Alabama & Mississippi Rivers Railroad v. Sanford , 36 Ala. 703 ( 1860 )

STONE, J.

Although there is a demurrer found in this record, yet we do not find that any disposition -was made of it in the court below. Hence, we will not pass upon thp sufficiency of the several counts, further than to say, we find no defect in the second special count — the one under which this trial was probably .had — when that count is construed under the liberal rules of pleadingprovided by the Code. The second special count is based on the written contract, or certificate of the engineer of the railroad. The count avers the authority of the engineer to i§sue such certificate, that he did issue it, its attestation by the president of the company, and that the company thereby became bound for its payment. This, then, is a written contract, the foundation of the suit, purporting to be signed by the agent of the party sought to be charged; and there being no sworn plea, denying the execution of such instrument, the same was, per se, evidence of the existence of the debt sued for, and that it was made on sufficient consideration. — Code, §§ 2238, 2278, 2279; May v. Hewitt, 33 Ala. 162; Ala. Coal Mining Co. v. Brainard, 35 Ala. 476.

[2.] The principle above asserted renders it unnecessary that we should inquire as to the legality or sufficiency of the testimony which was offered to show the official relations which Messrs. Frost and Price sustained to the defendant corporation. Those relations were admitted by the pleadings ; and whether the evidence was legal or illegal, it could have worked no injury. — Shep. Dig. 568, §§90,91,

[3.] The claim sued on in this case is a coutraet for the payment of money, which must be prosecuted in the name of the party really interested. — Code, § 2129. The complaint sufficiently shows, that the present plaintiff's had the right to maintain this suit; and in the present state of the pleadings, it was not necessary they should prove their interest. — - Code, § 2279; Smith v. Harrison, 33 Ala. 706; Rule of Practice, 31 Ala. p. v.

It is thus shown that, when the plaintiffs read in evidence the certificate declared on, they made out a primafacie case.

[4.] The testimony of the witnesses Fox and others, offered with a view of showing an outside oral agreement that this certificate was intended to be employed in payment of a debt due from Leach & Donoho to their creditor, Weaver, was, by itself, wholly immaterial, and was rightly excluded by the circuit court, for the following (if for no other) reasons: If Leach & Donoho, after receiving the certificate, or independently of any inducement to the issue of the certificate, promised to turn that certificate over to Weaver, their creditor, (the latter being a debtor to the railroad,) this was a mere naked promise, or nude pact, which they, Leach & Bonoho, could disregard without liability to any person. — McKenzie v. Hunt, 32 Ala. 494. If the agreement was made before the issue of the certificate, and entered into the inducement to its issue, then the agreeriient was inoperative, because its direct effect would have been tó vary, by oral proof, the terms of a written agreement. — Thomason v. Dill, 30 Ala. 444. On the most favorable view which can be taken of this question, and of the proof offered, its effect could not possibly be to vest in Mr. Weaver a right to the certificate, and the money due thereon, as so much property sold and delivered to him. He, therefore, did not become the real owner of the certificate. — -McKenzie v. Hunt, supra; Mather v. Purcell’s Administrator, in manuscript; Thompson v. Rawles, 33 Ala. 29.

[5.] The rejection as evidence, by the circuit court, of the order given by Leach & Bonoho to Weaver, was right under the circumstances. That order, without any proof of its payment or acceptance, was offered as a naked fact. It bears date some time before the date of the certificate ; and if it had been accepted or paid before the settlement of May 18th, the presumption is it was then taken into the account, and that the railroad obtained a credit for it. At least one note was then given by the railroad to Leach & Bonoho, which, unexplained, shows a settlement of open accounts. If accepted and paid afterwards, the railroad should have proved, or offered to prove that fact, so as to have legalized the evidence on a plea of payment or set-off. The testimony being wholly worthless by itself, the court did not err in excluding it, after the defendant had closed his testimony. — Townsend v. Cowles, 31 Ala. 428.

[6.] The court did not err in excluding as witnesses for defendant two of its stockholders. The Alabama and Mississippi Rivers Railroad Company is a private corporation, not eleemosynary in its character, having for one of its objects, at least, the private emolument of its proprietors. — Pamph. Acts 1849-50, 159; Pamph. Acts 1851-2, 216. Although the stockholders are not technically parties to the suit, yet they are the real parties to the litigation; as much so as would be beneficiaries in a suit by a trustee, or distributees in a suit by an administrator. The rule on this subject must be general. There may be corporations, in which one stockholder owns half, or even the entire stock; and yet, in suits affecting the corporation, the litigation would be conducted in the name of the artificial person. We cannot believe the legislature intended to confer on one or more persons who chance to have an interest, or the interest in a private corporation, theprivilege of being witnesses in their own causes, when, without such act of incorporation, they could assert no such right. — See Walker v. Walker, 34 Ala. 469; Polly & Whitman v. McCall, at the present term.

It results from what we have said, that the circuit court did not err in instructing the jury, if they believed the evidence, to find for the plaintiffs. The plaintiffs’ testimony being documentary, the court might have gone further.

Judgment affirmed.