4 under the seal of the company, is still adhered to by the English and Irish courts. And to this extent the rule may not be directly incident to the purpose for which the company was incorporated. So also in Church v. The Imperial Gas Light & Coke Company, 6 Ad. & Ell. 846; and in Sanders v. The Guardians of the St. Neot's Union, 8 Q. B. 810; and in the elaborate judgment of Wightman, J., in Clark v. The Guardians of the Cuckfield Union, 16 Jur. 686; s. c. 11 Eng. L. & Eq. 442, it was assumed that the matter was within the scope of the company's charter. "The judgment delivered by Lord Campbell, Ch. J., for this court, in the Copper Miners' Company v. Fox, 16 Q. B. 229; s. c. 3 Eng. L. & Eq. 420, enunciated the principle. The principle affirmed by this series of cases does not conflict with the two leading cases in the Court of Exchequer, which were cases of municipal corporations. Neither building, which was the matter in the Mayor of Ludlow v. Charlton, 6 M. & W. 815, nor litigation, which was the matter in Arnold v. The Mayor of Poole, 4 Man. & Gr. 860, was incidental directly to the purposes for which the corporations of those towns were constituted. "The other cases to which I adverted were corporations for trading purposes, and it is difficult to reconcile them. In Lamprell v. The Guardians of the Billericay Union, 3 Exch. 283, the action related to the building a workhouse, with which the defendants were, as a corporation, connected. Diggle v. The London & Blackwall Railw., 5 Exch. 442, is that which to the greatest degree conflicts, unless it can be distinguished or explained on the ground that it was a unique contract; if it cannot, I do not agree to it; and in this conflict of authorities I adhere to those who oppose it. "The notion that a set of contracts shall have their validity depending on the frequency and insignificancy of the subject-matter is of such extreme perniciousness, that I do not think that it can be adhered to, and must be considered as applicable only to municipal corporations. It has been so held as to contracts for servants, but I do not think that it was meant to be said that the contract was valid if the matter was of small importance, and invalid if the matter was of great importance; and indeed, in the case of trading companies, which it is allowed may draw and accept bills of exchange not under seal, it is obvious that insignificancy is no element; neither is the frequency or rarity of the contract an element. The nature of the contract and the subject-matter of it must be the principle which governs the question whether it is valid, though not under seal. It would be pernicious to the law of the country, that under the semblance of a contract parties should obtain goods or services, and not be compellable to pay for them. The Court of Exchequer had an opinion that it would be important that the rule should be certain; but their resort to the rule, that the contract in all cases, with the above-mentioned exceptions, should be under seal, cannot be acted upon." Crompton, J. “I concur in the principle now adopted by my brothers Wight * McArdle v. Irish Iodine Co., 15 Ir. Com. Law, 146. objectionable. But there are many American cases, where the construction in favor of the responsibility of the company for the man and Erle. It is desirable that in the case of trading corporations there should be a relaxation of the rule, that the contract of corporations should be under seal, where the contract is for the purpose of carrying on their trade. That principle was supported in The Copper Miners Company v. Fox, 16 Q. B. 229; s. c. 3 Eng. L. & Eq. 420, and Clark v. The Guardians of the Cuckfield Union, 16 Jur. 686; s. c. 11 Eng. L. & Eq. 442; and it is an important principle, and may be the governing principle in these cases; and but for the two cases in the Court of Exchequer, I should think that the appointment of the plaintiff in this case did not require a seal. I cannot, however, distinguish this from Lamprell v. The Guardians of the Billericay Union, 3 Exch. 283, and Diggle v. The London & Blackwall Railw. Company, 5 Exch. 442; and if the judgment of the court depended upon me, I might defer to them, at the same time wishing the other principle to prevail. I cannot disguise from myself that we are deciding against the cases in the Court of Exchequer, and the rule which that court adopted. But I agree with what my brothers have said; and I will add, that those cases created considerable surprise at the time.” And in a still more recent case, Reuter v. The Electric Telegraph Co., 37 Eng. L. & Eq. 189 (May, 1856), in the Court of Queen's Bench, the defendants had made a contract, under their corporate seal, with the plaintiff, to transmit all his messages, and all he could collect, for a commission not exceeding £500, or less than £300 per annum, and while this contract was in existence, the chairman of the company entered into a parol agreement with the plaintiff, to pay him at the increased rate of £50 per cent., in consideration of the plaintiff's further services in collecting public intelligence and sending it by the company's telegraph. These additional services were found to be beneficial to the company, and this agreement was entered upon the minutes of the company, and the plaintiff had received £300 for services in pursuance of it. The deed of settlement provided, that all contracts, where the consideration exceeds £50, should be signed by three directors. It was held, that the parol contract having been acted upon, and ratified by the company, was binding upon them. De Grave v. The Mayor of Monmouth, is a case of ratification, 4 C. & P. 111. And in Bill v. The Darenth Valley Railw., 37 Eng. L. & Eq. 539, the Court of Exchequer held, that one who had served the company, as secretary, might recover compensation for his services, although the remuneration to be paid him had not been fixed, at a general meeting of the company, as required by the English statute. That was held to determine the duty of the directors towards the company, and not to limit the liability of the company to third parties, which is the view taken of the subject here. Noyes v. Rut. & Burling. Railw., 27 Vt. R. 110-113; ante, § 136, n. 5. But it has been held, that if a corporation contract through an agent, who attaches a seal to his execution of the contract on their behalf, it thereby becomes the deed of the company, although the seal was not their common seal, and an act of the directors, even in executing a contract under seal, without using the specific seal of the corporation, is more forcible, the directors for the time being held to have adopted the seal used as the corporate seal, the same as any number of natural persons may adopt the same seal. But this latitude of construction in regard to the seal of a corporation is common in this action of assumpsit cannot be maintained upon it. Porter v. Androscoggin & Kennebec Railw., 37 Maine R. 349. But it must be executed in the name of the company. Sherman v. New York Central Railw., 22 Barb. 239. If, in an action of assumpsit, upon a contract, purporting to be executed by a railway company, the company claim that it was executed under their seal, and that therefore an action of assumpsit will not lie upon it, and prevail, upon this ground, they are estopped to deny, in a subsequent action of covenant, upon the same contract, that the seal attached to the contract is the seal of the company. Philadelphia, Wilmington & Baltimore Railw. v. Howard, 13 Howard, 307. But the English courts do not hold the corporation absolutely bound by contracts under their common seal, thus reducing the question to one of authority, in fact, to enter into the contract. Shrewsbury & Birmingham Railw. v. London & N. W. Railw.; House of Lords, May, 1857, 29 Law Times, 186. In The London Docks Co. v. Sinnott, 30 Law Times, 164, (Nov. 1857), the Court of King's Bench maintain the general rule that "corporations aggregate can only be bound by contracts under the seal of the corporation." Lord Campbell, Ch. J., in giving judgment, enumerates the following exceptions to the general rule, mercantile contracts, contracts with customers, and such as do not admit of being executed under seal, as bills of exchange. But in some English cases, decided since the publication of the second edition of this work, it seems to be conceded that corporations may be as much bound by the contracts of their agents as natural persons. Thus in Wilson v. The West Hartlepool Railw. Co., 10 Jur. N. S. 1064, it was held that when a company, through their directors, hold out to the world that a person is their agent for a particular purpose, they cannot afterwards dispute acts done by him, within the scope of such countenanced agency. And accordingly where the general manager of a railway company had in several instances entered into contracts for the sale of the company's lands, which contracts had been adopted by the company, and he entered into a contract with the plaintiff for the sale to him of a portion of their land, and in pursuance of the terms of the contract the company's servants laid down a branch line of railway, and the plaintiff removed machinery and other effects to the land, and no act was done by the company to lead the plaintiff to believe that the contract had been entered into without authority; but they subsequently repudiated the authority of the manager and refused to convey the land to the plaintiff, upon bill for specific performance; it was held that the case fell within the principle of the London & Birmingham Railw. Co. v. Winter, Cr. & Ph. 57, and specific performance was decreed. country, it being generally held indispensable to bind the company by deed that their corporate seal should be used. *SECTION III. Duty of the respective Companies to Passengers and Others. 1. Company bound to keep road safe. Act 6. This rule extends to railways, where perof other companies no excuse. sons are rightfully upon them. 2. Some cases hold that passengers can only n. 3. Cases, as to the necessity of privity of sue the company carrying them. contract existing, reviewed. 3. Passenger carriers bound to make landing- 7. One who keeps open public works is bound places safe. 4. But those who ride upon freight trains, by 8. 5. Owners of all property bound to keep it in to keep them safe for use. Corporations presumptively responsible to the same extent as natural persons in the same situation. § 144. 1. A public company, like a canal or railway, who are allowed to take tolls, owe a duty to the public to remove all ob*structions in the canal or upon the railway, although not caused by themselves or their servants, but by those who are lawfully in * the use of the canal or railway, or by mere strangers. Nor can a* railway company excuse themselves from liability for injury to passengers carried over any part of their road, by showing that the * particular neglect was that of a servant employed and paid by a connecting road as a switchman at the junction of two railways.2 * 1 2. But it was held that a passenger, who suffered an injury in attempting to get upon the cars of one company while using 1 Parnaby v. Lancaster Canal Co., 11 Ad. & Ell. 223; and Lancaster Canal Co. v. Parnaby, Id. 230. See post, § 145, pl. 7, 8, and note. 2 McElroy v. Nashua & Lowell Railw., 4 Cush. 400. Shaw, Ch. J., here says: "The switch in question, in the careless and negligent management of which the damage occurred, was a part of defendants' road, over which they must necessarily carry all their passengers, and although provided for, and attended by a servant of the Concord company, at their expense, yet it was still a part of the Nashua & Lowell Railroad, and it was within the scope of their duty to see that the switch was rightly constructed, and attended, and managed, before they were justified in carrying passengers over it.” * 424-429 the road of another company, by contract with such company, through a defect in the construction of the road of the latter company, could not maintain an action against them, there being no privity of * contract between the plaintiff and such company; the remedy being in such case against the company who were carrying the plaintiff as a passenger.3 3 Murch v. The Concord Railw., 9 Foster, 9; Winterbottom v. Wright, 10 M. & W. 109. But a railway company owe a public duty, independent of all privity of contract, to keep their public works in such a state of repair, and so watched and tended as to insure the safety of all who are lawfully upon them, either by their direct permission or mediately through contract with other parties. Sawyer v. Rutland & Bur. Railw., 27 Vt. R. 377. This is here thus stated by Isham, J.: "That duty is imposed upon the defendants at common law, and it arises not from any contract of the parties, but from the acceptance of their charter, and from the character of the services they have assumed to perform. The obligation to perform that duty is coextensive with the lawful use of the road, and is required as a matter of public security and safety." The same principle is maintained in Smith v. New York & Harlem Railw. Co., 19 N. Y. R. 127, where it was decided that a switch-tender, employed by a railway company on a portion of its road upon which it permits another company to run trains, is not a servant of the latter; and an engineer of the latter, injured by the negligence of such switch-tender, may maintain an action against the company employing him. But where animals were killed by the train of one company, while rightfully upon the track of another company, it was held that the company owning the road was responsible for the damage. Ind. & Madison Railw. v. Solomon, 23 Ind. R. 534. So an apothecary, who sold a deadly poison labelled as a harmless medicine, was held directly liable to all persons injured thereby, in consequence of the false label, without fault on their part. The liability of the apothecary arises, not out of any contract or privity between him and the person injured, but out of the duty which the law imposes upon all, to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug, with such label, may have passed through many intermediate sales before it reaches the hands of the person injured, upon the same principle that one who suffers a dangerous animal to go at large, is responsible for the consequences. Thomas v. Winchester, 2 Seld. 397. In Toomey v. London Br. & South C. Railw., 3 C. B. (N. S.) 146, the plaintiff mistook a door at a railway station, and passing through it, instead of another, fell down a flight of steps and was hurt. There was a light over the door which he intended to pass through, and a printed notice showing the purpose of it. There was also an inscription over the other, but no light. The defendant could not read. There was no evidence that the steps were more than ordinarily dangerous. Held that the company were not liable. But a railway company is bound to fence a station so that the public may not be misled, by seeing a place unfenced, into injuring themselves by passing that way, being the |