225 U.S.

Argument for Plaintiffs in Error.

First National Bank v. Avery Co., 69 Nebraska, 329; Eaton & Prince Co. v. Trust Co., 123 Mo. App. 117; Castle v. Noyes, 14 N. Y. 329; Coventry v. Barton, 17 Johns. 142; Oceanic Steam Co. v. Compania Transatlantic, 134 N. Y. 461; Andrews v. Murray, 33 Barb. 354; Peck v. Ellis, 2 Johns. Ch. 131, 136; Kolb v. National Surety Co., 176 N. Y. 233; Getty v. Devlin, 54 N. Y. 403; Loudenslager v. Woodbury Land Co., 58 N. J. Eq. 556; Emma Mining Co. v. Grant, 11 Ch. D. 918 (940).

The principle claimed by the defendant in error that estoppels must be mutual, has, in any event, no place in the constitutional law as against the express requirement of full faith and credit.

By the law and usage of New York, the present actions against plaintiff in error, had they been pending in New York, would have been barred by the Lewisohn decree. Cases supra, and Woodhouse v. Duncan, 106 N. Y. 527; Bates v. Stanton, 1 Duer, 79.

Plaintiff in error is, in any event, entitled to the benefit of said decree because he was privy with Lewisohn, not only under the law of New York, but under the general principles of law. The Lewisohn action was based upon the identical subject-matter and transaction as the cases at bar. Ferrers v. Arden, Cro. Eliz. 668.

Defendant in error, by its own choice of forum and of remedy, has litigated and determined that the title to the shares of stock, which it claims were wrongfully issued to Bigelow and Lewisohn, was rightfully in them free from any interest or equity in its favor. Bates v. Stanton, supra; Kessler v. Eldred, 206 U. S. 285; Bush v. Knox, 2 Hun, 576.

Lewisohn was trustee, agent and representative of Bigelow in the thirty-thousand share transaction, which was the subject-matter of the Lewisohn suit in New York. Re Straut Estate, 126 N. Y. 201; Bracken v. Atlantic Trust Co., 36 App. Div. 67; aff'd, 167 N. Y.510; Russell v. Lasher,

Argument for Plaintiffs in Error.

225 U.S.

4 Barb. 232; Emma Mine Case, supra; Castle v. Noyes, 14 N. Y. 326; King v. Barnes, 109 N. Y. 267; Wilcox v. Pratt, 125 N. Y. 688; Getty v. Devlin, 54 N. Y. 403; 70 N. Y. 504; Carter v. Bowe, 41 Hun, 516; Freeman on Judgments, § 173; New York Code Civ. Proc., § 449; Bliss, N. Y. Ann. Code (1902), note “L.; Lawrence v. Schaefer, 19 Misc. 239; Seymour v. Smith, 114 N. Y. 481; Duncan v. China Mutual Ins. Co., 129 N. Y. 237; Coffin v. Grand Rapids Co., 136 N. Y. 655; Hoffman House v. Foote, 172 N. Y. 348; 1 Greenleaf on Evidence, p. 523; Lichty v. Lewis, 63 Fed. Rep. 535; 77 Fed. Rep. 111.

Plaintiff in error participated in the defense of the Lewisohn suit with the knowledge of all parties. Carleton v. Lombard, 149 N. Y. 137; Van Koughnet v. Dennie, 68 Hun, 179; Woodhouse v. Duncan, 106 N. Y. 527; Demarest v. Darg, 32 N. Y. 281; Leavitt v. Wolcott, 95 N. Y. 212, 221; Oceanic Navigation Co. v. Compania Transatlantic, 144 N. Y. 663; Rumford Chemical Works v. Hygienic Chemical Co., 159 Fed. Rep. 436; Port Jarvis v. First National Bank, 96 N. Y. 550.

The Lewisohn decree is equally a bar to the one hundred thousand share suit. The question of liability in these two suits depends upon identical facts, and both suits involve parts of a single transaction. Old Dominion Co. v. Bigelow, 203 Massachusetts, 159.

Where two separate suits relate to separate properties, but the rights of the parties depend upon identical facts, adjudication in one is a bar to the other. Bissell v. Spring Valley, 124 U. S. 225; New Orleans v. Citizens' Bank, 167 U.S. 371; Southern Pac. Ry. Co. v. United States, 168 U. S. 1; Nor. Pac. Ry. Co. v. Slaght, 205 U. S. 122; United States v. Land Company, 192 U. S. 355; Green v. Bogue, 158 U. S. 478; Dimock v. Revere Copper Co., 117 U. S. 559; Forsyth v. Hammond, 166 U. S. 506; Johnson Co. v. Wharton, 152 U. S. 252; Bouchaud v. Dias, 3 Denio, 238; Doty v. Brown, 4 N. Y. 71; Pray v. Hegeman, 98 N. Y. 351; Park

225 U.S.

Argument for Plaintiffs in Error.

Hill Co. v. Herriot, 41 App. Div. 324; Pakas v. Hollingshead, 184 N. Y. 211; Hirshbach v. Ketchum, 84 N. Y. App. Div. 258.

The decree of the Massachusetts court involved denial of full faith and credit to the laws of New York and New Jersey. The full faith and credit clause requires full faith and credit to the statutory and common law of other States, as well as to their judgments. Elliot's Debates I, 80, 149, 272; V, 487, 504; Chicago & Alton R. R. Co. v. Wiggins Ferry Co., 119 U. S. 615; Smithsonian Institution v. St. John, 214 U. S. 19, 28; Banholzer v. N. Y. Life Ins. Co., 178 U. S. 402; Allen v. Alleghany Co., 196 U. S. 458; Johnson v. N. Y. Life Ins. Co., 187 U. S. 491; Glenn v. Garth, 147 U. S. 360; Finney v. Guy, 189 U. S. 335, 340; Louisv. & Nashv. R. R. v. Melton, 218 U. S. 36.

In the present cases full faith and credit has been denied to the common law and statutes of New York and New Jersey. Since the court below took judicial notice of the laws of New Jersey, this court should do so likewise. Renaud v. Abbott, 116 U. S. 277, 285, 286; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. Ş. 397, 445; Eastern Building Association v. Williamson, 189 U. S. 122.

Under the statutes and decisions of New Jersey, the Old Dominion Company was fully organized and of full capacity to make the contract which was made with the plaintiff in error and Lewisohn. See authorities discussed post.

The decisions of New York were put in evidence at the trial in Massachusetts.

The Massachusetts decrees involve an impairment of the obligation of the contract between the plaintiff in error and Lewisohn on the one side, and the defendant in error on the other side.

The question whether a valid contract existed is to be determined by this court, when it is claimed that the obligation of such contract is impaired. McCullough v.

Argument for Plaintiffs in Error.

225 U. S.

Virginia, 172 U. S. 102; Douglas v. Kentucky, 168 U. S. 488; Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 492.

The corporation was fully organized and existing and competent, under the laws of the State of its organization, to make this contract. This court will take judicial notice of the foreign law where the court below did so. See authorities supra. The Massachusetts court fully considered the New Jersey law relating to the organization and capacity of the defendant in error.

See opinion below, especially dissenting opinion by Mr. Chief Justice Knowlton.

Under the New Jersey law the corporation was fully organized and competent to bind itself by this contract. Old Dominion Co. v. Lewisohn, 210 U.S. 206; Old Dominion Co. v. Bigelow, 203 Massachusetts, 159.

The discussion on this point in Bigelow v. Old Dominion Company, 74 N. J. Eq. 457, was obiter, and not supported by the authorities cited. The transaction between the plaintiff in error and Lewisohn on the one side and the defendant in error on the other side gave rise to a valid and binding contract. The contract was created in the State of New York, by the vote of the Board of Directors accepting the offers to convey the property. The rule that validity of the contract was to be governed by the law of the place of performance is always applied in aid of the contract and never for the purpose of finding it invalid. Pritchard v. Norton, 106 U. S. 124, 137; Hall v. Cordell, 142 U. S. 116; London Assurance Co. v. Companhia De Moagens, 167 U. S. 149; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 458.

The contract was fully executed by the parties and, as an executed contract, it was as far immune from attack under the laws of New York as while it was executory. Fletcher v. Peck, 6 Cranch, 87, 136; Cooley on Con. Lim., 7th ed., pp. 384, 385.

The New York law as established by the decided cases

225 U.S.

Argument for Plaintiffs in Error.

before this contract was entered into made this contract valid and not voidable. Parsons v. Hayes, 14 Abb. N. C. 419; Barr v. Railroad Company, 125 N. Y. 263; Seymour v. Cemetery Ass'n, 144 N. Y. 333; Thornton v. Wabash Ry. Co., 81 N. Y. 462; King v. Barnes, 109 N. Y. 267, 288; Langdon v. Fogg, 18 Fed. Rep. 5; Stewart v. St. Louis R. R. Co., 41 Fed. Rep. 736; DuPont v. Tilden, 42 Fed. Rep. 87; Wood v. Water Works Co., 44 Fed. Rep. 146; Foster v. Seymour, 23 Fed. Rep. 65; McCracken v. Robinson, 57 Fed. Rep. 375.

Many cases subsequent to the present contract sustain the same rule. Hutchinson v. Simpson, 92 App. Div. 382; Insurance Press v. Montauk Wire Co., 103 App. Div. 472; Blum v. Whitney, 185 N. Y. 232.

There is a vital distinction between “future allottees" who supply money through the payment for their stock which is to go into the pockets of the promoters in payment for the property conveyed by them to the corporation, and cases like the present where the issue of stock to "future allottees” is independent of the initial transaction and does not benefit the promoters. The Massachusetts decrees involve an impairment of the contract within the decisions of this court. The liability imposed upon the plaintiff in error by the Massachusetts decrees, necessarily involves a denial of the binding force of the contract, not by reason of any extensive equity, but upon a finding in substance that the defendant in error never became bound. Old Dominion Company v. Bigelow, 188 Massachusetts, 315, 328, 329.

Such avoidance of the contract which was valid by the laws under which it arose, constitutes an impairment. The question of impairment of contract by judicial decision has been found to exist in many cases originating in the Circuit Courts of the United States. Gelpcke v. Dubuque, 1 Wall. 175; Havemeyer v. Iowa County, 3 Wall. 294; Township of Pine Grove v. Talcott, 19 Wall. 666;

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