390

WILLIAM

APPEAL

H.

SWIFT ET AL., RESPONDENTS, V. THE PACIF

STEAMSHIP COMPANY ET AL., APPELLANTS.

106 New York Reports 206 (1887).

from judgment of the General Term of the S Court in the first judicial department, entered upon an orde which affirmed a judgment in favor of plainti verdict and affirmed an order denying a motion

May 8, 1885,

tered upon new trial.

a

This action was

New York.

brought by the plaintiffs, as shippers, a

b

the defendants, as common carriers, to recover damages for
of a joint contract for the carriage of whale oil from Panan
The complaint alleged that the plaintiffs were copartners
that the defendants were corporations organized under the
of this state; that the business of the Panama Railroad Comp
other things, was the transportation of freight from Pana
by rail to Aspinwall, and there to deliver the same to the Pad
Mail Steamship Company, whose business it was, among ot
things, to transport the freight so received by vessel to New Yor
that the defendants, for a single price named, entered into a joi
contract to carry the oil from Panama to New York; that the
January and February, 1873, and delivered a portion of the o
received by them from the plaintiffs, in the city of New York
about the 23d of April, 1873; that, owing to the negligence, delay

entered upon

and improper

The performance of their contract in the months o

from Aspinwall

handling

of the oil, and the casks containing the

same, by the defendants, the oil was greatly damaged and injured, and a large part of it was lost by leakage while at Panama, on its way across the Isthmus, at Aspinwall, and also on the passage to New York, and that by reason of negligence, improper conduct and mismanagement of the defendants, the plaintiffs suffered damages in the sum of $20,000, besides interest. Each of the defendants, by a separate answer, among other things, deInied the joint contract and the joint liability alleged in the complaint; alleged that the oil was delivered and carried under a special contract, printed and in writing, copies of which were Idelivered to plaintiffs, wherein the several rights and liabilities of plaintiffs and defendants, and each of them, with respect to plaintiffs and to each other, relative to the subject-matter of the complaint, were limited, defined and determined, and that its undertaking in regard to the oil was only under such contract, which

ed; that it was not liable for losses accruing he other defendant; and each defendant also e defense, that there was a defect of parties everal other persons named were then, and ne making of the contract and the transportainterested with the plaintiffs in the oil. ial facts are stated in the opinion.

anama Railroad Company was organized to nd operate a railroad across the Isthmus, from 11; and the Pacific Mail Steamship Company vigate steamships on the Pacific and Atlantic 848, c. 266, and Laws of 1850, c. 207. It is ne Panama Railroad Company could receive and contract to carry it beyond its terminus f New York, and that the Pacific Mail Steamreceive freight at the city of New York, it to Aspinwall and thence by the railroad to

led law in this state that a carrying corporaof a continuous line of transportation may yond the terminus of its route, and that such tra vires. Weed v. Saratoga & Schenectady -534; Wylde v. Northern R. R. Co., 53 N. Y. Vestern R. R. Co., 45 id. 524; Condict v. Grand 54 id. 500. Such contracts have been upheld ground of estoppel, and sometimes upon the ere incident to the business for which the conn was organized. While the defendants ntracts could be made, they contend that the ship Company could not contract to receive s terminus and to transport them to such termiof another carrier, and thence transport them to their destination. That is, while they admit company could receive goods at the city of tract to carry them to Panama on the Pacific at it could receive goods at Panama and agree to the city of New York. We see no reason between the two kinds of contracts, and for ompany could make the one kind and not the receives goods at New York for transportation gaged in business authorized by its charter, or siness, then when it procures freight at Panama to Aspinwall, and thence to New York, it is

392

depot?

may

SWIFT V.

as it would be to establish

PACIFIC MAIL STEAMSHIP CO. also engaged in prom promoting the legitimate business for which it was organized. It thus procures freight for transportation upon legitimate its steamships, and the business it thus does at Panama and across the Isthmus is just as agencies on the Pacific coast to solicit freight for transportation from Aspinwall to New York, or to contract with newspapers there to advertise the carrying of such freight. Cannot a railroad company take freight for transportation at a point a few rods from its And if it may a few rods, why not a few miles? If it have a depot for the receipt of freight one mile from its the freight thence to its road by any terminus, why may it not have a depot fifteen or twenty miles there from, and transport means that it chooses to adopt? The Panama Railroad Company terminated on the Pacific coast at Panama, and there it owned mile, why could it not send them lighters to go out into the ocean to take freight from vessels. If it could send its lighters out one out several miles for the same purpose to some convenient port or roadstead? The main business of the steamship company between Aspinwall and New York was to transport passengers and freight which came from the Pacific coast, and instead of taking the passengers and freight at Aspinwall, why could it not take them at Panama? We see no reason for holding that it might not do so in the prosecution of its corporate business, and as incident thereto. Then again, if when the steamship company receives goods at New York under contract to carry them to Panama it is estopped from denying its authority and power to Imake the contract, why when it receives goods at Panama under contract to be carried to New York should it not be equally bound

by estoppel?

that both defendants were

We think, therefore, that it is clear upon principle and authority
this oil from Panama to New York. And as each was competent
to contract alone, it cannot be doubted that they were competent
ners in the transportation business between Panama and New
to make a joint contract to do it. They could even become part-
York, and so far as we have discovered, the power of corporations
thus to become joint carriers has never been denied, but has fre-

competent to enter into contract to carry

quently been recognized.

132

Mass.

Aigen

v. Boston & Maine R. R. Co.,

Block v. Fitchburg R. R. Co., 139 id. 308; Gass v.

N. Y., Providence & Boston R. R. Co., 99 N. Y. 220; Hot Springs

146; Barter v. Wheeler, 49 N. H. 9;

Wylde

v. Northern R. R.

ra; Hutchinson on Carriers, § 160. The right of a corcarrier to go beyond its terminus to procure freight and ers, and to transport them to its terminus for carriage over , is not absolute and unqualified, but has some limitations. ose limitations are it is not possible, in a general way, to The New York Central and Hudson River Railroad Comuld not establish a line of steamers between Liverpool and ork to carry passengers and freight from Liverpool to ork, in order that it might secure the business of transsuch passengers and freight over its route to Buffalo; but run ferry boats from Staten Island, or from the New hore, for the purpose of securing passengers and freight portation over its route. The right to go beyond its termiprocure passengers and freight for transportation over its a corporate carrier, must be exercised within reasonable nd under such circumstances that it may fairly be said to ent to its legitimate corporate business; and our holding the Pacific Mail Steamship Company, engaged in transI upon both the Pacific and Atlantic oceans, did not go reasonable limits in contracting to take freight at Panama sport it over the Panama railroad for delivery to its steamAspinwall, its main business being to take freight coming r that railroad.

eful consideration of the whole case has, therefore, led us onclusion that the judgment should be affirmed, with costs.

ncur.

ent affirmed.

I. The Power to Acquire and Hold its Own Stock.

CURRIER V. LEBANON SLATE COMPANY.

56 New Hampshire Reports 262.

cts are stated in the opinion.

, J. 1. The vote of March 17, 1869, authorizing the to give the notes of the corporation to the amount of pon receiving from Liscomb a transfer of one hundred f his stock, was in effect a vote to release him from his ion for so many shares, and to refund to him the amount aid thereon. The reason assigned to the stockholders why ld be done was that he had more stock than he was able or, and unless he could have relief in some way, the com

394

CURRIER

stop their works or hire money to carry

pany would be obliged to It was further represented that he would thus be enabled to raise money on the notes of the company with which to pay the

them on.

assessments on his

remaining

stock. It is not claimed by the de

note was, to reduce the amount of the capital stock, or to extinfendants that the corporation intended, or that the effect of the guish the one hundred shares transferred by Liscomb; but they claim that the corporation hold the shares so transferred as property, with power to reissue the same to any subscriber or purchaser

thereof.

It distinctly appears that the whole amount of the capital stock, as fixed and limited by the corporation, has never been paid in. It is certain, therefore, that prior to March 17, 1869, the directors and treasurer could not make and subscribe a certificate under oath that the amount of the capital stock had been fully paid in, and cause the same to be recorded in the office of the clerk of the town where the corporation had its principal place of business, as required by chapter 135, section 20,

General Statutes. Under section

8 of the same chapter, therefore, the stockholders were individually liable for all the debts and contracts of the corporation.

It is not distinctly found in the master's report whether the corporation, on March 17, 1869, had sufficient assets to meet all its illegal, and what has been done under it should be set aside. The liabilities. If it had not, the vote in question would be clearly funds of an insolvent corporation cannot be taken to buy in a holders. It would be grossly inequitable to the other stockholders, and a fraud upon the creditors. Moreover, it is prohibited by ch. portion of its capital stock at the expense of its remaining stockfunded to any of the stockholders, when the property of the cormade, and no part of the capital stock shall be withdrawn or re135, sec. 3, Gen. Stats.. which provides that no dividend shall be the payment of all its debts; and by section 7 it is provided that any poration is insufficient, or will be thereby rendered insufficient, for refunded from the capital stock shall, to the amount by him restockholder who shall receive any sum then existing or afterwards contracted, until the same is repaid, or 2. But assuming that this corporation, on March 17, 1869, was

ceived, be

could law fully purchase of Liscomb one

unlawfully withdrawn or

whether the corporation hundred shares of its capi

tal stock, the assessments upon which he had been unable to meet.