The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-09-12

ship is not expressly or implicitly conferred
by our act OF 1878, under which the Hanauer
oil-works is incorporated. Neither Is such
authority within the implied powers of cor
porations. A partnership and corporation
are inconguous. such a contract Is wholly
inconsistent with the scope and tenor OF the
powers expressly enjoined upon corpora
ton. whether IL be a strictly business ana
private corporation or one owing duties TO
The public, such ny n common carrier. In
partnership each member binds the frni
when acting within the scope OF the bust
ness. A corporation must act through Us
directors or authorized agents, and no lndi-
ydual member can, rs such member, pima
the corporation. Now II n corporation be n
member of a partnership, II may he bound
by any other member of the association, and
IN 50 doing lac would act, not us an officer or
agent Of the corporation, and by virtue OF
authority received from IT, but as q principal
In an association Ia which all are equal, and
each capable Of binding the society by his
acts. The whole policy Of the law creating
aud regulating corporations looks 10 the eN-
elusive management Of the affairs OF each
corporation by the officers provided for or
authorized by its charter. This management
must be separate and exclusive. and any ar
rangcmcnt by which the control OF the affairs
OF the corporation should be taken from its
stockholders aud the authorized officers and
agents of the corporation would be hostile To
the policy of our general Incorporation acts
The decided weight Of authority Is
that corporation has not the power
10 enter partnership, either with
other corporations or with indi-
yiduals Says Mr. Monwitz at seems
clear that corporations are not implicitly
authorized 10 enter into partnership with
other corporations or individuals. The cX-
isicnce of partnership not only would in
tericro with the management Of the cOrpor-
alton by IT. regularly appointed officers, but
would Impair the authority of the share
holders themselves, and involve the company
in new responsibility, through agents over
whom IL had no control" II Nor, Priv.
| Corp. Section i2l, Whittenton Mills vs..
| Upton, 10 Gray, $50, II Amer. Dec. 6ol Ang.
& A. Corp. Section si2)
| IL N unnecessary to consider this contract
| ns constituting nero traffic arrangement
| for the conclusion already announced, that
Il was an effort to form partnership, de
tcrinnos That In it scope sand effect II sought
10 accomplish much more than would DO
understood by the phrase Traffic arrange
| mtnt' The next assignment II that this
contract, II ultrn wires At all, was 10 only rs
to the power Of the officers, aud not as 10
the powers Of the corporation; That the
thing to be done being within the purposes
aud scope of the franchise vi the corporation,
and the contract being satisfied 10y the
shareholders became valid and binding.
There may he acts ultra wires as To the oliic
crs, aud yet not ~ ~ to the shareholders.
hut the contract here entered into We have
already held Ia bo beyond the power Of the
corporation. aud such an net cannot bc made
valid hy the assent OF every stakeholder.
| II Is next nntucl that II the contract be
| ultra wires, that IL Is an executed contract,
and that the courts will not IN such cnsc.
interfere. This contract had yet little
over year Ia run. The possession Of the
llauauvr mills had been obtained under IT,
and was withheld under claim oi right by
reason Ut the supposed validity ~ the part
norship A Ia the uncKpirrd time, during
which the defcndcnt IN error might be de
privci uf the Use of IL property. aud sub
| jucicd Ia the hazards Of another years opera.
niinns IL was not an executed contract The
| possession obtained under this contract was
| Illegal, and 10 was the duty Of the officers NJ
the llnnaucr company tO rrnouncc the ar.
rangcmcnt and recover possession. There
arr cases where an invalid contract being
fully executed. the courts will not entertain
a suit to recover money or property trans
| icrrrd under such agreement, or, II they do
Interfere, will do ~ only upon equitable
terms
But the defense here made would result.
| " successful, In enforcing the Performance,
| hi AliN hiit htfhhh lfAlA ~ n NNil fhNAlhNi
, II u not ease ut contract fully executed
The part remaining to he executed l. q mn
tcrInl part and " beyond Tho power ~ de-
, | PENDANT in error tu make or sanction. lluNiu
entered into IT, IL WIS H. duty a. rc,rind %
abandon No. In u ease WHERE lease hn'
been madc 10y railway company Tor tern
NJ twenty years VI ~ rDad aud franchise,
aud which. after lapse Oi i've YEAR, 10 ~
sriudcd. and WIS thrwupun sued Tor liam
ngrs under n clause in the lease whicl
authorized ~ Hcis,iun, and provided Ter com
peusliiun for unCNpirvd term, the supreme
cuur 81 tie United states said. 1T " mot
ease uf % contract fully executed, The ycri
nature ui thC suit IN tu recover damages iu
non performance A. Ia tl,is " b. not ~
executed contract Not only sn. but 10 is
contract forbidden hy public policy. aud hg
yond thc power ui defendant a. make. llaN
ur rutvrrd into the agreement u was ih
, | duty IT thv company top-cind or abandon
y at tie earliest moment THIS duty was U
Y dependent ui the clause which rave then
. the right tb 10 H. Though they delayed %
Y Performance several Ncar,. II was ucyrrthi
u less rightiul act when done. Can this per
4 iormauro uf legal duty-a duty bath &
: stpykhplicrs aud to the publiu-giyc q
| plaintiffs 70 right ~ nriiun' Can they fuuu
such right on an agreement void Tor wan
~ corporate authority and forbidden hy th
! policy at the law 10 hold that they can b.
: in our opinion. 81 hold that ANY act psf
formed IN executing void contract make
al IT, PARTS valid and that the muru that
done under a contract forbidden by law tll
stronger II the claim Ia ~ enforcement b
the courts. '-lhumnNy ", railroad company
100. 4 n 81
That thr defendant In error has submittc
~ a void contract hy which u has been ~
priycd II the usc ~ H. property Tor tW
, | years. furnishes no spuud reason why 10 shnl
submit Tor three years. To hold that Il ~
would boz tb apply the dpytrinc ~ Part pei
fnrmHnrr he The way a. perfect and lcrilg
ILLEGAL contracts which were partly uV
y formed We have not drrmvd u nrvvssar
, | to consider the question " the legality ,
! such % combination IT corporations a. uu
~ tending tn create a monopoly. iur the rruuu
upon which W. place the cas- ncr,ls NO add
. uuual prtof The question IT the Nhlidtt
y ul such an arrangement b. q very grave on,
but ncrd not now be- considered, The suI
r,stun that, " this contract Nns void, y,
!, nevertheless 10 operated to convert the upc
Ai1fs into tenants from year "a year, IN
"a that such tenancy could only be- terminate
. ai uIv end IT the year and upon siX month
~ notice. b. NOT iruah'r 10, relation 1T Ian,
~ lord aud tenant never existed under thc cnl
y tract n n hc considered ~ valid, and Coul
u, not sIslnr from Be- .llUpliiy The llhnnu,
~ Mill company bal a right ~ rvpudiatn N
N arrangement NJ any time. and u was Il
!, duty ui plaintiffs Boo error ~ have at ON,
" surrendered possession.
I, The service ui % writ IN n suit ~ uulnwfl
. dclainct was che Gully notigu they could
fnlly demand When che action II uulawf
. lriainpr will De- under our statutes.
H.