Butler v. Tifton

• Decision Date: 28 January 1905
• Citation: 49 S.E. 763,121 Ga. 817
• Parties: BUTLER et al. v. TIFTON, T. & G. RY. CO.
• Court: Georgia Supreme Court

49 S.E. 763

121 Ga. 817

BUTLER et al.

v.TIFTON, T. & G. RY. CO.

Supreme Court of Georgia.

Jan. 28, 1905.

RAILROADS — LOCATION OF STATION — SPUR TRACK—CONTRACT TO BUILD—DISMISSAL OF SUIT—RES JUDICATA.

1. The right of a railroad company to contract for the location and maintenance of stations may be restricted by the fact that the public has an interest in the times and places for stoppage of trains to receive and discharge freight and passengers.

2. There is no such restriction on the company's power to contract to build a spur track from its main line to a sawmill or other private enterprise.

3. The validity of such contract was recognized in Tifton Co. v. Bedgood & Co., 43 S. E. 257, 116 Ga. 949, 951, and it was not error to overrule the demurrer.

4. Instead of reducing an agreement to writing, the parties, by reference, may adopt the terms of a contract already in writing.

5. A party must be held bound by a ruling which he invoked, and by a judgment in his favor which he procured.

6. If, in a pending suit, the plaintiff offers an amendment, and the defendant demurs thereto on the ground that "it sets up a new and distinct cause of action, " and such demurrer is sustained, the judgment dismissing such suit will not bar the plaintiff from suing on the cause of action set out in the amendment offered, but disallowed for the reason that it was a new and distinct cause of action.

7. Such ruling on the demurrer further shows that the merits of the matter set out in the amendment were not and could not have been determined in the first suit.

8. It was error to sustain the plea of res adjudicata.

(Syllabus by the Court.)

Error from City Court of Moultrie; W. S. Humphreys, Judge.

Action by J. L. Butler and others against the Tifton, Thomasville & Gulf Railway Company. From a judgment both parties bring error. Reversed.

Many of the facts involved in the present case are stated in 116 Ga. 945, 43 S. E. 257. While the record is voluminous, the following is a synopsis of what is material to an understanding of the points involved in the decision: The Union Lumber Company own-ed 1, 617 acres of land in Colquitt county, the timber privileges on which it sold to Huber & Stokes. On October 24, 1899, this firm entered into a contract with the Tifton, Thomasville & Gulf Railway Company, by which, in consideration that they would locate their sawmill on the premises, and ship all the lumber cut from this land over the railway company's line, the latter agreed to build a side track to the sawmill, and to haul the timber therefrom at a rate as low as that charged other shippers. On November 3, 1899, Huber & Stokes sold the timber and assigned this contract to Bedgood & Co. The latter, on April 21, 1902, brought an action against the railway company for damages for breach of the contract to build the side track. The company's demurrer to this petition was sustained by this court (116 Ga. 945, 43 S. E. 257) on the ground that the contract sued on was not assignable. On the return of the remittitur Bedgood & Co. offered an amendment to the petition setting up that a competitor of the defendant had a line of road near the timber described; that it was to the advantage of the defendant to enter into an agreement by which it would secure the freight from the sawmill, instead of allowing it to go over the other road; that for this reason the contract in reference to the side track was made; that prior to the purchase by Bedgood & Co. of the timber from Huber & Stokes, and before the payment of any purchase money therefor, Bedgood & Co. informed the officers of the railway company that they were negotiating to acquire the timber, and desired to know if the railway company would carry out the contract and put in the spur track if the plaintiffs should purchase the timber and have transferred to them the contract aforesaid; that the railway officials notified Bedgood & Co. that the railway company would carry out the contract with plaintiffs should plaintiffs purchase, and did then and there assent to the transfer of said contract to plaintiffs, and on this assent being given plaintiffs parted with $7,550 in the acquisition of the timber rights aforesaid; that, in addition to the above-mentioned consideration, plaintiffs agreed, as a part of the trade, to assume and carry out the obligations of Huber & Stokes under the contract aforesaid; that plaintiffs were financially responsible, and the railway company agreed for the contract to be transferred to plaintiffs, and agreed and fully bound itself to carry out for plaintiffs all the terms of the contract as they had bound themselves to do with Huber & Stokes, and never denied its obligation until about the time of the filing of this suit; that about March 1, 1900, the railway company insisted under the contract upon plaintiffs giving to it the output of the mill, and again stated to plaintiffs that, if plaintiffs would haul the cut of the mill to the main line, then the railway company would hasten the construction of the spur track, and put it in at once and to this end had their engineer mark out the line; that, though plaintiffs were not bound to ship said lumber over defendant's line until the completion of the spur track, yet, relying on the obligation aforesaid, they did, as requested by the railway company, ship the output of their mill over the road. To this amendment the defendant demurred upon several grounds; among others, that the amendment sought to add a new and distinct cause of action. After argument it was ordered and adjudged "that the amendment offered by plaintiffs to...