days after the date of identification, and that it appears nowhere else in the contract. By what rule of law or of pleading can plaintiff claim the right to recognize a portion of a clause in a written contract, bearing his signature, without restriction or qualification, and to repudiate the other portion of the same clause, and contained in the same sentence "I Parties litigants must be bound by their pleadings.

An effort was made to show, by parol testimony, that the contract as printed, had been modified by the company’s agent, who sold the ticket, so as to strip it of the obligation on the part of the purchaser to use the ticket within fifteen days after identification, and evidence was admitted to that purpose, over defendant’s objections. The evidence should have been rejected under the effect of plaintiff’s own pleadings as hereinabove stated. But, even if admissible, the testimony on that point is not sufficient to sustain the contention.

The true construction of the ticket bought by plaintiff on July 8, 1886, as applicable to this issue, is that the ticket was good for his fare to Toronto and return until the 8th of August following, on condition that he should bo identified as the original purchaser at Toronto, and that, having been identified on the 14th of July, he should have completed his return trip, on or before the 29th of July, or that to be entitled to use the ticket as late as the 8th of August, he should have been identified only fifteen days before that date.

We asre satisfied that plaintiff was in good faith, and that his misfortune can be attributable only to his failure to properly understand all the conditions stipulated in the contract. He admits that he had never read those conditions before he was ejected from the train on the 3d of August.

The whole trouble, as we gather from his testimony, was that Toronto was not the objective point of his journey, and that his sole purpose in visiting that city was to be identified by the agent of the ■company at that place, in compliance with the stipulation to that effect in the contract.

His trip was intended to visit friends and relatives at Buffalo, New York, where he sojourned from the 15th of July to the 2d of August.

He must, therefore, be held in law as responsible for all the troubles which befell him on the occasion which is the subject-matter of this litigation.

It is doubtless a hard case on him, and he must have suffered great annoyance and humiliation at being ejected from a train on which he believed he was entitled to all the privileges of a passenger.

But under the evidence in the case, and in keeping with well-settled jurisprudence, we have no authority to inflict damages-on the corporation, as it violated no part of its contract.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that there be judgment in favor of defendant rejecting plaintiff’s demand, and dismissing his action at his costs in both courts.


text:
    No. 9891.
    Edward C. Hancock vs. Eliza Jane Holbrook et al.
    The right to avoid titles to property on the ground of fraud must be exercised within a reasonable time after discovery, especially where the property is of fluctuating value dependent upon successful administration: the party cannot await the event, and then claim the profit.
    ‘The institution of a suit not prosecuted may save the action from this equitable bar, but the plaintiff’s neglect of his duties as director, failure to interpose for the prevention of the transactions while they wore, to his knowledge, in course of consummation, and his inaction until the death of the principal actor, whose title he attacks, subject bis claims to scrutiny and adds to the burden of proof resting on him.
    The stockholders of a corporation, in the name of which property has been bought on credit, cannot form a new corporation in which their interests are the same as in the old and based on no new consideration, and by transferring the property to the new corporation escape liability to the vendor and creditors atleasfcto the value of the property.
    The acceptance of the surety on a twelve months’ bond of the assumption of a third person to hold him harmless, does not deprive him of liis recourse against the principal of the bond or the property for the price of which the bond was given, when the assumption is not discharged and the surety has paid the bond.
    The hoard of directors ©f a corporation have the general light to apply its property to the payment of its debts; and a majority of stockholders present, at a meeting regularly convened, with due notice for the -purpose, have the right to ratify such action and dissolve the corporation.
    But where such action is had through the influence of the president of the corporation, and where the debt to which the property is applied is one for which he is primarily liable and especially when lie has subsequently acquired the property, such circumstances subject his action to severe scrutiny and require of him proof that he acted with candor and fair dealing for the interest of the corporation and without any taint of selfish motive.
    The above test is applied to the action of Holbrook, the assignor of defendants, and it is found to stand the ordeal.
    Transactions which only accomplish justice, which are done in good faith and operate no legal injury, lack the characteristics of fraud.
    Judgment affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans -T Tissot, J.

      House <& (Irani for Plaintiff and Appellant:
    1. The directors of a body corporate are trustees, and the stockholders are the cestui que trust, and have a joint interest in all the property and effects of the corporation. Jackson vs. Ludeling, 21 Wall. 616; Koehler vs. Iron Co., 2 Black, 715; Drury vs. Cross, 7 Wall. 299; Cochran vs. Ocean Dry Dock Co., 30 Ann. 1366; l Pony on Trusts, Sec-207, 'Note 5; Angel & Ames on Corp., Seo. 312; 3 Pomeroy Eq. Jurisp., See. 1088.
    2. Trustees are* incapable of purchasing the trust property themselves or of deriving any profit from it. Gardner vs. Ogdon, 22 N. Y. 343: Butts vs- Wood, 37 N. Y. 319; Bail-road Company vs. Durant, 95 TJ. S. 576; Ervin vs. Oregon N. &B. Co., 27 Fed, Bep. 625; Greenlaw vs. King, 3 Beav. 49, 61; Gihson vs. Jeyes, 6 Yes. 278; 17 Fed. 17.
    3. A purchase hy the trustee of the trust property, carries fraud upon the face of itMichoud vs. Girod, 4 How. 553.
    4. The cestui que trust has a right to follow the trust property into the hands of a third person, unless lie be a bona fide purchaser, for a valuable consideration without notice. Oliver et al. vs. Piatt, 3 How. 333, 401; Bank vs. Insurance Co., 104 IT, S. 66; Cook vsTullís, 18 Wall, 341.
    5. Whenever a trustee reacquires trust property, disposed of hy him in breach of his trust,, the trust revives, and reattaches to it in his hands 2 Story’s Eq. Jurisp. Sec. 1204; Oliver et al. vs. Piatt. 3 How. 401; Cook vs. Tullís, 18 Wall. 341. Or the cestui que trust may hold the inoperty which lias been substituted for It Ibid. And the rule is the same, when a party acts in a fiduciary character. Banks vs. Insurance Co., 104 IT. S. 68.
    6. The representatives of a deceased trustee are liable to the extent of assets for a breach of trust committed by the decedent in %is lifetime. 2 Perry on Trusts Sec. 877; Hill on Trusts, 250; Hazard vs. Durant, 19 Fed. B. 471.
    7. Mrs. Holbrook, universal legatee of A. M. Holbrook, acquired the Picayune, affected with the trust. As such legatee she is also liable for the debts of the testator. Succession of Milne, 2 Bob. 382; C. C. 611.
    8. Nicholson acquired his interest pendente lite, with full knowledge of the trust oharaoter of the property, and, therefore, subject to the trust. 2 Perry on Trusts, Secs. elO, 814, 828; Kitchen vs. Bedford, 13 Wall. 413.
    9. Upon dissolution of a corporation, the property thereof becomes vested in its members*. Burke vs. Wall, 29 Ann. 38; Starke vs. Burke et al., 5 Ann. 740; Citizens’Bank vs* Dovoe St. Cotton Press Co., 7 Ann. 286.
    10. Whore the officers’, or majority stockholders’ action is destructive of the corporation, or whore they act for their own interest, a stockholder may himself bring suit for his protection. Hawes vs. Oakland, 104 IT. S. 450, Pomeroy, Sec. 1095.
    11. The surety on a twelve months’ bond, who pays the same, is subrogated only to the creditor’s rights in the bond itself. Trent vs. Calderwood, 2 Ann. 942; Tardy vs. Allen, 3 Ann. 60; Old vs. Chambliss, 3 Ann. 206; Crow vs. Walsh, 3 Ann. 541.
    12. The resolutory condition can be enforced only by the Vendor. Swan vs. Gayle, 24 Ann. 498. The parties must he the same. Augusta Ins. Co. vs. Packwood, 9 Ann. 75. It cannot be enforced in case of movables, when they have been transferred to a third persons. X-alance vs. "Wolf, 28 Ann. 942; "Wilmot & Co. vs. Ouachita Belie, 32 Ann. 611.
    13. The vendor's privilege upon movables continues only while in the vendee’s possession. Flint & Jones vs. Rawlings, 20 Ann. 557: Penn vs. Ott, 12 Ann. 233; C. C. 3217, 3227.
    14. A party is not hound by an admission, made under mistake of law. Pearce vs. Grove, 3 Atk. 523;-36 3K". X. 637; 92 F. X. 218. A complainant in equity may have relief against the averment of his hill. Finlay vs. Lyon, 6* Oranch, 238; 19 How. 173. And will not he defeated by ambiguous language, contradictory and repugnant to precedent matter. 1 Chitty’s PI. 231; 1 Salk. 324; 13 C - B. 541.
    15. Three years possession as owner, by a just title and in good faith, is necessary to acquire title to movables by prescription. C. C. 3506; 2 Ann. 997.
    36. The precarious possessor cannot pi-osoribo by any lapse of time. Michoud vs. G-irod, 4 How. p. 149, "No. 11. So in the case of mandataries. Jackson ot al. vs. Jones et al., 14 Ann. 230; O. C. 3441, 3489, 3510, 3514; 10 Rob. 534; 3 La. 568.
    17. As between trustee and cestui que trust. no lapse of times bars the action. 23 "Wall. 119-

      Thomas J. Semmes and Robert Mott, for Defendants and Appellees:
    1. A man’s own admissions arc the highest evidence against him; the effect thereof cannot be destroyed or weakened by any contradicting evidence. 6 M., 280, Delacroix vs. Prevost.
    2. He is not allowed to dispute his judicial admission. 23 Ann. 764 , 5 Ann. 22, 12 Ann. 445, 3 8 Ann. 140, 31 Ann. 158, 33 Ann. 1198, 35 Ann. 744, 37 Ann. 108.
    3. A judicial admission cannot he retracted to the prejudice of the adversary- 1 R. 546, 3 R-48, 10 Ann. 542,11 Ann, 710, 4 Ann. 416.
    ■4. An answer in chancery can be used by defendant as evidence for himself, in so far as it is responsive to the bill. 49 "Vermont 270, 40 Xnd. 126, 9 Crouch 161.1 Dan’l. Ch. Pr. 841 fn]«
    5. A deposition taken in a suit may he used in a subsequent suit between the same parties, especially if it be for the same cause of action. 1 Ann. 391, 9 R. 203.
    6. The transfer of a causo from one court to another does not affect the depositions taken in the court where it originated. 1 La. 173.
    7. An answer in chancery is equal to the testimony of any other witness. D Crouch 160.
    8. The surety who pays a twelve months’bond is subrogated to the rights of thepayeoof the bond. 16 Ann. 266. 25 Ann. 116.
    9. A person who pays a debt for another, which ho is legally hound to pay, or has an interest in paying, is subrogated to all the rights of the creditor against the person for whom he has paid.
    6 La. 479, 1 La. 410, 2 R. 424, 32 Ann. 502.
   The opinion of the Court was delivered by

Fenner, J.

In 1878 there existed in this city a newspaper association known as the New Orleans Herald Company, the parties mainly interested in which were H. C. Warmoth, Edward C. Hancock and Alexander Walker. They had been, for a short time, publishing an evening paper called the New Orleans Herald,which w'as not pecuniarily profitable, and, according to onr appreciation of the weight of evidence, the company was insolvent.

The New Orleans Picayune newspaper, which in 1872 had been purchased by an association of citizens who had organized themselves into a corporation known as The New Orleans Printing and Publishing Company, had likewise proved a losing venture, and in the fall of 1873 had been seized by judgment creditors and was advertised for judicial sale'on twelve months’ bond.

A scheme was then formed between the parties interested in the Herald Company to purchase the Picayune establishment and to consolidate it with the Herald, and to make the joint enterprise a success by placing its management under the control of an experienced and able newspaper director, A. M. Holbrook, who had been connected with the Picayune in its palmy days, and had conducted it profitably.

This scheme, formed in advauce, embraced ab initio, as we find from the evidence, all the substantial features of the proceedings which subsequently took place.

The Herald Company had neither the means nor the credit to make the purchase,'but Warmoth had both and was willing to use them.

Accordingly, at the sale on December 16, 1873, the Picayune establishment was adjudicated to the Herald Company, which gave its twelve-months bond, signed by Joseph Hernandez, as surety, who signed the same at the solicitation and under the personal guaranty of Warmoth.

Immediately thereafter the Herald Company executed an act of transfer of the property to A. M. Holbrook, upon the consideration of the latter’s assuming to pay the twelve-mouths’ bond at maturity, as security for which assumption he also furnished certain collateral securities.

Contemporaneously, a new corporation was formed styled the New Orleans Printing Company, having a nominal capital, of $30,600, divided into one hundred and twenty shares, of which sixty-five shares were allotted to Holbrook, and the rest were distributed amongst the shareholders in the Herald Company in the proportions of the stock held by them respectively in the latter company. In this new corporation, thus organized, Holbrook conveyed the Picayune establishment on a consideration of $30,000, acknowledged to have been received by hia;, but for which he really received nothing except the sixty-five shares of stock assigned to him.

The charter itself constituted as the first Board of Directors A. M. Holbrook, E. C. Hancock, Alex. Walker, R. W. Holbrook and P. St. Amand, the two latter being, to the knowledge and with the consent of all parties, mere representatives of A. M. Holbrook, under an assignment to them of one share each of the latter’s stock, the object being to secure to Holbrook control of the management.

The charter contained the following express provision: The Board of Directors shall adopt such By-Laws as may be necessary to manage the company and appoint such officers and clerks as may be required.”

In execution of this power the Board of Directors, at its first meeting, adopted by-laws which Hancock claimed were in violation of an alleged verbal understanding or agreement that he and Walker were to retain the editorial control of the paper. In the conflict of the evidence as to this agreement the charter, which contains the final stipulations between the parties, must prevail.

After this first meeting Hancock, without resigning his directorship, ■entirely withdrew his services, and never attended any other meeting of the directors or took any concern in the conduct of the paper.

If the paper did not succeed, Hancock, who thus ignored his duties as a director and withdrew his editorial services and support, is certainly not in position to shift the blame on others.

The paper did not succeed ; the title to the property was thrown in ■litigation by a suit attacking the sheriff’s sale, brought by the former Picayune Company; the country was still suffering from the panic of 1873; the times were unpropitious; the paper made no money. The twelve-months’ bond given for the price was running to maturity. Holbrook announced his inability to carry out his bargain to take it up. The collateral securities which he had furnished were of little or no value. The Herald Company had passed into the limbo of utter Insolvency. It was evident that the surety, Hernandez, or his guar.antor, Warmotb, would be compelled to pay the bond.

Under these circumstances, on December 14, 1874, a meeting of the Board of Directors was called, Hancock, as usual, absent, and the following resolution was adopted :

Whereas, the twelve-months’ bond for the original purchase price of the Picayune establishment, given to the sheriff in the suit of John Phelps vs. New Orleans Printing and Publishing Company, 4979, Sixth District Court, amounting to |20,211 38, is about to become due and payable; and,
Whereas, A. M. Holbrook is unable to pay the same ; and whereas, this company has not the means.to satisfy said bonds; and it is just and equitable that this company should not retain the property for which the said bond was given, to the detriment of the surety on said bond ; therefore, be it
'Resolved, That in case Joseph Hernandez, the surety on said bond, shall pay the same, the president of this company be and is hereby authorizedjto sell and transferthe Picayune establishment, and all its property and good will, to the said Joseph Hernandez, in satisfaction of his claim as surety on said bond.”

On the following day, Hernandez, or his guarantor, Warmoth, having paid the bond, the above resolution was executed by the transfer of the property to him.

On the 22d December, 1874, in pursuance of a resolution of the directory and of notice duly given, a meeting of the stockholders of the corporation was convened, at which the following resolution, was offered and adopted:

Whereas, in pursuance of a resolution of the Board of Directors heretofore passed, A. M. Holbrook, president, has sold and delivered the Picayune newspaper establishment, good will and property to Joseph Htrnandez in payment and settlement of the twelve-months’ bond on which said Hernandez was surety, etc.
Resolved, That the stockholders, in meeting assembled, do hereby ratify and confirm said sale and transfer.
Besolved by the stockholders of this company, in meeting assembled,, ninety-one shares out of the one hundred and one shares issued, voting therefor, that this company be now dissolved and put in liquidation, and that a commission of R. Fitzgerald and R. W. Holbrook is hereby appointed to wind pp and liquidate the affairs of this corporation.”

The following stockholders were represented and voted at this meeting:

A. M. Holbrook....................... 63 shares.

R. W. Holbrook........................ 11 shares.

R. Weightman.......................... 8 shares.

Peter St. Amand....-.................... 4 shares.

George Nicholson........................ 3 shares.

J. A. Quintero.......................... 1 share.

R. Fitzgerald.......................... 1 share.

Total.............................. 91 shares.

Whatever may have been the origin and nature of their titles, it is not disputed that they actually represented the stock voted by them, and, even leaving out the sixty-five shares originally assigned bo A. M. Holbrook as the consideration for his assumption of the bond, the remaining twenty-six shares constituted a majority of the other stock. either actually issued or demandable, the whole of which, according to plaintiff’s own admission, was only fifty-one shares.

On the same day Hernandez sold the Picayune to A. M. Holbrook individually for a consideration of $27,000 (or as claimed by plaintiff, of $32,000 and it matters not which), payable on long time, in small periodical notes, running over several years and secured by a pledge of the establishment.

During all the above transaction, of which he cannot and does not plead ignorance, not a word was heard from Hancock, either as stockholder or director. No other stockholder has complained. Hancock appears to have instituted some suit in January, 1875, the record of which is lost and its nature not very well explained in evidence ; but it was not prosecuted and was dismissed in November, 1876, when the present suit was brought. Thus he postponed the serious judicial assertion of his claims for nearly two years, during which Holbrook, by his own skill and labor, had converted a failing, into a successful, enterprise, and had paid off a large portion of the price which he had agreed to pay, and only began it when death had placed its seal on Holbrook’s lips and deprived him of the opportunity of defending his. conduct.

But for the institution of the first suit plaintiff’s case would undoubtedly fall under the equitable bar announced by the Supreme Court of the United States in a case similar to this, where a corporation sued to avoid a purchase^ of its property by one of its directors in alleged fraudulent breach of his fiduciary duties, and the Court said : The doctrine is well settled that the option to avoid such a sale must be exercised within a reasonable time. * * * The authorities to the point of the necessity of the exercise of the right of rescinding or avoiding a transaction as soon as it may be reasonably done, after the party with whom that right is optional, is aware of the facts which give him that option, are numerous (citing them). The cases of Bliss vs. Edmondson, 8 DeG., M. and G. 787, and Pendergast vs. Norton, 1 Yon. and Call., while asserting the same general doctrine, have an especial bearing because they relate to mining property. The fluctuating character and value of this class of property is remarkably illustrated in the history of the production of mineral oils-from wells. Property worth thousands to-day may be worth nothing to-morrow, and that which would to day sell for a thousand may, by natural changes of a week, or by the energy and courage of desperate enterprise, in the same time be made to yield that much every day

The injustice, therefore, is obvious, of permitting one holding a right to assert ownership in such property to voluntarily await the event, and then decide when the danger is over which lias been at the risk of another, to come in and share the profits.” Twin-Lick Co. vs. Maibury, 91 U. S. 587.

The doctrine is strongly applicable to property like a newspaper, whose value is not fixed, but fluctuates, according to the skill, energy and success with which its affairs are managed.

But for the success which attended Holbrook’s management, we may well believe that the suit which was suffered to slumber on the records' for nearly two years, and was then dismissed for reasons not explained, would never have found resurrection in the present vigorous action.

Conceding, however, that his first suit saves him from the absolute bar above indicated, yet his neglect of his duty as a director, his failure to interpose for the prevention of these transactions while they were being, to his knowledge, consummated, and his inaction until after I-Iolbroolc’s death, are certainly circumstances which subject his claims to severe scrutiny and require, at his hands, the clearest dis- ■ charge of the burden of proof resting on him.

Briefly stated, the gist of plaintiff’s action lies in the following ■charges :

First — That Hernandez, as surety on the twelve months’ bond, if ■compelled to pay it, had no claim, on that account, against either the Picayune Company or its property, but had no recourse except against the defunct Herald Company and against Holbrook individually under his assumption.

Second — That the transfer to Hernandez and the subsequent re-transfer to Holbrook individually were parts of a fraudulent scheme -and conspiracy between Holbrook and other parties concerned, by which Holbrook availing himself of his control of the majority of the Board of Directors aDd of the majority of the stock, applied the whole property of the corporation, of which he was president, to the payment of his individual debt and then re-purchased the same in his personal capacity.

Third — That when Holbrook re-acquired the property which he had ■disposed of in breach of his trust, the original trust revived and he held it subject to the rights of the original stockholders in the Picayune Company; and, as such a stockholder, plaintiff, by this action, seeks to enforce his rights in the Picayune newspaper now held by defendants.

I.

As we have already indicated, the evidence satisfies us that the purchaser at the judicial sale and the giving of the twelve months’' bond in the name of the Herald Company as principal with Hernandez as surety, were parts of a plan agreed upon in advance by which the-Herald Company was used simply as a vehicle by which the property was to be conveyed first to Holbrook and by him to the new corporation -which was subsequently formed and which was intended ab initio to be the real purchaser at the sale. The new corporation was simply the Herald Company plus Holbrook, as evidenced by the glaring fact that its stock, except that assigned to Holbrook, was distributed with- • out other consideration, among the Herald stockholders in exact proportion to their stock therein. The proposition that the stockholders-of a corporation can buy property, in its name on credit; immediately thereafter form a new corporation in which their interests are the same and based on uo new consideration ; transfer the property bought to the new corporation and then hold it' free from any liability to the vendor or creditors, is one which cannot be sustained in reason or by authority.

It is perfectly plain that the new Picayune Compauy, quoad this property, stood in the shoes of the Herald Company and was bound for the latter’s debt to the extent of its value. Hibernia vs. St. Louis, 13 Fed. Rep. 516; Horner vs. Carter, 11 id. 362.

II.

Although Hernandez, or his guarantor, Warmotli, accepted Holbrook’s assumption to pay the twelve months bond, it is not shown that he consented or intended thereby to waive his recourse against the property, in case Holbrook should fail to carry out his agreement and he should be compelled to take up the bond. The holder of the bond was undoubtedly entitled to such recourse, and when the surety paid he was subrogated to the right. C. C. 2161; Cox vs. Baldwin, 3 La. 410; Baldwin vs. Thompson, 6 La. 479; Howe vs. Frazer, 2 Rob. 424 , Hennen vs. Word, 16 Ann. 266; Suc. Hitzler, 25 Ann. 116.

III.

From the foregoing it follows that in declaring in their first resolutions, that “it is just and equitable that this company should not retain the property for which said bond was given to the detriment oi the surety on the bond,’’ the Board or Directors recognized not merely, an equitable but a strict legal obligation of the corporation.”

Indeed, plaintiff liimself, in his own petition herein, distinctly declares “ that, in equity and good conscience * * the said New Orleans Picayune Printing Company owed to the said Joseph Hernandez, or his legal assigns the amount which he paid for the discharge of the twelve months’bond aforesaid, upon which he was sui ety, as aforesaid, but which was primarily the debt in equity and good conscience of the Picayune Company, as the successor of the Herald Company, which was legally the principal on said bond.”

The attempt of plaintiff to withdraw this judicial admission on the plea that it was made in error of law, need not be discussed, being sufficiently disposed of by our own finding that it was not an error of law.

IV.

As a strictly legal question, the right of a board of directors of a corporation to apply its property to the payment of its debts, and the right of a majority of stockholders present at a meeting called for the purpose to ratify such action and to dissolve the corporation, cannot be questioned.

But where such action is taken at the instance, and through the influence of the president of the corporation, and where the debt to which the property is applied is one for which he is himself primarily liable, and especially where he subsequently acquires, in his personal right, the property thus disposed of, such circumstances undoubtedly subject his acts to severe scrutiny, and oblige him to establish that he acted with the utmost candor and fair-dealing for the interest of the corporation, and without taint of selfish motive. Twin-Lick vs. Marbury, 91 U. S. 590.

We have subjected Holbrook’s conduct to this test, and, under the evidence, we believe it has safely emerged from the ordeal.

He had done the best that he could to make the enterprise a success and had failed. The corporation, undoubtedly was without means, other than this property, to meet the obligation.

We are sastifled that Holbrook was really unable to carry out his assumption to pay the bond and that the collaterals which he had given were worthless.

It was evident that the corporation was bound, in law and equity, to protect the surety on the bond, and that there was no other available resource for his protection, except the property which the corporation held without a dollar of consideration, and which the surety was bound to pay for.

Notwithstanding the variance in the estimates we believe the property was not worth more than the amount of the bond. It had not materially increased in value since the judicial sale. If seized by the surety and sold, it would not have brought more. At all events, no ■one was willing to give more. The surety wanted nothing but payment of his bond. The opportunity of taking the property for the amount of the bond was offered to others and was open to plaintiff or any of his friends. Negotiations failed and no purchaser could be found.

Under such circumstances the transfer of the property in satisfaction of the bond and the dissolution of the corporation seem to us to have been the prudent and only feasible solution of its difficulties.

This is not weakened by the fact that Holbrook subsequently purchased for a larger price. That was a mere speculative venture, having no basis except in the hope of a profitable conduct of the business. Holbrook’s notes, though for a larger amount, were not intrinsically worth as much as the amount of the bond. They were only accepted after failure of all efforts to find any one who would pay for thé property the amount of the bond.

Holbrook was a newspaper man, anxious to find employment. Hernandez (or Warmoth) found himself in possession of a newspaper which was an elephant on his hands. The emergency required prompt action and the contract entered into was a natural one on both sides.

We fail to discover any fraudulent intent or combination in these proceedings, or any injury resulting to plaintiff or other stockholders therefrom.

They have nothing to complain of except the failure of Holbrook to discharge his assumption of the bond, but that only made the corporation his creditor for the amount thereof and possibly for such damages as his default occasioned, and no such claims are urged in this suit.

Transactions which only accomplish justice, which are done in good faith and operate legal injury to no one, lack the characteristics of fraud and are not to be upset because the relations of the parties give rise to suspicions which are fully cleared away.

This case has been already twice judicially determined against the pretensions of plaintiff; first, by the U. S. Circuit Court, to which it was removed, and whose judgment was vacated by the decree of the Supreme Court of the United States, setting aside the removal and remanding the case to the State Court; and, next, by the learned judge a quo.

After a painstaking consideration, we reach the same conclusion.

Judgment affirmed.


text:
    No. 10,063.
    Thomas F. Maher vs. Louisville, New Orleans and Texas Railway Company.
    ■While courts may allow even liberal compensatory damages against railway companies, in cases of gross fault and negligence on their part, resulting in severe injuries to the passengers whom they have, for due consideration, undertaken to carry safely, those corporations surely are entitled to protection against exaggerated and apparently stale claims, where the injury received or damages suffered is slight or nominal. In such instances the allowance made ought to he merely just and reasonable.
    APPEAL from tbe Civil District Court for the Parish of Orleans.. VoorM.es, J.

      W. 8. Benedict for Plaintiff and Appellee.

      Farrar ds Kruttsehmlt for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit in damages for injuries sustained by a railway accident on June 7, 1885.

The allegations are that while the plaintiff, who was a passenger on the train from Baton Rouge to New Orleans, and had paid the fare, was seated in one of the coaches, the engine jumped the track, was overturned and thrown into a canal or ditch, some eighteen miles above New Orleans; that the result of this accident was such as to cause severe injuries to his body, forcing him to obtain medical assistance, tp be confined to his bed for five days, to suffer great bodily pain and otherwise cause him severe injury; that he suffered from contusions, which he continues to resent, to his spinal column, recurring at periodical times, with great pain, forcing him to cease from his work; that he was, at that date, occupying a position at a salary of $1200 per awmm; that before he could report for duty he had to use appliances, and that he did so for thirty days; that the accident occurred by tbe gross fault and negligence of tbe Railway Company, etc.

He therefore prays for $5000 damages.

The defense isa general denial and averment of non-liability.

Erom a judgment of $750 the defendant appeals.

The accident is established and negligence, some way or other, is-the evident cause of it. There is no dispute on this subject, but other material facts were not shown.

We have considered the testimony adduced and remain satisfied that it proves that the plaintiff was injured, suffered and is entitled to indemnity. He, however, declares himself satisfied with the finding of the lower Court, which he terms to be meet and proper, but the question is, whether it is sucli.

It is singular that the accident having occurred on June 7, 1885, the present suit was brought only on June 3, 1836, towards the end of the year following, which, had it gone by without any suit by plaintiff, would have silenced him forever.

It appears that other persons were injured by the accident; that to such as claimed just indemnity the company made satisfactory allowances ; that although the plaintiff was in frequent contact with the officers of ihe company, since the occurrence, asking complimentary passes, which were issued to him as connected with a city paper, lie never uttered a claim against the company until towards the end of the year following the occurrence.

There is evidence that a complaint was made at the time by plaintiff of an abrasion of the leg; that he threw up some blood ; that he must have suffered some, but it is shown that far from needing medical aid, he declined such as was offered him on the relief train, and it is not proved that he called in any physician afterwards to assist him. There was no bone broken, smashed or disjointed, and the only remedy used was a liniment. There was otherwise no expense incurred.

The evidence is not positive that the witness was kept five days from his work. The Recorder, in whose court he occupied a position as stenographer, says that he remained absent only one day.

Persons in the habit of seeing him frequently, if not daily, have no recollection of any suspension of his work.

Nothing shows that the contusion or any other injury received lias left any mark on the plaintiff which has since the accident in any manner injured his efficiency, habits or temper. •

It is shown that he did not lose his position and was paid in full for the month of June, when the accident occurred.

Room is left from inference from the fact that the plaintiff declares himself satisfied with the recoveryof $750 on his claim for $5000, and lias never prayed for any increase.

While courts allow even liberal compensatory damages against railroad companies in cases of gross negligence on their part, resulting in sever injuries to passengers whom they have undertaken safely to carry for due consideration paid, those corporations surely are entitled to protection against exaggerated claims when the injury received is slight, or nominal.

We think, however, that plaintiff is entitled to some adequate relief.

It is therefore ordered and decreed that the judgment appealed from he amended by reducing the allowance from seven hundred and' fifty dollars to three hundred dollars, and that so amended, it he affirmed, the costs of appeal to he paid hy plaintiff and those of the-lower court hy defendant.