Opinion
A judge of the Superior Court in passing upon an application for the appointment of appraisers in condemnation proceedings exercises part of the judicial power of that court. Such an application was, by the advice of this court, adjudged sufficient on demurrer. Afterwards certain special laws of this State were pleaded at length as a defense in an answer. Held that since the trial court was bound to take judicial notice of these laws in disposing of the demurrer, the answer presented nothing new and was properly adjudged insufficient. The president of a railroad company may testify as to its intention in improving and double-tracking its line, without producing a copy of a recorded vote or other evidence of formal action by its directors. The rule as to parol evidence of a corporate intent inconsistent with action which has been taken and is on record, has no application to parol evidence as to a corporate intent respecting action to be taken in the future. Questions not made in the trial court need not be considered by this court on appeal.
Submitted on briefs April 11th, 1905
Decided May 12th, 1905.
APPLICATION to Hon. Edwin B. Gager, a judge of the Superior Court, for the appointment of appraisers of two shares of the stock of the New Haven and Derby Railroad Company owned by defendant. A demurrer to the application having been overruled pursuant to the advice of this court ( 77 Conn. 417), an answer was filed, containing two defenses. A demurrer to the second defense was sustained, and upon a hearing on the first a judgment was rendered as claimed, from which this appeal was taken. No error.
Charles K. Bush and Edward H. Rogers, for the appellant (defendant).
George D. Watrous, Harry G. Day and Henry H. Townshend, for the appellee (plaintiff).
The second defense in the defendant's answer was that the plaintiff already had, under certain amendments to its charter which were set forth at length, power to do all that it proposed, by means as advantageous to the public as it would have, should it take the defendant's shares of stock. As courts take judicial notice of all the Private Acts of this State, and as the judge of the Superior Court, in dealing with this cause, was exercising part of the judicial powers of that court, this defense presented a mere question of law, already disposed of in accordance with our advice; and the demurrer to it was properly sustained. General Statutes, § 697; New Milford Water Co. v. Watson, 75 Conn. 237.
Upon the hearing on the questions of fact raised by the first defense, it appeared that the directors of the plaintiff company had voted to authorize the expenditure of $275,000, under the supervision of its president, for improving and double-tracking about four miles of the New Haven and Derby railroad, next west of the intersection of that railroad with the Naugatuck division of the plaintiff's railroad; that from this intersection to New Haven by way of the Naugatuck division was over twenty-one miles, and by way of the New Haven and Derby railroad less than eleven miles; and that the work under the vote was already under contract and in progress. The president of the company testified that it was its intention to make all the improvements described in the application as proposed, in case of the acquisition of the defendant's stock; and that it had begun the work on the tracks lying west of the Naugatuck division because the necessity for such improvements there was so great that the company could not wait till these two shares had been acquired.
There was no error in the admission of this evidence. It was unnecessary to show a recorded vote of the directors authorizing the execution of the entire improvements contemplated, in case of the acquisition of the stock in controversy. The president of a railroad corporation may well be sufficiently acquainted with the policy and plans of its directors to testify in regard to them, although they may have never been made the subject of formal action. The rule as to parol evidence of a corporate intent inconsistent with action which has been taken and is on record has no application to parol evidence as to a corporate intent respecting action to be taken in the future.
In the case at bar it did not appear that the directors of the plaintiff had passed any vote relating to the subject in hand, except that above mentioned, and no evidence was offered in opposition to the testimony of the president.
The proofs submitted having satisfied the judge of the Superior Court that the statements in the application were true, he properly found that the acquisition of the defendant's stock would be for the public interest, and proceeded, notwithstanding the objection of the defendant, to appoint appraisers. New York, N. H. H.R. Co. v. Offield, 77 Conn. 417.
It is contended that the plaintiff was bound to show that the board of directors had voted both to make all the improvements described in the application, and to take for that purpose the defendant's stock.
The absence of allegations to that effect in the application was not made a ground of demurrer, nor was this point made at any stage of the cause before the judge of the Superior Court. It is therefore unnecessary to consider it here.