11 Ind. 86 (Ind. 1858), , Smead v. Indianapolis, Pittsburgh, & Cleveland R.R. Co.

Citation:11 Ind. 86
Opinion Judge:Perkins, J.
Party Name:Smead and Others v. The Indianapolis, Pittsburgh, and Cleveland Railroad Company
Attorney:J. Morrison and C. Ray, for appellants. O. H. Smith, S. Yandes and C. C. Hines, for appellee.
Case Date:November 23, 1858
Court:Supreme Court of Indiana
 
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Page 86

11 Ind. 86 (Ind. 1858)

Smead and Others

v.

The Indianapolis, Pittsburgh, and Cleveland Railroad Company

Supreme Court of Indiana

November 23, 1858

From the Marion Circuit Court.

The judgment is reversed with costs. Cause remanded for further proceedings in accordance with this opinion, with leave to the parties to amend the pleadings.

J. Morrison and C. Ray, for appellants.

O. H. Smith, S. Yandes and C. C. Hines, for appellee.

OPINION

Page 87

Perkins, J.

Suit by Smead & Co., assignees of the Greenville and Miami Railroad Company, against the Indianapolis and Bellefontaine Railroad Company, upon five bills of exchange for 2,000 dollars each, of the following tenor:

"$ 2,000. Cincinnati, December 22, 1854. Nine months after date, pay to the order of the Greenville and Miami Railroad Co., two thousand dollars, value received. E. B. Taylor, President, G. and M. Railroad Co. To Indianapolis and Bellefontaine Railroad Co., Indianapolis."

Across the face of the bill was written--

"Accepted, payable at the Ohio Life Ins. and Trust Co., Cincinnati. John Brough, president, I. and B. Railroad Company."

Page 88

The bill was indorsed--"E. B. Taylor, President, G. and M. Railroad Co."

The defendants answered "that said bills of exchange in the complaint mentioned were accepted by said defendants and their agents without any legal authority or power whatever under the charter of said defendant, and said acceptances were ab initio, and still are, void in law, in this, that on the 22d day of June, 1854, the defendants and the Greenville and Miami Railroad Company, of Ohio, entered into the following agreement:

'Indianapolis, Indiana, June 22, 1854. The Indianapolis and Bellefontaine Railroad Company, of the state of Indiana, and the Greenville and Miami Railroad Company, of the state of Ohio, bodies corporate created by the laws of the states of Ohio and Indiana, contract and agree with each other as follows:

'1. The Indianapolis and Bellefontaine Railroad Company agrees to accept drafts of the Greenville and Miami Railroad Company, ninety days from date for the aggregate sum of 15,000 dollars, to be drawn at such time as the necessities of the Greenville and Miami Railroad Company may require; in consideration of which the said Greenville and Miami Railroad Company hereby covenants and agrees to adopt and maintain on their road from Union to Dayton the Ohio gauge of four feet, ten inches.

'2. It is further agreed that the contract made and entered into, &c. (This section simply provides that some previous contracts remain in force.)

'3. It is further agreed that at least one daily passenger train each way shall be run through, over the Indianapolis and Bellefontaine and Greenville and Miami railroads, without change of cars between Indianapolis and Dayton, through-tickets over both roads being sold at each end of the line, at such prices as may be mutually agreed on; other trains being arranged, as far as practicable, in such manner as to form suitable connections at Union.

'4. The superintendents of the two roads, parties to this agreement, shall, from time to time, make and establish a tariff of prices for the transportation of freight between Indianapolis and Dayton, such company to receive its pro rata share of all such freight, in proportion to the length of road over which the same may be carried; and at least one through freight train per day, each way, shall be run between Indianapolis and Dayton, in connection with the Cincinnati, Hamilton, and Dayton road, unless the superintendents of the roads shall...

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