5 Or. 40 | Or. | 1873
By the Cfeurt,
The sufficiency of the complaint in this cause is questioned on the general ground that all agreements made with railway corporations with a view to influence the corporation as to locating its route or line of road, or as to the places to and from which it shall be constructed, are contrary to public policy, and therefore void, and also on the
In support of the first position, the appellant claims that if such inducements can be held out to influence the location of roads, transactions of the kind may be so perverted as to operate most injuriously to the public, causing great lines of travel to deviate from the most direct route, and from points where roads are most needed. On the other hand it is urged that railways are usually originated by means of individual enterprise and upon the strength of private capital, and that in their construction the route or direction is and must be influenced _ and governed by the amount of business and patronage to be anticipated on the respective routes, the relative cost of construction and the inducements held out by those desiring railroad facilities; that upon the same principle that Government aid may be granted by the United States to corporations or to individuals to induce the construction of roads in particular directions, or to induce the establishment of lines of ocean steamers, similar inducements may be held out by States, communities or individuals, without violating any public or private right or any rule of morality; that if those who need railroad facilities could be prohibited from offering such inducements it would leave communities in many instances without the power of procuring roads; and that leaving parties to act as their interests shall prompt them in such cases, is the surest mode of promoting the public interest by causing roads to be located and constructed where they are most needed.
From the view tahen by the Court of the relations existing between the plaintiff and the corporation it will not be necessary to express any opinion on the proposition first named.
It appears from the complaint that- the plaintiff, who is a stockholder and an officer of the corporation, being empowered by the corporation, was acting as its agent in selecting the route of its road. "While acting as such agent the plaintiff was, of course, bound to exercise his discretion and judg
Any agreement of such an agent to select a particular route, if based upon a consideration moving to himself, would be held to be unlawful, as was said by Gilbert, J., in Bliss v. Mattison (52 Barb. 385): “An agreement which is designed, or which in its nature and effect tends to lead persons who are charged with the performance of a trust or duties for the benefit of others, to violate or betray them, is contrary to public policy.” “It is enough if such is the tendency of it.”
This doctrine is not seriously controverted by the appellant, but it is said in avoidance of this objection that the contract was made for the benefit of the corporation, that the plaintiff was the agent of the corporation, both in making the contract and in bringing this action, and that he is entitled to sue in his own name, as the trustee of an express trust. In support of this position the respondent cites Considerant v. Brisbane (22 N. Y. 389).
It was held, in that case, that the plaintiff could maintain the action for money due to the corporation, it being shown on the face of the complaint that, in making the notes sued upon, the defendant treated the plaintiff as the trustee of an express trust. The action was upon promissory notes given by the defendant in consideration of stock of the corporation, to be delivered to him on the maturity of the notes. The notes were made payable to the plaintiff “as executive agent of the company.” In the opinion it is stated that the plaintiff was not personally bound to deliver the stock, and that the corporation was bound; and it appeared on the face of the complaint that, in making the contract, and in bringing
As this is not shown, and the plaintiff is not entitled to recover to his own use under the 'facts stated, the demurrer should be sustained, and the judgment of the Circuit Court must be reversed.