'v. BUFFALO INS. CO.
Graham, 100 U. S. 609; Bissell v. Railway COB. 22 N; Y.258; 4ON. Y. 158; 50 N, Y. 396; Green's Brice's Ultra Vires, (1st Ed.) 263,note. And see, generally, upon the subject of Ultra Vires, 12, Cent. !Jaw Jour. 386 et /leg. Cincinnati, June, 1881. ' r. O. HAnPEn.·
and others v.
(Circuit Court, E. D. Missouri. 1.
January 4, 1881.)
ULTRA VmEs-OoNTRACT OF INSURANCE.,
An insurance company is not estopped from setting up the fact that a contract of insurance made thrtugh its agent is ultra fJir6ll, though its agent had led the other contracting partyto believe, and he did believe, that the company had power to make it, and though no pretence was set up by the company, or its agent, that the contract 'was ultra mres until a loss thereunder was known by all parties to have occurred.
This was a. suit upon a contract of insurance against marine risks. The petition alleged that a' cargo consigned to plaintiffs, and covered by defendant's.policyof insurance, had heen Jost at sea, and asked judgment for the amount of the loss. The answer pf the defendant set up in substance that the contract of insurance was ultra vires, for the reason +,hat the defendant had no power, under its charter, to against perils of the sea. The plaintiffs demurre4 to the answer on the grouudFirst, that it contained no defence to the plaintiff's cause of action; seeond, because the defendant was estopped frdm pleading its want of power to make the contract sued upon, and because the government which created it (New York) alone has power tO,deal with it for a.viola· 1ion of its charter, privileges, etc.
That they were led to believe by defendant's agent who issued the pol. icy, and did believe, that the defendant had power, under its charter, to insure against perils of the sea; that defendant's agent insured them against those perils, etc.; and that no objection was made to the contract aforesaid by defendant, or its agent, and no pretence was made that said contract was ultra vires until the loss had occurred, and it was too late to insure in another company; and that for those reasons defendant should be held estopped from pl-el1ding that said contra<:t was ultra
The facts stated in reply are admitted to be true. Lee It Chandler, for plaintiffs. O. B. Sansum, for defendant. TREAT, D. J. This case was heretofore presented to the court-Justice Miller, present. The demurrer to the replication raised the question whether the facts alleged would the contract, as averred in the operate as an estoppel, answer, was ultra vires. It was suggested by Justice Miller that it would have been better if defendant had so shaped his answer as to bring before the courtthtJ charter of the company, together with the terms of the contract, so that the court could determine whether the contract was ultra vires or not. But as that course had not been pursued, it was then for the court to decide whether, admitting the contract to be ultra vires, the defendant was estopped by the facts stated in the replica tion. On the demurrer to that replication Justice Miller and myself differed in opinion, and consequently judgment followed according to his views. Now, the cause having come on for trial without the intervention of a jury, and an the facts in the replication being admitted of record, the main question is whether, according to the charter under the lam! of New York, the defendant corporation had authority, through its agents or otherwise, to make a contract of insurance of the kind stated; that is, on a sea.going or foreign voyage, as contradistinguished from an inland voyage. Ac. cording to the terms of the charter the contract was ultra vires; and, although all the facts set out in the replication are true, as admitted of record, yet, according to the opinion of Justice Miller, the plaintiff cannot recover in this cage, and his opinion must control despite my dissent. Therefore, judgment must be entered for the defendant.
KMMA, ETO., 00. (LIMITED) V. BMMA, ETO., CO. OJ' N. Y.
EMMA SILVER MINING CO.
CO. OF NEW YORK
(Limited)v. EMMA SILVER and others.
(Circuit Court, 8. D. N6'IJJ York. September 30,1880.)
REs ADJUllIOATA-PRINOIPAL AND AGENT-AOTION FOB DEOEITRESOISSION OF CONTRAOT.
The judgment is not a bar unless for the same cause of action, and the cause of action is not the same if in the action for deceit a fact must have been determined in favor of the defendants which the plaintiff is not obliged to prove in order to entitle itself to a decree of rescission, as in this case the fact of an intent to defraud; or if the decree of rescission may pass upon proof of facts alleged in the bill which in the suit for deceit it was not necessary to prove to entitle the plaintiff to recover, as in this case the fact that the plaintiff did not have an independent board of directors. 8.
Sum-PRINCIPAL AND AGENT.
it 8eem8 that a plaintiff who has brought his action against agents in a transaction, and has had judgment therein rendered against him, cannot litigate the same cause of action against the principal.
SALE-RATIFICATION-AcTION FOR DECEIT.
The commencement and prosecution of an action at law against. the agents of the vendor, to recover damages for deceit in inducing the plainti1f to purchase property, is not necessarily an election to affirm the sale, so as to preclude the plaintiff from maintaining a subsequent suit to rescind the sale. Such an action for deceit is not an election to affirm where there is nothing in the complaint shOWing that the sale has been adopted and affirmed, and where the ad dam'IlIUm in the complaint is the alleged price paid for the property. Such complaint may be an election to affirm the sale; as, for instance, if it states that the property has been retained, and prays that the d\f-