th.em,-subject to all defenses; but that is not the test of jurisdic. tion of this court. In this case the answer sets out certain matters of defense, and, among others, that the bridge built, for which these warrants were issued, was a private bridge, built and owned by said King Bridge Company, and not for the county. The reply is-First, a general denial; and, second, a special denial of the before-named averment in the answer, and the counter-allegation that the bridge was built for the county, and was accepted by it, and has been in the constant use and occupation of said defendant, etc. 'I'he plaintiff pleads this matter for the purpose of claiming an estoppel against the county; but as it is no more or less than a special denial and counter-allegation of matter Bet up in the answer, without passing upon the question of estoppel, it seems to me the reply is not demurrable for that cause.
NEW CASTLE NORTHERN
R. Co. v.
(O/rcuit Court, W. D. Pennsylvania. March 9, 1885.)
RAILROAD COMPANy-CONSTRUCTION CONTRACT ULTRA VIRES-COMPENSATION OF UONTUACTOR.
A court of equity, at the instance of a railroad company, having set allide a construction contract as ultra vires, held, that the corporation must account for benefits received from partial performance, and that the contractor was not to be put off with a bare reimbursement of his actual outlay, but was entitled to receive for what he had done such compensat.ion as any other railroad contractor could recover therefor, in the absence of express agreement as to price.
Held,!urther, that t.he corporation was justly chargeable wit.h interest on the amount found to be the contractor when the work was stopped.
Sur exceptions to master's report.
ACHESON, J. The established rule in equity is that a corporation is accountable for benefits which it has received under an ultra vires transaction. Green's Brice, Ultra Vires, 717. Hence, in holding that the defendant's compensation for the materials furnished and work done by him should be measured by what it would have cost the plaintiff company to employ a responsible contractor to provide the same materials and perform the same work, the master, I think, adopted a just standard. While the defendant is not under any guise to receive damages for the loss of his bargain, yet he is not to be put off with a bare reimbursement of his actual outlay. He is entitled to be paid for what he has done fair rates, such as any other railroad
J. B. Brawley and R. B. McComb, for exceptant. D. B. Kurtz and Marshall Brown, contra.
NEW OASTLIIl NORTHERN R. 00. ". SIMPSOlil.
contractor might have recovered therefor, in the absence of express agreement as to compensation. The above rule excludes all the losses and expenses specified in the defendant's exception, and the master was clearly right in disallowing them. I cannot say that the master erred in adopting, in the main, the estimate of Charles E. :Fink, as to the values of the materials furnished and work done. The master had the advantage of seeing a.nd hearing the witnesses, and every presumption is to be made in favor of the correctness of his conclusions upon questions of fact. Besides, compared with the estimates of the other witnesses, it is not evident that Mr. Fink's values are excessive. In so far as the exceptions allege mistakes c0mmitted by the master in respect to the quantities of materials furnished and amount of work done, they do not seem to me to be well founded. The plaintiff's fifth and sixth exceptions go to the allowance to the defendant of the value of that part of the work done by Weaver (a subcontractor under Reed) before the date of the defendant's contract, instead of what the defendant actually paid therefor. The fact is that the defendant took the Weaver contract off Reed's hands, and paid for all the work done by Weaver. Hence the master was of opinion that the defendant is entitled to receive the value of the whole of that work. Now, even if this view is a questionable one, still, it seems to me that there is another ground for sustaining the master in this particular. He was not furnished with any evidence whereby he could distinguish between the work done by Weaver before the date of the defendant's contract, and that done by him afterwards. He was therefore obliged to treat the work as a whole, under the proofs as submitted to him. In fixing the value of the materials for the unfinished bridge, I am not convinced that the master has erred. But it is not so clear to me that Mr. Youtz may not have a claim thereon. The transaction was not a sale by him of bridge materials, but a contract whereby he undertook to build a bridge, furnishing the materials. Now, in the performance of the contract he has been interfered with; and it may be that his title to the unused materials was not extinguished. Hence the defendant should be required either to deliver to the plaintiff an acquittance from Mr. Youtz, or give security to indemnify the plaintiff from any claim he may have on account of said materials. This, llOwever, can be provided for in the final decree. Notwithstanding the few changes made by the master, the result shows that substantially he adopted Mr. Fink's estimate, the details of which appear in the defendant's Exhibit A. Now, in view of the friendly relation existing between the two, it is a reasonable conclusion that Mr. Fink's estimate does the defendant full justice. Beyond question that estimate includes a general contractor's profit. Indeed, the doubt in my mind is whether the profit thus allowed is not too liberal. In some particulars it strikes me as extreme. For . e:mmple, Weaver was paid for earth excavation 23 cents, and for loose
rock and hard.pan 40 cents per cubic yard; yet for this identical 'Work Mr. l!'ink allows the defendant 35 cents and 75 cents. For other earth excavation the defendant himself did, he is allowed 50 cents per cubic yard. If Mr. Fink thought the defendant was entitled to anything further, surely he would have set it forth in his carefully prepared estimate. ""Vhen, under examination as to the rates fixed by bim for work done and materials furnished, he recognizes such rates to be at a "fair market value," a "fair market contract price," a "fair contract price," etc. Nevertheless the master has added to his esti· mate of $52,233.42, 10 per centum. Undoubtedly the witnesses generally do say that a percentage is to be added to their several estimates, and the master felJ in with this current of testimony. Mr. Fink, however, speaks very guardedly of augmenting his estimate by any additional percentage. When pressed by the defendant's counsel be did finally express the opinion that there should be such allowance, but he put it on the ground of supposed injurious delays in the work, for which the railway company was responsible. But of such delays between October 8, 1883, when the defendant began work, and Decembel' 15, 1883, when the bill in this case was filed, I find no satisfactory evidence. When the bill was filed it amounted to an election on the part of the company to rescind the construction contract as ultra vires, and thereafter the company was not answerable for delays. Especially was it not responsible (as Mr. Fink evidently assumed) for any interruption of the work consequent upon the preliminary injunction granted by the court of common pleas. It is true, this court modified that injunction so as to leave the defendant free to go on with the work if he saw fit to take the risk; but this was done chiefly because it was represented that the unfinished work was in such a state as to require immediate attention on the part of the contractor. Upon the whole I feel constrained to sustain the plaintiff's exception (No. 24) to the master's allowance of 10 per centum upon his general estimate. For the reasons stated by the master, the item of $556.69, for engineering expenses, is, I think, a proper charge against the railway company. Finally, I am of opinion that the plaintiff company is justly charge. able with interest on the amount found to be due to the defendant when the work was stopped. Green's Brice, Ultra Vires, 728. No equitable reason appears for denying interest. It is not shown or pretended that the company ever made a tender of money to the defendant, or set apart or kept on hand a fund to pay him. The result, then, reached by the court, after a very careful consideration of the case, is that the only exception to be sustained is the one relating to the allowance of 10 per centum upon the master's estimate. And now, March 9, 1885, all the exceptions to the master's report are overruled, save the twent;y-fourth exception filed by the plaintiff, which is sustained.
MORRISON V. PRICJL
MonRIsoN v. PRICE, Receiver.
March 14, 1885.)
NATIONAL BANKS-INDIVIDUAL LIABILITY 011' STOCKHOLDERS- VOL'Cl'NTART IlliJS8MENT-iNCREASE OF CAPITAL.
The Pacific National Bank of Boston was organized in October, 1877, with a capital of $250,000, with the right to increase it to $1,000,000. In November, 1879, its capital was raised to $500,000; t:\eptember 13, 1881, the directors voted to increase the capital to $1,000,000. On November 18, 1881, the bank suspended. On Decemher 13, 1881, the directors voted that as $38,700 of the increase of capital stock had not been paid in, the capital be fixed at $961,300, and the comptroller of currency was notified to that effect, and he notified the bank, under Hev. St. § 5205, to pay a deficiency on its capital stock by an aslessment of 100 per cent. the annual meeting the assessment was voted, and un March 18, 1882, with consent of the comptrolter and the approval of the directors and the examiner, the bank resumed business, and continued until May 20, 1882, when it again suspended and was put in the hands of a receiver. Prior to May 20, 1882, $742,800 of the voluntary assessment had been paid in. Complainant was the owner of 25 shares of stock on September 13, 1881, and after the vote to increase the stock, took 25 shares, for which he paid $2,500, on October 1, 1881, and received a certificate. He voted for the assessment at the annual meeting, and in February, 1882, paid the assessment on the old and new stock, and subsequently sought toenjoin the suit at law against hIm by the receiver, to enforce his individual liability as a stockholder, under Hev. St. t 5151, on the ground that the increase of capital was illegal and void, and that the voluntary assessment under Rev. St. § 5205, relieved the stockholders of individuallill.bility. Held, that he Wall not entitled to rdief, and the lJillllhould be dismissed.
In Equity. A. P. Gould and B. N ·.Johnson, for complainant. A. A. Ranney, for defendant. COLT, J. This is a suit to restrain the further prosecution of an action at law brought by the defendant, as receiver of the Pacific National Bank, against the complainant, to recover an assessment made under the direction of the comptroller of currency, for the purpose of enforcing the individual liability of the stockholders under section 5151, Rev. St. The Pacific National Bank of Boston was organized in October, 1877, under the national banking law. Its capital was $250,000, with the right of increase to $1,000,000. In November, 1879, the capital was raised to $500,000. On September 13, 1881, the directors voted to increase the capital to $1,000,000. On November 18, 1881, the bank suspended, and Daniel Needham was appointed examiner. He took possession of the bank, and remained in charge until it reopened, March 18, 1882. On December 13, 1881, the directors passed the following vote:
Voted ':;hat whereas, it was voted by this board, on the thirteenth day of September last, that the capital of this bank be increased to one million dollars, and that stockholders of this date have the right to take the new stock at par in equal amollnt to that held by them; And whereas, the stockholders were duly notified of said vote, and also that 8ubscriptions to the new stock would be payable October 1st; And whereas, $461,300 of said new stock has been taken and paid in.