stead of ultra vires merely." (1 Clark & Marshall, Priv. Corp., § 225b.)

No Kansas statute declares that a contract made by a corporation in excess of its legitimate powers shall be void, or in terms permits the question of corporate capacity to be raised by one of the parties. Where it is held that no recovery can ever be had upon an ultra vires contract, as such, whatever relief is afforded is logically made to turn upon whether and how far the agreement has been acted upon. Where a recovery is sometimes permitted under the contract itself, upon the principle of estoppel, the question whether it has been carried out is likewise of manifest importance, there being a difference in degree at least between the attitude of one who has merely entered into an engagement in expectation of obtaining an advantage from it and that of one who has actually reaped its benefits in whole or in part. But the doctrine that only the state can challenge the validity of acts done under color of a corporate charter, if accepted, must necessarily protect an executory contract from collateral attack equally with one that has been executed. The court is convinced of the soundness of the view that in the absence of special circumstances affecting the matter neither party to even an executory contract should be allowed to defeat its enforcement by the plea of ultra vires. The doctrine is logical in theory, simple in application, and just in result. It of course does not apply to contracts which are immoral or which are illegal, as distinguished from merely unauthorized, or to those made by public corporations. Nor does it forbid interference by a stock-holder to protect his rights as such. Upon these considerations the judgment is affirmed.

Section 4.-Ultra Vires Torts.

BATHE v. DECATUR COUNTY AGRICULTURE SOCIETY.

1887. 3 Iowa 11, 34 N. W. 484.

ACTION to recover for alleged injury to plaintiff's mare by defendant's employees. Demurrer to petition sustained and plaintiff appeals.

ADAMS, Ch. J.-The petition shows that the defendant is a corporation, organized to further the interest of agriculture, to improve and encourage the breeding of fine stock, to hold expositions of agricultural products and stock, to hold and give annual fairs, and to do and perform everything necessary and incident thereto; that in the fall of 1885 the defendant held its annual fair at its fair grounds in Decatur county, near the town of Leon; that, for the purpose of increasing the attendance and the gate receipts, the officers of the defendant employed one Clark and one Wilson to con

vey people in their own conveyances from the town of Leon to the fair grounds; that Clark and Wilson, while so engaged, ran their team negligently against the plaintiff's mare, and caused her death. The defendant demurred to the petition, upon the ground, among others, that it does not appear that the defendant had authority to employ Clark and Wilson, as alleged, and thereby assume responsibility for their conduct as employes.

we

The powers of a corporation are such as are expressly provided in the articles of incorporation, and such others as are reasonably incident to the exercise of such powers. The plaintiff contends that the employment of Clark and Wilson to convey people to the fair grounds was incident to the holding of a successful fair; as there would be no fair without attendance. This might be conceded, if attendance depended upon conveyances provided by the defendant, and it was so understood by the members of the society at the time they joined it. But there is nothing in the petition which shows this to be so. In the absence of any showing to the contrary, may assume that the members of the society joined it with the understanding that all persons desiring to attend the fair would be able to procure conveyances in their own way, and without any provision therefor by the society. Furnishing conveyances is a distinct business, in which any one might engage, and the presumption would be that the supply would be equal to the demand. In our opinion, then, there is nothing in the articles of incorporation, either by express provision, or arising therefrom by implication, that au-thorized the officers of the society to employ Clark and Wilson. If this is so, the defendant never became responsible for their conduct, and the demurrer to the petition was rightly sustained. Affirmed.1

NIMS v. MOUNT HERMON BOY'S SCHOOL.

1893. 160 Mass. 177, 35 N. E. 776.

KNOWLTON, J.-The defendant is an educational corporation. The plaintiff seeks to recover damages for an injury received through the negligence of a ferryman in managing a boat on which he was a passenger, and which, as he alleges, the defendant was

Gunn v. Central Railroad (1885) 74 Ga. 509; Weckler v. First Nat. Bank (1875) 42 Md. 581; Gillett v. Missouri etc. R. Co. (1874) 55 Mo. 315 (cf. Alexander v. Relfe (1881) 74 Mo. 495) Poulton v. London etc. R. Co. (1867) L. R. 2 Q. B. Cas. 534, Accord. See Central R. R. & Banking Co. v. Smith (1884) 76 Ala. 572 (tort not within authority of agent at fault). "To fix the liability of a corporation for the tortious act of one of its employes, done in obedience to the commands of its officers, the act must be connected with the transaction of the business for which the company was incorporated. If the directors should order an agent to take a person out cf his house and beat him, the corporation could not be held for the

using at a public ferry in the business of carrying passengers for hire. At the request of the defendant, the presiding justice ruled that there was no evidence to warrant a finding for the plaintiff, and directed a verdict for the defendant. The defendant contends that the ruling should be sustained on one or both of two grounds. It says in the first place, that, if it maintained the ferry and hired and paid the ferryman, the business was ultra vires, and therefore it is not liable for negligence in the management of the boat. Secondly, it contends that there was no evidence to connect the corporation with the business of running the ferry-boat, or to show that the ferryman was its servant.

It is a general rule that corporations are liable for their torts as natural persons are. It is no defense to an action for a tort to show that the corporation is not authorized by its charter to do wrong. Recovery may be had against corporations for assault and battery, for libel and for malicious prosecution, as well as for torts resulting from negligent management of the corporate business. Moore v. Fitchburg Railroad, 4 Gray, 465. Reed v. Home Savings Bank, 130 Mass. 443. Fogg v. Boston & Lowell Railroad, 148 Mass. 513. Philadelphia, Wilmington & Baltimore Railroad v. Quigley, 21 How. 202, 209. Merchant's Bank v. State Bank, 10 Wall. 604. National Bank v. Graham, 100 U. S. 699. Gruber v. Washington & Jamesville Railroad, 92 N. C. 1. Hussey v. Norfolk Southern Railroad, 98 N. C. 34. If a corporation by its officers or agents unlawfully injures a person, whether intentionally or negligently, it would be most unjust to allow it to escape responsibility on the ground that its act is ultra vires. The only plausible ground on which the defendant in the present case can contend that it should be exempt from liability for the negligence of its servant in managing the ferryboat is that the contract to carry the plaintiff was ultra vires, and therefore invalid, and that the duty for neglect of which the plaintiff sues arose out of the contract, and disappears with it when the contract appears to be void. The defendant may argue that the plaintiff cannot maintain an action for a breach of the contract to use proper care to carry him safely, and that he stands no better when he sues in tort for failure to do the duty which grew out of the con

tract.

In Bissell v. Michigan Southern & Northern Indiana Railroad, 22 N. Y. 258, the plaintiff founded his action on the negligence of the two defendants while jointly running cars on a railroad in a State to which the charter of neither of them extended, and it was con

assault and battery; or if the directors of a banking company should purchase a steamboat, and engage in transporting passengers, the corporation would not be liable for the misfeasance or non-feasance of agents employed in that business. But if the directors of a corporation having power to hold lands, order an agent to enter on lands and take possession of them for the legitimate uses of the company, his entry, if unlawful, will be the trespass of the corporation." Depue, J., in Brokaw v. New Jersey R. etc. Co. (1867) 32 Ń. J. Law 328, at page 332.-Eds.

ceded that the defendants were acting ultra vires. The plaintiff recovered, Comstock, C. J., holding in an elaborate opinion that the corporations were liable under their contract, notwithstanding that the contract was ultra vires, and that if they could not be held under their contract they could not be held at all, inasmuch as the only negligence alleged was a failure to use the care which the contract called for. Selden, J., in an equally full and elaborate opinion, held that the contract for carriage was invalid, and that there could be no recovery under it, nor for negligence founded upon it; but it was his opinion that, if the contract were set aside, the defendants owed the plaintiff a duty founded on his relation to them as an occupant, with their permission, of a place in their car, and that the improper management of the car was a neglect of that duty for which the plaintiff could recover. Clerke, J., agreed with this view, and all but one of the other judges concurred in a decision for the plaintiff, without stating the ground on which they thought the decision should be placed. This case was followed in Buffet v. Troy & Boston Railroad, 40 N. Y. 168, in which it was held that a railroad corporation was liable for negligence of the driver of a stage-coach which it was running without a legal right to do a business of that kind; but the opinion does not show whether the decision is founded on the opinion of Comstock, C. J., given in the former case, or on that of Selden, J. Like decisions have been made under similar facts in Central Railroad & Banking Co. v. Smith, 76 Ala. 572; New York, Lake Erie, & Western Railway v. Haring, 18 Vroom, 137; and Hutchinson v. Western & Atlantic Railroad, 6 Heisk. 634.

The better doctrine seems to be that a contract made by a corporation in violation of its charter, or in excess of the powers granted to it either expressly or by implication, is invalid considered merely as a contract, and, so long as it is entirely executory, will not be enforced. It is not only a violation of a private trust, viewed in reference to the stockholders, but it is against the policy of the law, which intends that corporations deriving their powers solely from the Legislature shall not pass beyond the limits of the field of activity in which they are permitted by their charter to work. Monument National Bank v. Globe Works, 101 Mass. 57. Attorney General v. Tudor Ice Co., 104 Mass. 239. Davis v. Old Colonial Railroad, 131 Mass. 258. Thomas v. Railroad Co., 101 U. S. 71. Leslie v. Lorillard, 110 N. Y. 519. Linkauf v. Lombard, 137 N. Y. 417. East Anglian Railways v. Eastern Counties Railway, 11 C. B. 775, 803. On the other hand, courts have frequently held that, while such contracts considered merely as contracts are invalid, they involve no such element of moral or legal wrong as to forbid their enforcement if there has been such action under them as to work injustice if they are set aside. Courts have been astute to discover something in the nature of an equitable estoppel against one who, after entering into such a contract, and inducing a change of condition by another party, attempts to avoid the contract by a plea of ultra vires. It is said that

such a plea will not avail when to allow it would work injustice and accomplish legal wrong. Leslie v. Lorillard, 110 N. Y. 519. Linkauf v. Lombard, 137 N. Y. 417, 423. Many cases might be supposed in which it would be most unjust to hold that one who had received the benefits of such a contract might retain them and leave the other party without remedy, as he might do in a supposable case, where another had put himself at a disadvantage on the faith of a contract with him to commit a crime. Whether in this Commonwealth a contract entered into by a corporation ultra vires, and partly performed, will ever be enforced on equitable grounds, we need not now decide. See McCluer v. Manchester & Lawrence Railroad, 13 Gray, 124; National Pemberton Bank v. Porter, 125 Mass. 333; Attleborough National Bank v. Rogers, 125 Mass. 339; Atlas National Bank v. Savery, 127 Mass. 75, 77; Slater Woollen Co. v. Lamb, 143 Mass. 420; Prescott National Bank v. Butler, 157 Mass. 548; National Bank v. Mathews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99; Parish v. Wheeler, 22 N. Y. 494; Oil Creek & Allegheny River Railroad v. Pennsylvania Transportation Co., 83 Penn. St. 160; Bradley v. Ballard, 55 Ill. 413. In the present case we think it makes no difference that the defendant was not a manufacturing or trading corporation, but was chartered for educational purposes only. It could acquire and hold property, make contracts, and do anything else incidental to the maintenance of the school. Doubtless some of its officers or agents thought it would be an advantage to its students and managers to have a public ferry at the place where the plaintiff was injured. Its maintenance of such a ferry was ultra vires, but its acts in that respect were not different in kind from the ordinary acts of corporations in excess of the powers given them by their charter. We are of opinion, therefore, that if the defendant while running the ferry-boat accepted the plaintiff as a passenger to be transported for hire, and undertook to carry him across the river, he was in the boat as a licensee, it owed him the duty to use proper care to carry him safely, and, whether an action could be maintained for a breach of the contract or not, it is liable to the plaintiff in an action of tort for neglect of that duty.

The other question in the case is whether there was evidence that the corporation operated the ferry. Under its by-laws the management of the corporation is vested in a board of trustees. It does not appear that any vote was ever taken in regard to the ferry, and it was not shown that any officer of the corporation took out the license which was granted to the defendant by the county commissioners, under Pub. Sts. c. 55, § 1, to keep the ferry, but the records of the county commissioners show that such a license was granted, and that a bond with sureties was given to the county of Franklin, with the condition properly to perform the duty of a ferryman, executed in behalf of the defendant by one who was designated as superintendent, and witnessed by the defendant's cashier and paymaster. It further appeared that the title to the property used at the ferry was