Morrill v. Boston & Maine Railroad ( 1877 )

The plaintiffs seek for an injunction to prevent a practical consolidation (total or partial) of "rival and competing lines" of railroad, as provided by the statute against railroad directors, officers, or agents. Who are the directors de jure, is not a question in this case. The validity of their official title is not called in question by the plaintiffs; — it is their actual, illegal exercise of official power that is complained of, and whether they are directors by election or usurpation is immaterial. The records of the corporations may be the best evidence of the election of their directors de jure. But directors de facto, actually managing the business of these roads contrary to the statute, are the persons against whom the plaintiffs are entitled to a decree. The testimony of Stevens, that he was a director, was competent evidence against all the defendants. For the purposes of this case, his testimony that he was an acting director was at least as good as record evidence of a legal election. 1 Bish. Cr. L., s. 917. The question is not whether he was an elected director, but whether he was an acting director, liable to be restrained from a certain illegal management of the Boston Maine Railroad.

The matter complained of in the bill, and the gist of the plaintiffs' case, is the contract of the defendants and their performance of it. From the nature of the case, the defendants must know that they are charged with possession of the written instrument. The bill itself, served on them, was notice to produce the contract at the trial; and when they did not produce it, secondary evidence of its existence and contents was admissible. 1 Greenl. Ev., s. 561; Stark. Ev. (8th Am. ed.) 561, 564, n. 1; Nealley v. Greenough, 25 N.H. 325.

The directors of a corporation are its agents, and are not the corporation — Gillis v. Bailey, 21 N.H. 149, 162; and the business of a railroad corporation is managed by its directors, subject to its by-laws and votes, and, under their direction, by such officers and agents as are duly appointed by the directors or by the corporation. Gen. St., c. 134, s. 3. Under this statute, the directors must be presumed, until the contrary appears, to be the general agents of the corporation. U. M. F. I. Co. v. Keyser, 32 N.H. 313, 315; story on Agency, s. 17. Prima facie, their lawful action is the action of the corporation. In this case, an injunction against their unlawful action is sought. The corporations are made parties, not because the statute expressly authorizes an injunction against them (for it does not), but because, being interested, they are entitled, in equity, to be heard.

Statements made by the directors, of the existence and terms of the illegal contract which under their constant management of the corporate business they were continually executing, were competent secondary evidence of that contract, as admissions of general agents made in the execution of their agency. They were also competent as admissions of the parties against whom a decree is asked.

The reasonableness of the notice to produce the report was a matter of fact to be determined at the trial.

Case discharged.