This action was brought to obtain a judgment, declaring a certain writing purporting to be an agreement, or lease between the parties, void, and perpetually enjoining the defendants from crossing the bridge of the plaintiffs on the rails laid by defendants, and to recover the amount which plaintiffs allege defendants have become liable to pay on account of the crossing of said bridge for some time prior to the commencement of the suit.
The action was tried at the Saratoga circuit before a justice of this court and a jury. The jury was discharged, with the consent of the parties, at the close of the evidence, and the case reserved for the consideration of the justice, who
It appears from the findings of the justice that the plaintiffs are a bridge company duly incorporated under the laws of this State, and as such owned and maintained a toll bridge over the Hudson river between the village of Waterford, in the county of Saratoga, and the village of Lansingburgh, in the county of Rensselaer; that the defendants are a railroad corporation, duly organized for the purpose of constructing and operating a railroad, as declared in its articles of association, “ from some point in the village of Lansingburgh to some point in the city of Troy, hereafter to be fixed and' located,” and its articles further declare “ that the said road will be constructed entirely within the county of Rensselaer;” that on the thirty-first day of May, 1862, the plaintiffs’ directors, at a meeting of their body duly called, adopted a resolution appointing Isaac McConihe, Charles S. Douglass and William B. Douglass a committee with power to enter nto and complete and execute a contract with defendants, if they should think it for the interests of the plaintiffs, granting to the defendants the privilege of crossing the bridge of the plaintiffs with horse power for a term of years, to be agreed upon by the defendants and said committee, and for such compensation and on such conditions as such parties might agree upon; that all the members of the committee named in said resolution met a committee of three persons duly appointed and empowered on the part of the defendants, and said committee at said meeting deliberated and negotiated upon the subject-matter of such resolution; that at the' time of such deliberation and negotiation, and upon consultation with all the members of each committee, and with the approval of Charles S. Douglass and William B. Douglass, his associates upon the committee so appointed by the plaintiffs, the said McConihe reduced to writing the terms of a contract between the parties then agreed upon, which writing was
As matter of law the justice concluded that the plaintiffs are not entitled to the relief demanded in the complaint, or any part thereof, and that the defendants are entitled to a judgment dismissing the complaint on the merits, with costs.
The plaintiffs insist, in the first place, that the agreement is void for the reason that it was signed by but two out of the three members of the committee on the part of the bridge company.
As the agreement was executed by two of the three committeemen by signing their names and impressing upon it the corporate seal, it being found that the third member of the committee concurred in the agreement as it was written, and in the undertaking that the duplicate copies to be made should be executed, I think it may well be held that the execution thus made was sufficient to bind the company.
Under such circumstances it cannot he said that the corporate seal was not properly affixed to the instrument. And if it was properly so affixed it was a sufficient execution, without the signature of either member of the committee. (3 John., 226 ; 3 Bos. & Pul., 306; 15 Wend., 258.)
In the case at bar, it sufficiently appears that the seal was affixed by the two members of the committee who signed the agreement, of whom one, McConihe, was president of the company, and had the custody of the seal. Although W. B. Douglass did not remain to sign the duplicate copies which he concurred in ordering to be made for execution, he concurred in the contract, and consented to the affixing of the seal. The committee performed the duty with which they were charged, when they completed the contract and directed the execution of the duplicates to be copied from the original drafts, in which they had concurred. It was not necessary to its execution that they should each sign it. It is said in Angel & Ames on Corp., § 221: “ But though by charter a certain number of a board are required to concur in entering into a special contract, or making a deed, it does not follow that the affixing of the seal, which is merely a ministerial act, may not be done by a less number than were at first competent to enter into the contract, provided it were done by the direction of a legal quorum.”
This view precludes the necessity of examining the question of ratification, except so far as it affects the allegation that the committee exceeded the powers conferred upon them by the resolution, in not limiting the time of the right given to defendants to cross the bridge, to a term of years. As to this ground for declaring the contract void, it is a sufficient answer to say that the board of directors subsequently ratified the agreement made, so far as this objection is concerned, by
But again: it is urged by the plaintiffs that the contract is, particularly as to the defendants, ultra vires, in that it provides for the extending of their railroad beyond the limits specified in their articles of association, and hence, necessarily, v/nla/wful and void.
The Troy and Lansingburgli Railroad Company was, by the terms of its articles of'association, organized “ for the purpose of constructing, maintaining and operating a railroad for public use, in the conveyance of passengerd and property from some point in the village of Lansingburgli to some point in the city of Troy, to be located.” And it is thereby further specified, that “ the said road will be constructed entirely within the county of Rensselaer.”
It is plain that the agreement in quéstion was made for the purpose of enabling defendants to extend and operate their railroad, for public use, beyond the terminus which they had fixed, or were authorized, under their charter, to fix, in the village of Lansinghurgh, and in the county of Rensselaer, across the Hudson river, into the village of Waterford, in the county of Saratoga.
They had no right to build and operate their railroad, for such purpose, beyond the limits fixed by their charter; and the agreement, by-virtue of which they did so, was very clearly ultra vires.
As was said by Seldex, J., in Bissell v. The M. Southern and N. Indiana R. R. Companies (22 N. Y., 285), “ The
The same rule applies to corporations in regard to the right to invoke the aid of the court to relieve from illegal contracts as to individuals. Says Selden, J., in the ease last cited (p. 304): “ If it be said that, in the casé of illegal contracts between individuals, each party is a participator in the guilt, and, hence, the law will not interfere to protect either; this is equally true in respect to the unauthorized contracts of corporations. Their powers are prescribed by statute; and every one who deals with them is presumed to know the extent of their powers.”
The parties are, in respect to this illegal contract, clearly in pari delictu ; and the well known maxim, in such cases, is fotior est conditio possidentis, et defendentis.
Will the court, then, listen to either party seeking relief from the contract ?
In general, when parties are concerned in illegal agreements, courts of equity, acting upon the above maxim, will not interfere to grant relief to either. But in cases where the agreements are against public policy, the circumstance that the relief is asked by a party who is particeps criminis is not, in equity, material, because the public interest requires that relief should be given; and it is given to the public through the party. (1 Story’s Eq. Jur., § 298.) In St. John v. St. John (11 Ves., p. 535) the court say: “ The authorities
If the contract, in the case at bar, was illegal, as we have above held it to be, and if plaintiffs are not precluded from invoking the assistance of the court for relief, as the cases referred to seem to establish, then I think the plaintiffs were entitled to relief against the illegal contract, to the extent of having it decreed void, and the defendants perpetually enjoined from running their cars across plaintiffs’ bridge under or by virtue of it.
As to the demand in the complaint, that defendants be adjudged to pay plaintiffs for the use of the bridge, I do not see how that can well be granted. The court- gives relief to
“Even in cases of a premium pudicitiae,” says Judge Story, “ the distinction has been constantly maintained between bills for restraining the woman from enforcing the security given, and bills for compelling her to give up property already in her possession under the contract. At least, there is no case to be found where the contrary doctrine has been acted upon, except where creditors were concerned.” (1 Story’s Eq. Jur., § 299.) See, also, remark of Lord Elden, in Rider v. Kidder (10 Ves., § 66), to the same effect.
I think the court, at Special Term, was wrong in dismissing the complaint, and am of the opinion that a new trial should be granted, with costs to abide the event.
Miller, P. J., concurs; Potter, J., not voting.