Clarke v. Omaha & Southwestern Railroad

5 Neb. 314

• Court: Nebraska Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinions

Gantt, J.

This cause was brought into this court upon appeal, and a decree was rendered therein, at the last January term of this court.

The plaintiff now moves the court to “ abrogate and annul ” that decree, and grant a rehearing of the cause on the ground of alleged “ error and misconception by the court of the issues joined between the plaintiff and the defendant.”

“ 1. That the court, in its decision and opinion filed, manifestly considered, adjudicated upon, and treated this action as in fact an action to enforce the specific performance of the contract for the assignment of the rights, franchises, lines, and surveys of the B. & S. C. R’y Co. and the B., A. & L. R’y Co., and to recover the consideration of such contract, the same being declared by the court against public policy and not to be enforced by the court.” The argument is, that the plaintiff claimed to be the owner of three hundred and twenty-five of the original shares of stock of the defendant company, one hundred of which were paid up by the execution of the said contract.

“2. That the issues joined were misconceived and overlooked by the court in this, that this action was considered, adjudicated upon, and treated by the court as an action for the recovery of one hundred shares of original stock of the defendant company under a contract between the plaintiff and the defendant, which the court declared to be against public policy.” The argument is, that plaintiff claimed to be the owner of said shares through the full performance of that contract, and was in possession of said shares and recognized by the defendant to be the owner of the same, as well as the other two hundred and twenty-five shares not disputed.

“ 3. The court further misconceived the issue and erred in the determination of the law relative to the contract of the plaintiff termed by the court the ante agreement, in this, that the court finding such contract against pixblic policy and of no binding obligation upon either of the parties, in effect held the execution thereof on plaintiff’s part no consideration for the one- hundred shares of original stock of defendant company.”

I have omitted the general argument annexed to each one of these grounds of error. As all these alleged errors are substantially of the same nature and purport, they will be considered together. In the former opinion delivered in this case, it was observed that in his petition “the plaintiff bases his claim for the additional shares upon an agreement, made prior to the organization of the company defendant, between himself of the one part,” and some individuals of the other part, three of whom afterward became members of the company defendant.

Now, what is the fact in this regard? The first, second, and third paragraph in the plaintiff’s petition allege that the Bellevue & Sioux City Railway Company and the Bellevue, Ashland & Lincoln Railway Company were Corporations, organized under the general railroad law of this state, and that they had secured the exclusive right to build a railroad on the line so by them adopted and to receive certain grants of land from the state to aid in the construction of such railroad. In the fifth paragraph of the petition it is alleged that “ divers persons proposed to become incorporate under the style of the Omaha & Southwestern Railroad Company upon a line which conflicted with those of said com]Danies, and with the aforesaid rights thereof; that in order to reconcile said interests, it was, on or about the 20th day of November, in said year, between said parties and said plaintiff agreed that they would become stockholders in said proposed railroad company, he taking four-tenths and they six-tenths of the stock of said company; that he should be paid $10,000 for the surveys made by said companies of the route of said proposed road, and for the right of way through Sarpy county, as at that time secured by them, he agreeing to assign to said proposed company all the right south of Omaha of the first mentioned companies, and to pay $20,000 upon the first assessment to be made upon his stock, and to take and pay for at par four-tenths of so many of the county bonds to be issued to said company by Douglas county in aid of its enterprise as should not be sold for cash, and to contribute in that proportion to the expense of building ten miles of said railroad, and the other parties agreeing to pay $30,000 upon the first assessment to be made on the stock, and to take a like proportion of said Douglas county bonds, and also contribute in the same proportion to the expense of building ten miles of said railroad.” In paragraph six it is alleged that “ on or about the 27th day of November, 1869, certain of said parties, said plaintiff, and others, availing themselves of what had been done as above set forth, as preliminary thereto, entered into articles of association, under said railroad law, and became incorporated under the style aforesaid, with a capital stock of $100,000, divided into one thousand shares of $100 each; that objection being made to plaintiff taking so large an interest as was provided in said contract, he agreed to and did subscribe for three hundred shares only, it being then and there understood and agreed that the said $10,000 coming to. him under said contract should apply on the assessment first to be made thereon.” In paragraph seven it is alleged that on the 31st day of December, 1869, the company permanently organized, and the plaintiff made his subscription, one hundred shares in one parcel, and fifty in another parcel, in his own name, and that twenty-five shares were taken in the name of Caldwell and the same number in tlie name of Briggs, and that “ it was at and about the organization of said company expressly agreed that said plaintiff should have from said company the $10,000 stipulated for in the contract aforesaid, and it was understood that the same would be applied upon the assessment which would be made on his said shares.” In paragraph ten it is alleged, “ that on or about the 15th day of November, 1870, said defendant corporation watered its stock, doubling the amount thereof, and the interests of said plaintiff being made six hundred and fifty shares, and all the assessments upon which, amounting to $32,500, have been fully paid as above set forth.” This last date is a mistake, as the record shows the stock was “watered” September 1, 1870. Now, it certainly appears clear, according to the above allegations in the pleading, that the plaintiff claims the additional shares of stock under the terms and conditions of the prior agreement, which he so fully sets up in his petition, and bases his claim exclusively upon the alleged per-, formance of that agreement. If this were not so, why so fully set up that prior agreement and ground his claim upon it as a contract executed and in full payment of the shares? This is substantially and clearly the gist of the action as set up in the petition; and the same position is taken in the motion for a rehearing, and especially in the third ground of error alleged in the motion. He does not allege payment otherwise, nor does he set up a claim or cause of action by subscription contract and tender of payment for the shares; but the allegations of his petition substantially are, that the shares were his under the terms of the prior agreement. It is true a party may amend his pleading while he preserves the identity of his cause of action. It is, however, said that an amendment is the correction of a mistake or error in the pleading before the court, and that the courts never claimed the power to allow, as an amendment, the insertion of a new cause of action; therefore the insertion of facts constituting a new and different cause of action, would be the substitution of a different pleading, and not an amendment of an existing one. The plaintiff, however, in this case chose to rest his case upon his pleading as found in the record. Trinder v. Durant, 5 Wend., 72. Walter v. Bennett, 16 N. Y., 250. Davis v. Mayor, etc., 14 Id., 506. Williams v. Cooper, 1 Hill, 637. Therefore, under the pleading in this case, the important and primary inquiry is, was the prior agreement made a contract between the plaintiff and the corporation? And, if so, was there a full performance of it by the parties, and the amount of money applied as claimed by the plaintiff? If the contract was against public policy, and it appears that it was accepted and agreed to by the defendant company as a contract between it and the plaintiff, and also was fully performed by the parties, then, the court will leave them in that position to abide the consequences, without any aid from the court to either party; but, if it is not their contract fully executed, then, the court will not enforce it, as the law will not sustain an action founded on such illegal contract. But, if the contract was fully executed, then the plaintiff had received all he now claims, and wherefore was this action commenced?

In McBlair v. Gibbes, 17 How., 236, the rule is admitted that a subsequent contract, if made in aid or furtherance of the execution of one infected with illegality, partakes of the same nature and is equally in violation of law; and the rule is stated in this case that, if the party who might set up the illegality of the contract, chooses to waive it and pay the money, he cannot afterwards reclaim it. In other words, if the contract is fully executed it will not be disturbed by the court. Therefore, whether such illegal contract be executed or not, the court will leave the parties where it finds them. Dixon v. Olmstead, 9 Vt., 310. Inhabitants, &c., v. Eaton, 11 Mass., 375. Howell v. Fountain, 3 Ga., 181. Coulter v. Robertson, 14 S. & M., 29. Marshall v. Balt. & Ohio R. R. Co., 16 How., 334. Hall v. Henderson, 4 Humph., 199. White v. Hunter, 3 Foster, 131. Thompson v. Davis, 13 Jons., 112. That the contract set up in the petition is against public policy seems so clear a proposition that it will hardly be doubted. “ The powers, duties, rights and liabilities of a railroad company, are very fully and clearly defined in the statute,” and no power is given to such corporation to sell, convey or transfer its right of way, lines, property or franchises, unless such company shall have its railroad constructed. It is admitted that the companies claimed to be represented by the plaintiff had' no railroad, nor any part of such road constructed. In Redf. on R’y, 587, it is said that “ an agreement between railroad companies, without authority of the legislature, transferring the powers of one to another, is against public policy, and a court of equity will not lend its aid to carry any such contract into effect.” This question, however, is fully discussed in the former opinion in this case, and it is unnecessary here to repeat the same. 4 Neb., 463-466, and authorities there cited.

Another well established doctrine of the law in respect to corporations is, that a contract cannot be inferred from the unauthorized declarations or promises of its members, or any of them, because corporations manifest their assent to and make contracts by deed or vote of the company as a corporate act, or by the agreement of their authorized agent. Ang. & Ames on Corp., 112. It is said that “the members of a corporation aggregate cannot separately and individually give their consent in such manner as to oblige themselves as a collective body, for in such case it would not be the body that acts. Being lawfully assembled, says Ayliffe, they represent but one person, and may consequently make contracts, and by their collective consent oblige themselves thereunto.” Ang. & Ames on Corp., Sec. 232. Members of a corporation, as individuals, cannot by covenant bind the corporate company, and the circumstance that a person is one of a corporate company, gives him no authority to release a debt due the corporation, though a good consideration is paid for such release. Wheelock v. Moulton, 15 Vt., 521. Tileston v. Newell et al., 13 Mass., 406. Harris v. Muskinghum Manf. Co., 4 Blackf., 268. These rules seem to be founded on the principle that the formation of a legal body by incorporation, confers the character and properties of individuality upon a collective and changing body of men; and that, therefore, the corporation is an entity, and in respect to its appointments, contracts and business affairs, it must act in its corporate capacity as an entity. Providence Bank v. Billings, 4 Peters, 562. I have adverted to these rules to show more clearly that the prior negotiations and contract between plaintiff and some individuals cannot in any manner affect or bind the corporate company, unless after its incorporation, it accepted such contract, and by some corporate act made the contract its own with the plaintiff; and, also, to show that any promise, agreement, conversation or understanding of individual members, unauthorized by the corporation, can have no binding effect upon the defendant company. Therefore, inferences can only be legitimately drawn from corporate acts which tend to prove contracts or promises of the corporation, or from the acts of agents legally authorized to act for it, and not from the unauthorized admissions or promises of individual stockholders. When the plaintiff negotiated the prior agreement with some individuals, he knew that he was not negotiating with a corporate company, and that the contract would not bind the corporation, unless, after its incorporation, it accepted the contract.

At the first meeting, on the 27th day of November, when the defendant company was organized and articles of incorporation “were adopted, signed and executed,” the plaintiff was present and subscribed for shares of stock; but the record evidence of the proceedings shows no action by the company, or that of an authorized agent of it, was had in regard to the prior agreement, nor is there any evidence tending to show that the matter was discussed or even mentioned. Again, on the 31st day of December, following, pursuant to notice published as required by law, the incorporators met, and stock books being regularly opened, seventeen persons subscribed to the stock of the company, in twenty-two parcels, and one of those subscribers was the plaintiff. On the 7th day of February following, the members met and elected a board of directors, of which the plaintiff was one. The record evidence of these meetings shows no action of the company in regard to the prior agreement, or of any claim of the plaintiff by virtue of the agreement. No allusion is made to the matter in the record evidence of these meetings. If the plaintiff desired the prior agreement to be made a contract between him and the corporate company, why did he not present the matter at the meeting when the company was organized and became incorporated? Why did he, on the 31st day of December, subscribe for stock to be paid in cash to the full amount? Having signed such a subscription contract, parol evidence is not admissible to vary it, or to establish an agreement inconsistent with it. Conn. etc. R. R. Co. v. Bailey, 24 Vt., 465. Blodgett v. Morrill, 20 Vt., 509. Congregational Soc. v. Perry, 6 N. H., 164. Robison v. Pittsburg etc. R. R. Co., 82 Penn. St., 334. But why did he not demand the acceptance of the prior agreement by the corporate company and the application of the money claimed by him in payment of stock for him before he entered into the subscription contract? If he had done so, and his demand had been rejected, he would have been deprived of no rights'or franchises which he had in the companies he claimed to control; whatever those rights and franchises were, he could have availed himself of all the advantages and authority they conferred.

Afterward the plaintiff pressed the payment of the amount claimed by him of the corporation, but upon a careful review of the case, I find no act of the corporate body, or that of any person authorized by it, whereby the prior agreement was made a contract between the plaintiff and the defendant company, or it was agreed that the amount claimed by plaintiff was or should be applied in payment of stock for him, or the agreement was an executed contract between the parties.

It is said that the prior agreement was made by promoters before the charter, and for this reason it may be enforced. It is not doubted that the majority of persons associated for a common object, intending to procure a charter, may authorize acts to be done, not contrary to public policy and sound morality, and if such acts are accepted by the corporation, they must be taken oum onere; but the minority of such persons cannot authorize such acts to be done. In this case, only three of the corporators participated with plaintiff in the prior negotiations, and their agreement with the plaintiff, as shown, was illegal. Again, some testimony of J. Clopper is referred to as tending to show an acceptance of the prior agreement by the corporation. This witness says: “My impression is, that by the terms of the writing, at the organization of the company, it was imderstood that we were to pay him ten thousand dollars. It was agreed afterwards to be paid in stock. -x- ■* -x- p tliinls; no one but Mr. Caldwell and myself were present when tlie understanding was come to that we would pay Clarke ten thousand dollars in stock. It was a conversation between Mr. Caldwell and myself, in his hack room.” His impression of what was under-, stood, it seems to me is entirely insufficient to establish a contract between the parties. But both Clopper and Caldwell were parties to the prior agreement with plaintiff, and the above conversation was between themselves only, in the “ back room ” of the latter. Now, it would, indeed, be a strange and novel rule of law, if such unauthorized conversation and understanding between these two stockholders should be held as a contract between the corporation and the plaintiff. To' make a contract for the parties out of such conversation, would be a direct infringement of the established doctrine of the law, and I hardly think the court would be urged to make one for the parties upon such evidence.

Again, it is insisted that such contract was accepted and executed, or may be so implied from a resolution of the board of directors of December 6th, 1869, proposing “ that the president be instructed to draw his order on the treasurer for ten thousand dollars, to be paid to Henry T. Clarke for the surveys and right of way over so much of the Bellevue & Sioux City Railroad line as lies south of Omaha, and for the surveys and right of way over the Bellevue, Ashland & Lincoln Railroad line, when he shall have made in behalf of said companies a full legal transfer of the same, together with all other interests of every nature in the franchises claimed by them to the Omaha & Southwestern Railroad Company.” This is not a proposition to accept and adopt the prior agreement in terms, nor to apply any money in payment of shares of stock for the plaintiff, and is inconsistent with the case stated in the plaintiff’s petition. It, however, never resulted in an executed contract, nor in any agreement whatever between the parties. Briggs testifies that he saw a pile of papers in the office of the company which the plaintiff left there; that afterwards he called the plaintiff’s attention to them, or plaintiff called his attention to them; but “cannot say when it was, but it was sometime in the winter of 1870, perhaps the latter part, about two months after the company was organized.” He says in regard to the plaintiff’s claim, the question “was frequently discussed in the board room, and objections were always raised to paying Clarke the ten thousand dollars;” and further, “ I may state further that this company, the defendant, has never, to my knowledge, by the board of directors, officers, or any of its stockholders individually accepted these papers of Mr. Clarke in any manner whatever, no more than that they were in the room.” Clopper testifies that the “expression of the members at these meetings was universal, not to pay him (Clarke), the ten thousand dollars for the papers produced.” Caldwell testifies that “ Clarke was present when he asked for the ten thousand dollars. The board did not receive his claim with any favor. Mr. Clarke left his right of way papers in the office-in an envelope marked ‘ property of Mr. Clarke,’ to be taken away. He would not take them away.” I have referred to this testimony simply in affirmation of the fact that no agreement between the parties resulted from the proposition contained in the resolution. But suppose it be assumed that the resolution be taken as an agreement on the part of the defendant company to pay plaintiff, will the court lend its aid to carry such agreement into effect? As a court, we must interpret the writing as we find it in the record, and the record clearly shows that its terms and conditions are as obnoxious to the law as those of the prior agreement; that they are against public policy, see authorities cited in reference to the prior agreement. In Duncan v. Blair, 5 Denio, , it is held that “ full performance by the plaintiff of a contract void under the statute, and partial performance by the defendant does not take it out of the statute as to what remains.”

Again, it is urged that the agreement as a contract executed may be implied from the preamble to a resolution adopted by the stockholders at their meeting of September 1, 1870, which, together with the resolution, is as follows: “Whereas, the twenty miles of railroad now constructed will cost, when all the debts are paid and the road is equipped, at least $500,000; and, whereas, it will be necessary, in order to liquidate said debt and equip said road, to issue bonds of the company to the amount of $300,000; and, whereas, it is desirable that the stock of the company with said bonds should equal the cost of said road: Therefore, be it Resolved-, That the company issue stock to the amount of $200,000, to be divided among the stockholders according to their respective interests, as shown by the amount of money paid in by each.” Now, it is simply impossible to find any fact in this preamble from which it may be implied that the prior agreement is a contract executed between the parties; and would it not be a perversion of language to infer from it that shares of stock had been issued to the plaintiff or any other persons? The resolution negatives such theory; it speaks of $200,000 of stock to be issued, and it is an express contract that the company issue this amount of stock, to be divided among the stockholders according to their respective interests, as shown by the amovmt of money paid in by each. The members voted upon this resolution in the same manner as they formerly voted; and the plaintiff, by voting in favor of the resolution, expressly agreed to receive as his portion of the total amount of the $200,000 stock to be issued, just in proportion to the amount of money paid in by him. But suppose that under this resolution only $100,000 were to be divided among the stockholders, according to its terms, there would still be two thousand shares; and although each share would represent one hundred dollars, yet, in fact, the actual amount paid for each share by stockholders would only be fifty dollars. The plaintiff paid in $10,000; Malloy and King paid in $12,500, which the plaintiff held by assignment, making a total of $22,500. Now, suppose three hundred and twenty-five shares had been issued to plaintiff, then, in the division, in order to make his shares equal to the amount represented by him as paid in, he must receive one hundred and twenty additional shares, making a total of four hundred and fifty shares, which equal the $22,500 actually paid in as above stated. 4 Neb., 469. At.th&meeting of the stockholders,- September---3',"'two days after the resolution contract was adopted, the members voted as formerly; hut after this meeting, Caldwell and Briggs did "not again vote any shares in trust for plaintiff. At the-next meeting, on the 30th day of September, 1870, the plaintiff voted one hundred shares, Caldwell votjed seventy-five shares, twenty-five shares having been transferred to him by J. F. Young, and Briggs voted fifty shares; and thereafter all votes east by stockholders, ás shown by the record, were based on the stock as '“watered,” the plaintiff voting his four hundred and iafty shares without objection or protest until after he :had commenced this suit. Here is a period of over fifteen months without any objection by plaintiff to the resolution contract of September 1, 1870, to which he assented by his vote, as shown by the record. Ho not these facts constitute an insuperable difficulty in the way of the plaintiff availing himself of any benefit in this action, from the manner in which the shares of stock were voted? And are they not conclusive in respect to the amount of his stock in the company?

In December, 1869, and in March, 1870, some correspondence by officers of the company was had with plaintiff in regard to the payment of stock, and the fact is simply referred to, to show that it was long prior to September 1, 1870, when the interests of the stockholders were determined by the actual amount of money paid in by each.

Again, it is urged that a contract executed may be implied from the report of a committee, in which it is recommended that the “ franchises of the Omaha & Southwestern, the Bellevue & Sioux City, and the Bellevue, Ashland & Lincoln railroad companies heretofore organized, shall be used by this company so far as may be necessary or advisable to do so, to further the organization of this company.” This occurred before the defendant company was incorporated. But no contract is referred to and no terms are expressed in this report, and after the company became incorporated and the plaintiff presented liis'claim, the corporate body presistingly refused to allow it. Would it not, therefore, be an unwarrantable exercise of judicial power for a court to make a contract for the parties out of such evidence, and then determine it to be a contract executed? If, however, a contract is supposed to be implied, then, it would be illegal for the reasons hereinbefore stated, and a court would not enforce it.

Again, the testimony of Malloy is urged in support of the plaintiff’s theory of a contract executed. On a. careful examination of this testimony, it will be found1 that, after stating his occupation and residence, and that he was once a member of the defendant company, his answers to questions from three to nine inclusive, relate wholly to matters connected with, and incident to the negotiations between plaintiff and individuals prior to the incorporation of the defendant company. With two exceptions, his answers to the remaining questions propounded to him, relate mainly and substantially to hi opinion in regard to the circumstances requiring the early construction of the railroad and the advantages of an agreement with the plaintiff, to the shares of stock subscribed by the plaintiff, to his opinion that “ the transfer of the stocks of plaintiff’s two companies,” made no difference to the defendant, and that there were slight variations of the line of the company, from that of the plaintiff’s companies.

The exceptions are: “Question 12. What agreement, if any, was there about the mode of paying him the $10,000 coming to him for his surveys, etc.? Ans. It was to be applied in paying his stock. Question 15. Do you know anything about Clarke’s giving the company his check for $10,000 to pay assessments? If you do, state on what agreement he did so. Ans. He gave his check for that amount on the express agreement with Caldwell, and full understanding by us all that it was to be paid by the $10,000 coming to him from the company.” It seems very clear that the witness bases his testimony on an agreement between Caldwell and plaintiff, and his understanding. This understanding is not evidence. Lacey v. Central National Bank, 4 Neb., 183.

His understanding of matters may be very different from that of others. The witness must state facts. But Caldwell testifies positively that he said the check “must be cash to operate on,” and that plaintiff said, “ he would make it good in a day or two,” and further says, “ that check was not paid. It was not paid because there was not money to Mr. Clarke’s credit to meet it.” But Caldwell certainly had no power to make such an agreement with the plaintiff, unless authorized to do so by the corporation, and the record discloses no evidence of corporate action from which such authority may be inferred, and no evidence of any corporate act from which an agreement may be implied.

Malloy states no facts or circumstances in regard to the acts of the corporation in support of his general conclusions.

It is argued that the acceptance of the agreement set up in the plaintiff’s, petition by the corporation may be implied from a resolution of the board of directors, adopted February 7, 1870, which is as follows:

“ Resolved, That all the acts, contracts and obligations heretofore incurred, made or assumed by the company, be and the same are hereby adopted, ratified and confirmed.” It is certainly a clear principle of law, that a contract cannot be “incurred or assumed” without the assent of two parties, and that there can be no adoption and ratification of a contract unless there be an express or implied consent to it by the parties Then, how can this resolution have any effect upon the agreement set up in the petition, which, as already shown, had not been accepted by the corporation defendant? It seems that to give the resolution the effect contended for, would be an attempt to make something out of nothing. But even if an implied acceptance and ratification of the agreement is presumed, under this resolution, such acts will not change the character of an illegal contract or give it any validity.

The fourth ground of error alleged in the motion is, that the court adjudged the plaintiff bound by his assent to, and subscription of the contract, transferring the funds and assets of defendant company to the Nebraska Land & Improvement Company. The question raised by this point, I think, is sufficiently answered in the former opinion in this case, and it is unnecessary to repeat the same here. 4 Neb., 473.

In the fifth ground of error alleged in the motion, it is stated that $28,000 of bonds were “distributed in his, (plaintiff’s) Wrong among certain defendants, being so much of the interests in the improvement company, not taken by bond and stockholders in the said railroad company under the contract of July 19.” It may be true that there was inequality in the distribution of- these bonds; but what the fact is in this regard, it is not necessary now to inquire, for the reason, that the petition sets up no such claim, and contains no allegation in regard to these bonds. The rule is well settled that relief to be given under a general prayer must be conformable to the case made by the petition, and not different from or inconsistent with it. The couiit can only adjudicate upon the case made by the pleading. It is said that “ a party is not allowed to state one case in his bill or answer, and make out a different one by proof: the allegata and probata must agree; the latter must support the former.” Boone v. Chiles, 10 Peters, 209. English v. Foxall, 2 Peters, 595. Wilkin v. Wilkin, 1 Johns. Ch., 111. Chalmers v. Chalmers, 6 Har. & J., 29. Drenforth v. Smith, 23 Vt., 247. Dunnock v. Dunnock, 3 Md. Ch., 140.

Much has been said about defendant company using some surveys made by the plaintiff’s companies, in the construction of its road. If the plaintiff or the companies represented by him are entitled to compensation for the use of the surveys, the law afforded them an ample remedy for the recovery of the same; but the plaintiff sets up no such claim in his petition in this action. See authorities cited above.

Assuming that the Bellevue companies did sell to and the defendant company accepted, under such sale, the rights, franchises, etc., of those companies, upon what principle of law does the plaintiff bring this action, in his individual name, to recover the purchase price? If those companies had legal existence, would not the right of action vest exclusively in them?

I must conclude, after a careful review of .the case, that the grounds stated in the motion are not sufficient to vacate the decree heretofore rendered, and to grant a rehearing of the cause, and, therefore, the motion must be overruled.

Motion overruled.

Lake, Ch. J., concurs.