Manchester & Lawrence Railroad v. Fisk , 33 N.H. 297 ( 1856 )

Bell, J.^*

It is objected that the first count in the declaration is in terms confined to freights between May 1, 1853, and September 1, 1853, and consequently does not include any of the charges enumerated in the specification between September 1 and November 10. And this objection seems to us well founded, though dates in general are not material in cases of this kind. 1 Ch. Pl. 258. Yet the dates may be made descriptive of the claim of the plaintiff, so as to render them material; and if this is needlessly done, as in this case, still the party should be confined to his allegations, since otherwise the necessary effect of a precise but incorrect statement of a claim is to mislead the plaintiff. See 2 Ch. PL 368. If necessary, the plaintiff might remit the amount of the charges after September 1, and take judgment for the residue. But the second count is general, among other things for work done, and materials provided for the same, and without any limitation of time. To this count it is objected, that the plaintiffs’ claim is for tolls granted by law, and not for labor or services, and that the claim must be recovered specifically as tolls, and not as work. This objection would apply with at least equal force to the first count, where the charge is for freighting, carrying and transportation of divers goods, &c., but it is not made to that count. In the charter of the railroad, and in the statute of 1852, the charges of the railroad for the conveyance of both freight and passengers are denominated tolls, and in our view with entire propriety. But it does not follow, as we apprehend, that the same charges may not be described in a declaration by any suitable terms to express the real ground of claim. The term toll is used with reference to charges of various kinds. They may be claimed for the privilege of passage, as upon a turnpike, or canal, or over a bridge, or for some use or privilege enjoyed upon another’s land, as in the case of tolls in markets and harbors, but they may also be for labor, or services, and the use of materials, as in the case of ferries, where the toll is a compensation for the labor of the ferryman, or of his servants, or horses in transporting passengers, or for the use of his boats; or in the case of mills, where the toll is a compensation for the use of the mill, and for the labor and care of the miller. In any of these cases it seems to us that tolls may well be claimed by a suitable description of the service for which they are claimed. There is no difference hi the nature of the claim for transporting a man across a river by a ferry boat, and transporting him from place to place along the river; nor in the nature of the claim for grinding wheat in one end of a mill, and for sawing logs in the other; except, in one particular, the law, from considerations of public policy, has prescribed and regulated the sum to be paid for ferriage and grinding, and these are tolls, while the others remain the subject of agreement between the parties in interest. But notwithstanding the limitation of the amount of the charge by law, the nature of the claim remains unchanged, and it may be set forth in declaring in any terms suitable to describe its true nature.

On this ground it seems to us that the plaintiffs may well recover their tolls in this case, either upon the first count to the 1st of September, or the whole upon the second count of their declaration.

To entitle the plaintiffs to recover the freights they charge, it is necessary that they should show that rates of freight were established before the services were rendered, and what those rates were, and that they were posted up thirty days before they took effect, in all cases where the rate was advanced.

By section 5 of their charter, (Stat. of 1847, p. 497,) “ a toll was granted to the corporation for their benefit, on all passengers and property which may be transported by said corporation, at such rates as may from time to time be agreed upon by the directors,” and it is argued that the power thus delegated to the directors is a public trust, to .be exercised for the public benefit, and such as cannot be delegated to any other persons. It would be insufficient that the rates should be either established by the corporation, or assented to by them; and the rates so fixed would be invalid. But however this might be upon the provisions of the charter alone, the statute of 1852, (Comp. Stat. p. 354, sec. 62,) provides that “ every railroad corporation shall establish from time to time, and cause to be posted up in their depots, the rates and tariffs of tolls between the several stations on such road, and between such stations and the stations of other roads with which they have a joint business connection for the conveyance of freight and passengers, and the rates thus established for the reception and delivery of passengers and freight shall be the same for all persons, and for the like descriptions of freight between such stations, and no rate of fare or freight shall be at any time advanced, except on thirty days’ notice established and posted as aforesaid.” By this statute the duty of establishing the rates of toll was imposed upon the corporation, and not, as in the charter, upon the directors in terms. The charter, however, vests in the president and directors the authority to act for the corporation. They “ are authorized and empowered, by themselves or their agents, to exercise all the powers (thereby) granted to the corporation, for the purpose of completing their railroad, and for the transportation of persons, goods and merchandize thereon,” &c.

The facts, as they appear by the ease, in relation to the establishment of the rates of toll or freight, claimed by the plaintiffs to have taken effect on the 2d of May, 1853, are that the tariff of freights previously in force was revised by the master of transportation, who is, as we understand, the agent in charge of this department of their business ; that is, of the transportation of freight, under the direction of the president. There is no direct evidence that this tariff was in any way acted on, or considered by the directors, and it is therefore contended, that however it might be established by other officers of the corporation, it was not duly or legally established. But under the statute of 1852 we discover nothing which necessarily limits this power to the directors personally, and by the charter the powers of the corporation may be exercised by the directors or their agents. - There is nothing in the nature of the power in question here which renders it unsuitable to be exercised by agents. On the contrary, it is one of those matters of detail which must he best understood by the agents, who habitually attend to the business.

We are not sensible of the importance of the suggestion that this power is delegated to the directors as a public trust for the public benefit. The directors are but the agents of the corporation for the transaction of its business, and there seems to us no foundation for the idea that they were designed to be made the guardians of any public interest, except so far as the public interest must be necessarily promoted by the wise management of a great public enterprise, for the particular benefit of its owners.

If this power were deemed vested exclusively in the directors, it may be true, as is contended, that there must be a decision of the board at a meeting duly holden, but this might furnish a reason why such a limitation in the charter should be superseded by the law of 1852. We are, then, of opinion that it is competent for the general agents, who have charge of the business of transportation, to establish rates of freight, though of course subject to the control of the directors, if they choose to act upon the matter; and that, as in other cases, the assent of the directors may be presumed unless there is some evidence of dissent. The rates relied on in this case, then, being shown to have been posted up at their depots, and acted upon during the period of these transactions without question or objection, may well be taken to have been legally established, and the ruling of the court on this point is regarded as correct.

The evidence that the tariff of freights was posted at the depots of the railroad, was circumstantial and not direct, but it was competent to be considered by the jury, and, in the absence of all conflicting proof, sufficient to justify the verdict upon this point.

Objection was made that this evidence was deficient, because the only proof of the character and contents of the papers so posted, is the production of what have been called copies, while the originals are not produced, nor their absence sufficiently accounted for. An objection of this kind is usually fatal, if well founded, and it must be so here, unless some distinction is shown between this and the ordinary cases to which the rule applies. The proof by a copy implies the existence of an original, which must be better evidence. But we think that eases like this present a marked difference from the ordinary case of proof by a copy. It may well be understood that the tariff established by the corporation by its officers, was the printed tariff, provided for the guidance of numerous agents at different stations of its own road, and of other roads connected with it. Each of the printed copies was an original, and the whole of the nature of duplicates, so that the proof of any one would be competent evidence of the contents of the whole ; there being necessarily, from the nature of the process of printing, strong presumptive evidence that the impressions from the same types must be similar. Upon any other construction railroads would be subjected to great risk and inconvenience, from the difficulty of producing upon a trial the numerous notices they are required to post up. While there are good reasons for adopting this view, we are aware of no wrong or inconvenience which can result from its adoption. Any railroad corporation, which was careful to take all its measures with a distinct reference to facility of proof in case of lawsuits, which it would be folly to expect to escape, would of course so 'establish their tariff that every copy of it, if possible, should be an original. The cases cited by the plaintiffs’ counsel tend strongly in support of this doctrine.

It is suggested, and with much force, that if the present was the ordinary case of a copy, the absence of the original was sufficiently accounted for. It is not necessary that the loss of an original should be shown, to render a copy admissible. It is sufficient if it is shown that it is deposited at a place from which it cannot be removed, for the purpose of being brought into court. The tariffs in question here were by law required to be posted at the depots on the railroad, and could not be properly removed. This seems to us a reasonable ground in any case, where there is, as here, no serious question as to the nature of the paper.

An objection was made to the testimony of the witness, as to Ms having placed upon the copies of the tariff sent to the depots, a direction in writing to post them up thirty days before they were to take effect, but we think the point thus raised is immaterial, because the witness says he cannot say that he did so in the instance of the tariff in question. There is no attempt to prove such writing made in the case before us, and it was not material what was done or omitted in some other case. Besides, it is evident that as such notices were endorsed on the tariffs themselves, whatever would be a satisfactory reason for not producing the paper, must apply with equal force to the endorsement.

It is said that the tariff was a joint tariff of this and other roads ; but there is no foundation for this objection, since the statute requires that the tariff should contain the rates of toll u between the several stations on such road, and between such stations and the stations of other roads with which they have a joint business connection.” The tariff produced seems to us to contain no more than the statute requires.

The objections of the defendants not being sustained, there must be

Judgment on the verdict.

* Roweer, J., having been of counsel, did not sit.