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(75 N, H. 154)

6. EQUITY: (8 427*)—SPECIAL FINDINGS-ConKIDD et al. V. NEW YORK SECURITY & STRUCTION. TRUST CO. et al.

The special finding that plaintiffs knew of (Supreme Court of New Hampshire. Rocking- but did not know its scope, could not be con

the contract the month after it was authorized, ham. Jan. 5, 1909.)

strued to mean that they did not know that the 1. JUDGMENT (8 713*)—MATTERS CONCLUDED directorwas receiving a special benefit there. -GENERAL DECREE-FRAUD.

under, in view of another special finding that Where there was a general decree for de plaintiffs considered the contract advantageous fendants, in a suit to set aside a transfer of to them, and expected it to be carried into efassets of a corporation to one of them on the fect. ground of fraud and conspiracy, and there was [Ed. Note.-For other cases, see Equity, Dec. conflicting evidence upon the question of fraud, Dig. § 427.*] the decree includes a finding that the transfer | 7. APPEAL AND ERROR (8 1097*)_REVIEWwas not the result of fraud and conspiracy on defendants' part.

SUBSEQUENT TRANSFERS-SCOPE OF REVIEW

-QUESTIONS OF LAW DECIDED ON FORMER (Ed. Note. For other cases, see Judgment, TRANSFER. Dec. Dig. $ 713.*]

Parties not content with the decision of the 2. EQUITY (8 427*)-DECREE-CONFORMITY TO Supreme Court on a transfer of the case should SPECIAL FINDING.

apply for a rehearing under rule 10, and they In an action by stockholders of a corpora- cannot have the same questions of law re-examtion to set aside a transfer of the assets of the ined on a subsequent transfer, especially where corporation to a defendant trust company on equity and justice do not require it, as where, the ground of fraud and conspiracy, a special in a suit to set aside contracts on the ground finding that the taking of certain assets of the of fraud and conspiracy, the grounds for recorporation by defendant trust conipany was in- examination are highly technical, and it is found tentionally concealed from plaintiffs by defend that the contracts were not unconscionable and ants until after suit was brought, to prevent not procured by fraud. plaintiffs from taking measures to prevent the [Ed. Note.-For other cases, see Appeal and consolidation of the corporation with the trust Error, Cent. Dig. $$ 4358-4368; Dec. Dis. $ company, was not inconsistent with a general | 1097.*] decree for defendants dismissing the suit, where it was not found that defendants were success

Transferred from Superior Court, Rockingful in carrying out their purpose, or that if ham County ; Peaslee, Judge. plaintiffs had known of the proposed transfer, Bill by Charles G. Kidd and others in bethey would have taken steps to prevent consol-half of themselves and others against the idation.

[Ed. Note.-For other cases, see Equity, Dec. New York Security & Trust Company and Dig. § 427.*]

others. There was a decree of dismissal, and 3. CORPORATIONS (8 426x) UNAUTHORIZED the case was transferred from the superior

ACTS OF AGENTS-RATIFICATION BY STOCK- court on plaintiffs' exceptions. Exceptions HOLDERS.

overruled. A corporation may ratify an unauthorized transaction of its agents by the unanimous ac- Bill in equity, by the owners of all the prequiescence of its stockholders, as well as by a ferred stock of the Massachusetts Construcvote of the majority in a corporate meeting. [Ed. Note.--For other cases, see Corporations,

tion Company, Incorporated, in behalf of Dec. Dig. § 426.*]

themselves and all other stockholders of the 4. EQUITY (8 431*)—DECREE–MATTERS Con- corporation, to set aside a transfer of the

assets of the corporation to the New York In an action by stockholders to set aside a Security & Trust Company, on the ground transfer of the corporation's assets to a trust of fraud and conspiracy, and for an accountcompany on the ground of fraud and conspiracy, held that there was evidence tending to show ing. The case is the same as that reported in that all the stockholders acquiesced in a pro- 72 N. H. 273, 56 Atl. 465, 66 L. R. A. 574, vision of the contract with the trust company and 74 N. H. 160, 66 Atl. 127, and the facts for the transfer, which gave a personal interest in the contract to a fellow stockholder and di- | found and evidence reported upon the prerector who voted at the directors' meeting in vious transfers are made a part of this case. favor of the contract, and whose presence was After the case was remanded, it was reargued necessary to a quorum of the board, so that the in the superior court upon the evidence pre fact will be taken as found; a general decree having been rendered for defendants which car- viously reported, the decree against the trust ries the presumption that all facts were found company was set aside, a decree dismissing which were necessary to sustain it, and of which the bill as to all the defendants, without there was evidence.

[Ed. Note.-For other cases, see Equity, Dec. costs, was entered, and certain additional Dig. 431.*]

facts were found. The plaintiffs excepted to 5. EQUITY (427*) — DECREE INCONSISTENT

the decree dismissing the bill, to additional FINDINGS.

facts found, and to the refusal of the court The contract providing a yearly salary of to make certain rulings and findings special$6,000 for the director, reasonably intelligently requested by them. men could not have understood otherwise than that he was given a personal interest in the con- Streeter & Hollis and Roger F. Sturgis, for tract, and if the conclusion that they did so

plaintiffs. Sargent & Niles, Burnham, Brown, understand, presumably embraced in the general decree, be inconsistent with a special finding Jones & Warren, and Hornblower, Miller & that plaintiffs knew of the contract the month Potter, for defendants. after it was authorized by the directors, but did not understand its scope, the special finding is not supported by the evidence to that extent.

BINGHAM, J. The questions presented [Ed. Note.--For other cases, see Equity, Dec. upon the previous transfer of this case relatDig. & 427.*]

ed to the validity of the decree of the su

CLUDED.

perior court in favor of the plaintiffs, based | under the contract of November 12th, was upon certain findings of fact and rulings of intentionally concealed from the plaintiffs by law, to the effect that the trust company's the defendants until after the bill was filed, letter of January 3, 1902, was not an ac- for the purpose of preventing the plaintiffs ceptance of the Connecticut company's pro- from taking measures to prevent the consoliposal contained in the instrument of Decem-dation"—if supported by the evidence, comes ber 28, 1901, but a modification of it and the to nothing; for, if such was the defendants' submission of a counter proposal which was purpose, it is not found that they were sucnot accepted by the Connecticut company un- cessful in carrying it out, or that, if the plaintil after December 31, 1901; that after that tiffs had known of the proposed transfer, they date the Connecticut company was a mere would have taken steps to prevent consolidaagency of the trust company, and incapacitat-tion. They took no action of this nature ed from contracting with it; that the trust | when they learned of the contract of Decemcompany consequently stood with relation to ber 28th; and the trial judge may have very the plaintiffs, who are preferred stockhold. properly concluded, when he made the geners in the Connecticut company, as trustee, eral decree dismissing the bill, that they and bound to account to them as such, and would have pursued the same course with refnot according to the instrument of December erence to the contract of November 12th. 28th. But this court, after an extended con- This brings us to a consideration of the sideration of the questions, held that the rul- plaintiffs' seventeenth request, wherein they ings of the superior court, read in the light asked the trial court to rule and find that of the facts upon which they were based, “the contract of December 28th is not bindwere erroneous, and that the decree for the ing for lack of a qualified quorum of diplaintiffs should be set aside; that it did not rectors.” This request was denied. The appear but that the Connecticut company was plaintiffs now contend that by the ninth an independent agency and free from the con- clause of the contract of December 28th it trol of the trust company down to December appears that Lovell was to receive an an31st, when its board of directors authorized nual salary of $6,000 for two years from the its president and secretary to sign the instru- trust company, for services he was to renment of December 28th, which they then in der in furthering the purposes of the tracfact signed; that the trust company's assent tion company, which would give him a perwas given January 30, when its officers sign- sonal interest in the contract antagonistic to ed the contract; and that the proposition of that of the Connecticut company, and would the trust company contained in its letter of therefore disqualify him as a director in auJanuary 3d, relating to the high tension serv- thorizing the contract in behalf of that comice, if ever legally assented to by the Con- pany, and that the records of the directors' necticut company, was not a modification of meeting of December 31st, at which the conthe contract of December 28th, but collateral tract was authorized, disclose that his presto it. The case was then sent back to the ence was necessary to constitute a quorum of superior court for a determination of the the board, that he participated in the meetquestion whether the contracts of Novem- ing, and voted in favor of the contract, and ber 12th and December 28th were procured that it is therefore void or voidable, though through the fraud and conspiracy of the de- capable of confirmation. State v. Richmond, fendants; that being the only question raised 26 N. H. 232, 238; 1 Mor. Corp. § 524. This by the pleadings and left open upon the rec- question was not raised upon the former ord. This question was afterwards argued transfer of the case, although the facts upon in the superior court upon the evidence origi- which the contention is now based were then nally submitted, and thereupon the trial jus- presented by the record. Nor does it appear tice set aside the former decree, entered a de- that Lovell's interest in the contract was cree dismissing the bill as to all the defend- urged or suggested as a reason for his disants, and made certain findings of fact in qualification as a director at the hearing addition to those previously reported. He did before the trial judge, after the case was not specifically find that the contracts of No- remanded; but, if it was, and the denial of vember 12th and December 28th were not the request was based upon a finding of fact procured through fraud, but the general de- and ruling of law, then the legal question cree was in favor of the defendants; and, as herein insisted upon may not exist. That a there was evidence upon the question of fraud, corporation may ratify the unauthorized and it was conflicting, the decree includes a transaction of its agents by the unanimous finding that the contracts were not the re- acquiescence of its stockholders, as well as sult of fraud and conspiracy on their part. by the vote of the majority in a corporate Allen v. Association, 72 N. H. 525, 57 Atl. 922; meeting, would seem not to be open to quesConcord Coal Company v. Ferrin, 71 N. H. tion. 1 Mor. Corp. § 525. Consequently, if 331, 51 Atl. 283, 93 Am. St. Rep. 496; Allard there was evidence from which it could have v. Hamilton, 58 N. H. 416; Noyes v. Patrick, been found that the plaintiffs, who owned all 58 N. H. 618. The special finding upon which the preferred stock, and Lovell, who owned the plaintiffs lay particular stress——that “the all the common stock, acquiesced in the protaking of the E. H. & A. division from the vision of the contract to which objection is the fact is to be taken as found; for the gen-, cember 28th in the following January, but eral decree carries the presumption that all did not understand its scope" is capable of facts were found necessary to sustain it, being construed as inconsistent with the and of which there was evidence. Dusseault conclusion that they must have known that V. Association, 74 N. H. 407, 68 Atl. 461, and this provision gave Lovell a personal interest cases above cited.

in the contract, the special finding is to that It is clear that acquiescence on the part of extent not supported by the evidence; for, as Lovell could have been found from the fact reasonably intelligent men, they could not that he was a party to the contract and the bave understood otherwise. But it seems chief beneficiary under the provision here that this finding is not to be so broadly conin question. As to Kidd it appears that his strued, in view of the further finding that counsel was shown the instrument of De- the plaintiffs "considered the contract of cember 28th seven days after it was execut- which they knew (the instrument of Decemed by the trust company; that on that date ber 28th] advantageous to them, and expected he wrote Kidd and inclosed a copy of the the trust company to carry it into effect." agreement; that he called Kidd's attention as the plaintiffs considered the contract adto the particular provision relating to the vantageous to them, and knew and acquiesemployment of Lovell at a salary of $6,000 ced in the provision in Lovell's behalf, they a year for two years, and congratulated him cannot now avail themselves of this objecupon the prospect of his receiving "some in- tion. come" from Lovell because of the salary and

The only remaining question relates to the the probable payment of "regular dividends plaintiff's” request to be reheard upon the

upon the preferred stock of the Con. I precise questions that were decided when necticut company.” And as to Whitcomb it the case was here upon the previous transappears that in January, 1902, he knew of fer. As to this it may be said that if the the contract of December 28th, considered it plaintiffs were not content with the former advantageous to him, and expected the trust decision, they should have seasonably apcompany would carry it into effect; that he plied for a rehearing in accordance with the became a director in the traction company tenth rule of court. Not having done so, they at an early date, took part in the directors' are now concluded by the long-established meeting of that company January 21st, when practice of this court that questions of law the trust company's proposition for a sale

once decided will not be re-examined upon to the traction company of the securities re

a subsequent transfer, especially where eqceived from the Connecticut company was uity and justice do not require it. Bell v. acted upon, and in other ways recognized the Woodward, 47 N. H. 539; Id., 48 N. H. 437; validity of the agreement. From this, and Bell v. Lamprey, 58 N. H. 124; Carter v. other evidence of similar import, and the Jackson, 58 N. H. 156; Ashuelot R. R. V. fact that no objection was raised by Kidd or

Elliot, 58 N. H. 451; Plaisted v. Holmes, 59 Whitcomb for over six years after they were N. H. 620; Preston v. Insurance Co., 59 N. fully informed about the provision giving H. 49; Amoskeag Mfg. Co. v. Head, 59 N. H. Lovell a personal interest in the contract. 332; Weare v. Deering, 60 N. H. 56; Hedit reasonably could have been concluded that ding v. Gallagher, 72 N. H. 377, 57 Atl. 225, they, as well as Lovell, were satisfied with. 64 L. R. A. 811; Olney v. Railroad, 73 N. H. and acquiesced in, the provision. This conclusion is not inconsistent with the special 85, 59 Atl. 387. The grounds upon which the finding that the plaintiff's “never assented plaintiffs desire a re-examination of these to a sale by the trust company to the traction questions are highly technical; and, as it is company"; for the sale or contract to which found that the contracts were not unconthis finding relates is the supposed contract scionable, and were not procured through or sale of December 28th, as modified by the fraud, justice does not require the adoption

of such a course. trust company's letter of January 3d, and

Plaintiffs' exceptions overruled. not the contract or sale by the Connecticut company to the trust company which we are now considering. And if the finding that PEASLEE, J., did not sit. The others con''the plaintiffs knew of the contract of De curred.

rendered and reported in 29 R. I. 112, 69 CAMPBELL V. CAMPBELL et al. Atl. 294. The declaration was sustained by (Supreme Court of Rhode Island. Feb. 17, proof at the trial of the case. The judge 1909.)

made no reversible error in his rulings or Action by Elisha J. Campbell against George charge, and we cannot say that the damages E. Campbell and others. Verdict for defend-awarded by the jury are excessive. ant, and plaintiff petitions for new trial. Continued.

For these reasons the exceptions of the de. Green, Hinckley & Allen, for petitioner.

fendants must be overruled, and the case is James Harris and Irving Champlin, for re- remitted to the superior court, with direction spondents.

to enter Judgment on the verdict. PER CURIAM. The first three grounds relied upon by the petitioner in support of his pe

On Rehearing. tition for a new trial are not sustained by a

PER CURIAM. The defendant's applicapreponderance of the evidence.

Upon the fourth ground, which charges an tion for a rehearing presents no new matter abuse of judicial discretion on the part of the for consideration. It resta tes arguments that justice who presided at the trial, the court de- were fully presented at the hearing of the sires an' affidavit from the witness Bradford Campbell

, setting forth the testimony which he case, which have been duly appreciated. We could properly have given in rebuttal, to be filed see no reason to change our former decision. on or before March 1, 1909, and the case will be The application is therefore denied. assigned to March 10, 1909, for further hearing upon the effect of the exclusion thereof.

(82 Vt. 69)

CALDBECK v. SIMANTON.
WEEKS v. FLETCHER et al.

(Supreme Court of Vermont. St. Johnsbury. (Supreme Court of Rhode Island. Feb. 17,

Feb. 13, 1909.) 1909. On Rehearing, Feb. 25, 1909.)

1. ARREST (8 15*)-GROUNDS-FRAUD-CHARGE DAMAGES (8 132*)-PERSONAL INJURIES-EX- -SUFFICIENCY. CESSIVE DAMAGES.

Where a declaration alleged that plaintiff One with a life expectancy of about 16 bargained with defendant for the purchase of a years and an earning, capacity of about $15 a diamond, that defendant sold him the diamond week was injured. He sustained a permanent for a certain price by falsely and fraudulently injury to his skull, which affected his eyesight warranting that it was a perfect stone, when in and hearing. He would never be able to do any fact it was defective, and that defendant therehard work, and age would tend to aggravate by "falsely and fraudulently deceived him," but the trouble. His earning capacity had been did not allege that defendant knew that the repgreatly reduced. Held, that a verdict of $7,000 resentation was false, the action was founded was not excessive.

on contract, since the law raises no presumption [Ed. Note. For other cases, see Damages, of knowledge of falsity from the mere fact that Cent. Dig. $$ 372-38); Dec. Dig. 132.*] the representation was false, and service by

arrest was unauthorized. Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Dig. 88 40-43; Dec. Dig. & 15.*]

[Ed. Note.-For other cases, see Arrest, Cent. Stearns, Judge,

2. DISMISSAL AND NONSUIT (8 57*)-DEFECTS Action by Stephen P. Weeks against Charles

IN PROCESS. Fletcher and others. There was a verdict for Where a writ issued as a capias on which plaintiff, and defendants bring exceptions. defendant's body was arrested set up defendant Overruled, and cause remitted, with direc-state, this was a sufficient determination of res

as of a certain town in a given county of the tions for judgment.

idence for the purpose of defendant's motion to This was an action for personal injuries. dismiss the case on the ground that the action

was founded on contract. Plaintiff, having a life expectancy of about

[Ed. Note.-For other cases, see Dismissal and 16 years and an earning capacity of about Nonsuit, Cent. Dig. 133; Dec. Dig. § 57.*] $15 a week, was injured. He sustained a permanent injury to the skull. He would

Exceptions from Caledonia County Court;

Willard W. Miles, Judge. never be able to do any hard work, and age would tend to aggravate the trouble, which

Action by George Caldbeck against Charles

There had affected both his eyesight and hearing. Simanton. Plea, the general issue. The trial occurred two years after the injury, was a trial by jury, and verdict and judg. and since the injury plaintiff had only aver

ment for plaintiff. During the trial, and aged $1 a week as photographer, while before before plaintite rested, defendant moved to he had averaged from $8 to $10 a week. He dismiss the case because the action was obtained a verdict for $7,000.

founded on contract, and the writ was issued See 29 R. I. 112, 69 Atl. 294.

as a capias on which defendant's body was

arrested. The motion was overruled, and Albert B. Crafts, for plaintiff's. Vincent, defendant excepted. Judgment reversed, moBoss & Barnefield and Cyrus M. Van Slyck, tion to dismiss sustained, and writ dismissed. for defendant.

David E. Porter and Simonds & Searles, PER CURIAM. The law governing this for plaintiff. Harland B. Howe and Herbert case is contained in the opinion heretofore I w. Hovey, for defendant.

*For other cases see samo toplo and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexer MUNSON, J. The plaintiff declares, in, kins, 1 Doug. 17. Since then assumpsit and substance, that he bargained with the de- case have been recognized as concurrent fendant for the purchase of a diamond, and remedies for breach of warranty. Williamthat the defendant sold him the diamond son v. Allison, 2 East, 446; Beeman v. Buck, for a certain price by "falsely and fraudu- 3 Vt. 53, 21 Am. Dec. 571; 19 Enc. Pl. & Pr. lently warranting” it to be a perfect stone, 82, and cases cited. when, in fact, it was not a perfect stone, but Closely connected with the subject of wardefective in certain respects stated, and that ranty is that of deceit by fraudulent reprethe defendant thereby "falsely and fraudu- sentations. The two grounds of liability are lently deceived him." The service was by entirely distinct, but both may be developed arrest, and the case stands on a motion to by one affirmation. The evidence may make dismiss. The defendant argues that no the affirmation either a deceit or a warranty, scienter is alleged ; that the declaration is or both. The allegations of a declaration in case for a breach of warranty; that charging deceit by means of a false warranthere could be no recovery without proving ty, and of one charging a deceit independent the warranty; and that this conclusively de- of warranty, are in other respects substantermines that the action is founded on con- tially the same, as is indicated by the first tract. No point is made distinguishing be counts of the forms in 2 Chitty, 687, 688. If tween the counts.

the allegation of knowledge in a declaration In 2 Chitty's Pleading, 279, there is a form following the first count of the first of these for declaring in assumpsit on a warranty, forms be treated as surplusage, the case be and at page 679 there is one for declaring comes an action of tort for a breach of warin tort on a warranty. The latter form is ranty. This treatment of a declaration so the one used here. The two forms were framed was sanctioned in Williamson v. Al. joined in one declaration in Dean v. Cass, 73 lison, before cited, and that case has since Vt. 314, 50 Atl. 1085, and the second was been generally followed. The recognition of held to be in tort and improperly joined with assumpsit and case as concurrent remedies the first. So the declaration before us may for breach of warranty, and the decision in be classed, without special examination, as Williamson v. Allison regarding the scienin form a declaration in tort. In pursuing ter, have led to the adoption of forms conthe inquiry further it will be well to have in fessedly designed to enable the plaintiff to mind the nature of a warranty, and the recover for a breach of warranty or for de history and characteristics of the remedies ceit, as the case might develop. A short decpermitted for a breach of it. The ordinary laration, framed in this double aspect, was warranty relates to the condition of the used in Beeman v. Buck, 3 Vt. 53, 21 Am. property at the time of the sale. Such a war- Dec. 571; Vail v. Strong, 10 Vt. 457; West ranty, if broken at all, is broken when made. v. Emery, 17 Vt. 583, 44 Am. Dec. 356; GoodeThe breach consists in the fact that the prop- nough v. Snow, 27 Vt. 720; Pinney v. Andrus, erty is not as it is stated to be. The war. 41 Vt. 631. This declaration, given in full ranty may be made merely as an assumption in the case first cited, avers that the de of a contract obligation, or it may be deceit- fendant deceitfully sold the property by warfully made with a knowledge of its falsity. ranting it to be as described, "well knowing" In either case it is made to induce the pur- | it to be otherwise. The first count of the chase. Personal actions either for form in 2 Chitty, 687, before referred to, is breaches of contract or for wrongs uncon- a more formal declaration of the same charnected with contract; assumpsit being in the acter. This form was followed in Harlow v. first class, and case in the second. Chitty, Green, 34 Vt. 379, and was apparently the 97. The original action on the case, permit- basis of the declaration in Whitton v. Godted in suits for which the established forms dard, 36 Vt. 730. The direct allegation of were not adapted, was not similar to the knowledge contained in the phrase "well present action of assumpsit, but resembled knowing” or its equivalent is ordinarily emrather the present form of a declaration in ployed in declarations which claim a recorcase for a tort. Chitty, 99. It was at first ery on the ground of deceit, and its absence difficult to distinguish assumpsit from case; from the declaration used here is the basis of and the early decisions in actions on war- the defendant's claim. ranties were made before the boundary be- The plaintiff claims that a sufficient avertween the two remedies was well defined. ment of knowledge is contained in the form Note to Chandelor v. Lopus, 1 Smith Lead. used. The inclusion of this form under the Cas. 178. The practice of declaring in tort general marginal heading of "deceit" is of for warranty broken originated in this early little consequence, especially in view of the period; and the remedy then adopted contin- early history of the subject. It is not probued in almost exclusive use until the middle able that Mr. Chitty considered the allegaof the eighteenth century. As late as 1778, tions sufficient to show knowledge; for in Lord Mansfield considered an action of as- subsequent forms for deceitfully selling propsumpsit for a breach of warranty so peculiar erty by falsely and frauduently warranting that he reserved the question of its sufficien- it the usual scienter is employed. The concy; and this method of declaring was then cluding averment that the defendant thereby

are

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