Statement of Facts. est and most irreparable damage to your orator; that the cars constructed for the operation of your orator's business are of a very costly sort; that your orator has invested a very large capital in the construction and operation of said cars; that the business of your orator, under its charter, and for which it is incorporated, is of such a nature that it can be transacted only through the instrumentality of contracts of the character herein set forth with railroad companies engaged in the business of running railway passenger trains; that by means of such contracts it can run through cars between remote points and over distances far greater than the length of the separate lines of road, to the great convenience of the public; and that the upholding and enforcement of such contracts is of vital importance and relation to the exercise of the corporate franchises of your orator, and to the public convenience; that if said contracts can be violated as is threatened in the matters herein before stated, the facilities of through travel aforesaid will be broken up, and the property and estate of your orator, to the extent of very many thousands of dollars, which largely exists and inheres in such contracts, will be destroyed in value, and the corporate franchises of your orator practically destroyed; that by reason of the magnitude of the investment as aforesaid, and the cost of operating such cars, your orator cannot receive a fair return, unless it can have the exclusive operation of said business, as provided in said contracts, with the several companies over whose roads it operates, and that the exclusive right bargained for, and obtained by your orator in said contracts, as in the contract herein before mentioned, is not only reasonable but absolutely necessary for the success of your orator's business, without which your orator could not make desirable contracts, and would not have made the agreement with the said Missouri Pacific Railway Company herein before mentioned. "Your orator further shows that in making the contract herein before set forth with said railroad companies, and in making the provisions therein contained, for the extension of the operation of your orator's cars upon such roads as should come within their control, it has had in contemplation the Argument for Appellant. growth and development of the business which, in the performance of said contract for many years past, it has been building up and developing in the region of country through which the said lines of railway herein before mentioned run; that said business has been largely built up and developed by the efforts and instrumentality of your orator; that, in the hope and prospect of its future development, your orator has borne the burden of sustaining and upholding it, when the business was comparatively small and unremunerative; and that it will be a gross injustice and inequity to permit said railroad companies, by violation of contract, as aforesaid, to remove at the present time the cars of your orator from the line of the said St. Louis, Iron Mountain and Southern Railway Company, or to discontinue operating them thereon, or to substitute the cars of any other party thereon." Mr. Edward S. Isham for appellant.-The burden of this bill is that the road of the Iron Mountain Railway Company has by virtue of an executed agreement passed into the actual control of the Missouri Pacific Railway Company. The bill does not set out a written contract, and then aver its meaning by the construction of its terms. It avers a contract, whose terms are shown only by its averments; and in this respect none of the authorities cited by appellees apply. The substantial averments are (1.) An agreement to unite the Iron Mountain Road with that of the Missouri Pacific, under the common. management of the Missouri Pacific Railway Company, as a part of one line with its own road. (2.) The massing of all or substantially all the stock of the Iron Mountain Road in the treasury of the Missouri Pacific, and a substitution by exchange of the stock of the Missouri Pacific therefor, as one step taken in carrying that agreement into effect. (3.) "The purpose on the part of both of said corporations of putting the control" of the property of the Iron Mountain into the hands of the said Missouri Pacific "and of subordinating in effect the roads of both the said corporations to one and the same management and control," namely, that of the Missouri Pacific. (4.) The consummation of that intent and purpose; in that im Argument for Appellant. mediately upon the acquisition by the Missouri Pacific of the control of the affairs of the Iron Mountain Company, "and in the exercise of the control of said Missouri Pacific Railway Company, they proceeded to put the persons who were charged with the management of the affairs of the Missouri Pacific Railway Company, into the actual control and management of the franchises, property, business and road of the Iron Mountain Company." (5) The actual fact of the present control and management of the business and road of the Iron Mountain by the Missouri Pacific; that the general offices of the Iron Mountain have been everywhere abandoned and closed and their business has been transferred to the offices of the Missouri Pacific, and in every respect there has been effected and brought about a complete absorption of the said St. Louis, Iron Mountain and Southern Railway Company, and a complete amalgamation of the said two companies, so far as the actual conduct and administration of their business is concerned. These averments (1) as to an agreement; (2) as to the intention of the parties; (3) as to the consummation of the agreement, are all questions of fact, not traversed, and are admitted by the demurrer. Intention is a traversable fact. Moss v. Riddle, 5 Cranch, 351, 357; Thurston v. Cornell, 38 N. Y. 281; Haight v. Haight, 19 N. Y. 464, 468; Miller v. Miller, 15 Barb. 203; Forbes v. Waller, 25 N. Y. 430, 439; Clift v. White, 12 N. Y. 519, 538; De Ridder v. McKnight, 13 Johns. 294; Walker v. Sedgwick, 8 Cal. 398. These averments, therefore, are matters of substantive fact. If the appellees were not to treat them as assumed to be true on demurrer, they ought to have traversed them. If they are true the Iron Mountain road is within the control of the Missouri Pacific. Mr. Isham also argued that appellant's only remedy for the enforcement of those parts of the contract which were negative was by injunction, citing Western Union Tel. Co. v. Union Pacific Railway Co., 1 McCrary, 418, 558, and 581; Pomeroy on Specific Performance, §§ 24, 25, 310, 311, 312; Singer Co. v. Union Co., 1 Holmes, 253, 256; Jones v. North, L. R. 19 Eq. 426; De Mattos v. Gibson, 4 DeG. & J. 276, 279; Vincent Opinion of the Court. v. Chicago & Alton Railroad Co., 49 Ill. 33; Frank v. Brun nemann, 8 W. Va. 462; Rankin v. Huskisson, 4 Sim. 13; Cole Mining Co. v. Virginia &c. Water Co., 1 Sawyer, 470 and 685; Memphis & Little Rock Railroad Co. v. Southern Express Co., 8 Fed. Rep. 799. Mr. John F. Dillon and Mr. A. T. Britton for appellees. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. After stating the facts in the language reported above, he continued: The main questions involved in the merits of this case are, 1, whether the contract between the Missouri Pacific and Pullman Companies, made before the consolidation, binds the consolidated company to haul the Pullman cars over the road of the St. Louis, Iron Mountain and Southern Company, if that road is controlled by the consolidated company within the meaning of the contract; and, 2, whether it is so controlled by the consolidated company. The present Missouri Pacific Company is a different corporation from that which contracted with the Pullman Company. The original company owned and operated a railroad between St. Louis and Kansas City. This company owns and operates that road and others besides. It is a new corporation created by the dissolution of several old ones, and the establishment of this in their place. It has new powers, new franchises, and new stockholders. Clearwater v. Meredith, 1 Wall. 25, 42; Shields v. Ohio, 95 U. S. 319, 323; Railroad Co. v. Maine, 96 U. S. 499, 508; Railroad Co. v. Georgia, 98 U. S. 359, 364; Louisville & Nashville Railroad Co. v. Palmes, 109 U. S. 244, 254. The bill does indeed aver that the Missouri Pacific Company "consolidated with itself certain other companies, retaining its former name," but, as this was done under the laws of Missouri, the effect of the consolidation depends on those laws. Central Railroad Co. v. Georgia, 92 U. S. 665, 670. They provide that "any two or more railroad companies in this State, existing under either general or special laws, and owning railroads constructed wholly or in part, which, when Opinion of the Court. completed and connected, will form, in the whole or in the main, one continuous line of railroad, are hereby authorized to consolidate in the whole or in the main, and form one company owning and controlling such continuous line of road, with all the powers, rights, privileges and immunities, and subject to all the obligations and liabilities to the State, or otherwise, which belong to or rested upon either of the companies making such consolidation." In order to accomplish such consolidation an agreement to that effect must be entered into by the companies interested. "A certified copy of such articles of agreement, with the corporate name to be assumed by the new company, shall be filed with the secretary of state when the consolidation shall be considered duly consummated, and a certified copy from the office of the secretary of state shall be deemed conclusive evidence thereof." "The board of directors of the several companies may then proceed to carry out such contract according to its provisions, calling in the certificates of stock then outstanding in the several companies or roads, and issuing certificates of stock in the new consolidated company under such corporate name as may have been adopted." Rev. Stat. Missouri 1879, § 789. This clearly contemplates the actual dissolution of the old corporations and the creation of a new one to take their place. The new company assumed on the consolidation all the obligations of the old Missouri Pacific. This requires it to haul the Pullman cars, under the contract, on all roads owned or controlled by the old company at the time of the consolidation, but it does not extend the operation of the contract to other roads which the new company may afterwards acquire. The power of the old company to get the control of other roads ceased when its corporate existence came to an end, and the new company into which its capital stock was merged by the consolidation undertook only to assume its obligations as they then stood. It did not bind itself to run the cars of the Pullman Company on all the roads it might from time to time itself control, but only on such as were controlled by the old Missouri Pacific. Contracts thereafter made to get the control of other roads would be the contracts of the new consolidated |