66 F. 27 | 2d Cir. | 1895
This is a writ of error by both defendants in the court below to review a several judgment for the plaintiff against each, entered upon the verdict of a jury. By the verdict the jury found against the defendant the Leroy & Caney Valley Air-Line Railroad Company in the sum of $23,414, exclusive of interest, and against the defendant the Missouri Pacific
The complaint is framed upon the legal theory that both defendants were liable for extra work done by Sidell & Simmons in laying side tracks upon a portion of the railway which had been built by the contractors, and accepted by the defendants; and also for damages for a breach of the contract, whereby Sidell & Simmons were prevented from completing the unfinished part of the railroad. The complaint also alleged that the Leroy Company had refused to deliver to the contractors certain township aid bonds, those of Washington township, in the sum of $18,000, which had been earned under the terms of the contract. Upon the trial the court ruled that the Missouri Pacific Railway Company was not liable for the claim in respect to the Washington township bonds, nor for the extra work done in the construction of side tracks, and instructed the jury that any recovery upon these items was to be included in a separate verdict against the Leroy Company. The
We are not called upon by any exceptions taken at the trial to consider the question whether there was any liability on the part of the Missouri Pacific Railway Company to the plaintiff, under the contract, for the profits which would have inured to the contractors if the contract had been fully performed; nor the further question whether it was proper to permit a recovery against one defendant upon one or more causes of action, and against another for a different cause of action, in an action at law, where the defendants were sued for a joint liability; nor, inasmuch as there has been no motion made to dismiss the writ of error*, are we called upon to consider the question whether a writ of error taken by both defendants jointly, to review a several judgment against each, is correct practice. Many of the assignments of error have not been argued or noticed in the brief of counsel for the plaintiff in error, and, in disposing of the case, we shall not deem it necessary to refer to those which have been thus ignored.
The only exceptions taken upon the trial by the defendant, aside from those respecting the admission of testimony, relate to instructions given and refused by the trial judge to the jury. The defendant excepted to that part of the instructions concerning the responsibility of the Missouri Pacific Railway Company for the act of Mr. Gould in notifying the contractors that, if the road was built beyond Peru Junction, the Missouri Pacific Railway Company would not guaranty a,ny of the bonds deliverable therefor. The instructions were as follows:
“The first question is, if Mr. Gould, as president of the Missouri Pacific, did improperly and unjustifiably break the contract, and refuse to carry out its provisions in regard to guarantying the bonds of the Leroy Company,*30 and tiras compel the contractors to abandon work, was such act one which he was authorized to do within the scope oJ! the powers conferred upon him by the hoard of directors, and for which, therefore, the Missouri Pacific is responsible? You have heard the testimony of Mr. Hox>kins, the second vice president, as to the scope of Mr. Gould’s power, what he was authorized to do, what he was permitted to do by the board, and what, in the usual discharge of his duties as president, he did do in regard to the business of the Missouri Pacific, with the assent of his board. ' I think you will not have any difficulty in finding as a fact that, if Mr. Gould did this act, he did it within the scope of his customary xjowers, intrusted to him by the hoard of which he was the xxresident. When the ixresident of a coiTporation does, in its behalf and within the scope of its charter, an official act which requires the concurrence of the board of directors, and the board, knowing that he has done so, does not dissent within a reasonable time, it will be presumed to have ratified his act; and when an official act is x>erformed by the general agent of a corporation, in its behalf and for a purpose authorized by its charter and within the scope of liis ordinary powers, and the corporation knowingly receives the benefit of the act, without objection, it may be presumed to have authorized or ratified the contract of its agent.”
Coupled with the exception to this part oí ihe instructions, the defendant requested the court to instruct the jury that, under the testimony, Mr. Could was not shown to have had any authority to represefit the Missouri Pacific Railway Company in the matters referred to, and that there was no proof of any knowledge by tin» directors of his action, inferential or otherwise, and that there was no evidence that the Missouri Pacific Railway Company violated the contract.
It is argued in support of the assignments of error based upon the instructions thus given and refused that the Missouri Pacific Railway Company was a stranger to that paid; of the contract which provides for the building of the railroad, its only relation to it being that of a guarantor of the bonds to be given in payment; and, therefore, that its act in refusing guaranty for the uncompleted portion of the road did not make it liable for the profits which the contractors would have made had they been permitted to complete the road. No such point, however, was brought to the attention of the trial judge. His instructions in regard to the liability of the Missouri Pacific Railway Company were challenged merely upon the ground that the act of Mr. Gould was not in law the act of the company, because it had not been proved that it was within the scope of his powers as an agent, or that the directors had knowledge of and assented to it; and, consequently, that there was no evidence of a breach of its contract by the Missouri Pacific Railway Company. Upon the questions thus raised- for the consideration of the trial judge, his rulings were manifestly correct. It had been proved by the testimony of the vice president of the company that railway lines built under contracts similar to the one in suit, and which, when built, would pass at some future time into the control of the Missouri Pacific Railway Company, were treated by the directors as being built for the company, and were customarily included as its property in their annual reports; that the part of tne railway which consisted of the last 12 miles actually completed had been included in the report for 1887 under the head of “New. Construction”; and that in the report for 1888 the 52 miles of that road was included
Many exceptions were taken in behalf of the defendants to the admission of testimony against fluir objections. The assignments of error are insufficient to require us to examine these exceptions. The assignments do not specify any particular evidence which was
It is argued in the brief of counsel that the verdict is not supported by any testimony showing damages to the plaintiff. This argument proceeds upon the theory that the plaintiff was allowed to recover without evidence tending to prove what it would have cost to complete the railway conformably to the terms of the original contract, and by proof tending to show what it would have cost to complete it with modifications of grade. No such question was raised upon the trial, and there is no exception or ruling in the case which'suggests that it was brought to the attention of the trial' judge.
No sufficient reasons appear for a reversal of the judgment and accordingly it is affirmed.