Paducah & M. R. Co. v. Parks

• Decision Date: 05 May 1888
• Citation: 8 S.W. 842,86 Tenn. 554
• Parties: PADUCAH & M. R. CO. v. PARKS. SAME v. FERRELL. SAME v. HASKINS. SAME v. HARRIS.
• Court: Tennessee Supreme Court

8 S.W. 842

86 Tenn. 554

PADUCAH & M. R. CO. v. PARKS.

SAME v. FERRELL.

SAME v. HASKINS.

SAME v. HARRIS.

Supreme Court of Tennessee.

May 5, 1888

Appeal from circuit court, Dyer county; THOMAS J. FLIPPIN, Judge.

Latta & Richardson, for appellant.

H Parks, Jr., and M. M. Neil, for appellees.

LURTON J.

These four suits at law, against subscribers of the stock of the Paducah & Memphis Railroad Company, were tried, by consent together; and, a jury being waived, the issues of law and fact were submitted to the circuit judge, who has filed his special findings of fact and law as part of the record. There was a judgment in favor of each of the defendants, and an appeal by the plaintiffs. The contract of subscription upon which the suit was brought, was as follows: ""JULY 31, 1872. We, the subscribers, agree and bind ourselves, our heirs and legal representatives, to pay to the Paducah & Memphis R. R. Co. the sums by us subscribed to the stock in said railroad company upon the following terms and conditions, to-wit: One-fourth to be paid when the road is completed to the north or south line of Dyer county the remainder of the amount subscribed to be paid in four equal installments, of four months, as the work progresses through the county, provided the company established a depot on said road within fifteen hundred feet of G. B. Tinsley's corner store, supposed to be the center of Newbern. It is further provided that certificates of stock issue to said subscribers, as to other stockholders in said company, upon payment of their subscriptions." The proof shows that there was a gap in the line of a road projected between Paducah, Ky., and Memphis, Tenn.; each end of the road being in operation, and owned by different companies. The new company was the result of the consolidation of the two old companies, and it undertook the completion of the missing link. Dyer county, of which Newbern is a flourishing village, would be crossed by the finished road. The assignment of errors is so defective as to raise no question of fact; but the second assignment is sufficient to raise a question of law. We have therefore treated the facts as found by the circuit judge as the facts of case, and will test the soundness of the result he reached by the law applicable. The facts necessary to be stated, as found by his honor, are as follows: That work was commenced on said unfinished part of the road early in 1872, and the Dyer county line was reached on the north in April, 1873, and on the 28th of that month it ran its train of cars into Trimble station, in said county. On the 15th May thereafter, the company made a call for one-fourth of the subscription, according to contract. "This call, together with the second and third calls, were likewise paid by each of defendants. The company did work on the road in Dyer county until the last of July or first of August, 1874, at which time it ceased operations and work of all sorts. The work principally done in Dyer county was between Dyersburgh and Trimble station. The road was mostly graded, or a great deal of it, from Trimble to Newbern, and between Newbern and Dyersburgh; and, in places, bridges were constructed, and cross-ties were collected in one or more places, to be placed on the road. The road was widened at the place where the depot now stands, (in Newbern,) as if for side track, but the company owned no property or land outside of the right of way upon which a depot could be located." He further held that the proof did not show any further preparations for the establishment of a depot at Newbern than the widening of the grade at that point, for side-track purposes. He further found that shortly after cessation of work, in August, 1874, that foreclosure proceedings were instituted by bond creditors, and the property and franchises of the corporation sold at public sale, and acquired by the C. & O. R. R. Co., and this company, being an entirely new, and independent organization, has since finished the projected road through Dyer county. That, to induce location of depot at Newbern, citizens of that place had been compelled to make a new contract with the successor company, who had assumed none of the contracts or liability of the old company. He further found that the old corporation was utterly insolvent at time it abandoned work, and that, at time of trial, it held no property, franchises, and practically no existence. The subscription list was accepted by the Paducah & Memphis Railroad Company, and on the 12th September, 1873, after payment of first call by subscribers, was assigned to Childs, Stevens & Co., contractors for work in Dyer county, and part payment of work done and to be done by them. The suit is by these assignees and contractors of the insolvent company. Three of the suits are for the fourth call, which matured in May, 1874, and before work had ceased; and the fourth defendant is sued alone upon the fifth and last call, which did not mature in point of time until September, 1874, which was after all efforts to complete the road had been adandoned.

The question is as to whether defendants are liable for any of the unpaid calls. His honor, the circuit judge, was of opinion that the construction of the road to the line of the county was a condition precedent to any liability, but that this condition had been met. He was further of opinion that the stipulation requiring the establishment of a depot at Newbern was an independent provision, and not a condition precedent to liability upon the contract of subscription. This latter provision he held required and meant the erection of a depot building, with reasonable facilities for freight and passengers. Upon these facts, and upon the contract as thus construed, the circuit judge held that, although the stipulation as to a depot was not a condition precedent, yet it was a part of the agreement of the corporation, which at some reasonable time it was bound to carry out, and that as it was now obvious that the utter insolvency of the company and the sale of its property and franchises, had rendered the performance of this contract impossible, that it therefore followed that the defendants were released from liability upon their stock, both as to calls accruing before and after the abandonment of work upon the road. In this conclusion we think he erred. If it be conceded that the proviso concerning a depot at Newbern is not a condition precedent, as his honor does, then it must...