Page:Federal Reporter, 1st Series, Volume 7.djvu/412

 400 FBDEBAL BEFOBTBB. �The facts stated in reply are admitted to be true. �Lee d Chandler, for plaintifs. �0. B. Sansum, for defendant. �Tebat, D. J. This case was heretofore presented to the court — Justice Miller, present. The demurrer to the replica- tion raised the question whether the facts alleged would operate as an estoppel, although the eontract, as averred in the answer, was ultra vires. It was suggested by Justice Miller that it would have been better if defendant had so shaped his answer as to bring before the court the charter of the company, together with the terms of the eontract, so that the court could determine whether the eontract was ultra vires or not. But as that course had not been pursued, it was then for the court to decide whether, admitting the eontract to be ultra vires, the defendant was estopped by the facts stated in the replies tion. �On the demurrer to that replication Justice Miller and myself differed in opinion, and consequently judgment fol- lowed according to his views. Now, the cause having corne on for trial without the intervention of a jury, and all the facts in the replication being admitted of record, the main question is whether, according to the charter under the laws of New York, the defendant corporation had authority, through its agents or otherwise, to make a eontract of Insur- ance of the kind stated ; that is, on a sea-going or foreign voyage, as contradistinguished from an inland voyage. Ac- cording to the terms of the charter the eontract was ultra vires; and, although all the facts set out in the replication are true, as admitted of record, yet, according to the opinion of Justice Miller, the plaintiff cannot recover in this case, and his opinion must control despite my dissent. �Therefore, judgment must be entered for the defendant. ��� �