The plaintiff could not in this particular | have had a more favorable charge. Assuming that the words are actionable per se, a verdict for the plaintiff was the inevitable result, unless the defendant established his justification of the truth, or his plea that the publication was made in the line of his military privilege. [1] Upon the subject of privilege the court charged: "In this case I instruct you that, if you find that Col. Fitch, his superior officer and colonel of his regiment, sent Mr. Joseph A. Gray's letter relating to the promotion of plaintiff to the defendant for explanation or indorsement at a time when a first sergeant was under consideration, then the defendant was privileged to make and send to such colonel an indorsement on it for the information of his said superior officer and colonel, as to the effect which such promotion would have on the company and the military service, although the matter therein was defamatory and false, provided such communication was made in good faith, and belief in its truth, with intent to perform defendant's duty to the company and the service." It was undisputed that Col. Fitch did send this letter to the defendant for explanation or indorsement at a time when the appointment of a first sergeant was under consideration. The court was correct in stating that the indorsement made under these circumstances, was privileged if made without malice. So that the issues in controversy for the decision of the jury were: (1) Were the words false? (2) Were they made in malice? On the evidence the conclusion that the words, used as they were, merely in their natural sense, describing the plaintiff as possessed of an unfortunate temperamental personality, were true. Further, if the jury had properly found these words to have been false, under the charge, they must have found that they were published in the exercise of a military privilege. In order to hold the defendant liable for publishing a privileged communication of that character, it was essential for the jury to have found that the defendant was actuated by malice in making the publication. In answer to an interrogatory, the jury so found. Malice in this sense means that the defendant was actuated by an unjustifiable motive. We have searched the evidence in vain to satisfy ourselves that this conclusion could be reasonably reached from the evidence. We are of the opinion the trial court did not err in granting the motion to set aside the verdict. [2] The refusal of the court to order either the defendant or the clerk of the court to furnish a copy of the stenographer's minutes, and its order that the plaintiff furnish such copy for the purposes of his appeal, accorded with our practice. G. S. § 805; Lynahan v. Church, 82 Conn. 132, 72 Atl. 726. The court's refusal to make a finding was not erroneous; none such was required in a case of this kind. | Evidence held to support a finding of the trial court that defendant, at the time of the homicide, was not so intoxicated as to be incapable of premeditation and deliberation. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 501; Dec. Dig. § 238.*] Appeal from Superior Court, New Haven County; Lucien F. Burpee, Judge. Joseph F. Bergeron was found guilty of murder in the first degree, and he appeals, Affirmed. J. Birney Tuttle, of New Haven, and Joseph G. Woods, of New Britain, for appellant. Arnon A. Alling, State's Atty., of New Haven, for appellee. RORABACK, J. Section 1140 of the General Statutes, relating to the degrees of murder and indictment therefor, among other things, provides that: "The degree of the crime charged shall be alleged in the indictment; but the jury before which any person indicted for murder shall be tried may find him guilty of homicide in a less convicted by confession, the court shall examine degree than that charged; and if he shall be witnesses to determine the degree of the crime and give sentence accordingly." The accused was indicted for the crime of murder in the first degree for having shot and killed one Elizabeth R. Dowsett on the 4th day of June, 1913, by means of a pistol. At the July term, 1913, of the superior court of New Haven county, Bergeron pleaded not guilty. The prisoner obtained experienced counsel, and the case came regularly to the next term of the superior court, when the court was informed that Bergeron desired to change his plea and asked the court, pursuant to the provisions of section 1140 of the General Statutes, to determine the degree of the crime committed, and to give sentence accordingly. Before his arraignment, and before his final plea and confession were received and entered, the court, upon proper inquiry, ascertained that the prisoner fully and clearly understood the consequence to him if he took the course he proposed. Bergeron was then allowed to change his plea and pleaded guilty to the indictment charging him with murder in the first degree. Thereupon the court heard the evidence, determined the degree of the crime to be murder in the first degree, and sentenced Bergeron to pay the penalty of death. by the evidence, how the court below could (88 Conn. 233) CHIEPPO v. CHIEPPO et al. (Supreme Court of Errors of Connecticut. June 10, 1914.) [1] The accused contends that these conclusions are not justified by the evidence which is before us under section 797 of the General Statutes. To sustain this contention, we 1. CORPORATIONS (§ 35*)-EXISTENCE - CONmust find that the facts stated were found without evidence. Nogga v. Savings Bank, 79 Conn. 426, 65 Atl. 129. The record discloses no cause for correcting the finding in any of the particulars requested by the appellant. The defense relied upon was that no great er crime was committed than murder in the second degree, by reason of the fact that Bergeron, at the time the homicide was committed, was in a state of acute alcoholic intoxication, and incapable of premeditation and deliberation. TRACTS. A corporation formed under the Corporation Act (Laws 1903, c. 194), declaring that corporate existence begins when the certificate of incorporation is approved by the Secretary of State, is vested with corporate powers from the date of its corporate existence, notwiththat no corporation shall commence business unstanding section 69 of the act, which declares til the filing of a certificate of organization, which is but a limitation on the right to exercise the powers granted. Cent. Dig. § 103; Dec. Dig. § 35.*1 2. CORPORATIONS (§ 448*) → ORGANIZATION — [2] Upon this subject testimony was given A business contract of a corporation orfor the defense by his relatives, friends, as-ganized under the Corporation Act (Laws 1903, sociates, and a medical expert. The accused also testified in his own behalf. The evidence tended to show that Bergeron had been drinking heavily for three or four days before the homicide, and that when he shot and killed Mrs. Dowsett he was in a state of intoxication, and not capable of forming a malicious and deliberate intent to kill. It was conceded that Bergeron entered a dwelling house in the city of New Haven occupied by the woman Dowsett, with a revolver, with which he fired several shots into her body, which resulted in her death. The evidence produced by the state showed that the accused fully prepared himself for the work which he consummated. It was clear that he purchased the revolver for the purpose of killing Mrs. Dowsett. There was an abundance of proof of malice, preparation, premeditation, and that the woman fell a victim either of the jealousy or rage of Bergeron. The conduct of Bergeron and his statements before and after the homicide was committed were such as to indicate that he was conscious of the nature of his act, and knew that it was wrong. c. 194), made after the approval of its certificate of incorporation, but before the filing of its certificate of organization, is not a mere nullity, and the contract is enforceable on principles of ratification or estoppel after the certificate of organization is filed, notwithstanding section 69 of the act, which provides that no corporation shall commence business until a certificate of organization is filed. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. § 448.*] 3. CORPORATIONS (§ 448*) -ORGANIZATION RIGHT TO DO BUSINESS. A note of a corporation for a loan, made after the approval of its certificate of incorporation under the Corporation Act (Laws 1903, c. 194), but before the filing of the certificate of the certificate of organization, where the loan organization, is enforceable after the filing of was made for the use of the corporation and all the parties supposed that the corporation was legally authorized to execute the note. Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. § [Ed. Note. For other cases, see Corporations, 418.*] 4. PRINCIPAL AND AGENT (§ 150*) -CONTRACTS MADE BY AGENT LIABILITY OF AGENT. An agent, who in good faith makes a contract in the name of his principal under the belief that he has authority so to do, is not liable where the contract is enforceable against his principal, but is liable on an implied warranty of authority in case the contract is not enforceable against his principal. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. $8 556-563; Dec. Dig. § 150.*] The superior court has found that: "The defendant showed no signs of even slight intoxication at any time on the morning of the homicide; that, from the answers given to the questions put to him by several persons within a few minutes after the shooting, it was apparent that the defendant knew and fully understood and appreciated the circumstances 5. PRINCIPAL AND AGENT (§ 150*) -CONand situation, and was thoroughly conscious of TRACTS MADE BY AGENT-LIABILITY OF what he was doing, and of what he had done." AGENT. The question of irresponsibility in connec-known, at the time he made a contract in the Where an agent knew, or ought to have tion with all the evidence presented a ques- name of his principal, that he had no authority tion of fact for the superior court, the de- to make the contract, he could be sued for determination of which is binding upon us. ceit by the person with whom the contract was made. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. $8 556-563; Dec. Dig. § If more need be stated upon the subject, it is sufficient to observe that we do not see, under the facts and circumstances disclosed, 150.*] 6. CORPORATIONS (§ 306*)-CONTRACTS MADE | taken other than by bringing this suit to enBY AGENT-LIABILITY OF AGENT. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. § 306.*] Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge. Action by Maria Chieppo against Savino Chieppo and others for deceit. From a judgment for plaintiff, defendant Paul Russo appeals. Reversed, and new trial ordered. force the note. There is no finding one way or the other as to whether the corporation was solvent prior to its dissolution, or, whether its directors as statutory trustees, under section 30 of the Corporation Act of 1903, concerning the voluntary dissolution of corporations, had in their hands funds sufficient to have paid the note on demand. Levi N. Blydenburgh and Benjamin Slade, both of New Haven, for appellant. Samuel A. Persky, of New Haven, for appellee. BEACH, J. (after stating the facts as above). [1] This is an action in the nature The amended complaint alleges in sub- of an action of deceit. The deceit alleged is stance: That the defendants on November 2, in falsely representing that the corporation 1908, filed a certificate of incorporation of in whose name the note in question was exethe S. Chieppo & Sons Company. That they cuted was then lawfully authorized to exethereupon engaged in the business referred to cute the note, and the important question prein the certificate, and falsely and fraudulent-sented by this appeal is whether the facts ly held themselves out to the plaintiff as a found are sufficient to support a judgment corporation authorized to do business. That against the individual defendants for the on May 17, 1909, the plaintiff, relying on the face of the note with interest. The plaindefendants' representations, loaned to them tiff's claim is that the defendants are per$1,696 for the use of such pretended corpora-sonally liable on the note because they astion, and took from them a promissory note sumed to execute it as agents for a principal in the following form: "1,696. New Haven, Conn., May 17, 1909. "On demand after date we promise to pay to the order of Maria Chieppo sixteen hundred and ninety-six 00/100 dollars, payable at 586 Grand Ave. Value received. "The Chieppo & Sons Co. "Savino Chieppo, Prest. who was legally incapable of making such a contract. Then it is said on the authority of Johnson v. Smith, 21 Conn. 627, Ogden v. Raymond, 22 Conn. 379, 58 Am. Dec. 429, and Jacobs v. Williams, 85 Conn. 215, 82 Atl. 202, Ann. Cas. 1913B, 900, that the liability does not flow from the obligation of the contract, but from the wrong. The conclusion is that therefore the defendants may be held in That in truth the defendant corporation damages in this action for the face of the had not on that date filed its certificate of note with interest, without allegation or organization, and was not then a corporation. | proof of any demand on or refusal to pay by organized to do business, and that by reason of the false and fraudulent representations aforesaid the plaintiff has been damaged in the sum of $1,696, with interest from May 17, 1909. The defendants Savino Chieppo, Angelo Chieppo, and Nicola Chieppo defaulted, and the defendant Paul Russo alone appeared to defend the action. The judgment file finds the issues for the plaintiff. It is also specially found that the corporation commenced and continued to carry on its business as a corporation from the date of filing the certificate of incorporation up to and after May 17, 1909; that a certificate of organization of the corporation was filed October 6, 1909; that on October 8, 1909, a notice of voluntary dissolution under the statute was filed, and thereafter the corporate existence was dissolved; that none of the defendants were guilty of fraud, other than as may be inferred from the facts surrounding the execution of the note; that at the time of the execution and delivery of the note both the plaintiff and the defendants supposed it was the valid note of the corporation organized to do business; and that it did not appear what, if any, steps had been the corporation and without any allegation or proof that the corporation was not able to pay on demand. In other words, the plaintiff assumes that section 69 of the Corporation Act of 1903, which provides that "no such corporation shall commence business until * * a majority of its directors have caused to be filed a certificate of organization," etc., imposes an absolute incapacity to contract with reference to corporate business, so that any demand on the corporation would be legally futile, and that the defendants are therefore liable on the same principle as if they had assumed to contract as agents for a nonexistent corporation, or for a prospective corporation which had not yet been incorporated. Lewis v. Tilton, 64 Iowa, 220, 19 N. W. 911, 52 Am. Rep. 436; Blakely v. Bennicke, 59 Mo. 193; Kilmer v. Baxter et al., L. R. 2 C. P. C. 175. We think the principle relied on by the plaintiff is inapplicable to this case because the corporation was not only a de facto but a de jure corporation when the note was executed. Under section 65 of our Corporation Act the corporate existence begins when the certificate of incorporation is approved by the Secretary of State. Section 3 provides and Seebarger v. McCormick, 178 III. 404, 53 that: N. E. 340, were decided. Having in view the character of the cor "Every corporation shall have power to sue and be sued and complain and defend porations affected, and that the disability in any 'court." Section 59, which applies only to corporations formed under the General Statutes, provides that every corporation to which it applies shall have the power among others to issue promissory notes. No time is specified in the act when these powers shall accrue to the corporation, and it is therefore evident that corporations formed under the act are vested with these powers from the date when their corporate existence begins. Section 69 is not, nor does it purport to be, a grant of the power to do business, but it is on its face a limitation on the right to exercise the powers already granted. may be terminated at the will of the corporation, it is apparent that public policy does not require us to hold that all contracts made in violation of section 69 are void ab initio. Such a construction would deny to a private trading corporation the right to ratify a contract made in its name before the filing of its certificate of organization, although it had received and retained the consideration and had afterwards completed its organization according to law. [3] In the present case the loan was made for the use of the corporation, and all the parties supposed that the corporation was legally authorized to execute the note. Un [2] The next question is as to the charac-der such circumstances the corporation would ter of the limitation so imposed by section 69, be liable as for money had and received. whether the business contracts of a corpo- even if its corporate organization had never ration made after the approval of its certifi- been completed; and we see no reason why cate of incorporation and before the filing of it should not be directly liable on the note its certificate of organization are mere nulli- after its temporary disability to execute the ties. We think not. The statute does not note has been removed. The result which we provide that such contracts shall be void, al- reach is that, in cases where the contract though the Legislature must have contem- would otherwise be enforceable on principles plated the possibility that corporations duly of ratification or estoppel, section 69 of the incorporated under the act might actually | Corporation Act will not prevent a business engage in business before filing a certificate contract, made before the certificate of orof organization, and might hold themselves ganization was filed, from being enforced out to the public as having the right to con- against the corporation after such certificate tract with reference to present business is filed. transactions. It is reasonable to infer that [4, 5] It follows that the individual liabilthe Legislature intentionally left the conse-ity of an agent who makes a business conquences of such a premature engagement in tract in the name of an existing corporation business to be determined in accordance with not yet completely organized is to be governthe well-settled rules of law governing the ed by the rules which ordinarily prevail enforceability of contracts made in excess of where one contracts as agent for a named the legal powers of corporations. principal without sufficient authority. In Whether any such contract is enforceable such cases the agent is not liable or bound or not depends in each case upon balancing by the contract, because nobody intended that consideration of public policy against the he should be so bound; but if, by reason of equitable rights of the parties. On the one his lack of authority, the contract is not enhand, it is for the interest of the public that forceable against the alleged principle, the the corporation shall not transcend the party who has been induced to contract on powers conferred on it by law; and, on the the faith of the agent's authority has one of other hand, a corporation ought not to be al-two remedies. If the agent honestly believed lowed to escape its just debts, though the that he had an authority which he did not creditor be at fault from failing to take no-possess, he may be sued on an implied wartice of the legal limit of the corporate powers. In this connection it is to be observed that the disability imposed by section 69 is on its face merely a temporary one, that it is removable at the volition of the corporation by completing its organization according to law, that no subsequent consent of an off-liams, 85 Conn. 215, 82 Atl. 202, Aun. Cas. cial vested with discretionary powers is neeessary before the corporation can begin business, and that the Corporation Act relates But in such cases there can be no breach solely to private business corporations, and of warranty or actionable deceit if the prindoes not include in its scope public service cipal is in fact bound by the contract. If the or financial corporations. In all these re-principal is bound, the other party has no spects our Corporation Act differs widely | ground of complaint against the agent. And from such statutes as the National Bank Act, it can make no difference whether the prinunder which McCormick v. Market Bank, 165cipal is bound because the agent was author ranty of authority. If he knew or (as in this case) ought to have known that he had not the authority which he professed to have he may be sued in the action of deceit. Starkey v. Bank of England, 1903 A. C. 114; Noyes v. Loring, 55 Me. 408; Jacobs v. Wil 1913B, 900; Anson on Contracts, pages 424– 429. ratification, or because the principal is estopped to deny that the agent was in fact duly authorized. If for any reason the principal is bound by the contract, the other party, who contracted with the principal, and not with the agent, has received all that the agent agreed or assumed to procure for him. [6] In the present case the corporation became directly liable on the note, on the principles of ratification or estoppel, as soon as its certificate of organization was filed, and it was legally authorized to execute such a note; and although the defendants were bound as corporators to know that they did not have authority until then to execute a note for business purposes in the name of the corporation, yet their liability to answer for the consequences in an action of deceit ended when the liability of the corporation on the note attached. It is unnecessary to comment on the subsequent dissolution of the corporation. The statutes governing voluntary dissolution proceedings amply protect creditors, and there is no allegation or finding that, the defendant directors have violated their duties as statutory trustees. There is error, and a new trial is ordered. The other Judges concurred. (88 Vt. 93) INTERNATIONAL PAPER CO. et al. v. BELLOWS FALLS CANAL CO. move a cloud on title cannot be construed as an exercise of the court's discretion to grant the relief which is not reviewable on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3807; Dec. Dig. § 941.*] 5. EQUITY (§ 51*)—JURISDICTION-MULTIPLIC ITY OF SUITS-IDENTITY OF ISSUES. Equity has no jurisdiction, on the ground of multiplicity of suits, over a bill by numerous orators to whom the defendant had granted water power rights, by separate instruments with different provisions, and at various times, where the orators claimed equitable estoppel, since the issues between each of the orators and tried and determined. the defendant would still have to be separately [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 167-171; Dec. Dig. § 51.*] 6. EQUITY (§ 51*)—JURISDICTION-MULTIPLICITY OF SUITS. A claim that a suit in equity by numerous orators would relieve the defendant from a multiplicity of suits, which he does not ask to be relieved from, is not looked upon with favor as a ground of equitable jurisdiction. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 167-171; Dec. Dig. § 51.*] 7. EQUITY (8 295*) - JURISDICTION - SUPPLE MENTAL BILL. Where the original bill establishes no case for equitable relief, the orators cannot make such a case by a supplemental bill setting up a new cause of action. [Ed. Note. For other cases, see Equity. Cent. Dig. 88 581-583, 587, 599; Dec. Dig. § 295.*] 8. EQUITY (§ 136*) —JurisdicTION-NATURE. The jurisdiction of equity is governed by well-settled principles, and a bill seeking equitable relief must state facts which bring the suit within those principles; it not being suf (Supreme Court of Vermont. Windham. May ficient that it disclose a general situation, 20, 1914.) 1. EQUITY (§ 43*)—EQUITABLE ESTOPPEL-NATUBE JURISDICTION. A claim of an equitable estoppel is as available at law as in equity, and is not sufficient ground for equitable jurisdiction. [Ed. Note. For other cases, see Equity. Cent. Dig. §§ 121-140, 164-166; Dec. Dig. § 43.*] 2. QUIETING TITLE (§ 34*) BILL SUFFI CIENCY. - A bill for equitable relief, alleging that a water power company, which had conveyed power right to the orators, claimed a lien upon the rights for taxes paid in another state, is not good as a bill to quiet title and remove a cloud, since the only lien, not void upon its face, which could be put upon the property was by attachment, which is made an ordinary mode of process by P. S. 1410, 1412, 1450, and a court of chancery cannot interfere to defeat the statute. [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 69, 71, 72, 76, 77; Dec. Dig. § 34.*] 3. EQUITY (§ 3*) — JURISDICTION - CONSTRUCTION OF WRITTEN INSTRUMENTS. The fact that rights claimed by defendant depend upon the construction of a written instrument does not authorize a bill in equity, by those against whom the right is claimed, to compel the claimant to assert those rights in chancery rather than in a court of his own choosing. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 7-12; Dec. Dig. § 3.*] where the legal remedy is inadequate. [Ed. Note. For other cases, see Equity, Cent. Dig. 316; Dec. Dig. § 136.*] Appeal in Chancery, Windham County; E. L. Waterman, Chancellor. Suit by the International Paper Company and others against the Bellows Falls Canal Company. Demurrer to the bill overruled pro forma, and bill taken as confessed, and decree rendered for orators, and defendant appeals. Reversed and remanded, with directions. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. Stickney, Sargent & Skeels, of Ludlow, and Streeter, Demond, Woodworth & Sulloway, of Concord, N. H., for appellant. Clarke C. Fitts, of Brattleboro, James W. Remick, of Concord, N. H., and Warner A. Graham, of Bellows, for appellees. HASELTON, J. This is a bill in chancery, and came on for hearing upon demurrer to the bill. A decree was rendered strictly pro forma overruling the demurrer adjudg ing the bill sufficient, and granting the orators the relief prayed for in the bill, The 4. APPEAL AND ERROR (§ 941*)-REVIEW-proceedings being pro forma, it was agreed DISCRETION OF TRIAL COURT-REMOVAL OF CLOUD. The action of the court below in overruling, strictly pro forma, a demurrer to a bill to re that, if the ruling below was sustained, the decree should be reversed pro forma, that further proceedings might be had. |