Butler v. Tifton, Thomasville & Gulf Railway Co. , 121 Ga. 817 ( 1905 )

Lamar, J.

(After stating the foregoing facts.) 1-3. The public has an interest in the location of depots, and the time and place at which trains must stop for the reception of freight and passengers. A railroad company’s power to contract in reference thereto is therefore not unrestricted, but public policy must be considered in determining the legality of such agreements. See the cases cited in 7 Rap. & Mack’s R. Dig. 201-204. But such limitation on its power to contract does not apply to a case where the railroad company covenants to build a spur-track from its main line to a sawmill or other private enterprise. The interest of the public can not in any way be seriously affected by the construction and maintenance of such track. Austin v. Augusta Co., 108 Ga. 692, 693; Graham v. Macon R. Co., 120 Ga. 757 (3). Indeed the validity of such contract was recognized in Tifton Ry. Co. v. Bedgood, 116 Ga. 949, 951. The allegations of the petition then under review were so nearly identical with those in the present case that it is unnecessary further to consider the demurrer, which the court properly overruled.

4-6. In the case last cited this court held, that while the .contract bound the railroad company to build a spur-track for Huber & Stokes, it could not be assigned to Bedgood & Co. so- as to give the latter a right of action for its breach. On the return of the remittitur the plaintiffs offered to amend the petition by alleging that they not only had an assignment from Huber & Stokes, but^ that the railway company assented to the assignment, and agreed that if Bedgood & Co. would buy the laud, build the mill, and ship the lumber over its lines, it would build the spur-track. In other words, the amendment averred that there was an independent agreement between Bedgood & Co. and the railway company in reference to the building of the spur-track. Instead of reducing this agreement to writing, however, the parties adopted terms which were already in writing; and, by reference or otherwise, parties can adopt the terms of a contract between others. American Co. v. Continental Co., 188 U. S. 107; International Co. v. Hardy, 118 Ga. 512 ; compare Town of Douglasville v. Johns, 62 Ga. 427 (3).

The amendment therefore set out a cause of action. But the court held that it “ set up a new and distinct cause of action; ” that the original suit was on a contract between Huber & Stokes and the railway company, while the amendment sought to recover for an entirely different cause of action arising out of a contract between different parties. Yielding to that decision Bedgood & Co. thereupon brought the present action, making therein most of the allegations contained in the amendment which had been thus disallowed by the court. To this the railway company filed a plea of res adjudicata, and upon the production of the record in the former suit the plea was sustained. It is evident that Bedgood & Co. have not had a hearing on the merits, and that the matters set up in the present suit were not passed on in the former. Civil Code, §§ 50'95, 3744. It is further evident that the facts set out in the present case could not “ have been put in issue in the cause wherein the judgment was rendered.” Civil Code, § 3742. For when Bedgood & Co. endeavored to secure *a hearing on. the new matter, they were prevented from s.o doing by the order sustaining the company’s demurrer. Having secured a judgment sustaining their position, the railway company must be held bound by the ruling which it invoked, and.by the judgment in its favor which it secured. Brown v. State, 109 Ga. 571; Papworth v. Fitzgerald, 111 Ga. 55; Neal Co. v. Chastain, 121 Ga. 500. The very terms of the record offered in support of the plea of res adjudicata show that “the new cause” could not be barred by a judgment in an “ old ” and “ different cause ” — one so different that the new could not be added to it by way of amendment. This is not a second suit for the same cause of action, but a new suit for a distinct cause of action. That it is new and distinct from that formerly brought appears from the record attached to the plea. The case should not have been dismissed.

Judgment reversed.

All the Justices concur. •