CHAPTER III.

APPLICATION OF THE DOCTRINE TO THE CONTRACTS AND TORTS OF CORPORATE CARRIERS BEYOND THEIR CORPORATE LINES.

SIXTH SELECTED CASE.

HOOD V. THE NEW YORK AND NEW HAVEN RAILROAD COMPANY.*

The agent of the defendants, who were a railroad corporation running their cars from N. H. to P., sold the plaintiff a ticket for the fair from N. H. to C., which was five miles beyond P.

The plaintiff, for injuries which he received in a stage running between P. and C., brought his action upon a special contract to carry him safely by railroad and stage from N. H. to C.

For more than six months before, and at the time of such sale, the defendants, through their agents, had been and were in the daily usage of entering into and fulfilling contracts identically like that alleged in the declaration, and during said entire period had permitted their agents publicly to represent them as vested with the powers requisite for such a purpose. The plaintiff, knowing such representations and believing them to be true, was thereby induced to enter into and pay the consideration of said contract, which otherwise he would not have done. But the defendants had not the power, under their charter, to enter into the alleged contract, and had never by any corporate vote expressly authorized or sanctioned the same, nor had their directors by any vote directed any such contract to be made.

Held, That the defendants were not estopped to claim that under their charter they had no power to enter into the alleged contract, and that it was not obligatory upon them.

* Reported in 22 Conn., 502 (1853).

A NEW trial having been granted by this court in the case of Hood v. The New York & New Haven Railroad Company, the cause came on again for trial before the jury at the term of the Superior Court for New Haven county, holden in January, 1853.

Upon the trial to the jury, the plaintiff introduced in evidence the charter of the defendants and the charter of the New Haven & Northampton Company, a railroad corporation incorporated by the legislature of this State for the purpose of constructing a railroad from the city of New Haven to the village of Plaineville, in the town of Farmington, and of extending the same thence northerly to the north line of the State; also a lease from the latter company of their entire road to the defendants.

The plaintiff offered evidence to prove and claimed that he had proved the contract as set out in his declaration.*

The plaintiff offered evidence to prove and claimed that he had proved the contract as set forth in his declaration.

The defendants denied ever having made such contract, and further claimed that if such contract were proved it was not

*The substance of the declaration, as reported in this case, in the same volume, page 1, is as follows: "This was an action founded on a special contract of the defendants to carry the plaintiff safely by means of railroad cars and stages from the town of New Haven to the village of Collinsville." The declaration, after stating the undertaking of the defendants, alleged that on the 15th day of January, 1850, while the plaintiff was a passenger to be conveyed by the defendants upon the route from New Haven to Collinsville, it became and was the duty of the defendants to use proper care in safely and securely conveying the plaintiff by means of said cars and stages from New Haven to Collinsville; yet the defendants, not regarding their undertaking, did not use proper care, but before the plaintiff had arrived at the terminus of said route in Collinsville; viz., at Farmington, they negligently, carelessly and unskillfully caused him to be placed in a certain sleigh, or carriage upon runners, for the purpose of conveying him over the remaining part of said route; and through the carelessness, negligence and unskillfulness of the defendants and their servants and agents said sleigh, or carriage upon runners, was upset and thrown upon its side, by means whereof the plaintiff, being therein, was severely and dangerously wounded, bruised and injured, and one of his legs was crushed and the bones thereof were broken in divers places, and its arteries ruptured, and by means of the premises the plaintiff became and was lame and disordered, and so continued for a long space of time," etc.

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obligatory upon them for the reason that, under their charter, they had no power to enter into any such contract, and prayed the court to so instruct the jury. "The court, upon this subject, did inform the jury that the defendants had not, under their charter, the power to enter into any such contract, and that the same, if proved, would not be obligatory upon them unless they were estopped from denying their power, as claimed by the plaintiff."

The plaintiff also offered evidence to prove, and claimed that he had proved, that the defendants, from the time of their taking possession of the canal road, under the aforesaid lease, and for a period of more than six months anterior to the making of the alleged contract with him, had been and were in the daily usage of entering into and fulfilling contracts identically like that alleged in the declaration; that during that entire period they had publicly represented and held themselves out to the community through their duly authorized agents as vested with powers requisite to enter into and fulfill such contracts, and during that entire period had knowingly permitted their agents to represent the said company as vested with the aforesaid powers; that the plaintiff, knowing of such representations, and believing them to be true, and being ignorant of the corporate powers of the defendants, was thereby induced to enter into said contract and pay the defendants therefor the consideration demanded by them, which should not have been done had he not known of such representations and believed them to be true. The plaintiff thereupon claimed that if the jury should find the facts to be as claimed by him the defendants were estopped from denying the obligation of said contract, and requested the court to so instruct the jury.

The defendant denied that the facts were as claimed by plaintiff and introduced evidence to disprove the same.

The evidence in support of the plaintiff's claim consists of certain acts and declarations of the agents of the defendants in issuing and selling tickets and making contracts for the transportation of passengers similar to the one claimed to have been made with the plaintiffs, and in receiving and paying over to the proper officers of the company the moneys received from the sale of such tickets, and the transportation of such

passengers, and the continuance of such acts, for so long a time and in a manner so public and notorious that, as the plaintiff claimed, they must have been known to the directors and stockholders of the company; and that, after such acts had become so known, the said agents were suffered to continue them without objection from any one.

But there was no evidence that the defendants, by any corporate vote, had ever expressly authorized or sanctioned the making of any such contract as the plaintiff claimed had been made with him. Nor was there any evidence that the directors of said company had, by any express vote or order, directed any such contract to be made. But it was proved and not denied that they had appointed the proper officers and agents of said company, and without giving them any particular instructions upon the subject, had permitted them, without objection on their part, to make the declarations and perform the acts aforesaid.

The defendants thereupon claimed that even if the jury should find the facts to be as claimed by the plaintiff, they were not estopped from denying the obligation of said contract, because they could not, in any manner, be estopped from denying the validity of the contract, which, by the terms of their charter, they had no power to make. And they further claimed that they could not be estopped by any acts, declarations or contracts made by any of their officers or agents, which they did not expressly authorize to be made, and which, by their charter, neither the company nor their officers, or agents, were authorized to make, and prayed the court so to instruct the jury. The court did not instruct the jury in the manner claimed by the defendants, but charged them in conformity with the claim of the plaintiff.

The jury having returned their verdict in favor of the plaintiff the defendants moved for a new trial, claiming that the court erred in omitting the charge to the jury as requested by them, and the questions thereon arising were preserved for the consideration and advice of the court.

ELLSWORTH, J. This case was before the court at its last session, when we granted a new trial for a verdict against evi

dence. The question now presented was not then adjudicated, though it was alluded to in the arguments of counsel, and in the opinion of the court, as one of great importance. There was another ground for granting the new trial, entirely satisfactory to the majority of the judges, and this was passed by. It is now distinctly presented for our judgment, and is the only question on the record.

After the fullest consideration, with the aid derived from the learned and able arguments at the bar, a majority of the court do not hesitate to hold, there must be a new trial. It will be noticed that the suit is upon a special promise of the defendants to carry the plaintiff from New Haven to Collinsville; not an action against common carriers for an injury suffered while passing over their road, nor as founded upon a responsibility growing out of such relations. This would not answer for the defendants could not be common carriers, except on their own road; so the pleader declares upon a special undertaking of the defendants, aside from their appropriate line of duty, and the attempt is to subject them on that undertaking and on nothing else.

It is found that the defendants had no power to enter into the undertaking in question, and therefore as ground of claim, it must be agreed the undertaking merely is of no avail, for the reason that the directors, having no authority, did not in legal estimation make the contract for the company. The question is, are the defendants estopped setting up this in their defense? The statement of the case carries on its very face conviction to the mind that it cannot be so. The defendants estopped from denying that they have done what they never could have done! It is a question of power under the charter; and however individuals may be liable and estopped, who untruly hold themselves out as clothed with power, the defendants cannot be estopped on any such principle of law known to the court. The notion of an estoppel in pais, to which class, if any, this estoppel belongs, proceeds on the idea of acquiescence or consent; a consent expressly or impliedly given by the party claimed to be estopped. Of course, there must be a legal possibility, or there can be no real or supposed acquiescence and consent, and where consent may be given