Beveridge v. New York Elevated Railroad

The plaintiff’s testator, in March, 1883, was the owner and holder of a certificate for one hundred shares of the capital stock of the defendant, the New York Elevated Railroad Company, on the margin of which were engraved the following words: “The Manhattan Railway Company, for value received, has agreed to pay to the New York Elevated Railway Company an amount equal to ten per cent per annum on the capital stock of the latter company; that is on six and one-half millón dollars payable quarterly, commencing January 1, 1880.” . There was no signature to this marginal writing. The certificate of stock was issued in the name of S. T. Russell & Co., and the plaintiff’s testator acquired its possession under an assignment, in blank as to names, etc., printed in the usual form upon its back and signed by S. T. Russell & Co. Testator, in July, 1884, commences this action and he seeks therein to obtain a judgment; first, that the New York Elevated Railroad Company be compelled to transfer the stock on its books and to issue in its place to him a new certificate, upon which should be the same words as were upon the margin of the old certificate; second, that the Manhattan Railway Company be compelled to pay to the said New York company an amount equal to ten per cent per annum on the capital stock of the latter company, from July 1, 1881, to July 1, 1884; and, third, that out of

In order to better understand the nature of this claim, and the grounds upon which are based our conclusions with respect to it, some review of the principal facts and corporate transactions of these two companies as they appear from the record before us is necessary.

Though the legal questions presented are grave and of considerable importance as to the parties defendant, they are within a comparatively narrow compass. In May, 1879, the defendants, the New York, and the Manhattan Railway companies united with the Metropolitan Elevated Railway Company in the execution of a tripartite agreement, by the terms of which the New York and Metrópoli tan companies were to lease their railways and appurtenant properties and franchises to the Manhattan company for a term of 999 years. There was reserved in that agreement as to each of the lessor companies, the obligation of discharging certain liabilities incurred by, or possibly accruing to them and of meeting all claims, in action or otherwise existing against them on January 31, 1879.

On its part the lessee company assumed certain liabilities of the lessors, agreed to pay an equal amount of first mortgage bonds of each company and to do various other things expressed therein, or in the annexed form of lease; but with its other provisions we are not particularly concerned. In accordance with this agreement the New York Company executed the lease, in a form described in the tripartite agreement, to the Manhattan Company, in May, 1879. By its provisions the Manhattan Company agreed to pay a fixed sum of $10,000 a year, semi-annually, and by the following article, “guaranteed to the New York Company an annual dividend of ten per cent on the capital stock of the New York Company, to the amount of $6,500,000; that is to say, the Manhattan Company will, each and every year- during the term hereby granted, beginning with the first day of October,- 1879, pay to the New York Company $650,000, free from all taxes, in equal quarter yearly payments of $162,500 each * * * and the Manhattan Company will, from time to time, execute in proper form a guaranty to the above effect, printed or engraved upon the certificates of stock of the New York Company, and, as such stock certificates are surrendered for cancellation and re-issue, will, from time to time, upon request of the holder, renew such guaranty upon all re-issued certificates.”

By a subsequent article that company further agreed, “in

A similar lease was executed by the Metropolitan Company, of its railroad and appurtenant property, to the -Manhattan Company.

In July, 1881, the Manhattan Company made default in the payments called for by the leases and the attorney-general of the state instituted an action in the name of the people to obtain a decree for the dissolution of the corporation on the ground of its insolvency, among others, and other actions were brought, prior to that date, by bondholders of the lessor companies, for certain equitable relief, which also were based on such insolvency.

The net earnings from the operation of the leased roads had not amounted to what had been expected, as the result of their being placed under one management, and, in addition to that fact, the taxes wdiich were assessed upon the properties appear to have been larger in amount than anticipated, and the result was that the Manhattan company was unable to fulfill its engagements. The court in the people’s action appointed two receivers for the Manhattan company, who continued in possession for several months. Meanwhile contests were waged for the possession of the leased properties and for the establishment of claims against them in behalf of the lessee, and negotiations were ,set on foot for the settlement of these difficulties. In October, 1881, these negotiations resulted in agreements made for the three companies by their boards of directors, by which the leases were modified in certain respects, but the principal features of which were a ’reduction in the payments required of the lessee company on the capital stock of the lessors from ten to six per cent, and in making the payments to the New York company preferred over that, due to the Metropolitan company. Thereafter an order of the court was obtained in the people’s suit, directing the restoration by the receivers to the Manhattan company of the properties in their possession. In November of the same year the boards of directors of the three companies made an agreement for the transfer or merger of the capital stock of the. lessor companies into that of the lessee, tinder its provisions, the stock issued in exchange for the stock of the New York company was to be called first preferred stock, and became entitled from net' earnings to the payment quarterly of dividends, at the annual rate of six per cent, before any other class of stockholders, that is, of the other companies, should receive any dividends. The Metropolitan stockholders were to receive second preferred stock of the Manhattan company, which should be .entitled to similar dividends, but only after the payment of

At the annual meeting of stockholders of the New York Company, in January, 1882, on the question of their approval of these October and November agreements, a vote of 25,904 shares was cast in favor and of 737 shares in opposition. The amount of capital stock of the New York Company was 65,000 shares. In January, 1882, a majority of that stock had been converted into the first preferred stock of the Manhattan Company, and by May 6, 1884, before this plaintiff’s testator’s demand, and the commencement of this action, 58,011 out. of the 65,000 shares had been so converted. On January, 31, 1882, the Manhattan directors, by resolution, elected to become, ex officio, directors of the New York Company. Holders of the Metropolitan Company’s shares, whose interests were only in that company, or were greater than in the other companies, were not so well satisfied with the October agreements, and in December, 1882, a month after the election of a board of directors, composed of persons other than in the previous board, a suit was instituted in the common pleas of New York, by the Metropolitan Company, as plaintiff, against the Manhattan and the New York Companie' as defendants, to set aside the agreements. A decision was had in May, 1884, declaring those agreements to be null and void as to all the parties thereto. The opinion, upon which this decision was entered, was rendered by Judge Van Brunt, and is a most able and exhaustive review of the law relative to the government of corporations, their powers, and the duties of directors to stockholders. The effect claimed for his decision by this plaintiff. is, that as between these companies it is res adjudicata, and restored the contract in the lease of 1879, with the same obligation, as though it had never been modified or changed by subsequent agreements. That cannot be so, and a consideration of the issues presented and tried, will dispose of any such claim and may as well be made at -this point.

The Metropolitan Company alleged, as grounds for its action, the lack of power in its directors to modify the tripartite agreement and lease without the consent of its stockholders; the fact that three of its directors were, at the time of making the October agreements, also directors of the Manhattan Company; that the personal interests of

The issues thus presented for trial and judgment were as between the Metropolitan Company, on the one hand, hostile to the agreements, and the Manhattan and New York Company, on the other hand, uniting in asserting the good faith and validity of all that had been agreed to and done between the companies, and insisting upon the indissoluble nature of the corporate relations which resulted from the making of the October and November agreements. What was decided was that the October agreements were voidable at the election of the Metropolitan Company, on the ground that its directors had no power to make them without the consent of the stockholders, and that even if they had such power, the presence of directors in the Metropolitan board, who were also directors in the Manhattan Company at the time of the adoption of the October agreements, gave either company the right in equity to repudiate those contracts, although they may have beeh perfectly valid at law. The judgment in thát action was that all the parties thereto were relieved from the October agreements.

I do not deny that the legal effect of the judgment in the action referred to was to destroy the contractual relation which had been formed between the companies. Inasmuch as the agreements were tripartite in their nature, a decree relieving one of the parties from their obligations would of necessity, by destroying their mutuality, annul the whole contract. But that decree was not res adjudicata upon any question arising between the stockholders of the New York Company and the Manhattan Company, or as to what was the attitude of the New York Company towards its corporators under the agreements of October and of November, nor affected the acts done under them.

The plea of res adjudicata is not available to parties in an action, unless the judgment set dp was rendered upon issues between them. There must have been a controversy between the parties, the questions in which were, or might, within the issues formed, have been competently adjudged.

But in that action of the Metropolitan company referred to there was no litigation between the New York and Manhattan companies defendants thereto; nor was there any dispute between them, or any variance in matters relied upon as defenses to the maintenance of the action. The

After the decision in that action, the directors of the New York company, who were and had been since January, 1882, the same as those of the Manhattan company, took action which resulted in a surrender by the Manhattan company to the New York company of all the property which had been leased to it in 1879 and a re-transfer of the exchanged capital stock. The New York company thus re-possessed itself of and operated its railway and properties. This step was a not unnatural consequence of the judgment in the Metropolitan company’s action annulling the previous agreements between the companies, and seems to have been approved of by the vote of a majority of the New York company’s stock at the meeting held on May 6, 1884.

On August 1, 1884, agreements were entered into for a new lease of the New York company’s property to the Manhattan company, and also for the merger and consolidation of all three companies; but I fail to see how, for the disposition of this case, it is at all necessary for us to consider the detailed steps which Jed to their making, or the legality or effect of their consummation. The learned trial judge, in refusing to pass upon various requests to find with respect to the evidence as to the negotiations and acts of the directors after the surrender of the leased property in May, 1884, and as to what was done by stockholders and directors on August 1, 1884, towards'the new lease and the .consolidation of the companies, placed his refusal on the ground of their immateriality, and I think he committed no error in so doing.

This suit was commenced in July, 1884, upon a demand made on May 22, 1884, and the claim of the plaintiff does not seem to involve any other examination of this rather voluminous record than such as to see whether he, as a holder of the New York company’s stock, has been injured in any legal rights and is entitled to equitable relief for their enforcement or protection.

His counsel insists, in that behalf, that the agreement in the lease of -1879, with respect to the guaranty by the lessee company to make payments to the lessor company at the rate of ten per cent annually, and which we have cited in full, enured to the benefit of the stockholders in the lessor company, so as to warrant the interposition of a court of equity in his favor, compelling a performance of the agreement in its fullest import. He says that the con

In the case cited, Ruger, Ch. J., delivering the opinion of the court, cites several cases in this court as authorities and shows, by reference to several subsequent acts of the legislature, that no subsequent legislation has impaired the powers conferred by that act, but that subsequent legislative enactments recognize the validity of leases made under its provisions. In People v. O'Brien, Rec'r, etc., lately decided by us ( 111 N. Y., 1 ; 19 N. Y. State Rep., 173), it was held that the act of 1839 continues in force and unaffected with respect to its general grant of power to railroad corporations to make traffic contracts with each other for the use of their respective roads. The power conferred by this law is to be exercised as any other power of a corporation is where the mode of exercise is not prescribed by the charter or general laws applicable thereto.

All powers directly conferred by statute, or impliedly granted, of necessity, must be exercised by the directors who are constituted by the law as the agency for the doing of corporate acts. The expression of the corporate will and the performance of corporate functions in the management of a corporation may originate with its directors, where the law or the by-laws have not expressly restricted their authority and made their action to rest for its validity upon the concurrence of the stockholders by previous action or subsequent ratification.

Within the chartered authority they have the fullest power to regulate the concerns of a corporation according to their best judgment, and contracts which the corporation could legitimately make came within the scope of the ordinary powers of corporate management. Leslie v. Lorillard, 110 N. Y., 536 ; 18 N. Y. State Rep., 520.

The duties of directors are of the most responsible kind, and it is in the purview of the law that they should be held

Judge Comstock, in Hoyt v. Thomson's Executors ( 19 N. Y., 216 ), said: “The board of directors of a corporation do not stand in the same relation to the corporate body which a private agent holds towards his principal. In the strict relation of principal and agent, all the authority of the latter is derived by delegation from the former. * * * But in corporate bodies the powers of the board of directors are, in a very important sense, original and undelegated. The stockholders do not confer, nor can they revoke, those powers. They are derivative only in the sense of being received from the state in the act of incorporation. The directors convened as a board are the primary possessors of all the powers which the charter confers. "x" * *”

It is difficult to find a solid foundation for the argument which denies to the directors the power of making a contract which the law expressly permits the corporation to make without the authorization of the stockholders. If it is deemed to be too extensive a power to be vested in the

What we hold here is that a contract for the leasing of one railroad to another is within the original powers of a board of directors to make, because it is a power conferred upon the corporation by the legislature, which lodges primarily in its directors, to be exercised when, according to their best judgment, the needs or interests of the corporation require it. What business a corporation can do within its chartered limits, and in or about that business, by statutory authority, its directors hold a delegated power from the legislature to do for it. The fact that in this case the assent of the stockholders was secured to the lease does not affect the question. It is a very proper and reasonable precaution to take, in view of its being an important disposition of property and one which, I should think, would naturally be taken.

It follows from what we have said that the plaintiff’s theory of the privity and relations of his assignor to the lease of 1879, and of beneficial rights accruing thereby to and enforceable by him, is untenable.

Eegarding, then, the lease itself and the so-called guaranty which is contained among its provisions, I find therein no contract made with individual stockholders, but only one made with the Yew Yprk Company, which stipulates for the payment of a sum of money equal to ten per cent upon the capital stock of that company. There is no contract to pay ten per cent dividends to individual stockholders upon their holdings; nor any contract that the Yew York Company will pay it out in the shape of ten per cent dividends to its stockholders. Payments under that contract are to and for the lessor corporation and go into its treasury, as would any other moneys or revenues derived from or produced by corporate property.

The statement upon the certificate of stock, which the plaintiff attaches such importance to, of itself, certainly, is no contract by the Manhattan Company, for it is not even signed. On its face, it only purports to be a statement of a fact, having reference to an agreement made with the Yew York Company. Undoubtedly the effect of this statement may have been to give an .enhanced value to the shares of stock of that company in the market; not because the purchaser was buying securities on which were guaranteed to be paid to the holder ten per cent dividends; but because it conveyed information to those proposing to invest, that a fund had been provided for, by agreement, out of which dividends might be paid. The knowledge was communicated as to the amount of rental moneys, or revenues, which the company was in receipt of and which were avail

The certificate of stock in Boardman v. Lake Shore and Michigan Southern Railway Co. ( 84 N. Y., 157 ), read that the stock was entitled to dividends at the rate of ten per cent per annum and at the top of the certificate were the words, “guaranteed ten per cent stock.” The interpretation given was that the dividends were not only preferred; but, being guaranteed, were to be paid before any dividends were divided upon the common stock. In that case resort to the evidence of the resolutions and proceedings of the company was deemed competent to show the real character-of the corporate transactions underlying the issue of the stock and which the certificate of stock to some degree evidenced. Miller, J., in his opinion in that case has cited a number of authorities warranting such resort in cases relating to the power to create preferred or guaranteed stock.

In the stock certificate in Barr v. N. Y., L. E. and W. R. R. Co. ( 96 N. Y., 444 ), the obligation of the Erie Railway Company ran to the ‘ ‘ holders ’’ thereof. In the present case nothing in the langfiage of the certificate imports any agreement with its holder for the payment of any dividends whatever, and if we resort to the evidence of the corporate proceedings, we find none giving him a right to dividends in the future, or creating an obligation enforceable by him for the payment of dividends upon his stock. Judge In-graham in his able opinion in Harkness v. N. Y. El. R. R. Co. (11 N. Y. State Rep., 732), a case involving a similar question, analyzes the agreement in the lease in question. He held, it gave no cause of action against the Manhattan Company to recover the amount to be paid to the New York Company, and, among other things, said, “The agreement is to pay a certain sum of money to the corporation, the New York Company. The sum is fixed at ten per cent of the outstanding stock of the New York Company. Nothing was to be paid-to the individual stockholders, nor did the Manhattan Company in any way agree that the stockholders in the New York Company should receive the money it agreed to pay to the New York Company, or that such money should be used for the purpose of a dividend on the stock of the New York Company. * * * -As soon as the money was paid to the New York Company, it became the property of the corporation, liable for its debts and the stockholders had no claim to it, until by some act of the corporation it had been appropriated to them. There was no agreement of the New York Company that the money to be received should be paid to its stockholders, and there was, therefore, no obligation on the part of the

This sums up the whole matter clearly and well, and amplification seems to me needless. In Flagg v. The Manhattan and Metropolitan El. R. R. Companies (20 Blatchford U. S. C. C. Rep., 142), Justice Blatchford held, similarly, that the guaranty here was not to the stockholders severally, but to the corporation.

Within the principles of adjudged cases in this court, where the plaintiff seeks to base his right to maintain his action against a third party, upon a contract made between that party and another, it must be one made or intended for his benefit. Such a beneficial intent must be clearly .found in the agreement. Wheat v. Rice, 97 N. Y., 296 ; Vrooman v. Turner, 69 id., 280; Barlow v. Myers, 64 id., 43; Lawrence v. Fox, 20 id., 268.

The present case does not fall within the principle of the decision of Schemerhorn v. Vanderheyden (1 J. R., 139) that “when one person makes a promise to another for the benefit of a third person, that third person may maintain an action on such promise.” That decision was based on the case in the king’s bench of Dutton v. Pool (2 Lev., 210) and of subsequent English cases following its authority. But in all of the cases which I have examined, where the action was sustained, the facts showed that the promise clearly was for the third personas benefit, and made with that distinct intention.

If this agreement in the lease for the payment to the New York Company annually of a sum equal to ten per cent on its capital stock is not one which gave the plaintiff any right of action against the Manhattan Company, he is equally without any right to maintain an action upon it against his own company for the payment of dividends. A shareholder in a corporation has no legal title to the property or profits of the corporation until a division is made or a dividend declared. Jones v Terre Haute R. R. Co., 57 N. Y., 196 ; Boardman v. Lake Shore, etc., R. R. Co., supra. He acquires no right or title to the accumulated gains from the revenues of the corporation which entitles him to sue for his aliquot share of dividends. Until divided by the directors or trustees of the corporation, all of its property is held in joint ownership by the corporators, and no several right is possessed by the individual stockholder until after a dividend is declared.

The declaration of a dividend from a surplus or the division of profits is within the discretionary powers of the directors or trustees, which will not be controlled by the courts. Williams v. Western Union Tel. Co., 93 N. Y., 162 . Nor does any obligation exist here on the part of

The next step brings us, then, to the agreements of October, 1881, by which the leases were modified, in the principal feature of the reduction of the payments agreed to be made, from ten to six per cent. About this action of the directors little need be added, in view of the previous discussion of the extent of their powers. We hold that it was quite competent for them to make those agreements without any concurrent action or ratification* by the stockholders. No fraud is found or proven against them in taking this action, and it seems not an unreasonable, or an improper exercise of business discretion, in view of the embarrassments in which the insolvency of the Manhattan Company had involved itself and its lessors. To have in good faith, and with apparent reasons, agreed to reduce the amount of moneys payable under the lease of their corporation, was not an act in' excess of the power of the directors, or one voidable at the instance of the stockholders. It was as much within their province and authority, and as much a part of the ordinary business of the corporation as would be the reduction of the interest secured in a bond to the corporation, or the rent reserved in a lease of some building, or any other act lying in the exercise of business judgment. The question of the exercise of such a power of management must be left to the honest and fair business discretion of the board of directors, and the only inquiry by the stockholders could be as to whether there was any fraud by which assets were wrongfully diverted. They must be presumed to act for the best interests of the corporation, and to give to the management and disposition of its property their best judgment. But, when subsequently the agreement of November, 1881, for the merger or transfer of the capital stock of the lessor companies into that of the lessee was, as to the New York Company, given practical effect by the exchange of upwards of 58,000 shares out of a total of 65,000 shares, that fact under any aspect of the case expressed the decided acquiescence of nearly nine-tenths of the corporators in what had been done. While the action of other shareholders may not, in the merging of their stock, affect any legal rights of the non-merging shareholders, it may not improperly be referred to in the endeavor to discover the sentiments of the general body of corporators as to corporate action taken by their directors.

' The appeal to equity, when the acts complained of are within the powers of directors and apparently uninfluenced by corrupt motives or personal interests adverse to those of

Coming then to the condition of affairs, which followed upon the decision of Judge Van Brunt being known, we do not find in It any origin for this action by the plaintiff. In May, 1884, the stockholders of the New York and Manhattan companies approved agreements for the surrender to the New York company by the Manhattan company of the leased property and for the retransfer of the stock exchanged for the stock of the New York company.

Although Judge Van Brunt’s decision was rendered upon the complaint of the Metropolitan company and avoided the. October agreements as to that company, it so affected the contractual relations of all of the companies as to seem to make some action necessary. It had no such effect upon the New York company’s stockholders as to avoid those agreements; but no action had been, nor, in our opinion, could have been taken by the company, or its stockholders, to annul the October agreements. The stockholders could not be heard to say that they acquired any rights under that judgment with respect to the past. It is sufficient that such action was deemed necessary, as was had in May, 1884, for the severance of the contractual relations established by the lease and it was a matter, we think, which was also within the exercise of an honest discretion by the directors. Although not legally requisite, their action was approved by the great majority of the votes cast on May 6, 1884, by the holders of the New York company’s stock. I do not see, however, that much discussion upon the action taken in May, 1884, is called for under the view taken of the plaintiff’s rights in this opinion. The gravamen of his complaint is that the contract in the lease of 1879 enured to his benefit, and could not°be discharged or modified by agreement between the companies and is one which he can enforce, and that when he commenced his suit that contract was in full force and the New York company is entitled to recover from the Manhattan company the ten per cent payable under its provisions since July, 1881.

I have undertaken to show how he is in error in the propositions on which he claims to maintain his action. When he commenced his action, in July, 1884, his company had competently resumed the possession of its railroad properties. It had then no claims against the Manhattan company for any differences between the payments guaranteed to it in the lease of 1879 and those provided to be made by the October agreements. As to the New York company, in our opinion, those agreements were valid and binding when

The judgment appealed from should be affirmed, with costs.

All concur, Huger, Oh. J., in result.