Woodstock Iron v. Richmond & D. Extension Company

'The plaintiff, which is a corporation created by and under the laws of the state of New Jersey, claims of the defendant, a corporation created by and under the laws of the state of Alabama, and located and having its principal place of business in the county of Calhoun, in the state of Alabama, thirty thousand dollars for the breach of an agreement entered into by it on, to-wit, the 18th day of November, 1881, whereby and wherein said defendant agreed and promised that if said plaintiff would locate and construct, or cause to be located and constructed, the railroad of the Georgia Pacific Railroad Company (or of the new consolidated company then being formed, and to be known as the 'Georgia Pacific Railroad Company') by way of the town of Anniston, it, the said defendant, would donate and pay to the said plaintiff, or as it might direct, the cash sum of thirty thousand dollars, to be paid in money as to one-half-that is, fifteen thousand dollars-when the said Georgia Pacific Railroad Company connected its line with the line of the Alabama Great Southern Railroad Company at or above Birmingham, Ala., and the other half-that is, fifteen thousand dollars-when said line was connected with the line of the Louisville & Nashville Railroad Company (the North & South Alabama Railroad Company) at or above said city of Birmingham, provided said connections be made within three years from date of said contract. And plaintiff avers that it did cause to be located and constructed the railroad of the said Georgia Pacific Railway Company by way of the town of Anniston; that the said Georgia Pacific Railroad Company connected its line with the line of the Alabama Great Soughern Railroad Company at or above said Birmingham on, to-wit, the 1st day of June, 1883, and with the line of the Louisville & Nashville Railroad Company at or above said city on, to-wit, the 1st day of July, 1883, yet, although the said plaintiff has complied with all the provisions of said contract on its part, the said defendant has failed to comply with the following provisions thereof, viz.: It has failed and refused, and still fails and refuses, to pay, though often requested so to do, any part of said sum of thirty thousand dollars, except the sum of six thousand three hundred and twenty-five dollars, whereby it has become and is indebted to said plaintiff as aforesaid; wherefore this suit. The said plaintiff claims of the said defendant the further sum of thirty thousand dollars for the breach of an agreement entered into by him on, to-wit, the 18th day of November, 1881, in words and figures in substance as follows: "ANNISTON, CALHOUN CO., ALABAMA,

"November 18th, 1881.

"The Woodstock Iron Company makes to the Richmond & Danville Extension Company the proposition following,-that is to First. If the Richmond & Danville Extension Company will locate and construct, or cause to be located and constructed, the railroad of the Georgia Pacific Railroad Company (or of the new consolidated company now being formed, to be known as the 'Georgia Pacific Railway Company') by way of the town of Anniston, the Woodstock Iron Company will donate and convey, or cause to be donated and conveyed, by good and sufficient deeds, to the Richmond & Danville Extension Company, or as it may direct: (1) Strips of parcels of land each one hundred feet wide,-that is to say, fifty feet on each side of the center line of the location to be fixed for said railroad in, over, and through all and sundry the tracts and lots of lands now owned and to be owned by the Woodstock Iron Company, wheresoever situated, on and along the line of said location outside of the corporate limits of the town of Anniston; and the Woodstock Iron Company will, upon request of said extension company, at any time, proceed to clear the said strips or parcels of land from timber thereon, allowing, however, the said extension company to have and take therefrom all that part of timber useful to it for the purpose of construction and for cross-ties. (2) A strip or parcel of land in, over, and through the entire corporate limits of the town of Anniston, so far as owned by the Woodstock Iron Company, as follows,-that is to say, on the left or west side of the center line of the location to be fixed for said railroad, from the point of entering to the point of leaving said corporate limits, a width of fifty feet, measuring from said center line, and on the right or east side of the center line of the location to be fixed for said railroad, a width of fifty feet, measuring from said center line from the point of entering said corporate limits to a point nineteen hundred and six and eight-tenths feet short of a point agreed, at or about the near foot of a hillock situated in field in a westerly direction from the depot of the Selma, Rome & Dalton road; thence for a length of thirteen hundred six and eight-tenths feet to said point agreed, a width of one hundred and fifty feet, measuring from said center line; and thence to a point of leaving said corporate limits a width of fifty feet, measuring from said center line. Appended hereto is a tracing showing said strip or parcel of land. (3) All such additional strips or parcels of land within and adjoining the town of Anniston as the experimental location about to be made may show to be reasonably necessary for sidings and other tracks for the advantageous and convenient transaction of the business of the Georgia Pacific Railroad or Railway Company, and especially for siding or spare track along and to the right or east of the Selma, Rome & Dalton line, for convenient approach to the furnaces and for sidings or spare tracks from the main line, at or above the place of greatest width, for convenient appproach to the cotton factory and to the presently to be established carwheel and car works.

"The Woodstock Iron Company will aid the work of construction, and especially so of the sidings or spare tracks for the furnace, by the judicious wasting of the furnace cinder and other material; and the said company will in a general way do all it can to facilitate the work and advance the business of the railroad company whose location it invites; and the Woodstock Iron Company will donate and pay to the Richmond & Danville Extension Company, or as it may direct, the cash sum of thirty thousand dollars, paying the same in money as to one-half-that is, fifteen thousand dollars-when the Georgia Pacific Railroad or Railway Company connects its line with the line of the Alabama Great Southern Railroad Company at or above Birmingham, Alabama, and as to the other half-that is to say, fifteen thousand dollars-when the Georgia Pacific Railroad or Railway Company connects its line with the line of [the] Louisville & Nashville Railroad Company (the North & South Alabama Railroad Company) at or above Birmingham, Alabama; the above to be paid only provided the Georgia Pacific Railroad or Railway Company is so far completed as to make the connections above within three years from this date. In case the Richmond & Danville Extension Company accepts the terms proposed above, this instrument shall have the effect of a binding contract upon the Woodstock Iron Company, but such acceptance must be in writing, and addressed to the president and secretary and treasurer of the Woodstock Iron Company at Anniston, Alabama, within four months from the date thereof; and, if the Richmond & Danville Extension Company shall disire hereafter to build machine-shops for the Georgia Pacific Railroad or Railway Company at the town of Anniston, will donate and convey to said extension company, or as it may direct, by good and sufficient deeds for that purpose, at least five acres of land at a convenient distance from the crossing of the Selma, Rome & Dalton road. If, however, this land is accepted for shops, the land shall be appropriated, and the shops built within four years from this date.

"In testimony whereof witness the signature of the president and secretary and treasurer and the corporate seal of the Woodstock Iron Company, this 18th day of November, 1881.

[Seal.] "ALFRED L. TYLER, President.

"SAMUEL NOBLE, Sec'y and Treas.'

'And the plaintiff avers that it did accept the terms proposed by said instrument above set out, in a writing addressed to the president and secretary and treasurer of said Woodstock Iron Company, at Anniston, within four months from the date of said agreement and instrument, which said writing was delivered to said president and secretary and treasurer on, to-wit, the 18th day of January, 1882, and is in words and figures in substance as follows:

"ATLANTA, GA., Jan'y 17th, 1882.

"Messrs. Alfred L. Tyler, President, and Samuel Noble, Secretary and Treasurer, of Woodstock Iron Company, Anniston, Ala. GENTLEMEN: The Richmond & Danville Extension Company hereby notifies you that it accepts the proposition in writing made by you on behalf of the Woodstock Iron Company to said extension company, regarding the location and construction of the Georgia Pacific Railway by the town of Anniston, the date whereof is Anniston, Calhoun county, Alabama, November 18th, 1881, and a copy of which is hereto appended.

"Respectfully, JOHN W. JOHNSTON,

"Vice-President Richmond & Danville Extension Company.'

'And plaintiff avers that said defendant was at that time engaged, among other things, in the business of making pig-metal and other products from iron ores, and making sales of the same; that its works were located in said town of Anniston, and that it owned large quantities of valuable property therein, and that the said railroad referred to is said contract was a road then in the process of construction, to be run from Atlanta, Ga., through the state of Alabama, to Columbus, in the state of Mississippi; and plaintiff avers that it did locate and construct the railroad of the said Georgia Pacific Railway Company by way of the town of Anniston by, to-wit, the 1st day of January, 1883; that it did connect the line of said railway company with the line of the Alabama Great Southern Railroad Company, at or above said city of Birmingham, by, to-wit, the 1st day of June, 1883; and that it did connect the line of said railway company with the line of the Louisville & Nashville Railroad Company, at or above the said city of Birmingham, by, to-wit, the 1st day of July, 1883; and has in all things fully complied with all the terms and stipulations of said agreement undertaken upon its part. Plaintiff further avers that said defendant has complied with the terms and stipulations of said agreement to this extent, and no further. It has donated and conveyed by good and sufficient deeds to the Georgia Pacific Railway Company, as directed and requested by the plaintiff, the several strips and parcels of land for right of way and sidings of the railroad of said company, as stipulated and agreed in said agreement, and has paid to the said plaintiff on account of said cash payment of thirty thousand dollars agreed and undertaken to be made by said agreement the sum of six thousand three hundred and twenty-five dollars, paid in cars furnished and advanced by defendant to the Georgia Pacific Railroad Company, on account of said cash payment, at the request of plaintiff. But plaintiff further avers that, although it has fully complied with all the terms and stipulations of said agreement to be done and performed on its part, that although it located and constructed said railroad of the Georgia Pacific Railway Company by the way of the town of Anniston, and connected the line of said railroad with the respective lines of the Alabama Great Southern Railroad Company and the Louisville & Nashville Railroad Company within the time and at the points agreed on, as is hereinabove fully set out and shown, the defendant has wholly failed and refused, and still fails and refuses, although often requested to do so, to pay to said plaintiff said sum of twenty-three thousand six hundred and seventy-five dollars, the balance due and unpaid upon said cash sum of thirty thousand dollars donated and agreed to be paid to plaintiff by said defendant upon the making of said connections as aforesaid, and by reason of the several matters and things set out and alleged herein the said defendant became and is indebted to the plaintiff in said sum of twenty-three thousand six hundred and seventy-five dollars, with interest thereon from date of the making of such connections, but has failed and refused, and still fails and refuses, to pay the same; wherefore this suit.'

To the complaint the defendant filed a demurrer, and also several pleas. The demurrer was to the effect that the contract set forth as the foundation of the action was without consideration, and was contrary to public policy and void. The demurrer was overruled, and leave given to the defendant to file additional pleas. The original pleas were five in number, and to these six more were added. Of the original pleas, one amounted to the general issue, denying the promise and undertaking in the manner and form alleged in the complaint; and one amounted to a plea of ultra vires, setting forth the charter of the defendant, showing the object of its incorporation to be the manufacture of pig-metal and other products of iron ore, and their sale, connecting with that business all such operations as are usual and incidental thereto, and denying authority, under the charter, to make the agreement mentioned in the complaint. A demurrer to this last plea was sustained by the court.

Of the additional pleas two only require notice,-the tenth and eleventh. The tenth plea is given in full below, and so much of the eleventh plea as is necessary to its comprehension. 'Plea 10. And the said defendant, for further answer to the complaint, says that, at the time of the making of the alleged agreement stated and set forth in the complaint, plaintiff was engaged in locating and constructing the Georgia Pacific Railroad under a contract with the Georgia Pacific Railroad Company, under and by which plaintiff agreed with said Georgia Pacific Railroad Company to locate and construct said railroad by the nearest, cheapest, and most suitable route, from Atlanta, Ga., through Alabama, to Columbus, in the state of Mississippi, for a consideration, to-wit, twenty thousand dollars per mile for each and every mile of said road so located and constructed; that John W. Johnston, who negotiated and executed said contract with the defendant for plaintiff as vice-president, was, at the time said agreement was made, a stockholder and director of the Richmond & Danville Extension Company, and was also a stockholder and director and officer of the Georgia Pacific Railroad Company; that the Georgia Pacific Railroad Company was at said time, and is now, a separate and distinct company, and in nowise connected with plaintiff, except that some of the stockholders of said Georgia Pacific Railway Company were also stockholders in said Richmond & Danville Extension Company, and plaintiff was locating and constructing said road under its contract with said company as aforesaid; that in causing said road to be built via Anniston it was necessary to deflect the same from its nearest, cheapest, and most natural route from Atlanta to Columbus a great number of miles, to-wit, five miles, at a great additional cost to said Georgia Pacific Railroad Company, to-wit, one hundred thousand dollars, and defendant avers that said alleged agreement on defendant's part to influence the location of said railroad, and to donate and pay to said plaintiff, among other things, the cash sum of thirty thousand dollars if plaintiff would locate and construct, or cause to be located and constructed, the railroad of the Georgia Pacific Railroad Company by was of the town of Anniston, was and is contrary to public policy, and void, and ought not to be enforced against defendant or in favor of plaintiff.' Plea No. 11, after repeating the first paragraph of plea No. 10, alleges 'that John W. Johnston, who negotiated and executed said contract with defendant for plaintiff as vice-president, was at the time a stock holder, director, and officer of the Georgia Pacific Railway Company; and that he went to Anniston, where defendant resided, and did business, and represented to defendant that he was a director and officer of the Georgia Pacific Railway Company, and also a stockholder, director, and officer of the Richmond & Danville Extension Company, and could control and induce the location and construction of said Georgia Pacific Railroad via the town of Anniston, and would do so if the defendant would donate and pay to plaintiff the said sum of thirty thousand dollars in cash, and deed to plaintiff, or as it might direct, the large quantity of read estate described in the complaint, which defendant avers was of value, to-wit, twenty thousand dollars; and that said Johnston then and there informed the defendant that, unless defendant acceded to his said demand to pay plaintiff said sum of money, and convey to plaintiff, or as it might direct, the large quantity of valuable real estate aforesaid, said road would not be constructed by the town of Anniston, but would be constructed by way of the town of Oxford, which said town is within three miles of the town of Anniston, and is a rival market to said town of Anniston, and thence direct to Birmingham, along the line of a preliminary survey already made; and to secure the location and construction of said road via the said town of Anniston, and to prevent the locating and building of said road by way of the rival town of Oxford, to the exclusion of the town of Anniston, defendant was forced to agree, and did agree, to pay the said sum of thirty thousand dollars in cash, and to convey to plaintiff, or as it might direct, the large quantity of valuable lands described in the complaint, as aforesaid.'

To these pleas a demurrer was filed by the plaintiff, and sustained by the court. The case was then tried upon the general issue by a jury, which rendered a verdict in favor of the plaintiff, assessing its damages at $27,067.42, upon which judgment was entered, with costs, to review which the case is brought here on writ of error.

BRADLEY and MILLER, JJ., dissenting.

John B. Knox, for plaintiff in error.

H. C. Tompkins, for defendant in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.