was that at the death of Eugene D. Fisk the Chicago lands, if not sold, should be conveyed to the appellants, or, if they had been sold, the proceeds paid over to them. The agreement alleged in the former was that he would hold these lands in trust for them; the particular nature of the trust not being otherwise described. The legal effect of such an agreement would be that, if he died without performing it, the appellants would be entitled to claim the lands, if not sold, or, if they had been sold, their proceeds. Under the liberal construction given to our statutes of amendments, the ground of action was not changed by the substituted statement. The real object of the claimants, as disclosed by either form of expression, was the same. Merwin's Appeal, 72 Conn. 167, 172, 43 Atl. 1055; Huntington's Appeal, 73 Conn. 582, 585, 48 Atl. 766. The answer of the appellees set up the lapse of 24 years since the alleged agreement. The present proceeding is to enforce an equitable claim, and stands on the footing of an equitable action. To such an action our statutes of limitation do not apply, except so far as resort may properly be had to them by way of analogy. Budington v. Munson, 33 Conn. 489. The question is one of laches, and that the appellants are not charge able with any, results necessarily from the fact that their father concealed the agreement of trust from them, so that it first came to their knowledge after his death. There is no error. All concur. (81 Conn. 466) NEW YORK, B. & E. RY. CO. v. MOTIL (Supreme Court of Errors of Connecticut. Dec. 18, 1908.) 1. RAILROADS (8 61*) - BUYING LAND FOR ROADBED. title from a fee, but merely put on it a contractual duty, or imposed a condition subsequent on the grant, which did not affect its title; no forfeiture for breach of condition having been claimed. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 69.*] 4. RAILROADS (§ 82*)—EXTINCTION OF RIGHT TO BUILD-EFFECT ON PROPERTY RIGHTS. company to build its road did not extinguish its The extinction of the right of a railroad general right of property in land conveyed to it in fee. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 213; Dec. Dig. § 82.*] 5. CORPORATIONS (§ 28*)—DEFECT IN ORGANIZATION-DE FACTO CORPORATION. did not prevent its being a corporation de facto, Defect in the organization of a corporation or disqualify it from acquiring, holding, and conveying land. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 70; Dec. Dig. § 28.*] 6. CORPORATIONS (8 617*)-QUO WARRANTOEFFECT OF JUDGMENT ON PROPERTY RIGHTS. ings that corporation has no legal existence The adjudging on quo warranto proceeddid not destroy such rights of property as it then held. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 617.*] 7. CORPORATIONS (8 619*)-QUO WARRANTOEFFECT OF JUDGMENT ON PROPERTY RIGHTS. The adjudging in quo warranto proceedings that a corporation has no legal existence transferred the custody of the property of the supposed corporation from the directors acting as acting as trustees for those interested in sucsuch for a corporation de facto to the directors cession to what had been a corporation de facto; the uses for which they thereafter held it being to satisfy any indebtedness of the sup posed corporation, and to transfer any balance to the stockholders pro rata, naturally requiring a sale of the property. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 619.*] 8. RAILROADS (§ 32*)—FAILURE TO BUILD IN PRESCRIBED TIME. Under Gen. St. 1887, § 3440, providing that, if a railroad company shall not finish its road in five years from the filing and recording of its articles, its corporate existence and powers shall cease, such failure does not ipso facto destroy the company's corporate existence, but is simply a ground for forfeiture; and, the state not instituting any proceedings to oust it of its franchises, it remains a corporation de Under the general railroad law (Gen. St. 1875, p. 317, tit. 17, c. 2, pt. 9, § 6), conferring on a company organized under it power to "hold such real estate as may be convenient for accomplishing the objects of its organization," and the "Act concerning corporations" (Pub. Acts 1883, p. 232, c. 3), authorizing any private corporation to purchase such real estate as its purposes 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. § 61.*] 2. RAILROADS (§ 69*) — DEEDS - ESTATE CON VEYED. The effect of a deed to a railroad in terms apt for conveying an absolute estate in fee, and providing that the land was to be held by the company and its "successors and assigns for ever to their own proper use and behoof," and not limiting the uses to which the land could be used, was not reduced by the prior description of the premises as covered by the location of the railroad. [Ed. Note.-For other cases, see Railroads, Dec. Dig. § 69.*] 3. RAILROADS (§ 69*) - Deeds SUBSEQUENT. CONDITIONS The provision in a deed to a railroad that it was to trestle a pond did not reduce its 9. RAILROADS (8 14*)-REPEAL OF GENERAL LAW-EFFECT ON PRIOR CORPORATIONS. 126, of the general railroad law, not purportThe repeal by Pub. Acts 1905, p. 335, c. ing to, did not affect the continued existence of any companies theretofore incorporated under it. [Ed. Note.-For other cases, see Railroads, Dec. Dig. § 14.*] 10. CORPORATIONS (8 291*)-OFFICERS-FAILURE TO HOLD MEETING FOR ELECTION. A private corporation failing to hold its regular annual meeting for election of officers, those then in office hold over till their successors are elected. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1252; Dec. Dig. § 291.*] 11. CORPORATIONS (§ 399*)-POWER OF OFFI- | new company. The organization of the latter CER UNDER RESOLUTION OF DIREctors. From plenary power given in general terms by directors of a corporation to its president, as such and as its attorney in fact, to dispose of and convey all its property, using the proceeds to make payments on its debts, authority in him to institute suit to settle title to land to satisfy prospective purchasers of its title is to be implied. was defective. On December 6, 1890, it reconveyed whatever it had acquired under its deed of October 22, 1889, to its grantor, and on January 24, 1891, he conveyed the same premises to the plaintiff, which is a corporation of the same name with that defectively 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.*] Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge. Action by the New York, Bridgeport & Eastern Railway Company against Joseph Motil, under Gen. St. 1902, § 4053, to settle title to. land. Judgment for defendant, and plaintiff appeals. Reversed, and new trial or dered. carry on the building of the same railroad. All these conveyances were made with the intention and for the purpose of using the land now in question as a part of the roadbed of a railroad. This strip had been graded and an earth embankment built on part of it, at considerable expense, by the first grantee. The plaintiff did no work upon it, but laid 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. BALDWIN, C. J. This action is to settle the title to land conveyed in 1884 by one Hodges to the New York & Connecticut Air Line Railway Company, a corporation of Connecticut duly organized under the general railroad law in 1881, for the consideration of $626.32 then received in payment, by a warranty deed, in which he described it as "lying and being in the town of Stratford, and on each side of the center line of the location of said railroad company and of the width of four (4) rods on each side of said center line, across my said lands a distance of about nine hundred and nineteen feet in length, bounded northerly and southerly by my own land, easterly by land of Stiles W. Wheeler, and westerly by highway, reference being had to the map of the location of said railway company in the office of the town clerk of said town of Stratford. Said railway company is to tressell my pond the width of fifty feet." Habendum: "Unto the said grantees, their successors and assigns forever, to their own proper use and behoof." This strip ran through a 16-acre farm owned by Hodges, and was bought in order that it might become part of the roadbed of a railroad which the grantee was proposing to construct. The company acquired an entire right of way from New Haven to the state line of New York, surveyed it, graded a considerable part of it, and expended a considerable sum of money in advancing its purposes, but finally lost the right to complete the railroad by the expiration of the statutory period allowed for so doing, which occurred October 22, 1889. On October 16, 1889, some of its shareholders organized a new corporation, under the same law, named the New York, Bridgeport & Eastern Railway Company. The New York & Connecticut Air Line Railway Company thereupon conveyed all of its lands and right of way to one W. E. Norton, trustee, who on October 22, 1889, conveyed the same to the directors of the plaintiff, being satisfied that it could not construct the railroad, empowered Henry R. Parrott, its president, as such and as its attorney in fact, to dispose of and convey all its property, real and personal, using the proceeds to pay its indebtedness as far as possible. On January 6, 1896, this action was ratified by the company at a meeting of the shareholders, the vote reciting that the rights of the corporation would expire on January 8, 1896. In 1889 Hodges had given a warranty deed of his farm to one Kowing and his wife, describing it as divided into two parts by a strip of land 8 rods wide and about 919 feet long, which he had conveyed to the New York & Connecticut Air Line Railway Company in 1884. In 1899 he gave a quitclaim deed of his right, title, and interest in this strip to Mrs. Kowing, who had acquired her husband's title under the deed of the preceding year. The strip in question was never separated from the farm by fences, and the successive owners of the farm have cultivated it to some extent. An election of officers by the plaintiff was made in 1891, at which Henry R. Parrott, one of the shareholders, was chosen a director, and he was also then made president of the company. No election of directors or appointment of president has been since made. He has always been a shareholder. In the fall of 1895 he, claiming to act as president, director, and shareholder in the plaintiff's behalf and under the votes above described, had the strip of land in dispute mapped so as to show a pentway extending through it, with adjoining building lots, caused fence posts to be set up along its sides, and advertised the lots for sale. The farm would be greatly damaged by the use of this land for building purposes. This action was instituted by Mr. Parrott in 1906 solely upon the authority of the votes above described. The general railroad law under which the plaintiff was incorporated provided that, if railroad therefore did not extinguish its general right of property in the disputed premises. It rather served to clear the title which could be conveyed to one desiring to purchase for the ordinary purposes of private occupancy. Nye v. Taunton Branch R. R. Co., 113 Mass. 277, 279; Thompson on any company organized under its provisions | tinction of the plaintiff's right to build its should not finish its railroad within five years from the time of filing and recording its articles of association, its corporate existence and powers should cease. Gen. St. 1887, § 3440. When Hodges gave his first deed, the general railroad law conferred upon any company that should be organized under it power to "hold such real estate as may be convenient | Private Corporations, § 5791. for accomplishing the objects of its organization" (Gen. St. 1875, p. 317, tit. 17, c. 2, pt. 9, § 6); and there was an "Act concerning corporations," providing that "every private corporation may, when no other provision is specifically made, receive, purchase, hold, sell, and convey real and personal estate, as the purposes of the corporation shall require, not exceeding the amount limited in its charter." Pub. Acts 1883, p. 232, c. 3. All these provisions of law continued in force until several years after the votes of the plaintiff's directors and shareholders. Gen. St. 1888, § 1906, 3438; Gen. St. 1902, §§ 3312, 3670. It was unquestionably "convenient for accomplishing the purposes of its organization" that the New York & Connecticut Air Line Railway Company should acquire some title to the land in question at the time when it received the deed from Hodges in 1884. It is unnecessary to inquire whether it had at this time the right to take this strip by condemnation proceedings, and whether that right would have included the power of appropriating a fee-simple estate. It certainly had the right to acquire such an estate by agreement with the owner. It paid him $626.32, and received a warranty deed, expressed in terms apt for conveying an absolute estate in fee simple, unless they are qualified by the fact that the premises were described as within the location of the company's railroad, or by the clause as to the trestling of a pond. That they were within the location had no other effect than to make it clear that their acquisition was necessary. That the company was to trestle the pond had no other effect than either to throw upon it a contractual duty, or to impose a condition subsequent upon the grant. In the common course of things it could not build the trestle, which obviously was to be a part of its railroad structure, until it had acquired the estate. No forfeiture of the estate for breach of condition has ever been claimed, so far as appears, by Hodges or his heirs or assigns. He made no limitation in his deed of the uses to which the grantee could put the land. It was to be held by the company and "their successors and assigns forever to their own proper use and behoof." The effect of these emphatic words is not reduced by the prior description of the premises as covered by the location of the railroad. A railroad company can acquire, by agreement with the owner, a fee-simple estate in land within its location, as well as The defect in the organization of the first corporation of the name since assumed by the plaintiff did not prevent it from being a corporation de facto, nor disqualify it from acquiring, holding, and conveying real estate. Lamkin v. Baldwin & Lamkin Mfg. Co., 72 Conn. 57, 65, 43 Atl. 593, 1042, 44 L. R. A. 786; Society Perun v. Cleveland, 43 Ohio St. 481, 3 N. E. 357. It appears from a paragraph of the defendant's draft finding marked "proven" that in October, 1890, it was adjudged, on quo warranto proceedings, to have no legal existence. This did not destroy such rights of property as it then held. A private corporation exists mainly for the benefit of its shareholders. For their convenience and protection they are allowed to assume a corporate name, and become in law an artificial person. Whether the quo warranto proceedings were brought against the New York, Bridgeport & Eastern Railway Company or its shareholders or directors is not stated; but in either case those who had been claiming a right to exercise by that name a corporate franchise could do so no longer. This, however, did not destroy all the property held by the supposed corporation at the date of the judgment. It transferred its custody and changed its uses. The custody passed, under well-settled equitable principles, from the directors acting as directors for a corporation de facto to the directors acting as trustees for those interested in succession to what had been a corporation de facto. The uses for which they thereafter held it were to satisfy any indebtedness which might be due from the supposed corporation, and transfer the balance, if any, to the shareholders pro rata. Such a liqui dation of the corporate business would naturally require a sale of what had been the corporate assets. A receiver might have been appointed for that purpose. See Wilcox v. Continental Life Ins. Co., 56 Conn. 468, 477, 16 Atl. 244. Whether, in the absence of such an interference by the courts, the directors, as such trustees, could authorize a conveyance by a single shareholder and director, and, if so, what form it should have assumed, and what effect acquiescence by those interested might have in curing irregularities, it is unnecessary now to inquire, since there must be a new trial on which the facts regarding the deed of December 6, 1890 (stated in the finding to have been made by the corporation, and in a paragraph marked "proven," in the defendant's draft Parrott as its president), can be more fully ascertained. See Morawetz on Corporations, § 1032; Saugatuck Bridge Co. v. Westport, 39 Conn. 337, 350; Sullivan County R. R. V. Coun. Lumber Co., 76 Conn. 464, 473, 57 Atl. 287. The lapse of five years from its incorporation without the completion of its railroad which occurred January 8, 1896, did not ipso facto destroy the corporate existence of the plaintiff. This was simply a ground of forfeiture, and it does not appear that the state has instituted any proceedings to oust it of its franchises. It remains, therefore, a corporation de jure. New York & New England R. R. Co. v. N. Y., N. H. & H. R. R. Co., 52 Conn. 274, 284. The repeal of the general railroad law in 1905 (Pub. Acts 1905, p. 335, c. 126), under which it was incorporated, did not affect or purport to affect the continued existence of any companies which had already been incorporated under its provisions. When a private corporation fails to hold its regular annual meeting for the election of officers, those already occupying such a position hold over until their successors are elected. McCall v. Byram Mfg. Co., 6 Conn. 437, 438; Spencer v. Champion, 9 Conn. 542544. Mr. Parrott, therefore, has been since 1891 continuously a director and president of the plaintiff company. To enable him to sell any of its real estate to advantage, it would be necessary to satisfy any who might be considering its purchase that a good title could be conveyed. For this purpose, such a suit as the present would be a proper mode of determining the nature of the company's title, and authority in Mr. Parrott for its institution was therefore fairly implied in the general terms by which the directors in 1895 gave him such plenary powers as to the disposition of the estate. The court of common pleas dismissed the action on the ground that the plaintiff had no title, and did not pass on the claim of title made by the defendant. It came to this result because it found that the land had been permanently abandoned for railroad uses, and was of opinion that thereby the title conveyed in 1884 became extinguished. This error lies at the foundation of the judgment, and justice will be best promoted by a new trial as to all the issues. on a stove caused a death, did not intend that it should be so used, does not affect his liabil tions upon the cans persons of ordinary intelliity for the death, if from the labels and direcgence who were expected to use the preparation, and who read or had read to them the labels and directions, were informed that it might be so used. Cent. Dig. § 6; Dec. Dig. § 9.*] [Ed. Note. For other cases, see Explosives, 2. EXPLOSIVES (§ 9*)-DANGEROUS USE-CONTRIBUTORY NEGLIGENCE. That a preparation was labeled "Stoveline," was represented to be "for use on all iron work," and capable of standing a high temperature, warranted one who had no knowledge or notice of the dangerous character of the preparation to assume that it was intended to be used upon stoves, and might safely be used upon a hot stove. [Ed. Note. For other cases, see Explosives, Dec. Dig. § 9.*] 3. EXPLOSIVES (§ 9*)-DANGER-QUESTION OF FACT. Whether it was dangerous to use upon a hot stove a particular preparation was a question of fact. Dec. Dig. § 9.*] [Ed. Note. For other cases, see Explosives, 4. APPEAL AND ERROR (§ 1011*)-REVIEWFINDINGS-CONCLUSIVENESS. A finding on conflicting evidence by the trial judge who heard and saw witnesses is conclusive. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*] aration which, while being used on a stove, igIn an action for negligently selling a prepnited, causing a death, plaintiff was not required to state in technical terms just what happened or was liable to occur when the preparation was applied to the hot stove; an averment that when used upon hot substances-in connection with an averment that decedent was injured when using it upon her kitchen stoveit became dangerous, in that it was liable to ignite and cause a fierce blaze in the nature of an explosion, difficult to control, being sufficient to permit proof that the preparation was dangerous when used upon a hot stove, because benzine contained in the preparation and unitwhen so heated the fumes arising from the ing with the air formed a dangerous mixture, which coming in contact with the flame in or near the stove was liable to cause an explosive flame. [Ed. Note. For other cases, see Explosives, Dec. Dig. § 9.*] There is error, and a new trial is ordered. 6. EXPLOSIVES (§ 9*)-NEGLIGENT SALE-EVIThe other Judges concurred. (81 Conn. 358) WOLCHO v. ARTHUR J. ROSENBLUTH & CO. DENCE-SUFFICIENCY. Evidence in an action for negligently selling a preparation, which, while being used on a stove, ignited, causing a death, held insufficient to disprove defendant's negligence in failing to give notice of the inflammable character of the preparation. [Ed. Note. For other cases, see Explosives, (Supreme Court of Errors of Connecticut. Dec. Dec. Dig. § 9.*] 18, 1908.) 1. EXPLOSIVES (§ 9*)-NEGLIGENT SALE-USE INTENDED-MATERIALITY. That the manufacturer and seller of a preparation, the ignition of which while being used 7. EXPLOSIVES (§ 9*)-NEGLIGENT SALE-CONTRIBUTORY NEGLIGENCE. Evidence in an action for negligently selling a preparation, which, while being used on a stove, ignited, causing death, held to sustain a finding that decedent was not guilty of contributory negligence. [Ed. Note. For other cases, see Explosives, Dec. Dig. § 9.*] 8. APPEAL AND ERROR (§ 1056*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE. Exclusion of testimony to show a particular fact was not prejudicial error where that fact was found. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4190; Dec. Dig. § 1056.*] 9. EXPLOSIVES (§ 9*)-NEGLIGENT SALE-EVI DENCE. In an action for negligently selling a preparation which, while being used on a stove, 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 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. [Ed. Note. For other cases, see Explosives, Dec. Dig. § 9.*] 10. EVIDENCE (§ 594*)—UNCONTRADICTED TESTIMONY-WEIGHT. Under the rules of the Supreme Court (Practice Book 1908, p. 268, § 10) a fact need not be treated as admitted or undisputed because no witness has contradicted testimony thereto. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2431; Dec. Dig. § 594.*] Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge. HALL, J. While the plaintiff's intestate, Lena Wolcho, was using upon her stove a liquid mixture called "Stoveline," prepared. and sold by the defendant, it suddenly ignited and set fire to her clothing, and she received injuries from which she died. The complaint alleges that said preparation "contained a large quantity of inflammable material, and, when used upon hot substances, becomes dangerous to use, in that it is liable to ignite and cause a fierce blaze in the nature of an explosion which it is difficult to control," and that the defendant negligently sold said article without warning purchasers of its dangerous character. Concerning the sale of said article by the defendant, its composition, and characteristics, and the manner in which the deceased was injured while using it, the trial court has found these facts: The liquid preparation, called "Stoveline," is sold in half pint cans, upon each of which are printed labels and directions, of which the following are copies: (ODORLESS). "STOVELINE" TRADE-MARK. STOVE-PIPE-ENAMEL. For use on all Iron Work. ONE-HALF PINT. "STOVELINE" TRADE-MARK. STOVE PIPE ENAMEL. FOR USE ON Stovepipes, Radiators, Registers, Grates, Steam and Water Pipes, Locomotives, Iron Fences, Gas Stoves, Boilers, Smoke Stacks, Furnaces, Ventilators, Sewing Machines and all other places where a smooth lasting brilliant black finish is desired. Prevents Rust. Will not crack or peel and will stand a high temperature. DIRECTIONS FOR USE. Remove cover by prying under Edge with a nail or blunt instrument. Shake and stir well and apply with bristle brush. Rusty articles should be sandpapered before Enamel is applied. One coat will produce a brilliant black finish. A. J. ROSENBLUTH & CO., It is an artificial composition, composed of benzine, oils, and turpentine, and japan, the proportions of which are: Benzine, 41.41 per cent.; oils and turpentine, 15.03 per cent.; and japan, 43.56 per cent. The liquid when brought in contact with a flame or very close to a flame will ignite and burn freely, though not with a fierce flame, or one explosive in its nature. The liquid, independently of the vapor which it may give off, is not explosive. It is less dangerous than pure benzine. The benzine in the compound will give off fumes according to its temperature, and that of the |