# Express Company v. Railroad Company/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
99 U.S. 191
Express Company v. Railroad Company
The bill avers that it was filed against the receiver appointed by the court below, that he was in possession of the railroad, and that the institution of the suit was by the consent of the court. Without this latter fact the bill could not have been filed or maintained. The suit would have been a contempt of the court which had appointed the receiver, and punishable as such. Davis v. Gray, 16 Wall. 203.
The citizenship of the complainant corporation is sufficiently averred. Express Company v. Kountz Brothers, 8 id. 342. Such a complainant need not prove its existence, unless the fact is directly put in issue by the defendant. The Society for the Propagation, &c. v. The Town of Paulet, 4 Pet. 480.
To the objection that the requisite corporate power of the complainant is not shown, there are two answers. The contract of a corporation is presumed to be infra vires, until the contrary is made to appear. 2 Waite, Actions and Defences, 334.
The charter is set out in the record, and forms a part of it. That leaves no room for doubt upon the subject.
Adequate capacity on the part of the railroad company to make the contract is to be presumed in like manner.
No party defendant was necessary but the receiver. He was in the possession of the property and effects of the railroad company, subject to the order of the court, and could have specifically performed the contract, or paid back the money loaned if the court had so directed. The presence of the other parties was immaterial, and the bill might well have been dismissed as to them. Davis v. Gray, supra; Doggett v. Railroad Company, supra, p. 72.
The contract between the express company and the railroad company was that the latter should give to the former the necessary facilities for the transaction of all its business upon the road, forward without delay by the passenger trains both ways all the express matter that should be offered, do all in its power to promote the convenience of the express company, both at the way and terminal stations, and carry free of charge the messengers in charge of the express matter, and the officers and agents of the express company passing over the road on express business. The consideration for these stipulations was a loan by the express company to the railroad company of $20,000, to be expended in repairs and equipments for the road, the loan to bear interest at the rate of six per cent per annum, and the payment of fifty cents per hundred pounds for all express matter carried over the road, to be applied in discharge of the loan and interest. The contract was to continue for one year from the first day of January, 1866, and until the principal and interest of the debt should be fully paid. The bill avers that the receiver had refused to carry out the contract, and that the principal of $20,000 and a part of the interest were unpaid.
The enforcement of contracts not relating to realty by a decree for specific performance is not an unusual exercise of equity jurisdiction. Such cases are numerous in both English and American jurisprudence. They proceed upon the ground that under the circumstances a judgment at law would not meet the demands of justice, that it would be less beneficial than relief in equity, that the damages would not be an accurate satisfaction, that their extent could not be exactly shown, or that the pursuit of the legal remedy would be attended otherwise with doubt and difficulty.
Judge Story, after an elaborate examination of the subject, thus lays down the general rule: 'The just conclusion in all such cases would seem to be that courts of equity ought not to decline the jurisdiction for a specific performance of contracts whenever the remedy at law is doubtful in its nature, extent, operation, or adequacy.' 2 Story, Eq. Jur., sect. 728. See also Stuyvesant v. The Mayor, &c. of New York, 11 Paige (N. Y.), 414; Barr v. Lapsley, 1 Wheat. 151; Storer v. The Great Western Railway Co., 2 You. & Coll. 48; Wilson v. Furness Railroad Co., Law Rep. 9 Eq. 28.
But we need not pursue the subject further, because there is one provision of the contract in this case which is fatal to the relief sought. A court of equity never interferes where the power of revocation exists. Frye, Specif. Perform. 64.
The contract stipulates that after the first year it shall cease upon the payment of the $20,000 and interest. This might be made immediately upon the rendition of the decree. The action of the court would thus become a nullity.
There is another objection to the appellant's case which is no less conclusive.
The road is in the hands of the receiver appointed in a suit brought by the bondholders to foreclose their mortgage. The appellant has no lien. The contract neither expressly nor by implication touches that subject. It is not a license as insisted by counsel. It is simply a contract for the transportation of persons and property over the road. A specific performance by the receiver would be a form of satisfaction or payment which he cannot be required to make. As well might he be decreed to satisfy the appellant's demand by money, as by the service sought to be enforced. Both belong to the lien-holders, and neither can thus be diverted.
The appellant can, therefore, have no locus standi in a court of equity.
Both these objections appear by its own showing. It was, therefore, competent and proper for the court below, sua sponte, to dismiss the bill for the want of equity upon its face. Brown et al. v. Piper, 91 U.S. 37.
Decree affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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