10 Or. 278 | Or. | 1882
By the Court,
This suit was brought by the respondents, Branson et aL,
The amounts evidenced by the “freight receipts,” which form the basis of the respondents’"claims in this suit, were received by Gaston, under his contract with the company, and seem to have been expended by him in the construction of the railroad. At the April term, 1881, of the circuit court for Yamhill county, the respondents severally recovered judgments, in actions at law, against this company, on certain of these “freight receipts” held and owned by them respectively, and inclusive of costs, amounting, in the aggregate, to the sum of $35,664 52. They afterwards caused executions to be issued upon these judgments, which were returned wholly unsatisfied. They then resorted to this suit to compel the payment of their judgments by the ap
After an appeal had been taken from this decree, and the cause brought into this court, the Oregonian Railway Co., limited, appeared by its duly authorized attorneys and moved that other attorneys be substituted in the place of Ellis G. Hughes, Esq., its attorney of record, on the ground of a conflict of interest between him and his client, in the result of the suit. The motion was allowed, and thereupon said company appeared by its attorneys so substituted— Messrs. Effinger & Bourne — and filed a motion for an order remanding the cause to the circuit court, with leave to amend the separate answer of such company» in several particulars alleged to be material. This motion, with the proofs in support of it, was submitted, at the hearing upon the merits, and will be considered and determined after the errors alleged to appear by the record of the cause in the court below have been disposed of.
The case made for the respondents, in their amended complaint, is, that the “freight receipts” upou which their judgments at law were recovered, were valid contracts of the Dayton, Sheridan & Grand Ronde Railroad Company, which, upon its failure to redeem, in freight or passage over its railroad, according to their terms, became at once due and payable in money; that Gaston’s stock in said company was never paid up; that Gaston afterwards subscribed for 5,000 shares of the capital stock of the Willamette Talley Railroad Company, of $100 each, which was never paid up; that Gaston, Hughes, the Oregon Railway Company, limited,
The pleadings, on the part of Reid, Montgomery and Huglres, the Oregon Railway Company, limited, and the Oregonian Railway Company, limited, raise issues upon all of these matters, except as to Gaston’s subscriptions for stock, the successive ownership of all the stock subscribed by Gaston in both companies, in the order designated, and the insolvency of the Dayton, Sheridan & Grand Ronde and Willamette Yalley railroad companies.
As to whether the “ freight receipts ” were authorized by the Dayton, Sheridan & Grand Ronde Railroad Company, and are legally binding upon it, it does not seem there ought to be much question. If the incorporators had no power to authorize the subscriptions, upon account of which they were afterwards issued, in advance of the corporate organization, or, if the president and secretary had no express authority from the corporation, after it was organized, to issue them pursuant to the terms of such subscriptions, such action on the part of its incorporators and officers was after-
Upon the legal proposition advanced by the respondents, that whenever the company failed to perform its agreement to pay, in freight or passage over its railroad, and put it beyond its power to perform, the amount specified in the “ freight receipts ” became due in money, there is some conflict among the adjudications in this country; but, in our judgment, the weight of authority and the better authority-supports it. (Roberts v. Beatty, 21 Amer. Decis., 410, and cases cited in note; Wolf v. Marsh, 54 Cal., 228.)
The “ freight receipts” in question were, in form, promises by the company to pay so many dollars on or before certain specified dates, in freight or passage over the company’s railroad, and come, we think, clearly within the principle of the foregoing decisions. The proofs introduced upon the issue, as to whether Gaston’s stock in the Dayton, Sheridan & Grand Bonde Bailroad Company w-as paid up, or not, “by the construction and equipment” of the company’s railroad from Dayton to a point on the south side of Tarn-hill river, opposite Sheridan, according to the terms of his contract with the company, of March 22,1878, conclusively
“ It is further resolved that the president and secretary issue and deliver to J. Gaston & Co. shares of the capital stock of the company, fully paid up, and free from assessment, which they are entitled to by virtue of their contract for the construction of the company’s railroad from Dayton to Sheridan and from Junction to Dallas, amounting to-shares in all.”
It is contended, on behalf of the appellants, that the stock issued to Gaston, under this resolution, must be deemed and treated as paid up stock. Assuming that this resolution means to declare that Gaston is entitled to the 1,500 shares of paid up and unassessable stock, under his contract with the company for the construction and equipment of its railroad, still it would not protect subsequent purchasers with notice of the actual facts. (Thompson’s Liability of Stockholders, sec. 201.)
Hughes was a director, the president and the attorney of this company throughout; and afterwards a director and the attorney of the "Willamette Yalley Bailroad Company; a director and the attorney of the Oregon Bailway Company,
But it is neither essential, nor as it seems to us very important, in determining whether the decree appealed from should be sustained or not, whether Hughes had such notice, or whether there is any liability on the part of any of the appellants on account of past or present ownership of this stock. There is no pretense that the 5,000 shares of capital stock subscribed by Gaston in the Willamette Valley Railroad Company has ever been paid,, and this stock
The contract between the two companies was consummated when the proposition of the one was duly and fully accepted by the other, and it would seem strange if its operation could be narrowed down by an imperfect or mistaken recital of its terms, in the deed subsequently executed to carry out the stipulations of one party to the contract, as between the parties themselves, or others occupying no better positions. Besides, it appears from the proofs that afterwards, on December 20, 1879, the 'Willamette Yalley Bailroad Company solemnly alleged, in its answer to a complaint filed against it and others, in the circuit court of the United States for the district of Oregon, by the Pacific Bolling Mills Company, that the sum of $130,000, named in its said proposition, as the probable amount of debts of the Dayton, Sheridan & Grand Bonde Bailroad Company, and which it assumed and undertook to pay, was made up of about $35,000 “ freight script ” issued to the citizens of Polk and Yamhill counties, for cash advanced, in the construction of said railroad; about $35,000 of floating debts
This virtually disposes of the objections to the decree of the court below, as to all the appellants except Beid and Montgomery. It is admitted by the pleadings that Gaston, Hughes, the Oregon Bai'lway Company, limited, and the Oregonian Bail way Company, limited, took and held the legal title to the 5,000 shares of unpaid capital stock, amounting to $500,000, of the Willamette Yalley Bailroad Company, successively, in the order in which they are named. Upon their liability on this ground alone the decree of the circuit court may well be sustained. But neither Beid nor Montgomery is alleged to have ever held the legal title to any of this stock. Their liability depends upon the construction to be given a certain undertaking of indemnity executed by them, Hughes, and the Oregon Bailway Company, limited, to and in favor of Gaston, on April 2, 1880. Hughes was, and since December 29, 1879, had been, holding the legal
“We do hereby contract and agree to pay off and discharge all the debts and liabilities of the said J. Gaston and J. Gaston & Co. which may have been incurred for or arising*290 out of the construction of the said Dayton, Sheridan & Grand Ronde railroad, and its Dallas branch, and J. Gaston and the Dayton, Sheridan & Grand Ronde Railroad Company, incurred for labor or material furnished or used in the construction or operation of the said Dayton, Sheridan & Grand Ronde railroad and its said Dallas branch, * * * so as to save harmless, in all respects, the said J. Gaston and J. Gaston & Oo., from all pecuniary liability whatever upon all and every matter or thing, of every description, incurred for, or arising out of the construction or operation of the said Dayton, Sheridan & Grand Ronde railroad and its Dallas branch.”
This undertaking also contains an express declaration that all the covenants and agreements therein on the part of Reid, Montgomery and Hughes, “are made for and on behalf of the Oregon Railway Company, limited.” Such is the purport of the obligation upon which the court below decreed the liability of Reid, Montgomery and Hughes, as guarantors of the Oregon Railway Company, limited, in respect to the covenants therein expressed in Gaston’s favor. This portion of the decree is, in our judgment, erroneous. Gaston’s having at one time been the legal owner of the unpaid capital stock before mentioned, and having made a voluntary sale and transfer thereof, constitute the only grounds of his liability for the demands of the respondents in this suit. There is no provision in this obligation indemnifying him against such a liability. The Dayton, Sheridan & Grand Ronde Railroad Company became indebted individually for the ambunts subscribed and paid, for which the “freight receipts” were issued. As soon as the amounts subscribed beeamejpayable, under the terms of subscription, by the progress of the work of construction, it belonged to Gaston under the stipulations in his contract with the com
We come now to the consideration of the motion to remand. Hughes, as the attorney for the Oregonian Railway Company, limited, appeared for it in this suit, and filed its answer herein to the complaint, verified by himself as its attorney, for the reason, as stated in liis affidavit of verification, “ that none of the officers of said company, either the president, secretary, treasurer, or any of the directors, are now within the state of Oregon.” This answer was filed July 21, 1882. It contained an express admission of the truth of the allegation in the amended complaint, that “said capital stock was transferred to said company on December 11, 1880, and did not controvert the further allegation in such amended complaint in respect to such stock that such corporation is now the owner thereof.” As we have already said, these admissions in the pleadings exhibit this company as the legal owner and last holder of said unpaid cap - ital stock, and establish its primary liability as fixed by the decree of the circuit court. On the same day the answer
It appears from Hughes’ own deposition taken on behalf of the appellants in the suit, as well as by the terms of the conveyance from the Oregon Railway Company to the Oregonian Railway Company, limited, of December 11, 1880, that these admissions of the transfer of stock to the latter from the former company, in the separate answer and stipulation referred to, were incorrect, and untrue in fact. As the equitable owners of the stock merely, the Oregonian Railway Company, limited, would not be liable to contribute to the payment of the respondents’ demands. (Mun v. Currie, 2 Barb., 291; Adderly v. Storm, 6 Hill, 628; Thompson’s Liability of Stockholders, secs. 178-9.)
Still, if Hughes was the duly authorized agent of this company, in taking the legal title to this stock in his own name, acting in good faith, and with such a degree of skill and prudence only as w^as required of him in view of the nature and terms of his employment, as the company would be liable over to him for any loss sustained by him by reason of having taken and held such legal title for the com
The Oregonian Railway Company, limited, was a foreign corporation, incorporated and organized under the laws of the United Kingdom of Great Britain and Ireland, and having its principal place of business at Dundee, Scotland. Service of the summons in this suit was made on Reid as its managing agent in this state, June 13, 1881. Hughes, its regular attorney, being absent, Reid procured other attorneys who appeared for it and filed a demurrer to the complaint and continued to manage its defense until Hughes’ return. On this motion, the company contends that it never had any notice of this suit, except such as may be implied from the knowledge of Reid and Hughes as its managing agent and attorney, until after the decree in the circuit court had been rendered against it. The evidence on this point is conflicting. That it had no actual notice of the character of the defense made for it by Hughes, and' of the admissions made in its answer in respect to the transfer to it, and its ownership of said unpaid capital stock, upon the proofs offered upon the motion to remand, seems to us pretty well established. From the time it is shown to have obtained actual notice of these facts, it is not chargeable with any laches in making efforts to have the decree opened up, and to be let in to make its defense on the merits. The case was already appealed and pending in this court, and the company embraced its first opportunity to appear in court by other attorneys than Mr. Hughes, to
Assuming that this court has the power to grant the relief sought by this motion, which we do not doubt in the least, in view of the provisions made in secs. 100 and 534 of our civil code, the most serious objection to its exercise, in the present instance, is the fact that the party making the motion was represented by its duly authorized attorney in the suit when the damaging admissions, which it seeks to be relieved from, were made, and it has not been shown that he is insolvent or unable to respond in damages, if found to be in fault in the matter, to the full amount of the decree against his principal. The rule seems to be pretty well settled, upon the decisions, that where an attorney appears for a party without authority, and fails to present his case properly; or, having authority to appear, suffers judgment to be taken against his client by default, through negligence or misconduct on his own part, and the adverse party has acquired rights thereunder, and such attorney is able, pecuniarily, to respond for any damage or loss occasioned by his wrongful interference, or misconduct, the court will not interfere to grant relief to the injured party in a summary manner, on motion, but leave him to his recourse against the attorney individually. (Denton v. Noyes, 6 Johns, 296; Meacham v. Dudley, 6 Wend., 514; American Ins. Co. v. Oakley, 9 Paige, 496; Thomas v. Jorden, 57 Pa. St., 331.)
But the -facts in the case before us are not, in all respects, similar to those reported in any of the foregoing cases, or any other we have examined on the subject. In the case here, the respondents could not have been ignorant of the facts disclosed by the record itself, in the testimony given by Hughes, and in the terms of the conveyance of Decern
"Whatever doubts we may have entertained, at any time, as to the propriety of making the remand, have been, in no inconsiderable manner, relieved by the declared willingness on the part of Mr. Hughes, for himself and co-defendants for whom he appeared on the appeal, that such order, if within the power of the court, should be made, with leave to all parties to reframe their pleadings so as to present the real merits of the case as between the appellants. It is therefore our opinion that the decree in this cause should be set aside, with leave to all parties to amend their pleadings, in accordance with the views hereinbefore expressed, and upon such terms and under such directions as the circuit court shall order.
Bespondents to have costs and disbursements of appeal.
I am of the opinion that the Oregonian Bailway Company, limited, would be liable under the law, to contribute towards the satisfaction of the judgments of the respondents which form the basis of this suit, by reason of having been the holder of the legal title, in the unpaid stock, subsequent to the recovery of such judgments, whether the “freight receipts” are to be deemed contracts to pay, in money, after failure to pay in freight and passage, according to their