74 Tex. 474 | Tex. | 1888
In the spring of 1881 appellant entered into a parol contract with Hill, the general freight agent of appellee, to become stock agent for appellee at a salary of $2000 a year, and to lease from appellee its stock yards at Vinita and Muscogee, in the Indian Territory, and at Denison and Gainesville, in Texas, for a term of five years at the annual rental of $800 per year, payable quarterly in advance, appellee to pay him one dollar a car for loading and unloading stock, he to furnish forage for the stock, to be charged against shippers, collected by appellee, and paid to him. A. A. Talmage, general manager of appellee’s road, was in Denison when the contract was entered into between Hill and Rue, and assented to it. Appellant immediately entered upon the performance of his duties under the contract, both as stock agent and lessee of the yards, and soon thereafter made a contract with J. S. Talmage, brother of A. A. Talmage, by Avhicli J. S. Talmage became the oAvner of two-thirds interest in the stock yards contract. On June 1, 1881, that part of the contract relating to the lease of the stock yards was reduced to writing and executed in the city of St. Louis, Missouri, by being signed “ the Missouri Pacific Raihvay Company by A. A. Talmage, general manager,” and R. H. Rue, J. S. Talmage not appearing to be a party to the contract.
Appellant continued to operate the stock yards under his lease, paying rent and receiving pay for his services from appellee until in February, 1883, when he received notice from appellee to surrender the 3ards. Appellant refused to obey this notice and continued to run all the yards until May, 1883, Avhen appellee took forcible possession of the Denison yards and discontinued all business at the Vinita yards. Appellant continued in possession of all yards named in the contract except the Denison yards, and continued to operate them down to the time of the trial, and was paid by appellee for his services according to the contract, but appellee refused to receive from appellant the rents due on the contract after it took possession of the Denison yards. This suit avbs brought by appellant to recover damages for breach of the contract of lease by depriving
The stock yards were the property of' the Missouri, Kansas & Texas Railway Company, appellee being lessee of the railroad, property, and franchises of that company. A. A. Talmage was appointed general manager of the Missouri, Kansas & Texas Railway Company on December 1, 1880, and continued in the same position for appellee when the road came into its hands. Appellant ceased to be stock agent in October, 1883.
The written contract of lease executed on June 1,1881, was offered in evidence by appellant, and was objected to by appellee on the following grounds:
“Because said instrument is not shown to have been executed by defendant or by any one by it thereunto lawfully authorized, and because it is not shown to have been executed by any one authorized thereunto by writing; because it does not appear to have been executed by an officer authorized by law, and is not under the corporate seal, and no authority from defendant for its execution is shown; and because the acts shown and relied on as acts of ratification thereof were not done by any person ■shown to have authority to ratify said instrument; and because said acts were not shown to have been done by any person authorized by writing to ratify the same, nor by any person having authority to ratify the same given by said corporation or its stockholders, or by its board of directors, nor with any knowledge on the part of said stockholders, nor of said directors or any one representing said corporation, of the existence or terms of said lease; and because such acts were not in themselves sufficient to constitute a ratification under the circumstances under which they were done; and because said lease is unlawful, beyond the power of the corporation to make, contrary to public policy, and void.”
The objection was sustained, the lease excluded, and judgment rendered for appellee.
It does not appear from the findings of the court whether the objection was sustained upon a part only or all of the grounds stated. If any one of these grounds was sufficient to support the objection, then the ruling of the court must be sustained. Under the view we entertain.of the law of the case it is not necessary to consider all of them.
It is contended by appellant that the appointment of A. A. Talmage to the position of general manager, together with the control exercised by him over the stock yards by virtue of his office, conferred upon him authority to make the lease.
Article 548 of our statutes provides that no estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing. The
There is no pretense that Talmage ever had any express authority, by resolution of the board of directors or otherwise, to make the lease. We understand the word “thereunto,” used in the statute quoted, to mean unto this or that—that is, the particular thing done.
We do not think the power to control and manage the yards, which were necessary appurtenances to carrying on the business of common carrier of stock, carried with it the power to dispose of the yards by leasing them and turning over their management and control .to another.
Appellee owes its existence to the Constitution and laws of the State ■of Missouri, under and by virtue of which it obtained its being and from which it derived all its powers. Natural persons may make any contract nr perform any act not prohibited by law, while artificial persons, corporations, can do only those things which by express grant or necessary implications they are authorized or empowered to do by the State under which their charters were obtained.
The laws of Missouri, section 818 of the Revised Statutes, provides that no president, director, officer, agent, or employe of any railroad corporation operating a railroad shall hereafter be interested in any manner, directly or indirectly, in furnishing materials or supplies to such company; nor shall any such officer, agent, or employe of any railroad company or -other corporation owning, controlling, or managing a railroad be interested directly or indirectly in the business of transportation as a common -carrier of freight or passengers over the works owned, leased, controlled, -or operated by the corporation of which he is an officer, agent, or employe. That appellant was the stock agent and employe of appellee at "the time the contract of lease was executed there is no controversy. It is •equally clear to us that by the terms of the contract he became interested in furnishing supplies (forage for live stock) to appellee, and that he also became interested in the business of transportation as common carrier over the roads operated by appellee.
Under the law appellee as common carrier was bound to transport live stock and to furnish forage for their sustenance. The forage so furnished "by appellant was furnished to the company, and the supplying of forage was an indispensable part of the business of common carrier of that kind of freight. Had the contract been entered into by the president and secretary of the company after resolution adopted by the board of directors authorizing them to make it, and had it been executed with strict observance of all formalities, it would have been void, because it was prohibited by the laws of the State from which appellee derived its existence and powers. Story on Conf. Laws, 174, 175, note a; Matthews v. Skinner, 62 Mo., 331; Black v. Canal Co., 22 N. J. Eq., 422.
We think this statute of Missouri a wise and beneficial- law, and that it
We think it wholly immaterial whether the instrument be called a lease or a contract. It was prohibited by the laws of Missouri, to which those dealing with appellee must look to see what contracts it could make.
Ho acts of ratification can validate or make effective that which is void.
We deem it unnecessary to consider other questions presented. We are of opinion that the court did not err iu excluding the contract of lease, and that the judgment of the court below should be affirmed.
Affirmed.
Adopted May 15, 1888.
Motion for rehearing overruled.
Hare, Edmondson & Hare, for motion.
R. C. Foster and A. E. Wilkinson, resisting.