These cases present identically the same questions, and they were, for that reason, argued together. The contracts upon which the actions were brought were alike in form and identical in their objects and purposes. They were mere traffic agreements, by which the parties arranged for an interchange of business for their mutual benefit and advantage, and stopping with thé provisions which affect such interchange; there would seem to be no serious question of their legality.
. The plaintiff company in each case contracted “ That it will at all times deliver to the Erie company for transportation all the freight and passengers that it can lawfully control or influence, destined to points that can be reached by way of the railroad of the Erie company, or its connections, and will use its influence to promote the interests and the business of the Erie company, so far as it can, with proper regard for its own interests.” And the Erie company contracted that, so far as it can, with a! proper regard for its own interests, it will use its influence and exercise its control to promote the interests and the business of the plaintiff company. And in consideration of the performance of the agreement on the part of the plaintiff company, the Erie company agreed to make good any deficiencies in the net earnings of that company to meet the interest upon its present bonded indebtedness from time to time, as the same becomes due and payable.
"We think there is nothing in these provisions obnoxious to any
The only question in the case is whether this provision in regard to the deposit of the stock as security for the performance by the plaintiff company of its contract, and the condition that the corporate control of the plaintiff company shall in that way become and remain vested in the Erie company, are invalid in law, and for that reason the whole contact between the parties is void. It is not contemplated that the plaintiff company shall not continue to carry on its business as a corporation by continuing to operate its railroad, as is its duty as a corporation. On the contrary, it is bound by the contract to do so in order to carry out the provisions to deliver to the Erie company all freight and passengers that it can lawfully control or influence, destined to the points mentioned. This is to be done under its own management and control so long as it performs the contract, but when it fails to perform its con tract then the provision is that the Erie company may, by the exercise of the voting power of the stock deposited as collatei’al, place in control such a board of management as will perform the agreement. It cannot take the control itself, so that the Erie company will manage and conduct the business of the corporation, but it can appoint such officers and agents of the plaintiff company as will manage the business of that company as required by its contract. Beyond this, the contract confers no power or control upon the Erie company over the plaintiff company, and the power given is purely contingent and does not appear from anything in the case ever to have been exercised, nor does it appear that any necessity for its exercise has arisen.'
If the question be considered as purely one of ultra vires, then it is obvious that the defendant is in no condition to avail itself of that objection. It entered upon and enjoyed the benefit of the contract for a long period of time, and it is too late to assert that the contract was void because it had no power to secure its performance in the manner stipulated in the instrument. Neither company could assert such a defense after entering upon and enjoying the benefits of the contract. To avoid the agreement, the defendant must be able to assert that it was void in law as against public policy, or by reason of conflict with some provision of law, statutory or otherwise.
"We are of opinion that the judgment should be reversed and new trial granted, costs to abide event.
Judgment reversed, new trial granted, costs to abide event.