Nashua & L.R. Corporation v. Boston & L.R. Corp.
| Decision Date | 04 September 1895 |
| Parties | NASHUA & L.R. CORP. v. BOSTON & L.R. CORP. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.S Hall and
F.A. Brooks, for plaintiff.
J.H Benton, Jr., for defendant.
1. The iron of the Boston & Lowell Railroad being at the outset in worse relative condition than that of the Nashua & Lowell Railroad and branches, it was agreed that in the final settlement of the contract the iron of the Boston & Lowell road should be left in the same relative worse condition, or otherwise its improved relative condition should be paid for by the Boston & Lowell Railroad Corporation on its separate account. The existing difference at the outset was appraised as equivalent to the cost of replacing 300 tons of old rails with new. The report finds that at the termination of the contract the rails of the Boston & Lowell road were not in a relatively worse condition than those of the Nashua & Lowell road, and that the cost of replacing 300 tons of old rails with new was agreed by the parties to be $9,711.88. The report further finds that whatever was expended upon the roadbed of the Boston & Lowell road during the existence of the contract was from the joint fund. It thus appears that, instead of the Boston & Lowell Railroad Company's paying for the improvement on its separate account, the improvement was paid for out of the joint fund, in which the plaintiff was interested to the extent of 31 per cent. The amount, therefore, which the plaintiff could recover for this item is 31 per cent. or $9,711.88, or $3,010.68. Nashua & L.R. Co. v. Boston & L.R. Co., 157 Mass. 268, 31 N.E. 1060.
2. The defendant, however, contends that the traffic contract was ultra vires, and that neither corporation had power, under its charter, to agree with the other to operate their railroads as one road. No authority has been cited in favor of this view, but it would seem to be supported by decisions in New Hampshire. Burke v. Railroad Co., 61 N.H 160. See, also, Boston, C. & M.R. Co. v. Boston & L.R. Co., 65 N.H. 393, 23 A. 529. We do not, however, need to enter upon this question, because the plaintiff's suit, to the extent above mentioned, may be maintained on an independent ground. The joint manager, without authority either under the contract or otherwise, used the joint fund belonging to the two railroad companies for the improvement of the relative condition of the defendant's road. In this way the defendant has without right received the benefit of funds belonging to the plaintiff, and an action may be maintained to recover for the same, even though the traffic contract was ultra vires. Woollen Co. v. Lamb, 143 Mass. 420, 9 N.E. 823; Nims v. Mount Hermon Boys' School, 160 Mass. 177, 35 N.E. 776; L'Herbette v. Bank, 162 Mass. 137, 38 N.E. 368; Central Transp. Co. v. Pullman's Palace Car Co., 139 U.S. 24, 60, 11 Sup.Ct. 478; Bank v. Townsend, 139 U.S. 67, 74-76, 11 Sup.Ct. 496; Manchester & L.R. Co. v. Concord R.R. (N.H.; 1890) 20 A. 383; Central Trust Co. v. Ohio Cent. R. Co., 23 F. 306.
3. The defendant further contends that the plaintiff is estopped to maintain this suit by the judgment or decree entered in favor of the plaintiff against the defendant in the circuit court of the United States. No authority is cited in support of this view. It appears that the plaintiff brought a bill in equity in that court against the defendant upon the claim now in suit here, and upon other distinct claims; that, after issue was joined therein, the plaintiff moved for leave to amend its bill by striking out the present claim; that, after a hearing, this motion was denied by the court; that thereupon the plaintiff filed in the circuit court a paper disclaiming and discontinuing its bill as to said claim; that this paper was filed without leave of court and there was never any order of court upon it; that, after various intermediate proceedings, a final decree was entered in the circuit court for the plaintiff for one of the claims set forth in its bill, no mention being made therein of the claim now in suit; and that afterwards said decree was performed and satisfied of record. The defendant has not, in its answer, averred, nor by its evidence proved, that the present claim was in fact argued, considered, or determined in the circuit court. The report is silent upon this point. If this had been done in point of fact, of course the present suit could not be maintained. What we have to consider is whether, upon the case as it is presented to us, we should assume that it was so determined; and whether, looking merely at the record, the legal effect of the former decree is to estop the plaintiff now. In the first place, it is clear that the plaintiff's attempt to withdraw the present claim from that suit in spite of the refusal of the court to permit such withdrawal, was nugatory. The case stood thereafter just as if no such attempt had been made. No doubt, as a general, though not universal, proposition, at any time before a hearing, the court, on application made, will allow a plaintiff in equity to dismiss his whole bill as of course upon payment of costs. Kempton v. Burgess, 136 Mass. 192. Such dismissal, however, is not made without an order of court; and there may be facts which would lead the court to refuse to allow it. Chicago & A.R. Co. v. Union Rolling-Mill Co., 109 U.S. 702, 713, 3 Sup.Ct. 594; Stevens v. Railroads, 4 Fed. 97; Badger v. Badger, 1 Cliff. 237, Fed.Cas. No. 717; Folger v. The Robert G. Shaw, 2 Woodb. & M. 531, Fed.Cas. No. 4,899; Wilkinson v. Wilkinson, 2 R.I. 414; Cozzens v. Sisson, 5 R.I. 489; Electric Accumulator Co. v. Brush Electric Co., 44 F. 602; Manufacturing Co. v. Waring, 46 F. 87, 106; Hershberger v. Blewett, 55 F. 170; City of Detroit v. Detroit City Ry. Co., Id. 569. Where a plaintiff wishes to dismiss his bill as to a part of the relief prayed for, the proper way is to apply for leave to amend by striking out. Railroad Co. v. Stewart, 19 N.J.Eq. 69. This the plaintiff did, and his motion was denied. The defendant was therefore entitled to treat the claim now in suit as still a part of the matter to be heard and determined in that suit. It does not necessarily follow, however, that the judgment in that case is a bar to the present suit. It has been held elsewhere that, if a plaintiff sues in one action for several distinct demands, and obtains a general verdict and judgment, the record of such judgment is not conclusive evidence that all of the demands were included therein, and will not bar a subsequent action for such as, in fact, were not adjudicated upon. Seddon v. Tutop, 6 Term R. 607; Paine v. Insurance Co., 12 R.I. 440; Hungerford's Appeal, 41 Conn. 322; Supple v. Cannon, 44 Conn. 424; Allebaugh v. Coakley, 75 Va. 628; Wheeler v. Van Houten, 12 Johns. 311, dictum. See, also, Freem.Judgm. § 272 ad finem. This...
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