
    Gustave E. Kissel and Susan Raumer, Plaintiffs, v. The Chicago & Eastern Illinois Railroad Co. et al., Defendants.
    (Supreme Court, New York Special Term,
    June, 1904.)
    Simple contract not negotiable — Railway traffic agreement collateral to mortgage securing bond issue — Innocent purchasers of bonds take subject to equities — Injunction on issue of bonds when unnecessary to keep open the question of the validity of the mortgage.
    On a motion to continue an injunction pendente lite obtained by the plaintiffs, stockholders of the Eastern Illinois Co., to restrain the defendant railroad companies from issuing a series of bonds and notes secured by a mortgage covering among other things a traffic agreement made between the defendants, it appeared that the defendant, the San Francisco Co., had acquired absolute and voting control of the defendant, the Southeastern Co., running between the San Francisco Co. and the Eastern Illinois lines, with earnings not meeting fixed charges and a bonded indebtedness of $15,000,000, that the San Francisco Co. had also acquired absolute and voting control of the defendant, the Eastern Illinois Co., a profitable road, paying six per cent dividends and accumulating a surplus, by procuring a large amount of its common stock to be deposited with a trustee — which in return issued to depositing stockholders stock trust certificates — under a written agreement made with the trustee by the San Francisco Co. that it would, on or before July 1,1942, or, at its option, on any earlier dividend day, pay registered holders of the certificates the sum of $250 for each share of stock represented by the certificates and semi-annual dividends at the rate of ten per cent on the par value of the shares, that thereafter the traffic agreement was executed between- the San Francisco Co. and the Eastern Illinois Co., on the one part, and the' Southeastern Co. on the other part, whereby the latter bound itself to deliver to the former companies respectively all traffic transported over its lines and destined to any point on theirs, while, on the other hand, the San Francisco Co. and the Eastern Illinois Co. jointly bound themselves collectively to interchange, with the lines of the Southeastern Co., a sufficient amount of traffic, during the term of the agreement, to produce to the Southeastern Co., taken with its local traffic, an aggregate semi-annual net revenue of not less than $485,000, being the precise amount necessary to pay the interest under the refunding scheme proposed. The plaintiffs, the trustee having refused to act, sue in their own names charging the traffic agreement to be in reality a disguised mortgage imposed, without authority or real or adequate consideration, upon their profitable Eastern Illinois property in order to make use of its credit to float the $16,000,000 worth of bonds issued upon the property of the unprofitable Southeastern Co. It further appeared that before issue of the injunction $15,000,000 worth of the bonds had been certified, and that about half of them had been delivered by the trustee to the parties entitled and the other half passed to their credit.
    Held, that within the rule, which was applicable to the' traffic agreement, that the purchaser of a chose in action takes the interest purchased subject to all defenses, legal and equitable, of the debtor who issued the security, innocent purchasers of the bonds would be in no better position to enforce the traffic agreement against the Eastern Illinois Co. than would the Southeastern Co., through whom they would derive their right, that company having included the traffic agreement in the mortgage' given to secure the bonds, that, therefore, the claim of the plaintiffs that they would suffer irreparable injury if the bonds passed into the hands of purchasers for value and without notice, was untenable and that the plaintiffs had no right on that ground to the injunction, restraining issue of the bonds, or to its continuance.
    Motion to continue an injunction pendente lite.
    
    Winthrop & Stimson (Elihu Root, Austen G. Fox and Henry L. Stimson, of counsel) for plaintiffs and motion.
    Butler, Notman, Joline & Mynderse (Will Hartwell Lyford and Adrian H. Joline, of counsel), for defendants the Chicago & Eastern Illinois R. Co., St. Louis & San Francisco R. Co. and St. Louis, Memphis & Southeastern R. R. Co.
    
      Hornblower, Byrne, Miller & Potter (James Byrne, of counsel), for defendant New York Security & Trust Co.
    Sheehan & Collin (John L. Wells, of counsel), for defendant Colonial Trust Co., opposed.
   Giegerich, J.

This is a motion to continue an injunction pendente lite restraining the issuance of a series of bonds and notes secured by a mortgage covering, $mong other things, a traffic agreement made between the railroad companies, defendants, and also to restrain the payment of certain moneys under such traffic agreement. The facts, so far as material, are as follows: The defendant the St. Louis & San Francisco Railroad Company (hereinafter called the San Francisco company) is engaged in consolidating and building up an extensive railroad system by acquiring control of and grouping together various lines and systems previously operating independently and under boards of directors selected by their respective stockholders. One of the railroads thus acquired is the defendant the Chicago & Eastern Illinois Company (hereinafter called the Eastern Illinois company), which for a niunber of years prior to the consolidation in 1902 had been operated at a profit, the dividends paid in the years 1901 and 1902 having amounted to six per cent, per annum, besides which a surplus was accumulated, the net earnings during the year 1902 having amounted to more than ten per cent, on the comnlon stock after the payment." of all prior charges. Another company thus acquired was the defendant the St. Louis, Memphis & Southeastern Railroad Company (hereinafter called the Southeastern company), which was not so old or successful as the Eastern Illinois company, and whose credit was not established and whose earnings thus far have been insufficient to meet the fixed charges, the bonded indebtedness on the different portions of the system aggregating nearly $15,000,000. The stock of this company was acquired by the San Francisco company by the issuance of the latter’s collateral trust gold notes in the aggregate amount of $4,000,000, which notes are still outstanding. There has also been more than $3,500,-000 expended by the San Francisco company in the construction and completion of the lines of the Southeastern company since its acquisition by the former. The terms under' which the San Francisco company obtained control of the Eastern Hlinois are, concisely stated, as follows: A very large amount of the common stock was acquired by the San Francisco company and was deposited by it with the Colonial Trust Company, as trustee, under a trust agreement entered into between said trust company, and the San Francisco company, the various stockholders who thus parted with their stock to the latter receiving back from the trust company stock trust certificates. Under this trust agreement, the San Francisco company was to pay to the registered holders of the trust certificates on the 1st day of July, 1942, or at its option on any earlier dividend day, the sum of $250 for each share of stock represented by the certificates, and was also to pay semi-annual dividends at the rate of ten per cent, on the par value of the shares. It was also provided in the trust agreement that if the San Francisco company failed to pay such dividends promptly, or if it defaulted in other respects therein specified, the registered holder of the trust certificates might surrender the same and should receive back in exchange his certificates of stock. In the meantime the San Francisco company was to have the power of voting upon all stock held by the trust company for the election of directors and for every other purpose not contrary to the covenants or guarantees on its part particularly set forth in the instrument, and also to receive all dividends declared on the stock so deposited. Since the consummation of this agreement the San Francisco company has elected the directors and officers of the Eastern Illinois company, more than a majority of such directors having been continuously persons who were also directors of the San Francisco company, as it has similarly selected the officers and directors of the Southeastern company formerly referred to, and neither the Eastern Hlinois nor the Southeastern company has any separate or independent action as distinct from the San Francisco company. Such being the situation on or about April 14, 1904, an instrument called a traffic agreement (being the contract complained of) was executed between the San Francisco and Eastern Illinois companies on the one part and the Southeastern company on the other whereby the Southeastern company, whose lines are intermediate those of the other two, bound itself to deliver to them respectively all traffic transported over any of its lines and destined to any point upon either of their lines, such deliveries to be made “ at the most convenient junction points ” between the said railroads. On the other hand, the San Francisco and the Eastern Illinois companies bound themselves jointly to collectively interchange with the lines of the Southeastern company a sufficient amount of traffic during the term of the agreement to produce, taken with the local and other traffic of the Southeastern company, an aggregate semi-annual net revenue to the latter of not less than $485,000 over and above all expenses of maintenance, operation, repairs, renewals and taxes, being the precise amount necessary to pay the interest under the refunding scheme proposed. The plaintiffs complain of this traffic agreement and charge that it it not, in fact, what it purports to be, but is in reality a disguised mortgage upon the Eastern Illinois property, imposed without authority, or real or adequate consideration and without regard to the interests of - that company, but. for the purpose of making use of the credit of its established and dividend-earning railroad in order to float the $16,000,000 bond issue above mentioned upon the property of the heretofore unprofitable Southeastern system. It is urged by them that as stockholders, the Colonial Trust Company, as trustee, having refused to act, they are entitled to maintain the suit in their own right and name. Many interesting and important questions are pressed upon my attention by the distinguished counsel on either side, such as what the real relation of the parties is under such circumstances, whether the holders of the stock trust certificates are to be deemed the owners of the stock until it is paid for, or whether the San Francisco company is the owner and the holders of the stock receipts are only creditors; also various questions as to the construction of the several covenants and provisions in the trust agreement. Likewise questions of fact as to whether the traffic agreement is a prudent and beneficial one for the Eastern Illinois company, or whether it is an improvident, if not a fraudulent one. In the view I take of the case, however, it is unnecessary to consider more than the single question, whether innocent purchasers for value of the bonds will be in any better position to enforce this traffic agreement against the Eastern Hlinois system than would the original party to the agreement, the Southeastern company, through whom they would derive their right, that company-having included this traffic agreement with other assets under the mortgage given to secure these bonds. The well-established rule of law in the case of a chose in action is that the purchaser acquires no greater right than his vendor had. In Bush v. Lathrop, 22 N. Y. 535, 538, the Court of Appeals said: “All the cases agree that the purchaser of a chose in action takes the interest purchased, subject to all the defenses, legal and equitable, of the debtor who issued the security,” quoting Lord Thurlow in Davies v. Austin, 1 Ves. 247, that “ a purchaser of a chose in action must always abide by the case of the person from whom he buys.” This rule as laid down in Bush v. Lathrop, supra, was said in Fairbanks v. Sargent, 104 N. Y. 108, to stand in full force and unquestioned, except to the extent that where the real owner has by the act of investing another with apparent ownership of the property estopped himself from disputing such title, the rule does not apply. The learned counsel for the plaintiffs argue that if the doctrine of Crocker v. Crocker, 31 N. Y. 507; Leitch v. Wells, 48 id. 585, and Weaver v. Barden, 49 id. 286, which related to stock corporations or securities, should be held to apply to choses in action like a contract, as here the traffic agreement, the plaintiffs would suffer irreparable injury, if these bonds should be suffered to pass into the hands of innocent purchasers. A sufficient reply to this argument is that the courts have not shown any tendency to thus extend the doctrine of the authorities last mentioned, but, on the contrary, to reassert the original rule. See Central Trust Co. v. West India Imp. Co., 169 N. Y. 314, 324, and cases cited. The cases cited by the learned counsel for the plaintiffs dealt, as before said, with stock or securities and not with contracts of the ordinary character. Further-more, an examination of those cases will show that the plaintiffs were estopped by reason of their having by their own act conferred apparent title on others. In the case in hand, so far from being guilty of any act which could be construed as an estoppel, the plaintiffs have shown the utmost diligence and energy in attacking the contract in question, and no one hereafter, whether a bondholder or other, will have good ground for complaining in this respect of anything that the plaintiffs have done or left undone. Unless the rule of Bush v. Lathrop is held applicable to such a case as is here presented, it is difficult to conceive a case to which it would apply. Where a going concern mortgages all its assets, including outstanding contracts, if the mortgagee or the owners of bonds secured by the mortgage should be held to have any greater or different rights than the concern itself upon such contracts, intolerable confusion and injustice would result. ■ Moreover, bonds aggregating upward of $15,000,-000 worth of the entire issue of $16,000,000 have already been certified, and about half of them delivered by the trustee to the parties entitled thereto, and the other half passed to the credit of such parties prior to the issuance of the injunction. Under all these circumstances, I think it is plain that the branch of the injunction which relates to the issuance of the bonds should not be continued. That the injunction, so far as it relates to the notes, should be dissolved is, as I "understand the matter, practically conceded, since the argument, as the trust agreement by which they are secured does not refer to the traffic agreement. So far as the other portion of the injunction order is concerned, namely, that which restrains the Eastern Illinois company from paying out any moneys of that company on account of the guaranty of net income of. the Southeastern company, it does not appear by the terms of the agreement objected to or otherwise that any such moneys will be paid out until after the action can be tried and determined in' its regular order. The motion to continue the injunction is, therefore, denied, with ten dollars costs.

Motion denied, with ten dollars costs.  