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was that at the death of Eugene D. Fisk the title from a fee, but merely put on it a conChicago lands, if not sold, should be convey tractual duty, or imposed a condition subseed to the appellants, or, if they had been quent on the grant, which did not affect its ti.

tle; no forfeiture for breach of condition having sold, the proceeds paid over to them. The been claimed. agreement alleged in the former was that [Ed. Note.-For other cases, see Railroads, he would hold these lands in trust for them; Dec. Dig. 8 69.*] the particular nature of the trust not being 4. RAILROADS_(8 82*)-EXTINCTION OF RIGHT otherwise described. The legal effect of

TO BUILD-EFFECT ON PROPERTY RIGHTS. such an agreement would be that, if he died

The extinction of the right of a railroad

company to build its road did not extinguish its without performing it, the appellants would general right of property in land conveyed to it be entitled to claim the lands, if not sold, in fee. or, if they had been sold, their proceeds. [Ed._Note.-For other cases, see Railroads, Under the liberal construction given to our Cent. Dig. § 213; Dec. Dig. & '82. * ] statutes of amendments, the ground of ac- 5. CORPORATIONS ($ 28*)-DEFECT IN ORGANItion was not changed by the substituted ZATION-DE FACTO CORPORATION. statement. The real object of the claimants, did not prevent its being a corporation de facto,

Defect in the organization of a corporation as disclosed by either form of expression, or disqualify it from acquiring, holding, and conwas the same. Merwin's Appeal, 72 Conn. veying land. 167, 172, 43 Atl. 1055; Huntington's Appeal, (Ed. Note.-For other cases, see Corporations, 73 Conp. 582, 585, 48 Atl. 766.

Cent. Dig. & 70; Dec. Dig. 28.*] The answer of the appellees set up the 6. CORPORATIONS (8 617*)-Quo WARRANTOlapse of 24 years since the alleged agree

EFFECT OF JUDGMENT ON PROPERTY RIGHTS. ment. The present proceeding is to enforce ings that de corporation has no legal existence

The adjudging on quo warranto proceedan equitable claim, and stands on the foot- did not destroy such rights of property as it ing of an equitable action. To such an ac- then held. tion our statutes of limitation do not apply,

[Ed. Note.-For other cases, see Corporations, except so far as resort may properly be bad Dec. Dig. § 617.* ] to them by way of analogy. Budington v. 7. CORPORATIONS (8 619*)-Quo WARRANTOMunson, 33 Conn. 489. The question is one of

EFFECT OF JUDGMENT ON PROPERTY RIGHITS. laches, and that the appellants are not charge that a corporation has no legal existence trans

The adjudging in quo warranto proceedings able with any, results necessarily from the ferred the custody of the property of the supfact that their father concealed the agree posed corporation from the directors acting as ment of trust from them, so that it first came acting as trustees for those interested in suc

such for a corporation de facto to the directors to their knowledge after his death.

cession to what had been a corporation de There is no error. All concur.

facto; the uses for which they thereafter held it being to satisfy any indebtedness of the sup

posed corporation, and to transfer any balance (81 Conn. 466)

to the stockholders pro rata, naturally requiring

a sale of the property. NEW YORK, B. & E. RY. CO. V. MOTIL

(Ed. Note.-For other cases, see Corporations, (Supreme Court of Errors of Connecticut. Dec. Dec. Dig. 8 619.*] 18, 1908.)

8. RAILROADS ($ 32*)-FAILURE TO BUILD IN 1. RAILROADS (8 61*) – BUYING LAND FOR PRESCRIBED TIME. ROADBED.

Under Gen. St. 1887, § 3440, providing Under the general railroad law (Gen. St. that, if a railroad company shall not finish its 1875, p. 317, tit. 17, c. 2, pt. 9, § 6), conferring road in five years from the filing and recordon a company organized under it power to "holding of its articles, its corporate existence and such real estate as may be convenient for ac- powers shall cease, such failure does not ipso complishing the objects of its organization,” and facto destroy the company's corporate existence, the "Act concerning corporations” (Pub. Acts but is simply a ground for forfeiture; and, the 1883, p. 232, c. 3), authorizing any private cor- state not instituting any proceedings to oust it poration to purchase such real estate as its pur- of its franchises, it remains a corporation de poses shall require, it may purchase the fee sim- jure. ple to land for a roadbed.

[Ed. Note.-For other cases, see Railroads, (Ed. Note.-For_other cases, see Railroads, Cent. Dig. $ 65; Dec. Dig. | 32.*) Cent. Dig. § 137; Dec. Dig. 8 61.*]

9. RAILROADS (8 14*)-REPEAL OF GENERAL 2. RAILROADS ($ 69*) - DEEDS – ESTATE CON

LAW-EFFECT ON PRIOR CORPORATIONS. The effect of a deed to a railroad in terms 126, of the general railroad law, not purport

The repeal by Pub. Acts 1905, p. 335, C. apt for conveying an absolute estate in fee, and ing' to, did not affect the continued existence providing that the land was to be held by the of any companies theretofore incorporated uncompany and its "successors and assigns for- der it. ever to their own proper use and behoof,” and Dot limiting the uses to which the land could be

[Ed. Note.-For other cases, see Railroads, used, was not reduced by the prior description of Dec. Dig. 14.*] the premises as covered by the location of the 10. CORPORATIONS (8291*)—OFFICERS-FAILrailroad.

URE TO HOLD MEETING FOR ELECTION. (Ed. Note.-For other cases, see Railroads, A private corporation failing to hold its Dec. Dig. § 69.*]

regular annual meeting for election of officers, 8. RAILROADS (869*) - DEEDS CONDITIONS

those then in office hold over till their successors SUBSEQUENT.

are elected. The provision in a deed to a railroad that (Ed. Note.-For other cases, see Corporations, it was to trestle a pond did not reduce its Cent. Dig. $ 1252; Dec. Dig. $ 291.*]

VEYED.

11. CORPORATIONS (8 399*)-POWER OF OFFI- | new company. The organization of the latter CER UNDER RESOLUTION OF DIRECTORS. was defective. On December 6, 1890, it recon

From plenary power given in general terms by directors of a corporation to its president, yeyed whatever it had acquired under its as such and as its attorney in fact, to dispose deed of October 22, 1889, to its grantor, and of and convey all its property, using the pro- on January 24, 1891, he conveyed the same ceeds to make payments on its debts, authority premises to the plaintiff, which is a corporain him to institute suit to settle title to land to satisfy prospective purchasers of its title is tion of the same name with that defectively to be implied.

organized, and which was properly organized [Ed. Note. For other cases, see Corporations, earlier in the month, under the same law, to Dec. Dig. § 399.*]

carry on the building of the same railroad. Appeal from Court of Common Pleas, Fair- All these conveyances were made with the field County; Howard B. Scott, Judge.

intention and for the purpose of using the Action by the New York, Bridgeport & land now in question as a part of the roadbed Eastern Railway Company against Joseph of a railroad. This strip had been graded Motil, under Gen. St. 1902, § 4033, to settle and an earth embankment built on part of it, title to. land. Judgment for defendant, and at considerable expense, by the first grantee. plaintiff appeals. Reversed, and new trial or- The plaintiff did no work upon it, but laid dered.

out a considerable sum in resurveys of its

right of way and in litigation. No trestle John C. Chamberlain, for appellant. Stiles was ever built across the pond. In 1895 the Judson, for appellee.

directors of the plaintiff, being satisfied that

it could not construct the railroad, empowBALDWIN, C. J. This action is to settle ered Henry R. Parrott, its president, as such the title to land conveyed in 1884 by one and as its attorney in fact, to dispose of and Hodges to the New York & Connecticut Air convey all its property, real and personal, Line Railway Company, a corporation of Con- using the proceeds to pay its indebtedness as necticut duly organized under the general far as possible. On January 6, 1896, this acrailroad law in 1881, for the consideration of tion was ratified by the company at a meet$626.32 then received in payment, by a war-, ing of the shareholders, the vote reciting that ranty deed, in which he described it as “lying the rights of the corporation would expire on and being in the town of Stratford, and on January 8, 1896. each side of the center line of the location of In 1889 Hodges had given a warranty deed said railroad coinpany and of the width of of his farm to one Kowing and his wife, de four (4) rods on each side of said center line, scribing it as divided into two parts by a across my said lands a distance of about nine strip of land 8 rods wide and about 919 feet hundred and nineteen feet in length, bounded long, which he had conveyed to the New York northerly and southerly by my own land, & Connecticut Air Line Railway Company in easterly by land of Stiles W. Wheeler, and 1884. In 1899 he gave a quitclaim deed of westerly by highway, reference being had to his right, title, and interest in this strip to the map of the location of said railway com- Mrs. Kowing, who had acquired her huspany in the office of the town clerk of said band's title under the deed of the preceding town of Stratford. Said railway company is year. The strip in question was never sepato tressell my pond the width of fifty feet.” | rated from the farm by fences, and the sucHabendum: "Unto the said grantees, their cessive owners of the farm have cultivated successors and assigns forever, to their own it to some extent. An election of officers by proper use and behoof." This strip ran the plaintiff was made in 1891, at which Henthrough a 16-acre farm owned by Hodges, ry R. Parrott, one of the shareholders, was and was bought in order that it might become chosen a director, and he was also then made part of the roadbed of a railroad which the president of the company. No election of grantee was proposing to construct. The directors or appointment of president has company acquired an entire right of way been since made. He has always been a from New Haven to the state line of New shareholder. In the fall of 1893 he, claiming York, surveyed it, graded a considerable part to act as president, director, and shareholder of it, and expended a considerable sum of in the plaintiff's behalf and under the votes money in advancing its purposes, but finally above described, had the strip of land in dislost the right to complete the railroad by the pute mapped so as to show a pentway extendexpiration of the statutory period allowed for ing through it, with adjoining building lots, so doing, which occurred October 22, 1889. caused fence poșts to be set up along its On October 16, 1889, some of its shareholders sides, and advertised the lots for sale. The organized a new corporation, under the same farm would be greatly damaged by the use of law, named the New York, Bridgeport & East- this land for building purposes. This action ern Railway Company. The New York & was instituted by Mr. Parrott in 1906 solely Connecticut Air Line Railway Company there- upon the authority of the votes above deupon conveyed all of its lands and right of scribed. way to one W. E. Norton, trustee, who on The general railroad law under which the October 22, 1889, conveyed the same to the plaintiff was incorporated provided that, if any company organized under its provisions | tinction of the plaintiff's right to build its should not finish its railroad within five years railroad therefore did not extinguish its genfrom the time of filing and recording its arti- eral right of property in the disputed premcles of association, its corporate existence and ises. It rather served to clear the title powers should cease. Gen. St. 1887, § 3440. wbich could be conveyed to one desiring to When Hodges gave his first deed, the general purchase for the ordinary purposes of prirallroad law conferred upon any company vate occupancy. Nye v. Taunton Branch R. that should be organized under it power to R. Co., 113 Mass. 277, 279; Thompson on “hold such real estate as may be convenient Private Corporations, $ 5791. for accomplishing the objects of its organ- The defect in the organization of the first ization" (Gen. St. 1875, p. 317, tit. 17, c. 2, corporation of the name since assumed by pt. 9, § 6); and there was an "Act concern- the plaintiff did not prevent it from being a ing corporations,” providing that “every pri- corporation de facto, nor disqualify it from vate corporation may, when no other provi- acquiring, holding, and conveying real estate. sion is specifically made, receive, purchase, Lamkin v. Baldwin & Lamkin vfg. Co., 72 hold, sell, and convey real and personal es-Conn. 57, 65, 43 Atl, 593, 1042, 44 L. R. A. tate, as the purposes of the corporation shall | 786; Society Perun v. Cleveland, 43 Olio St. require, not exceeding the amount limited in 481, 3 N. E. 357. It appears from a paraits charter." Pub. Acts 1883, p. 232, c. 3. All graph of the defendant's draft finding mark. these provisions of law continued in force ed “proven" that in October, 1890, it was until several years after the votes of the adjudged, on quo warranto proceedings, to plaintiff's directors and shareholders. Gen. have no legal existence. This did not deSt. 1888, 88 1906, 3438; Gen. St. 1902, $$ stroy such rights of property as it then held. 3312, 3670. It was unquestionably "conveni. A private corporation exists mainly for the ent for accomplishing the purposes of its or- benefit of its shareholders. For their conganization” that the New York & Connecti- venience and protection they are allowed to cut Air Line Railway Company should ac- assume a corporate name, and become in law quire some title to the land in question at an artificial person. Whether the quo warthe time when it received the deed from ranto proceedings were brought against the Hodges in 1884. It is unnecessary to inquire New York, Bridgeport & Eastern Railway whether it had at this time the right to Company or its shareholders or directors is take this strip by condemnation proceedings, not stated; but in either case those who had and whether that right would have includ- been claiming a right to exercise by that ed the power of appropriating a fee-simple name a corporate franchise could do so no estate. It certainly had the rigbt to acquire longer. This, however, did not destroy all such an estate by agreement with the owner. the property held by the supposed corporaIt paid him $626.32, and received a warranty tion at the date of the judgment. It transdeed, expressed in terms apt for conveying an ferred its custody and changed its uses. The absolute estate in fee simple, unless they are custody passed, under well-settled equitable qualified by the fact that the premises were principles, from the directors acting as direcdescribed as within the location of the com- tors for a corporation de facto to the directpany's railroad, or by the clause as to the ors acting as trustees for those interested trestling of a pond. That they were within in succession to what had been a corporathe location had no other effect than to make tion de facto. The uses for which they there it clear that their acquisition was necessary. after held it were to satisfy any indebtedness That the company was to. trestle the pond which might be due from the supposed corhad no other effect than either to throw upon poration, and transfer the balance, if any, it a contractual duty, or to impose a con- to the shareholders pro rata. Such a liquidition subsequent upon the grant. In the dation of the corporate business would nacommon course of things it could not build turally require a sale of what had been the the trestle, which obviously was to be a corporate assets. A receiver might have part of its railroad structure, until it had ac- been appointed for that purpose. See Wilquired the estate. No forfeiture of the es- cox v. Continental Life Ins. Co., 56 Conn. tate for breach of condition has ever been 463, 477, 16 Atl. 244. Whether, in the abclaimed, so far as appears, by Hodges or his sence of such an interference by the courts, heirs or assigns. He made no limitation in the directors, as such trustees, could authorhis deed of the uses to which the grantee ize a conveyance by a single shareholder and could put the land. It was to be held by the director, and, if so, what form it should have company and “their successors and assigns assumed, and what effect acquiescence by forever to their own proper use and behoof.” those interested might have in curing irreguThe effect of these emphatic words is not re-larities, it is unnecessary now to inquire, duced by the prior description of the prem- since there must be a new trial on which ises as covered by the location of the rail. the facts regarding the deed of December road. A railroad company can acquire, by 6, 1890 (stated in the finding to have been agreement with the owner, a fee-simple es- made by the corporation, and in a paragraph tate in land within its location, as well as marked "proven," in the defendant's draft Parrott as its president), can be more fully on a stove caused a death, did not intend that ascertained. See Morawetz on Corporations, it should be so used, does not affect his liabil1032; Saugatuck Bridge Co. v. Westport, ity for the death, if from the labels and direc

tions upon the cans persons of ordinary intelli39 Conn. 337, 350; Sullivan County R. R. v. gence who were expected to use the preparation, Coun. Lumber Co., 76 Conn. 464, 473, 57 and who read or had read to them the labels Atl. 287.

and directions, were informed that it might be

so used. The lapse of five years from its incorporation without the completion of its railroad

[Ed. Note. For other cases, see Explosives,

Cent. Dig. 8 6; Dec. Dig. $ 9.*] which occurred January 8, 1896, did not ipso facto destroy the corporate existence of the 2. EXPLOSIVES (8 9*)--DANGEROUS Use-Con

TRIBUTORY NEGLIGENCE. plaintiff. This was simply a ground of forfeiture, and it does not appear that the state was represented to be "for use on all iron work,"

That a preparation was labeled "Stoveline," has instituted any proceedings to oust it of and capable of standing a high temperature, its franchises. It remains, therefore, a cor- warranted one who had no knowledge or notice poration de jure. New York & New England of the dangerous character of the preparation R. R. Co. v. N. Y., N. H. & H. R. R. Co., stoves, and might safely be used upon a hot

to assume that it was intended to be used upon 52 Conn. 274, 284. The repeal of the general stove. railroad law in 1905 (Pub. Acts 1905, p. 335, [Ed. Note.-For other cases, see Explosives, c. 126), under which it was incorporated, did Dec. Dig. $ 9.*] not affect or purport to affect the continued 3. EXPLOSIVES (8 9*)-DANGER-QUESTION OF existence of any companies which had al- Fact. ready been incorporated under its provisions. Whether it was dangerous to use upon a When a private corporation fails to hold hot stove a particular preparation was a ques

tion of fact. its regular annual meeting for the election of officers, those already occupying such a

[Ed. Note.-For other cases, see Explosives,

Dec, Dig. & 9.*] position hold over until their successors are elected. McCall v. Byram Mfg. Co., 6 Conn. 4. APPEAL AND ERROR ( 1011*)-REVIEW

FINDINGS-CONCLUSIVENESS. 437, 438; Spencer v. Champion, 9 Conn. 542–

A finding on conflicting evidence by the 544. Mr. Parrott, therefore, has been since trial judge who heard and saw witnesses is con1891 continuously a director and president clusive. of the plaintiff company. To enable him to [Ed. Note.-For other cases, see Appeal and. sell any of its real estate to advantage, it Error,, Cent. Dig. $$ 3983-3989; Dec. Dig. g. would be necessary to satisfy any who might

1011.*] be considering its purchase that a good title 5. EXPLOSIVES ($9*) NEGLIGENT SALE could be conveyed. For this purpose, such a

PLEADING-SUFFICIENCY. suit as the present would be a proper mode aration which, while being used on a stove, ig.

In an action for negligently selling a prepof determining the nature of the company's nited, causing a death, plaintiff was not title, and authority in Mr. Parrott for its in- quired to state in technical terms just what stitution was therefore fairly implied in happened or was liable to occur when the prepthe general terms by which the directors aration was applied to the hot stove; an aver

ment that when used upon hot substances-in in 1895 gave him such plenary powers as to connection with an averment that decedent was the disposition of the estate. The court of injured when using it upon her kitchen stove common pleas dismissed the action on the it became dangerous, in that it was liable to ground that the plaintiff had no title, and an explosion, difficult to control, being suffi

ignite and cause fierce blaze in the nature of did not pass on the claim of title made by cient to permit proof that the preparation was the defendant. It came to this result be dangerous when used upon a hot stove, because cause it found that the land had been perma- benzine contained in the preparation and unit

when so heated the fumes arising from the nently abandoned for railroad uses, and was ing with the air formed a dangerous mixture, of opinion that thereby the title conveyed which coming in contact with the flame in or in 1884 became extinguished. This error lies near the stove was liable to cause an explosive at the foundation of the judgment, and jus-flame. tice will be best promoted by a new trial as

[Ed. Note.-For other cases, see Explosives, to all the issues.

Dec. Dig. § 9.*] There is error, and a new trial is ordered. 6. EXPLOSIVES ($ 9*)-NEGLIGENT SALE-EviThe other Judges concurred.

DENCE-SUFFICIENCY.

Evidence in an action for negligently selling a preparation, which, while being used on a

stove, ignited, causing a death, held insufficient (81 Conn. 358)

to disprove defendant's negligence in failing to WOLCIO V. ARTHUR J. ROSENBLUTH & give notice of the inflammable character of the

preparation. CO.

[Ed. Note.-For other cases, see Explosives, (Supreme Court of Errors of Connecticut. Dec. Dec. Dig. 8 9.*] 18, 1908.)

7. EXPLOSIVES (9*)-NEGLIGENT SALE-Con1. EXPLOSIVES (8 9*)-NEGLIGENT SALE_USE TRIBUTORY NEGLIGENCE. INTENDED-MATERIALITY.

Evidence in an action for negligently sellThat the manufacturer and seller of a prep- ing a preparation, which, while being used on aration, the ignition of which while being used la stove, ignited, causing death, held to sustain

re

DENCE.

a finding that decedent was not guilty of con- ( cans, upon each of which are printed labels tributory negligence.

and directions, of which the following are [Ed. Note. For other cases, see Explosives, copies: Dec. Dig. $ 9.*] 8. APPEAL AND ERROR ($ 1056*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE. Exclusion of testimony to show a particu

(ODORLESS). lar fact was not prejudicial error where that fact was found.

STOVELINE" [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. & 4190; Dec. Dig. $ 1036.*]

TRADE-MARK. 9. EXPLOSIVES (8 9*)-NEGLIGENT SALE-Evi

STOVE-PIPE-ENAMEL. In an action for negligently selling a preparation which, while being used on a stove, For use on all Iron Work. ignited, causing a death, defendant could not show whether there was any difference between the particular preparation and other "stovepipe enamels” as to warnings as to their use, where it did not appear that the constituents of the

ONE-HALF PINT. other preparations were the same as those of the particular preparation, nor that such other preparations were advertised to be used upon stoves, and where the names of such other preparations did not indicate that they might be used upon stoves.

"STOVELINE” [Ed. Note.-For other cases, see Explosives, Dec. Dig. $ 9.*]

TRADE-MARK. 10. EVIDENCE ($ 594*)—UNCONTRADICTED TES

STOVE PIPE ENAMEL.
TIMONY-WEIGHT.
Under the rules of the Supreme Court

FOR USE ON Stovepipes, Radia

tors, Registers, Grates, Steam and (Practice Book 1908, p. 268, § 10) a fact need

Water Pipes, Locomotives, Iron not be treated as admitted or undisputed be- Fences, Gas Stoves, Boilers, Smoke cause no witness has contradicted testimony Stacks, Furnaces, Ventilators, Sewthereto.

ing Machines and all other places

where a smooth lasting brilliant (Ed. Note.-For other cases, see Evidence,

black finish is desired. Cent. Dig. § 2431; Dec. Dig. § 594.*]

Prevents Rust. Appeal from Superior Court, New Haven Will not crack or peel and will

stand a high temperature. County; Edwin B. Gager, Judge.

Action by Henry Wolcho, administrator, against Arthur J. Rosenbluth & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

DIRECTIONS FOR USE. Richard H. Tyner and Louis M. Rosen

Remove cover by prying under bluth, for appellant. William H. Ely and

Edge with a nail or blunt instruCharles C. Ford, for appellee.

ment. Shake and stir well and apply with bristle brush. Rusty ar

ticles should be sandpapered beHALL, J. While the plaintiff's Intestate,

fore Enamel is applied. One coat Lena Wolcho, was using upon her stove

will produce a brilliant black fina liquid mixture called “Stoveline,” prepared.

ish. and sold by the defendant, it suddenly ignited

A. J. ROSENBLUTH & CO., and set fire to her clothing, and she received injuries from which she died. The complaint

NEW HAVEN, CONN., U. S. A. alleges that said preparation "contained, a large quantity of inflammable material, and, when used upon hot substances, becomes dan- It is an artificial composition, composed of gerous to use, in that it is liable to ignite and benzine, oils, and turpentine, and japan, the cause a fierce blaze in the nature of an ex- proportions of which are: Benzine, 41.41 per plosion which it is difficult to control," and cent.; oils and turpentine, 15.03 per cent.; that the defendant negligently sold said ar- and japan, 43.56 per cent. The liquid when ticle without warning purchasers of its dan- brought in contact with a flame or very close gerous character.

to a flame will ignite and burn freely, though Concerning the sale of said article by the not with a fierce flame, or one explosive in defendant, its composition, and characteris- its nature. The liquid, independently of the tics, and the manner in which the deceased vapor which it may give off, is not explosive. was injured while using it, the trial court It is less dangerous than pure benzine. The has found these facts: The liquid prepara- benzine in the compound will give off fumes tion, called “Stoveline,” is sold in half pint I according to its temperature, and that of the

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