17 Wis. 530 | Wis. | 1863
jBy the Court,
This is another farm mortgage case. The defendant again raises, the question of power in the corporation to take such a security, and relies on the absence, in the charter of the railroad company to which this mortgage was given, of some of the general clauses upon which reliance was placed in the former decisions of this court upon the question. The provisions of this u charter are more meagre than usual. It grants in the usual form the power to locate and construct the road, open books of subscription, &c., but it does not contain any express grant of the general power to “make all contracts and agreements which the execution and management of the works, and the convenience and interests of the
Te have carefully considered the question, whether the absence of this provision requires a different conclusion as to the power of the company to take such securities, and think that it does not. On the contrary, it is the fair result of the authorities upon corporate power, which have been so numerous-1 y cited in the former cases that I shall not refer'to them here, that general clauses, like the one just quoted, are nothing more than express grants of what would otherwise be implied. That is to say, corporations have the implied power, in executing the general powers conferred by their charters, of using necessary or convenient means of accomplishing the object, unless specially restricted by the charter itself. If this is so, then in the absence of any restriction, a railroad company could take a mortgage to secure the payment for its stock, provided that is a proper and legitimate means of accomplishing the construction of its road. Whether it is or not, we have fully considered in the case of Clark v. Farrington, 9 Wis., 306, and Blunt v. Walker, id., 334. We there held that the taking of such a security was not an attempt to go outside of the charter and accomplish some object not authorized, but that it was a proper and legitimate means of accomplishing the construction of a railroad. That point being settled, it follows that a railroad corporation would have the implied -power of using such means, although its charter contained no general clause authorizing it to make all contracts which the execution of its works or its convenience and interest might require, unless specially restricted. Hence, in either case, whether the charter contain such general clause or not, the question is whether there is a restriction ? For if there is a special restriction, even though the charter contain such general clause, the special restriction would govern, in accordance with the rule of construction, that special provisions relating to a particular subject control general ones to which they are repugnant.
There are no provisions in this charter which it is claimed either express or imply any prohibition, except those authorizing the opening of stock subscription books and pointing out how payment of such subscriptions may be required. It is claimed that these prohibit any other possible mode of becoming a stockholder, or paying for stock. But the same argument was made in respect to provisions substantially similar in the case of Clark vs. Farrington. And to make the decision there made, we necessarily held that these provisions did not amount to a prohibition against any other mode of becoming a stockholder. It follows necessarily from the reasoning in that case, that if a railroad company could sell its stock for the right of way, for lands for depot purposes, for iron or anything essential to the accomplishment of its purpose, it might do so. Such has always been the practice of railroad companies. And though their practice cannot make the law or enlarge their powers, it is a significant fact that, although such a practice has so generally prevailed, not a case has been cited deciding that they could not thus dispose of their stock. And yet, in all such instances, the stock is not subscribed for and paid in installments called in by the directors, as provided in the charters. Such provisions are designed for the benefit and protection of such subscribers as choose to avail themselves of them, leaving the company, however, to make such special contracts with those who do not, as are authorized'by the general scope and objects of the charter.
Having, then, already held that provisions of the kind now under consideration do not imply such a prohibition as is here claimed, and being still satisfied with that conclusion, we must hold that there is no such restriction in this charter. It follows that this company had the same power with those whose charters have formerly been considered, to receive this security.
Tallman himself, and one or two other witnesses, testify in effect that he did so represent. Ogden denies it, and there are several considerations which so strongly corroborate his denial, that we are certainly unable to say that any such false representations are proven with that degree of clearness which is requisite to establish fraud. In the first place, there is a considerable degree of hesitancy and uncertainty in the statements of those who testify that such representation was made. Tail-man himself says, in one part of his testimony: “ Mr. Ogden did state, my impression is now almost positive, that the road owed nothing.” This language is significant. It is true he previously stated that Ogden had represented the same thing in a former conversation, without disclosing that his testimony was based upon a mere impression. But when he came again to this point, which constituted the most important fact to be established, he said his “ impression ” was then “ almost positive.” That implies that his recollection as to that statement was on
But there is one leading, important fact, established by the testimony of several witnesses, and not denied by any, which, in addition to these considerations, renders it impossible for us to believe that Ogden represented -to Taliman that the company was out of debt. That is the fact that, at the same visit to Janesville, and before some of the conversations with Taliman,
The whole defense of fraud hinges upon the question whether Ogden made those representations, and as we are compelled to believe that he did not, we must find this defense unsustained.
The judgment is reversed, with costs, and the cause remanded with directions to enter judgment for the plaintiff according to the prayer of the complaint.