Wilson v. Wills Valley Railroad , 33 Ga. 466 ( 1863 )

By the Court. —

Jenkins, J., delivering the opinion.

1. The Court below ruled in this case that it was not necessary for the plaintiff to prove notice to the defendant of the call made for installments of his subscription, the suit itself being a sufficient notice. This is the first ground of the exception.

It does not appear from the record on what ground this decision of the Court was placed. ■ We presume it was upon the charter granted by the State of Alabama to this Company. The general rule of law is, that where one party contracts to do a certain thing, on the performance of some act by the other, this other must give notice of such act, unless it be one that carries notice of itself. 2d Parsons on Con. 182-183.

But this, it would seem, should be understood of contracts in which the preliminary act to be done constituted the consideration or equivalent for the act to follow, or in which the liability to perform some duty, or do some act, depended upon a contingency the occurrence of which would not be known to the party on whom devolved the performance of the after act, or duty, but must be known to him entitled to exact it. In cases of this kind, I know of no other rule than to look to the charter which gives existence to the Company. I have examined a great many charters of joint stock companies, in which, as in this, some portion of the capital stock is to be paid as installments may^be called for by the Board of Directors. In far the greater number, the charter requires that notice be given, for a stated number of days and in a manner prescribed, to the stockholders, before payment can be required. In some instances, as in the charter of the Wills Valley Railroad, there is no such provision, although a penalty is annexed to non-payment. Such being the fundamental law of the Company, and the notice having reference only to the time of payment, and not to the obligation to pay eventually, it is deemed best not to disturb the judgment of the Court below on this point.

2. The graver consideration is whether the change made in the route of the road after the defendant’s subscription, and without his consent, releases him from liability to pay his subscription. Here, it will be observed, the change of route involves no violation of the charter. That first granted by the Legislature of Georgia, authorized an extension through the county of Dade, to connect with the Nashville & Chattanooga Eailroad at some point within that county. On application by the Company, the Legislature subsequently repealed so much of the charter as required them to make the connection within that county, or within the State; leaving unimpaired the privilege of extending their road through the county. It is, then, purely a question between the plaintiff in error and the Company.

But what is the character of the change, as affecting him? It is not a change from any one point of connection, previously fixed, to another.

In one of his pleas, the defendant avers that his subscription was induced by the false and fraudulent representation of the Company, that the connection would be made at or near Perkins- Depot, in Dade county; but this he has wholly-failed to prove. The nearest approach to it is, that a reconnoisance of a route to that point was made, after which the engineer was heard to say, that he supposed the connection would be made there. But this appears to have been only the professional opinion of an expert, in the employment of the Company, unauthorized so to speak, and not undertaking so to speak for them. *No action of the stockholders or of the directors is shown making that the point of connection. The original charter from Georgia does not bind them to that point. It is settled, therefore, that in making the present connection they have abandoned no precise point; have not abandoned, after having adopted, the point at which the plaintiff in error has proven that he was doing business, when he subscribed, and at which he expected the connection would be made. His defence, (if any he have,) is narrowed down to this, that by virtue of an amendment of their charter, procured after his subscription, they have connected their road with the Nashville & Chattanooga Eailroad beyond, instead of within, the county of Dade. In other words, he must establish, to succeed in his defense, that this amendment of the charter, having been obtained without his consent, is not binding on him. In the case of Winter vs. The Muscogee Railroad Company, 11 Georgia Eeports, 438, this Court held that a stockholder was not bound by the amendment of a railroad charter, made without his consent, materially changing the location of the road, as clearly appears from the evidence. In the same case, however, they say, “we do not pretend to deny that alterations may be made in the charter of an incorporated company, by the procurement of the company, in furtherance of the design and objects of the company, but in all such cases due regard must always be had to the inviolability of private contracts. The original contract of the parties cannot be materially or essentially altered by an amendment of the charter so as to bind the subscribers thereto without their assent.” This distinction will be found sustained by the current of authorities in this country. Redfield on Railways, 90 to 95 passim, citing Stevens vs. The Rutland & Burlington R. R., 1 Law Reg., 154; Colvin vs. The Turnpike Co., 2 Carter, 511, 656; Pacific Railway vs. Hughes, 22 Missouri, 291; Danbury & Norwalk Railway vs. Wilson, 22 Conn., 435; Greenville & Columbia Railway vs. Coleman, 5 Rich., 118.

The questions to be considered then, are, first, what were the design and objects of the Company; 2ndly, what was the character and effect of the amendment as carried out; and 3dly, what reason was there for it ?

1st. We learn the design and objects of the Company from the third section of the charter, granted by the Legislature of Alabama, to which reference is made by the Georgia Act of Incorporation. It is in these words : “ That said Eailroad shall extend from some convenient point on the Alabama and Tennessee Eiver Eailroad, at or near the farm of James Hampton, thence the most- practicable route, through the county of DeKalb, to the Georgia line, in a direction to intersect the Georgia & Tennessee Railroad at some convenient point in Loohout valley.” By the Georgia & Tennessee Eailroad, in this connection, is meant the Nashville & Chattanooga Railroad. The original design and object, then, was to intersect the latter road at some convenient point in Lookout valley, to secure the ulterior connections which would result therefrom. This object was to control the route from the starting point, through DeKalb county, Alabama, to determine the point of intersection with the western boundary of Georgia. With this main design and object, a connection with the Nashville & Chattanooga Railroad, at a point in Lookout valley, within the State of Tennessee, would consist as well prima fade as a similar connection within the county of Dade and State of Georgia. If it be made to appear that such connection made in Tennessee would be “ convenient,” and if made in Georgia inconvenient, then the former would be more conformable to that design and object.

2ndly. The character and effect of the change authorized by the amendment of the charter, and actually made, is not so material, so radical, as has been assumed in the argument. No point of connection can be designated as having been abandoned in this change, because none had been fixed at the time of the subscription, from which the plaintiff in error seeks to be released, either by the charter or by any action of the Company. They had the privilege of selecting any point on the Nashville & Chattanooga Railroad, in Dade county, but had selected none. There was then no abandonment of any point; none of that one in which the plaintiff in error was specially interested. This is an important consideration. Another, not less so, is that the connection has actually been made in the same neighborhood, in which is the point to which the hopes (perhaps the expectations) of the plaintiff in error would have brought the road. The evidence is, that these points are four miles apart. The distance from the actual point of connection to the nearest at which it might have been made, without an amendment of the charter, is probably less, and cannot be greater. If they were never bound to his preferred point, and have actually made the connection in the same neighborhood, the change cannot materially affect him.

3dly. The evidence shows that good reason existed for the change made. The President of the Company being a witness, stated “ that the route was changed because it was impracticable to run it so as to connect with the Nashville & Chattanooga Railroad in Georgia, and that it was cheaper to make the road on its present location.” From this we must understand that it was impracticable, with the means of the Company, to make the connection in conformity with the original charter from Georgia, but was practicable under the amended charter.

The change appearing to consist with the original design and object, involving the abandonment of no previously fixed point of connection, effecting the connection in the vicinage contemplated throughout, and adopted for reasons of a controlling character, cannot be said materially or essentially to alter the original contract between the parties to this action. We think, therefore, that the charge given to the jury in the Court below conformed to the ruling in Winter vs. The Muscogee Railroad Company, and to the weight of authority.

Let the judgment be affirmed.