Page:Harvard Law Review Volume 10.djvu/463

437 CORPORATE VOTING AND PUBLIC POLICY. 437 against the trustee to restrain him from voting upon the com- plainant's shares; the Court saying: ''There was no consideration moving from the trustees to the stockholders to support the agreement, and the trust is not coupled with any interest in the trustees." Where the trustee represents creditors as well as shareholders, as he did in Mobile & Ohio Co. v, Nicholas, stipra^ and Ervin v. Reading Co.,^ this is said to be an active as distin- guished from a dry or naked trust, and the power becomes irrev- ocable, except upon the consent of all concerned. In the latter case it was said : '* On general principles the right to vote on stock cannot be separated from the ownership, in such sense that the elective franchise shall be in one man and the entire bene- ficial interest in another; nor to any extent, unless the circum- stances take the case out of the general rule. It matters not that the end is beneficial and the motive good, because it is not always possible to ascertain objects and motives, and if such a severance were permissible, it might be abused." The circumstance that took that case out of the general rule was nothing more than the existence of a consideration. Again in Cone v. Russell, supra, it was said of the pooling or combining of stock that this is not for- bidden where the object is to carry out a particular policy with a view to promote the best interests of all the stockholders; "the propriety of the object validates the means and must affirmatively appear." In the light of the facts of that case, these words mean nothing more than that the consideration for the pooling agree- ment shall not be unlawful. Another distinction is suggested by one of the cases. It is said that not only must the consideration for these agreements not be unlawful (that is, have any corrupt elements entering into the transaction) in the sense above pointed out, but that it must be valuable, and that the consideration is in- sufficient if it consists simply of promise for promise. This is one of many of the grounds of decision in Fisher v, Bush,^ where the Court says: "Mutual promises alone do not consti- tute a good and sufficient consideration in contracts of this char- acter. ... It is essential to the validity of such agreements that there should be a special consideration paid to the promisor by the promisee." The soundness of this distinction is not apparent, but it has been seized upon by commentators as stating the law, and accepted without question.^ It is difficult to perceive why an i 7 Ry. & Cor. L. J. 87. » 28 Am. & Eng. Enc. of Law, 502. 2 35 Hun., 641. S8