Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[ocr errors]

WAITE, C. J. This is a bill in equity filed by a stockholder and director of the Fresno Enterprise Company, a California corporation owning the Enterprise mine, against another stockholåer and director, to restrain him "from attending any meeting of the board of directors to enforce" certain resolutions passed at a previous meeting, "which give the vice-president authority to sign checks or certificates of stock,” when the complainant, the president of the company, is “not in the city of San Francisco, or which authorize the superintendent to draw drafts on the company when” the complainant is “not at the mine,” and also restraining the defendant “from voting on five thousand six hundred and sixty shares of stock, issued to him under the contract of third May, 1881, or any other shares of stock owned by him, at any meeting of the stockholders for electing directors, or amending the bylaws;” and “that on the final hearing" the complainant “be decreed to have a continuing proxy for said five thousand six hundred and sixty shares.”

The general ground on which the complainant seeks his relief is this:

In May, 1881, an association of capitalists, called in the bill a "syndicate,” to which both the complainant and defendant belonged, bought 51,000 of the 100,000 shares of the capital stock of the company, and, in the contract under which the syndicate was formed, it was agreed that the complainant was “to control the management of the mine." In the purchase the complainant became the owner of 17,000 shares, and the defendant of 5,660. Other persons divided the remaining 28,340 shares between them. The 49,000 shares notes purchased-were held by persons outside of the syndicate. At a meeting of* stockholders, held a few days after the purchase, for the election of directors, the complainant and the defendant, with one other member of the syndicate, were elected directors, as the representatives of the purchasers, and two others not in the syndicate as representatives of the minority stockholders. The complainant was elected president of the board of directors, and general manager of the mine. The defendant and the directors who were elected in the interest of the minority stockholders seem to have been of opinion that some additional rules for the government of the affairs of the company were necessary, and so, as is alleged, by false representations, the defendant, in December, 1881, induced some of the members of the syndicate to agree to the adoption of the following resolutions by the directors:

“Resolved, that the Bank of California, the treasurer of this company, be, and is hereby, instructed to pay only such checks as are signed by the president or vice-president and countersigned by the secretary.

"Resolved, that all orders for supplies and materials from San Francisco for the company shall be made through the head office in San Francisco, and payment for the same shall be made by checks signed by the president or vicepresident and countersigned by the secretary, at the office in San Francisco.

"Resolved, that in the absence of the president from the office of the company in San Francisco, the vice-president, in accordance with the by-laws, be, and is hereby, authorized to sign all certificates of stock that are legally issued by the secretary, as well as all papers requiring the signature of the president, if he were present at the office.

“Resolved, that in the absence of the president from the mine, that the superintendent at the mine be, and is hereby, instructed to draw drafts on the company at San Francisco for all indebtedness accruing at the mine."

These resolutions were adopted by the board on the fourth of January, 1882, at a regular meeting held that day, of which the complainant had knowledge, but which he did not attend. A quorum of directors was present at the meet.com ing, and the•defendant voted for the resolutions. It was to restrain the defendant from aiding the directors in the enforcement of these resolutions, and from voting his shares acquired under the syndicate contract, except in accordance with the will of the complainant, that this bill was brought. We are

ble to discover any ground for equitable relief in the case made

by the bill. It is undoubtedly true that the defendant was anxious to have the complainant interested in the mine, and was willing to become one of a number of persons, of whom the complainant should be one, to purchase enough of tlie stock to make the aggregate of their holdings a majority of the entire capital of the company. It is also true that the defendant, and all the other members of the syndicate, yielded to the condition insisted on by the complainant, that “he should have the control of the management of the mine” if the purchase of a majority of the stock was made; but this was necessarily subject to such reasonable rules and regulations as should be adopted in a proper way, either by the stockholders or the directors, for the government of the conduct of the officers of the company. No attempt has been made to remove the complainant from his office of general manager. He still “controls the management of the mine," so far as anything appears in the bill. All that the directors have done by their resolutions, of which complaint is made, is to prolıibit the Bank of California, the treasurer of the company, from paying any checks of the company except such as are signed by the president or vicepresident, and countersigned by the secretary; to direct that all orders for supplies and materials from San Francisco should be made through the head office in San Francisco, and paid for in checks signed and countersigned as above; to authorize the vice-president to sign certificates of stock, and all other papers requiring the signature of the president, when the president was away from the office; and authorizing the superintendent at the mine, in the absence of the president, to draw drafts on the company at San Francisco for debts incurred there. We see nothing in this inconsistent with the conpatrol of the mine itself by the complainant “as if he owned it."

* Without, therefore, deciding whether, if the members of the syndicate should undertake to remove the complainant from the control of the management of the mine without just cause, he could have preventive relief in eqnity, we affirm the decree. Affirmed.

(115 U. S. 69)

THE CHARLES MORGAN and others 0. KOUNS and others.

(May 4, 1885.) 1. COLLISION-PRESUMPTION OF Fault.

So long as the findings in the case show that the signals of approaching boats were understood, and there is no complaint in the pleadings touching the point, there

is not to be presumed a misunderstanding by the boats. 2. SAME-PRACTICE-AMENDMEXT8-DISCRETION of Couet.

Amendments allowed by admiralty rule No. 24 are to be regulated according to

the discretion of the trial court. 3. SAME-EVIDENCE-FINDINGS OP LOCAL BOARD OF INSPECTORS.

The finding of a board of local inspectors, and documents connected therewith, are not admissible "as tending to atiect the evidence offered by the libelants to show that” one of the vessels " was in her proper position in the river, and had

proper watches and lights set at the time of the collision.” 4. SAME--CONTRADICTORY DECLARATIONS-BASIS TO BE LAID.

The contradictory declarations of a witness, whether oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circumstances in such a way as to give him full opportunity for explanation or exculpation, if he desires to make it.

Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

R. H. Marr and T. D. Lincoln, for appellants. C. B. Singleton and R. H. Browne, for appellees.

WAITE, C.J. This is a suit in admiralty, brought by the owners of the steam-boat Cotton Valley to recover for the loss of their boat, and certain

a

articles of personal property belonging to Martin H. Kouns alone, in a collision on the Mississippi-river with the steam-boat Charles Morgan. In the original libel filed in the district court claim was made only for the value of the boat, and for an itemized account for clothes, jewelry, furniture, etc., of the libelant Kouns. The district court found the Morgan in fault, and referred the cause to a commissioner to take testimony and report the damages. The commissioner reported that the libelants were entitled to recover the value of the boat, and also the value of stores and supplies, $1,376.16, and $500 cash in the safe of the boat, and belonging to her, lost at the time of the collision; he also reported that Martin H. Kouns, one of the libelants, should recover the value of a lady's gold watch, $150; of a gentleman's gold watch, $120; and $75 cash lost. The claimant of the Morgan excepted to the allowances for stores and supplies, and for cash in the boat's safe, on the ground that they had not been sued for. The district court sustained this exception, and gave a decree only for the value of the boat, and the allowances by the commissioner to Kouns. From this decree both parties appealed to the circuit court. When the case got into the circuit court leave was granted the libelants to file a supplemental and amended libel setting up their claim for stores, supplies, and cashı, proved before the commissioner in the district court, but rejected by that court because not included in the original libel.

Upon the hearing in the circuit court that court found, among other things, that at the time of the collision the Cotton Valley, bound for Red River, was the ascending boat, and the Charles Morgan, bound for New Orleans, the descending boat; that the collision occurred near Bringier's point, about three miles below Donaldsonville; that both boats were properly officered and manned, and had proper watches and proper lights set. *Third. That prior to the collision the Cotton Valley was in her proper position in the river near the left bank, following up the Bringier point preparatory to rounding the same, while the Charles Morgan was above the point, perhaps in the middle of the river, but heading across an 1 near the point to a wood-yard light in the bend of the river below the point. *Fourth. That when the respective boats were in the positions just described, the Cotton Valley blew one whistle as a signal that she would pass the Charles Morgan to the right, which signal the Charles Morgan answered with one whistle, as a signal that the pilot of the Morgan understood, and would also pass to the right. Fifth. Both boats kept on their respective courses, approaching each other, when the pilot of the Morgan sounded three or four short whistles, stopped the Morgan's engines, and soon commenced backing the wheels, but not enough to stop the Morgan's headway, and without in anywise changing her course to starboard or port. Meanwhile the Cotton Valley, rounding the point, at the three or four short whistles given by the Morgan, understanding the signal as a hail, stopped the engines. At this time the boats were within one hundred yards of each other, the Morgan, with her head way and the current, coming straight on without changing her course. The pilot of the Cotton Valley, foreseeing an inevitable collision if he remained still, started the Cotton Valley ahead, sheering to starboard; but this forwarding of the Cotton Valley was too late, for almost immediately the Charles Morgan, head on, struck her on the port side, about twenty-five feet forward of the stern, and at an angle of about sixty degrees, with such force as to cut through her guards into her hull nearly to the keelson, and cause her to sink in about ten minutes. Sixth. That the Charles Morgan and her officers were in fault, as the proper position of the boat was nearer the middle of the river, and as her officers disregarded the passing signal given and answered, and made no effort to change the boat's course to the starboard, by which the boats would have been so separated that a collision would have been avoided. Seventh. That the Cotton Valley was not in fault, as she was in her proper place as the ascending boat, and as she gave the proper signal for passing. The failure of the pilot to understand the signal of three or four short whistles given by the Morgan was not, under the circumstances of the case, a fault; and if the starting of the Cotton Valley's engines and sheering to starboard when the Morgan was upon them was an error, it was an error of judgment in extremis, not putting the boat in fault.”

Upon these facts a decree was rendered against the Morgan, and her own. ers and stipulators, for the value of the Cotton Valley, and for the value of the personal property belonging to Kouns, the same as in the district court, and also for the value of tire stores, supplies, etc., set forth in the supplemental libel, $1,376.16. From that decree this appeal was taken.

The record contains a bill of exceptions, which shows that in the progress of the trial in the circuit court the defendants offered in evidence a certified copy of “the finding of the board of local inspectors of steam-vessels, New Orleans, December 18, 1878, being their decision in the case of the collision between the steamers Cotton Valley and the Charles Morgan, and signed by C. B. Johnson and J. A. Moffat, United States local inspectors.' They also offered certain other documents connected with that proceeding, including an appeal to the district inspectors and their decision thereon. To the introduction of this evidence the libelants objected, and their objection was sustained. To this ruling the claimant of the Morgan excepted, and the exception was made part of the record.

It is also shown, by another bill of exceptions in the record, that, after the depositions of Albert Stein, Harry W. Stein, Sylvester Doss, John B. Evelyn, and Livingston McGeary had been read on behalf of the claimant of the Morgan, the libelants, for the purpose of impeaching and contradicting their evidence, offered certain depositions of the same witnesses used on the trial of certain other suits, growing out of the same collision, between one Menge and some insurance companies, to which the claimant was not a party. To the introduction of this evidence the claimant objected, on the ground that no basis for offering said purported depositions had been laid, it not having been shown or pretended that said purported depositions were ever submitted

to the said witnesses, or otherwise verified as their evidence in said causes; but as, “in the cross-examination of each of said witnesses in this case, the • attention of the witness was called to the evidence given by him in the cases of Menye v. Insurance Cos., * and the witnesses were specifically examined as to the correctness of said evidence, and admitted having testified therein,” and “no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been improperly taken or reported," the depositions were admitted for the purpose for which they were offered. The cross-examination referred to is not set forth in the bill of exceptions. To the admission of this evidence the claimant excepted.

The following positions are taken by the appellants: (1) That the findings of fact are not sufficient to support the decree; (2) that ìeave to file the supplemental and amended libel should not have been granted, and consequently that the decree should not have included the value of the stores, supplies, and money belonging to the Cotton Valley, which were lost; (3) that the record of the proceedings and findings of the board of local inspectors, and the documents connected therewith, were improperly excluded as evidence; and (4) that the depositions taken in the Menge Cases were improperly admitted.

1. The objection to the sufficiency of the findings is based on rule 2 of the board of supervising inspectors of steam-vessels, which is as follows: "Should steamers be likely to pass near each other and these signals should not be made and answered by the time such boats shall have arrived at a distanco of 800 yards from each other, the engines of both boats shall be stopped; or should the signal be given and not properly understood, from any cause whatever, both boats shall be backed until their headway shall be fully checked, and the engines shall not be again started ahead until the proper signals are made, answered, and understood. Doubts or fears of misunderstanding sig

[ocr errors]

nals shall be expressed by several short sounds of the whistle in quick succession.” The particular specifications of insufficiency are (1) that it does? not appear that the signals for passing*had been made and answered be-* fore the boats came within 800 yards of each other; and (2) that the failure of the Cotton Valley to understand the signal of doubt or fear made by the Morgan was a fault on her part. There is no complaint in the pleadings as to the time when the Cotton Valley made the first signal, and neither party at the hearing below seems to have considered that an important fact in the case. So long as it was made and assented to by the Morgan without any signal of misunderstanding, it will be presumed to have been at the proper distance, as nothing appears to the contrary. The findings show affirmatively that it was understood and assented to by the Morgan. As the “several short sounds of the whistle” were only to be given in case of doubt or fear of a misunderstanding of signals, it was not necessarily a fault in the Cottoa Valley to misinterpret their meaning when made by the Morgan, so short a time after her assent had been given to the signal of the Cotton Valley to pass to the right.

2. Admiralty rule 24 provides that in all informations and libels, in causes of admiralty and maritime jurisdiction, “new counts may be filed, and amendments, in matters of substance, may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose." 3 How. xiv. In The Lucille, 19 Wall. 74, it was decided that an appeal in admiralty from the district to the circuit court “has the effect to supersede and vacate the de. cree from which it was taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary, or, if asked for, is contemplated,-a trial in which the judgment of the court below is regarded 23 though it had never been rendered. A new decree is to be made in the circuit court." Clearly, under this decision, after an appeal is taken, and the decree of the district court vacated, a motion to amend, made while the case is pending in the circuit court for a new trial on its merits, will be before the final decree; and, under the operation of the rule, we have no doubt the circuit court may, in its discretion, permit an amendinent of the libel, so as to includes a claim for damages growing out of the original cause of action, and litigated: in the court below, but rejected because not specified in the pleadings. It is true that in the case of The North Carolina, 15 Pet. 50, it was decided that a libel could not be amended after an appeal, so as to bring in a new claim for damages; but this was before the adoption of the admiralty rules, the decision having been made in 1841, and the rules not taking effect until September 1, 1845. 3 How. xix. The act authorizing the rules was passed August 23, 1842, c. 188, 86, (5 St.518,) and it is quite possible rule 24 was suggested by that case. It has long been the practice of the circuit courts to allow such amendments. Weaver v. Thomson, 1 Wall. Jr. 343, decided in 1849 in the third circuit; Lamb v. Parkman, 21 Law Rep. 589, first circuit, in 1858; The C. H. Foster, 1 Fed. Rep. 733, same circuit; The Morning Star, 14 Fed. Rep. 866, seventh circuit; The Oder, 21 Blatchf. 26, S. C. 13 Fed. Rep. 272, second circuit; The Montana, 22 Blatchf. 372, S. C. 22 Fed. Rep. 715, 730, same circuit.

In Lamb v. Parkman, supra, Mr. Justice Curtis, then holding the circuit court, said: “The twenty-fourth rule, made by the supreme court to regulate the practice of the instance courts of admiralty, applies to this as well as to the district court. Pursuant to it, amendments in matters of substance may be made on motion, at any time before the final decree, upon such terms as the court shall impose. What amendments shall be allowed, under what circumstances and supported by what proofs they must be applied for, and in what form they must be incorporated into the record, are left to the sound discretion of the court, to be exercised in each case, or to be regulated by written rules of practice, so far as the court may find it useful to frame such

« ΠροηγούμενηΣυνέχεια »