Imágenes de páginas

denial of an opportunity to those assessed to be heard by all the defendants jointly under the first clause. (2) and permitted to obtain the deductions and correc- The natural import of the language of one part of a tions allowed by the general system of assessments. statute should not be narrowed by construction Albany City Nat. Bank v. Maher, 9 Fed. Rep. 884. (3) though it overlap in part the provisions of another part The general rule bas often been declared that the of the same statute, where both will still have a disLegislature may validate retrospectively any proceed- tinct and exclusive purpose to subserve. (3) Only the ings which they may have authorized in advance; and first clause of the above section embraces cases of a it is immaterial that such legislation may operate to single plaintiff and defendant; only the second clause divest an individual of a right of action existing in his embraces cases in which removable and non-removfavor, or subject him to a liability which did not exist able controversies are joined in the same suit; both originally. In a large class of cases this is the para- clauses cover cases having several plaintiffs or defendmount object of such legislation. (4) If it was within ants, and only a single controversy, and that a rethe power of the Legislature to provide for the collec- movable one. If the point raised by this motion has tion of a tax by a system which requires the tax-pay

not been expressly decided, it has been at least sugers to pay in advance of an opportunity to be heard, gested by the Supreme Court, without deciding the but permits them to have a subsequent hearing and to question, and without any adverse intimation, that a obtain restitution, if restitution ought to be made, the single controversy might possibly be removable under validating act was constitutional. Undoubtedly it is

the second clause as well as under the first. Removal beyond the power of the Legislature to validate the Cases, 100 U. S. 470. The decisions upon the second acts of taxing officers of a character which cannot be

clause are not inharmonious with the construction justified as an exercise of the taxing power; as where

here given, and any different construction would ina part of the property in a taxing district should be volve anomalies altogether inadmissible. In the leadassessed at one rate and a part at another, or if persons ing case of Hyde v. Ruble, 104 U. 8. 407, the Supreme or property should be assessed for taxation in a dis- Court, in defining when a cause is removable under the trict which did not include them. And it is stated in

second clause, make no mention of the existence of general terms, by a text writer of high authority,

several controversies in the suit as one of its condithat a validating act cannot cure the illegality of an

tions. The court say: "To entitle to removal under assessment made without any notice to the persons

this clause, there must exist in the suit a separate and interested. Cooley Taxn. 227, 228. The case of Marsh distinct cause of action, in respect to which all the v. Chesnut, 14 Ill. 223, and Billings v. Detten, 15 id. necessary parties ou one side are citizens of different 218, are referred to as sustaining the proposition. States from those on the other.” (4) Where a controThese were cases where the curative act was held bad versy is a removable one under the United States for the same reason that the curative act of 1881 was Constitutiou by reason of the citizenship of the serheld to be nugatory by this court, because it did not eral plaintiffs and defendants in different States, the provide for an assessment upon notice to the tax- individual right of either defendant to remove the payer, and thus perpetuated the vice of the original

cause has been recognized by Congress in the second assessment. The present act, as has been said, is clause of section 2 of the act of 1875; and this clause framed to obviate this objection. No adjudged case should therefore be construed as embracing suits havbas been cited by counsel or has met the attention

ing but a single controversy, in furtherance of the apof the court where such an act bas been considered.

parent general intent of the act of 1875, to provide for It is asserted in many cases that notice and an oppor

the removal of causes between individuals up to the tunity for hearing of some description are matters of

limits of the undoubted intent of the constitution, constitutional right; but it has nowhere bcen declared

since the language of the second clause is broad that it is indispensable that the hearing should be one

enough to include this, and there is no other clause in advance of the collection of the tax. The opera

sufficient for that purpose. It is an unsettled question of the present act is to preserve substantially to

tion whether the phravo “controversies * * the tax-payers the right of which they were originally

tween citizens of different States" means a controdeprived, to give them an opportunity to question the

versy which is wholly between citizens of different justice of the assessment, and to restore to them the

States, or whether it may include controversies in sums which were illegally collected of them. In view which some only, but not all of the parties on opposite of the large and almost unlimited discretion which sides are citizens of different States. The question resides in the Legislature to regulate the mode and

was elaborately argued, but not decided in the case of conditions of taxation, it is believed to be valid and

the Sewing Machine Companies, 18 Wall. 553. It was effectual to legalize the proceedings here. (5) In ju- again referred to in Blake v. McKim, 103 U. S. 336, dicial proceedings due process of law requires a hear

338. In the Removal Cases, 100 U. S. 479, Justices ing before condemnation, and judgment before dis

Bradley and Swayne expressed the opinion that it empossession; but when property is app priated to or

braces every controversy in which any of the opposing under the power of taxation, different considerations

parties are citizens of different States; and entertainfrom those which prevail between individuals obtain.

ing that view they differed from the majority of the It is not indispensable that a hearing be secured be

court, and held that the word "party,” in the first fore assessment or before collection of the tax; but it

clause, should have a wider construction than the is sufficient if reasonable provision is made for a hear- word “plaintiff” or “defendant" under the judiciary ing afterward, a correction of errors, or a restitution

act, and should include any one of several plaintiffs or of the tax or part of a tax unjustly imposed. Cir. Ct.,

defendants, and not be limited to all jointly. Cir. Ct., 8. D. New York, July 23, 1884. Williams v. Board of S. D. New York, July, 1884. Mutual Life Ins. Co. V. Supervisors of Albany County. Opinion by Wal- Champlin. Opinion by Brown, J. lace, J.


PEALS ABSTRACT.* are residents of different States from any of the parties on the other side, a suit containing but a single

COVENANT-PLEADING-MINING SPECIFIC AMOUNT controversy may be removed by either one of the

OF ORE-NON-EXISTENCE OF ORE.-In covenant, if non plaintiffs or defendants, under the second clause of

est factum is not pleaded, the plaintiff need offer no section 2 of the act of 1875; or by all the plaintiffs or

*Appearing in 46 N. J. L. Reports,

* be

proof of the execution of the instrument. Where a instances in which words, besides their general, commining lease stipulated for raising annually a specified mon meaning, have acquired by custom or otherwise, quantity of ore or to pay a stipulated rent, held, under a well known, peculiar, idiomatic meaning in a par. the provisions of the instrument in question, that the ticular country or a particular society, the sense and non-existence of the quantity of ore agreed to be taken meaning of such language or words may be explained out was no defense to an action for the rent. This by evidence dehors the instrument itself. (2) Where construction is in all respects in harmony with the the contract was that S. was to saw lumber for H. Wat deoided cases; for in all the precedents the distinction the price of two dollars per thousand feet to include is drawn between an agreement to pay a royalty, thirty feet logs," held, that the "per thousand feet" which is held to be dependent on the existence of the in the written contract is a latent ambiguity not apore out of which it is to arise, and an agreement to pay pearing in the face of the instrument and may be ex. a fixed sum in lieu of such royalty, in which latter plained by oral proof. 1 Greenl. Ev., $ 278; Gunn v. condition of things such rent is held to be collectible Clendenin, 68 Ala. 294; Chambers v. Ringstaff, 69 id. irrespectively of the state of the mine. The rule of 140. In the case of Drake v. Goree, 22 Ala. 409, Justice law upon this subject is accurately stated by Mr. Goldthwaite employed the following clear and forciWharton in his treatise on Contracts. 1 Whart. on ble language: “The contract may relate to the time Cont., $ 298. This author says: “But a specific agree- required for the making of an article, the process of ment to pay rent is not vacated by the fact that the which is known only to those actually engaged in its property leased turns out, without the fault of the les- manufacture; to a thousand matters of art or skill, sor, of far less value than was supposed. This, as is where truth is only to be obtained through the medelsewhere been, is the case with leases of improvedium of experts; and in cases of this character, is the land where the improvements bave been destroyed by court blindly to grope its way to conclusions for no fire, and the same rule is applied to leases of mines other reason than because the construction of a writwhen the mine turns out to be unworkable, which if ten instrument is involved, or to obtain through testithere be a lease covenanting to pay a fixed rent is no mony that information upon which alone it can dedefense on the covenant. On the other hand, where cide understandingly? Upon principle as well as authe rent is payable in the shape of a royalty on miner- thority, we entertain no doubt that in all cases where als in the soil, no royalty is payable when no minerals a written contract, although complete in itself, conare found." The same principle is propounded and tains a term which it is impossible for the court to conillu strated in the following authorities, viz. : Ridgway strue without the aid of evidence aliunde, it is proper v. Sneyd, Kay, 627; Phillips v. Jones, 9 Sim. 519; to resort to evidence for that purpose." Smith . Marquis of Bute v. Thompson, 13 M. & W. 487; Jef- Aiken. Opinion by Stone, J. ferys v. Fairs, L. R., 4 Ch. Div. 448. Wharton v. Stoutenburgh. Opinion by Beasley, C. J.



tion to restrain the commission or continuance of tresINGS.—A passenger upon a ferry boat, who has paid

passes to lands. But when as in the present case, the his fare and is forcibly and unlawfully ejected by an

title is purely legal, and the property not of peculiar agent of the company, is entitled by way of damages

value, the court will not intervene unless the remedy to a reasonable compensation for the indignity and

at law is inadequate, or there is a necessity for interconsequen, injury to his feelings on being thus treated.

vention to prevent irreparable injury. M. & W. P: R. At the trial the judge charged that if the jury should

Co. v. Walton, 14 Ala. 207; Burnett v. Craig, 30 id. find that the plaintiff did pay his fare, the damages,

135; Brooks v. Diaz, 35 id. 599; Nevers v. Myer, 52 id. under the evidence and pleadings in the cause, should

198; Boulo v. R. Co., 55 id. 480. “There must be,' be only compensation for his loss of time for the pe

says Judge Story, “such an injury, as from its nature riod that he was detained from his business, and the

is not susceptible of being compensated by damages at money he paid, or its equivalent, to go across the

law, or such as from its continuance or permanent river at the Market street (another) ferry, and the in

mischief must occasion a constantly recurring griep. jury (if any) to his clothing, and other actual damages

ance, which cannot be prevented otherwise but by an (if any), and that it was not a case, under the evidence

injunction.” 2 Story Eq., $ 925; see also High on Inj., $ and pleadings, in which they legally could give what

697. There is no authority which authorizes the inare termed punitive, vindictive, or exemplary dam

terference of the court to prevent the mere taking posages, and that there was no evidence that the plaint

session of lands and holding them vi et armis, nor is iff was injured in his person. The plaintiff's counsel

there any authority which will justify interference beexcepted to this charge, and requested the court to

cause of the mere continuance of a tortious possession. instruct the jury that if they should find that the

The entry and possession however long it may conplaiutiff had paid his fare before he was ejected from

tinue, forms but one grievance, a single and indivisi. the boat, he would be entitled to be awarded a fair

ble cause of action, capable of full redress by legal and reasonable compensation for the indignity and remedies. Ballantine v. Town of Harrison, 37 N. J. consequent injury to his feelings on being thus

Eq.560; S. C., 45 Am. Rep. 667. The general rule is, treated, but the court refused, and again charged on

that a corporation baring the right to take lands in the the subject of damages as above stated. The charge

exercise of the power of eminent domain, if it enters was erroneous; the judge should have charged as ro

upon them without making just compensation to the quested. The judgment should be reversed. Allen v.

owner, a court of equity will intervene for the protecCamden and Philadelphia Ferry Co. Opinion by Run

tion of the owner until just compensation is made, if yon, Chan.

applies seasonably. High on Inj., $ 622; Pierce on

Railroads, 167-68. But the application must be made ALABAMA SUPREME COURT ABSTRACT. seasonably-the right to relief is lost by laches in DECEMBER TERM, 1883.

seeking the protection of the court. High on Inj., $

643. In Bassett v. Salisbury Manfg. Co., 47 N. H. 439, EVIDENCE-TERMS OF ART MAY BE EXPLAINED- the court said: “Another principle which is held to LATENT AMBIGUITY.-(1) In cases where terms of art govern the discretion of the court in these cases is or science occur, in mercantile contracts where a pe- that the application for injunotion must be seasonouliar language is used, employed by those only who ably made; and therefore if it appears that the owner are conversant in trade and commerce, and all other of the property supposed to be affected by a nuisance


has allowed it to exist for several years, with a knowl- v. Rose, .40 Md. 387. For these reasons equity will edge of its existence and without any objection, and refuse to enforce the specific performance of a marespecially if he has acquiesced in the claim of another ried woman's contract to convey real estate, whether to use and enjoy the subject of complaint as of right, made alone or by uniting with her husband, where and to expend money upon the strength of it, with his her power to convey is derived from the statute. Nor knowledge and without objection, courts of equity will it any more intervene to give effect to an instruwill decline to grant an injunction, but leave him to ment executed by her which is inoperative for want his remedy at law.It was said in Goodin v. Cincin- of compliance with a statutory requirement. Pilcher nati R. Co., 18 Ohio St. 169: “Considerations of pub- v. Smith, 2 Head (Tenn.), 208; Carr v. Williams, 10 lic policy, as well as recognized principles of justice Ohio, 305; Cont. of Mar. Wom. (Kelly) 100-105; Holbetween parties, require that we should hold that the land v. Moon, 39 Ark. 120. Gardner v. Moore. Opinproperty of the owner cannot be reclaimed, and that ion by Somerville, J. there only remains to him a right of compensation." This is the doctrine of all the courts, and it is rigidly applied even by those courts which interfere most MINNESOTA SUPREME COURT ABSTRACT. liberally for the protection of the owners of lands against the unlawful entry of railroad and similar cor

DAMAGES — UNINTENTIONAL TRESPASS. When a porations. Binney's case, 2 Bland Ch. 99; M. & E. R.

trespass is the result of inadvertence or mistake, and Co. v. Prudden, 20 N. J. Eq. 530; Easten v. N. Y. & L.

there is no intentional wrong, the value of the propB. R. Co., 26 id. 359; Traphager v. Mayor, 29 id. 206.

erty when first taken must govern; or if the converWestern Union Tel. Co. v. Judkins. Opinion by

sion sued for was after value had been added to it by Brickell, C. J.

the work of the defendant, he should in such cases be MARRIAGE WIFE'S DEED REFORMATION

credited with this addition. Defendant peaceably enDISCRIPTION-HOMESTEAD_STATUTORY COMPLIANCE. tered on the premises in controversy under a bona fide

- Equity will interfere to rectify a misdescription of claim of title, and cut and removed the grass growing certain lands conveyed in a mortgage executed by a thereon. The title having beeu subsequently adjudged married man and his wife, and intended by them to to be in the plaintiff, he!d, in an action by him for the embrace their homestead; the mortgage being exe- conversion of the hay, that the proper measure of his cuted with all the formalities required by the statute damages was the value of the standing grass, and not to convey the homestead. Styer v.Robbins,76 Ind.547; the value of the hay after it was removed. In WashHamar v. Medskar, 60 id.413; Carper v.Munger, 62 id. burn v. Cutter, 17 Minn. 361 (Gil. 335), the plaintiff was 481 ; Houx v. County of Bates, 61 Mo. 391. (2) Equity the owner and constructively in the possession of pine will not reform a conveyance by a fenume covert of her lands which were unoccupied, and upon which destatutory separate estate or homestead when the rec- fendant entered and cut and carried away pine logs tification requires an order at the hands of the court and timber, under a claim of title based upon a tax for re-execution, or such reformation operates strictly deed which was in fact void. The court held that such as the creation of a new conveyance.

Knowles v. entry and removal of the timber did not constitute a McCamley, 10 Paige, 342; Purcell v. Goshorn, 17 Ohio, disseisin or adverse possession, and that defendant was 105; Lead. Cas. Eq. 1002; 3 Pom. Eq. Jur., $ 1375. The to be regarded as a trespasser, and plaintiff entitled to rule may be conceded to be generally settled, both in follow and recover the logs in replevin. Whether if England and in this country, that a court of equity he had waived his right to reclaim the property itself, will not entervene to decreo the specific execution of and had sued for damages in trover or trespass, he an agreement made by a married woman during her would have been entitled to have recovered the full coverture. Her only mode of conveying real estate value of the logs, was not considered. Had that issue was by uniting with her husband in the solemn pro- been involved in the case, its determination might ceeding of record known as fine and recovery. Mar- have been influenced by the character of defendant's tiu v. Dwelly, 6 Wend. (N. Y.) 9. In a recent case, claim and the nature of his title, as well as the cirJenkins v. Harrison, 66 Ala. 345, decided by this court, cumstances of the alleged trespass, as bearing on the where an instrument was held defective and inoper- good faith of the transaction. Grant v. Smith, 26 ative as a deed for want of delivery, but was deemed Mich. 201; Winchester v. Craig, 33 id. 221. In Nesbitt good only as a contract to convey by husband and v. Lumber Co., 21 Minn. 492, logs appeared to have wife, specific performance of it was refused after the been wrongfully cut and carried away from plaintiff's death of the husband, against the objection of the land without his permission, and without any color surviving wife, as to the homestead of the parties. or claim of title, and this court held that plaintiff was See also Butts v. Broughton, 72 Ala. 294. The reason entitled to recover in trover the full value of the logs upon which the two cases are based is essentially the which had been driven into the boom and sold to the same—that a married woman has no authority, under defendants, who were innocent purchasers. The dethe statutes of this State, to enter into an executory fendants could not claim to be credited with the addiagreement to sell either her separate estate under the tional value which the wrong-doers had imparted to statute, or the homestead occupied by herself and hus- the logs by acts involving a willful trespass upon the band. No attempted conveyance of either is binding rights of plaintiff. Had the value of the logs been enon her unless it is executed with due formality and hanced by the expenditure of further labor thereon in substantial conformity to the requirements of the by defendants in good faith before demand by plaintstatute. Waddell v. Weaver, 42 Ala. 293; Bish. on iff, as to such additional value, a different question Marr. Wom., § 601; Cross v. Everts, 28 Tex. 523; would have been presented. The case of Nesbitt v. Thomp. Homest. & Exemp., $ 491. The wife possesses Lumber Co. is approved and followed by the Supreme no authority to convey except in the mode prescribed Court of the United States in Bolles Wooden Ware by the statute. Her power to sell and convey is a Co. v. United States, 106 U. S. 433. The court in that statutory power, and a court of equity has no juris- case also declares that the weight of authority, both diction to aid the defective execution of such a power in this country and in England, is that where a treg. by supplying elements of form made prerequisite by pass is the result of inadvertence or mistake, and the statute to its valid execution. McBryde v. Wilkin- wrong is not intentional, the value of the property son, 29 Ala. 662; Tiernan v. Poor, 19 Am. Dec. 225; when first taken must govern; or if the conversion note, p. 230; Blythe v, Dargin, 68 Ala. 370, supra; Gebb sued for was after value had been added to it by the

work of the defendant, he should in such case be credited with this addition. Winchester v. Craig, 33 Mich. 205. This rule is reasonable, and is graunded in plain principles of justice, and it is clearly applicable to the case at bar. Order affirmed. Hinman v. Heyerstadt. Opinion by Vanderburgh, J. (See 36 Am. Rep. 770; 29 id. 293; 33 Eng. Rep. 639.-ED.] [Decided June 30, 1884.]

AGENCY - - PURCHASE OF WHEAT - LIABILITY OF AGENT.-Plaintiff sent money to defendant, a commission merchant, with which to buy wheat for it, writing to him, “We will want you to buy sound wheat; do not want damp or musty grain;" and he accepted the employment. Held, that this imposed on defendant only the duty and liability of an agent, and he is not liable, without proof of want of proper care or skill, for the fact that the wheat proved to have been damp when purchased. The contract was one of employment. It created the relation of principal and agent. In the absence of express agreement or a usage of the business modifying them, the law attaches to the relation certain rights, duties and liabilities. On the part of the agent he is to obey the instructions of his principal, and to exercise in his employment reasonable skill and ordinary diligence; that is, the degree of skill ordinarily possessed and employed by persous of common capacity engaged in the same business, and the diligence which persons of common prudence are accustomed to use about their own business and affairs. Story Ag., $ 183. For a loss to his principal from neglect of these duties he is liable. But he is not an insurer of success in the business. He does not, by merely accepting the employment, guarantee his principal against such incidental losses as may occur in the course of the employment, “because," says Mr. Justice Cooley, in Page v. Wells, 37 Mich. 415, " these are incident to all avocations, and no one by implication of law ever undertakes to protect another against them.” If the principal desires to hold his agent liable for such losses he must make his contract of employment accordingly. Lake City Flouring Mill Co. v. McVean. Opinion by Gilfillan, C. J. [Decided July 18, 1884.]

EVIDENCE-CONTRACTING PARTY CANNOT BE SHOWN BY PAROL - WARRANTY - BREACH - OFFER TO RETURN.-It is incompetent to prove by parol that a written contract was inade on behalf of one not named in it, unless there be words (such as "agent," trustee," or the like) affixed to the name of the contracting party, which may indicate that he is contracting for another. Although the authorities are not in harmony on the point, the weight of them is to the effect that it cannot be done by parol. Ewell's Evans Ag. 248, and pote. A departure to some extent fron this rule was established in this State by the cases of Pratt v. Beaupre, 13 Minn. 187 (Gil. 177), and Bingham v. Stewart, 14 Minn. 214 (Gil.153), followed by Deering v. Thom, 29 Minn. 120, in which the court acted upon the proposition that when words (such as "agent,' trustee,” or the like) which may be either descriptive of the person or indicative of the character in which he contracts, are affixed to the name of a contracting party, they are prima facie descriptive only, but it may be shown by extrinsic evidence that they were used to determine the character in which the party contracts. The same proposition is stated in 1 Pars, Cont. 54, that it may be determined “in each instance and with whatever technical inaccuracy the signature is made, from the facts and the evidence, that a party is an agent or a principal in accordance with the intention of the parties to the contract, if the words are sufficient to bear the construction.” In other words, when upon the face of the contract it is doubtful with what purpose the terms "agent,” “trustee," or the

like were used, it may be shown by parol. The cases we have referred to go as far as is safe in that direction. Where in a warranty is this clause, “If said machine will not bear the above warranty it is to be returned after a trial of two weeks to the place of delivery, and another substituted that will answer such warranty, or the money and notes immediately refunded," the warrantee cannot maintain an action for a breach without returning or offering to return the machine. Rowell y, Olson. Opinion by Gilfillan, C. J. [Decided July 10, 1884. )

LANDLORD AND TENANT--COVENANTS IN LEASE--ERASURE-CONSTRUCTION.-Parties prepared a lease upon a printed form. In the form was a covenant not to sublet without the lessor's written consent. Following the covenants were conditions, one reserving the right to re-enter in case of subletting without the lessor's consent. Before executing tbey erased the clause containing the covenants, but left that containing the condition unchanged. Held, that the erasure of the covenant did not raise an ivference that they intended the condition to be of no effect. Pond v. Holbrook. Opinion by Gilfillan, C. J. [Decided July 10, 1884.]

CORPORATION-POWER OF STATE TO AMEND CHARTER--ACCEPTING ALTERATION-INCREASING NUMBER OF DIRECTORS-DUTY OF.-Subject to some extent to an exception in favor of the right of the State to amend the charter of a private corporation, under an express reservation of authority to do so, or in the exercise of its police power, the rule is that the amendment of ench charters, to become binding and effectual, must be accepted on the part of the corporators. Alterations in such charters, which are not fundamental,and are authorized by the Legislature, may be effectually accepted by a majority of the stockholders; that is to say, by a majority per capita, when the right to vote is per capita, aud by a majority of stock, where each share of the stock is entitled to one vote. Alterations which change the nature and purposes of the corporation, or of the enterprise for which it was created, are fundamental, while those which work no material change are not fundamental. In support of these propositions we cite the following authorities; H. & N. H. R. Co. v. Croswell, 5 Hill, 383; Stevens v. R. & B. R. Co., 29 Vt. 546; Curry v. Scott, 54 Penn. St. 270; K. R. & R. I. R. Co. v. Marsh, 17 Wis. 13; Pierce, R. R. 66 et seq.; Nugent v. Sup’rs, 19 Wall. 241; Everhart v. W. C. & P. R. Co., 28 Penn. St. 339; N. H. & D. R. Co. v. Chapman, 38 Conn. 56; Joy v. J. & M. Plankroad Co., 11 Mich. 156; Clearwater v. Meredith, 1 Wall. 25; Union Locks & Canals v. Towne, 1 N. H. 44; Martiu v. Railroad Co., 8 Fla. 382; Witter v. M., O. & R. R. R. Co., 20 Ark. 463; Hester v. M. & C. R. ÇO., 32 Miss. 378; Winter v. Muscogee R. Co., 11 Ga. 438; Hoey v. Henderson, 32 La. Ann. 1069; Banet v. Alton & S. R. Co., 13 Ill. 504; Zabriskie v. H. & N. Y. R. Co., 18 N. J. Eq. 178; Mowrey v. I. & C. R. Co., 4 Biss. 78; Field Corp., $$ 81, 388. The principle upon which these cases appear to go is that alterations, or as they are sometimes called, amendments, which do not change the nature, purpose or character of a corporation or its enterprise, but which are designed to enable the corporation to conduct its authorized business with greater facility, more beneficially or more wisely, are auxiliary to the original object, and that therefore when one becomes a stockholder, he impliedly assents that such alteration or general amendment may be made. Sterens v. R. Co., supra; N. H. & D. R. C. v. Chapman, supra; Banet v. A. & S. R. Co., supra; H. & N. H. R. Co. v. Croswell, supra; Kenosha R. Co. v. Marsh, supra; Joy v. J. & M. Plank-road Co., supra. We may add what appears to be an obvious consideration, that

if no alteration or amendment of a corporate charter price exceeding $36,000, within the time fixed by the can be made, even iu matters of administrative detail, contract, if his authority had not been terminated. It or as to the means and agencies through which the cor- was not necessary however that the evidence should porate enterprise shall be carried on, except with the show this to an absolute certainty. Proof estabconsent of every stook holder, the result would be not lishing the facts in the estimation of the jury to a reaonly great public and private inconvenience, but in sonable degree of certainty would be sufficient. Goebel many cases a complete practical failure of the en- v. Hough, 26 Minn. 252; S. C., 2 N. W. Rep. 847; Alliterprise itself. Certainly this is not in accordance son v. Chandler, 11 Mich. 542; Chapman v. Kirby, 49 with the understanding nor the practice of tbe courts, II. 211; Simmons v. Brown, 5 R. I. 299. See also cases of the profession, or of those who have been engaged previously cited. In the cases we have cited, as in this in carrying on our great corporate undertakings. The case, the result depended upon facts which were not alteration proposed in the present case, by increasing susceptible of certain, absolute proof, such as the profthe number of directors from five to nine, is clearly its which might have accrued from an established mernot fundamental within the definition above given cantile business; what it would have cost to manufacand sanctioned by the authorities cited. It in no way ture machinery to construct salt vats; to build a changes the nature or purpose of the boom company, bridge; to erect a court house; to quarry and transor of the enterprise for which it was created. It is a port stone during a period of years; to construct a change respecting modus operandi merely; a change, tunnel in the earth; the profit which might have renot of the nature or purpose or character of the com- sulted from the cultivation of a farm, or from the pany, or of the company's enterprise, but a change of manufacture and sale of cloth. A case more precisely the instrumentalities and agency-the machinery by like that before us was Alexander v. Breeden, 14 B. which that purpose is to be effected and that enter-Mon. 154. The defendant, the owner of real estate, by prise carried on. Everhart v. W. C. & P. R. Co., contract made the plaintiff his agent to sell it for the supra, was a case in which a charter amendment price of $2,050. The plaintiff was to have $50 as his providing for the election of three additional mana- compensation. A purchaser called upon the agent and gers, e., directors, was upheld. N. H. & D. R. Co. v. procured a description of the property, the price, and Cbapman, supra, was a case of an amendment author- the name of the owner. He then went to the owner izing two of the directors to be appointed by the city and purchased from him for $2,000. The plaintiff sued of New Haven, a subscriber for stock. Joy v. J. & M. to recover the $50 agreed upon as his compensation for Plank-road Co., supra. It is argued that if the four a sale. The court, reviewing the facts proved, considadditional directors are elected it will be in the power ered that there was no positive testimony that the of the board, and the board will manage the business agent could have made the sale for $2,050, but that of the corporation for the private advantage of some the circumstances persuasively showed that he could of the directors, and against the interest of the corpo- have done so. A recovery was therefore allowed. ration and of the stockholders, and particularly of this When the power of this plaintiff to sell was terminated plaintiff. We see no reason why this might not be by the sale of the property by the defendant, thirteen done with five, the present number of directors, The days remained of the sixty days during which, as the plaintiff owns a little over one-third of the shares. Al proof tends to show, plaintiff had an exclusive right to though this makes him a large stockholder, he is still sell. The market value of the property, as appears by in the minority. But the danger apprehended is com- all the evidence, exceeded $36,000, the sum which demon to all corporations, and the remedy lies, not in fendant was to realize from any sale that might be withholding the power to make amendments to the made. Of several witnesses testifying as to value,only charter, but in enforcing the responsibility of the di. one places it as low as $37,500; others make it $45,000 rectors for abuse of trust. They have no right to run or more, a sum $9,000 in excess of the amount which the corporation for the individual benefit of any defendant was to receive out of the purchase price if of their number, to the detriment of the stockholders, plaintiff had effected a sale. The evidence tended to and if they do, or attempt to do this, the law furnishes show that the land was then rising in value; that the a remedy, as in other cases of abuse of trust or disre- real estate market was active; that property in this gard of legal duty. Pierce R. R. 43, and cases cited; vicinity was easily salable for its value; that nearly Ewell's Evans Ag. [276]. Mower v. Staples. Opinion every piece of property in that vicinity that was put by Berry, J.

upon the market was readily sold at the time; and [Decided July 9, 1884.]

that before defendant sold the property the plaintiff

had offered it to the same person, who became the purDAMAGES – BREACH OF EXECUTORY CONTRACT

chaser. This evidence was such as might have estabPROFITS. -Upou the breach of an executory contract,

lished the fact, with reasonable certainty, in the minds whereby the injured party is prevented from perform

of the jury, that the plaintiff would have effected a ing on his part, and from realizing a profit which was contemplated by the terms of the contract as a result alleged contract right bad not been interrupted, and

sale for an amount largely in excess of $36,000, if his of the performance of it, a recovery of damages may be had equal to the profit which would have accrued mining upon some certain sum for which in all proba

from it the jury would have been warranted in deterdirectly from the performance of the contract. Mor-bility a sale would have been made, and which rison v. Lovejoy, 6 Minn. 319 (Gil. 224); Fox v. Hard

would have determined the amount of the plaintiff's ing, 7 Cush. 516; Masterton v. Mayor of Brooklyn, 7 Hill, 61; Devlin v. Mayor of New York. 63 N. Y. 8;

recovery. Fairchild v. Rogers. Opinion by DickinRoyalton v. Royalton & Woodstock Turnpike Co., 14 Vt. 311; McAndrews v. Tippett, 39 N. J. 105; Rich- [Decided July 7, 1884. ] inond v. D. & S. C. R. Co., 40 Iowa, 264; S. C., 33 id. 422, 501, 502; Hoy v. Gropoble, 34 Penn. St. 9; Burrell

FINANCIAL LAW. v. N. Y. & Saginaw Salt Co., 14 Mich. 34; U. S. v. Speed, 8 Wall. 77; Cook v. Com'rs Hamilton Co., 6 NEGOTIABLE INSTRUMENT--BONA FIDE HOLDER--DEMcLean C. C. 612. But one seeking a recovery must FENSE OF USURY.-A promissory note, to be the subject show by proof both his right to recover, and the meas- of sale, must be an existing valid note in the hands of ure or extent of the loss or injury for which he de- the payee, and given for some actual consideration, so mands compensation. It was necessary for the plaint- that it can be enforced between the original parties. iff to prove that he would have sold the land for a One who buys it of the payee with knowledge of the

son, J.

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