Kennebec & Portland Railroad v. White , 38 Me. 63 ( 1854 )

Appleton, J.

—- The plaintiffs and Greenleaf 'White were-the owners of the steamboat J. D. Pierce and this action is brought against the administrators on his estate to recover' their share of her earnings.

Prom the testimony of Henry Reed, one of the directors of the plaintiff corporation, it appears that in 1850, the owners of the Steamboat Lawrence, of which the defendants’ ■intestate was one, had run her in opposition to the J. D.. Pierce, then owned by one Pinkham, and had lost money by the competition. The plaintiffs’ railroad was so far completed in January, 1851, as to run one train a day from Richmond to Portland. A committee of the board of directors was raised to confer with the owners of the Lawrence,- and in May following an arrangement was entered into between them, by which the plaintiffs were to purchase half of the J. D. Pierce and the owners of the Lawrence were to-purchase half; and to stock her gross earnings with those of the Lawrence; to be equally divided between the owners-of the J. D. Pierce and those of the Lawrence at the close of the season ;■ the fare and hours at which she was to-run and the trains she was to hit, to be subject to the wishes of the Railroad Directors. The Pierce was accordingly purchased. The defence is, that she was run under this agreement and that there was no balance due.

The plaintiffs claimed that the Pierce was not run in accordance with their interests and wishes. It seems that Reuel Williams was one of the directors who participated in making the contract referred to; that he was president of the board of directors; and that a letter was written by him to White, making complaints in reference to the running of the J. D. Pierce. The defendants were notified to produce this letter, but did not. All that is known of its contents appears in the testimony of E. G-. Hedge, who, on--cross-examination, said that he had onee read the letter, that It was some time ago ; that he could not state its contents; that there was some complaint about the running of the J. D. Pierce. The counsel for the plaintiffs requested the Court to instruct the jury “that the writing and sending that letter by the president of the board of railroad directors, being also of the committee aforesaid, was, in the absence of -proof to the contrary, to be presumed to be the act of the whole board, or at least in connection with the opinion of Henry Heed,.{ as testified to by him,) on the same subject, it was presumed to be the act of said committee, and as that committee were authorized to stipulate the terms of said purchase, they were competent as such to complain in behalf of the whole board, of any violation of the terms.” This instruction was refused.

From the evidence as reported it does not appear that the letter was signed by Mr. Williams officially, or as acting in behalf of the board of directors, or by their direction. From this no inference could justly be drawn that he was •acting in accordance with the directions of the committee, when it neither appears that he claimed to be so acting, nor that the committee ever gave him any directions whatsoever.

The specific acts in reference to which complaints were made, are not stated. The rights of the parties are not dependent upon the competency of the directors to complain but rather on the grounds of those complaints, whether well founded or not. The competency of the directors to complain was of no importance. The real issue was as to the violation of the contract by the parties thereto, and in relation to this, the plaintiffs have no just cause of complaint, that the instructions were not sufficiently favorable to them.

If there was such a contract as the defendants set up, the rights of the plaintiffs rest upon it, and their only remedy is in claiming, by due process of law, damages for Its violation. The present suit is brought on no such contract, but is rather based on a denial of its existence. If a suit had been brought on such contract, the burthen would have been on the plaintiffs to show the amount due, before they would have been entitled to recover. This they are none the less bound to do in the present aspect of the case, for they are not to be benefitted by ignoring a contract, which the jury have found to exist.

The instructions given afford no grounds of complaint.

There is no sufficient evidence to satisfy us that the verdict was so much against the weight of the evidence as to show that there was misconduct or intentional error on the part of the jury. Exceptions overruled.

Motion denied.

Shepley, C. J. and Tenney and Cutting, J. J., concurred.