Windham Cotton Manufacturing Co. v. Hartford, Providence & Fishkill Railroad

23 Conn. 373 | Conn. | 1854

Ellsworth, J.

A question is made, whether the report of Mr. Hovey is not open to objection, inasmuch as, it is said, he was a party in the suit, or at least had an interest in the event of the suit.

It appears that the wife of Mr. Hovey was a stockholder of the Phoenix Bank, during the time he was acting as a committee; her stock stood, a part of the time, in her own name, and before that, in the name of her trustee. The Phoenix Bank was a stockholder of the Hartford, Providence and Fishkill Bailroad Company, holding eighty-five shares, as security for money borrowed. The defendants claim, first, that Mr. Hovey was a party, and could not act as a committee, and secondly, that he was interested as a party, and could not act as a judge or committee man.

We do not think Mr. Hovey or his wife was, in strictness, a party in the cause, however it may be as to interest. For certain purposes, it is true, as in Wood v. Hartford Fire Ins. Co., 13 Conn. R., 210, and in English v. Smith, 221, and other cases, we have held, that where it is necessary in order to take jurisdiction of the case, or to maintain a pure administration of justice, we can look through the charter of a corporation, to the individuals who are united under it, and who really possess its property and franchises; but we do not think that the doctrine has ever been carried, or ought to be carried, to the extent now claimed. Correctly speaking, the stockholders of an incorporated company are not the parties on record; they do not sue, neither are they sued, nor do they employ counsel, or control the suit, nor are they liable for damages or costs, nor are their acts or admissions admissible in evidence; but on the other hand, they may be sued by the company, and may themselves sue, in turn, in all respects as if they were strangers and uninterested. The members of quasi corporations, such as the inhabitants of towns, societies, districts, &c., are in a higher sense parties in a suit; for they may appear as parties, may employ counsel to conduct the cause, and are personally liable for damages and costs. Atwater v. Woodbridge, 6 Conn. R., 223. McLoud v. Selby, 10 Conn. R., 390. In other corporations, there is sometimes, as we have said, in order to take jurisdiction,a necessity to look through the charter, as was done in Wood v. Hartford Fire Ins. Co., 13 Conn. R., 210. Bank of Augusta v. Earl, 13 Pet., 521 But even then, the application of the principle is limited by the peculiar circumstances of the cases. Church, Ch. J., in the first case, expresses himself thus: “ We do not dispute the general principle, that the corporation, in its corporate capacity, is the responsible and actual party, and so to be regarded, and treated, in all cases where no actual necessity exists, of looking beyond the form of its being, and therefore we admit, with the defendants, that, a corporator cannot control an action in which the corporation is the party; that his confessions cannot affect the corporate interests, and indeed, that he may even prosecute an action against the corporation of which he is a member.” In the present case, we see no occasion nor necessity for holding, that the numerous stockholders of the Phoenix Bank are stockholders of the Hartford, Providence and Fisbkill Railroad Company, or are to be treated strictly as defendants on the record, and therefore we hold, that the first objection to Mr. Hovey’s capacity to act, is not well sustained. To hold otherwise would, we think, lead to great perplexity and confusion.

There is more difficulty with the second objection. It must be agreed, that interest in the event of the suit, whether for or against the party raising the objection, is a disqualification for judicial action. It must be so, whether we infer it from our statute which declares a judge to be incompetent to act in cases much less objectionable than this, or from the common law, which does not allow a man to be judge in his own case. Here, the Phcenix Bank are certainly interested as stockholders, and Mr. Hovey is a stockholder in that bank. It is said, his interest is too remote and contingent, not fixed nor appreciable. Waiving this point, and assuming, as most of the court believe the law to be, that Mr. H. had an interest which disqualified him, still we think the objection of interest must be overruled.; for we hold, that the defendants have waived it, by not making it at the time the committee was appointed, or as soon after as they had knowledge. This is the rule fin relation to jurors, creditors and county commissioners, as we have decided in numerous cases, and as is decided elsewhere. Groton & Ledyard v. Hurlbut, 22 Conn. R., 182. Quinebaug Bank v. Leavens, 20 Conn. R., 87. Crone v. Daniels, 20 Conn. R., 331. Selleck v. Sugar Hollow Turnpike Co,, 13 Conn. R., 453. In this last case, the court held, as to a juror, that the motion in arrest is bad, unless it is stated therein, that the party moving for the new trial did not know of the disqualification, before the verdict was rendered in court. The court say: “ It is not alleged in the motion, nor does it any where appear, that the defendants did not know of this objection, at the trial. If they did, they were bound to make it at that time. A-party cannot be permitted to lie by, after having knowledge of a defect of this kind, and speculate on the result, and complain only when the verdict becomes unsatisfactory to him.” These remarks are applicable to the case before the court. For aught we know, the defendants favored, or at least acquiesced in the appointment of Mr. H., when they could have objected to him, and another person would have been appointed in his place. Ignorance at that time was an all important fact* Therefore, when the report was presented to the superior court, the defendants should have stated, and then they would have been permitted to prove, that they were ignorant at the time the committee was appointed, if it was so; certainly we cannot assume it. This rule of law is most reasonable in itself, and indeed it is well nigh indispensable, if there is to be an end to litigation ; and we see not why the plaintiffs are not entitled to the benefit of it in this instance. We conclude therefore, that the report is unobjectionable, and must be accepted.

. Still, a most important question remains to be decided, one which has engaged much of our attention, and is not free from difficulty. What decree shall be passed upon the report, when accepted ? It is most obvious that the defendants are liable to the plaintiffs on the contract of the 11th September, 1849, wherein they stipulate “ to make and maintain a turnout or side track for the accommodation of the petitioners.” They have neglected and refused to do this, and are liable to be sued for the injury to the plaintiffs, or there may be a specific performance ordered in chancery, as the court may think best. The plaintiffs insist, and perhaps with propriety, that the latter is the proper and only certain and adequate remedy.

We can, undoubtedly, if we think it best, decree a specific performance, or, when we take a just and enlarged view of the public and private interests involved, leave the plaintiffs to their remedy at law; but the latter course is unsatisfactory to the plaintiffs, and it may be unequal and unfair, in view of its inadequacy, and we may be bound to give them a specific execution, if the request can be granted in a reasonable and prudent manner. The contract or obligation, in one sense, is indefinite and ambiguous. “ The respondents are to make and maintain a turnout or side track for the aecommodation of the plaintiffs, from either or both of said companies’ main tracks, at any time within five years,” &C. The exact mode is not pointed out, and the plaintiffs seem to have been permitted to introduce parol evidence without objection, to show exactly what the parties expected and agreed, at the time, should be done. Whether this testimony was admissible or not, if objected to, we have no occasion to enquire, for upon this part of the report we have not come to any definite conclusion. The mode expected, it seems, was, if the plaintiffs wished, as they subsequently have done, to pass from the track of the New London, Willimantic and Providence railroad, which lies northernmost, to and upon' the track of the Hartford, Providence and Fishkill railroad, and thence, by switches, forming a communication with said last mentioned track, passing along upon it, and thence to the storehouse of the plaintiffs, which lies on the south-west side of the track. This is what the plaintiffs claim they are entitled to, under said contract and the cotemporaneous understanding. The Hartford, Providence and Fishkill railroad company insist, that the writing is indefinite, and does not point out any particular mode of crossing their track, but only that it is to be done in some reasonable mode, and they say, that the mode asked for by the plaintiffs is not reasonable, but quit eotherwise and unnecessary, and that if adopted, it will work a most serious if not ruinous injury to their road; and besides will endanger the public travel, from collisions and other accidents. They say that a turnout can be made on the south side of their own track to the plaintiffs’ storehouse, and that another turnout can be made on the north side of the track of the Hartford, Providence and Fishkill company, extending down a short distance, and thence connecting with the storehouse by crossing, at right angles, the tracks of both companies; that this will give the plaintiffs all they have occasion to enjoy, and that it will not greatly injure the defendants, nor endanger public travel. On this point, the report is not as full as we could wish. It says “ that a single side track laid as the plaintiffs demand, would, unless managed and used with proper care and prudence, expose the public travel along said railroads to serious danger from collision and other causes; but if the same were under the supervision of the railroad companies, and a reasonable degree of prudence and care were exercised in its management and use, the danger arising therefrom would be very slight and scarcely appreciable.” It is to be observed, that the report does not say, that this particular mode is indispensable or necessary, nor that some other and perhaps the one pointed out by the defendants, would’ not answer as well, or nearly so. Perhaps Mr. liovey did not feel at liberty to take this range in his examination. He seems to have directed his attention chiefly to the practicability and propriety of the mode, which he says the parties contemplated in the outset, and even as to this, he has expressed himself with not a little caution, and has annexed numerous and important provisions and conditions, sufficiently significant and pertinent to induce us to pause before we adopt it. Furthermore, we are satisfied, if we may appeal to universal observation and all past experience, that this mode is not free from imminent danger to the public, from interruption and collisions, and especially when we consider that imprudence and carelessness are, to a great extent, incident to the thing itself, if not almost inevitable. We shall not, we are persuaded, approve of this mode at all, but shall rather leave the plaintiffs to their legal remedies, than decree such a specific performance. On the whole, we have concluded, that the report shall be accepted, but that there must be a further hearing, as the superior court shall direct, as to the best mode of making a turnout, or side track, for the accommodation of the plaintiffs.

In this opinion the other judges concurred, except Church, C. J., who was absent.

Report accepted, and further hearing to be had.