Mitchell v. The Rome Rail Rd. Co.

• Decision Date: 30 April 1855
• Docket Number: No. 96.,96.
• Citation: 17 Ga. 574
• Parties: Daniel R. Mitchell, plaintiff in error. vs. The Rome Rail Road Company, defendant.
• Court: Georgia Supreme Court

17 Ga. 574

Daniel R. Mitchell, plaintiff in error. vs. The Rome Rail Road Company, defendant.

No. 96.

Supreme Court of the State of Georgia

APRIL TERM, 1855.

Action on note, in Floyd Superior Court. Tried before Judge TrippE, December Term, 1854.

The following is the bill of exceptions, which contains the facts of the case:

The suit was brought by the Rome Branch R. R. & Steamboat Company, upon the following note:

"Rome, September 10th, 1846.

$500. Due the Memphis Branch Rail Road & Steamboat Company of Georgia, Five Hundred Dollars, payable on demand. (Signed) D. R. MITCHELL,."

"$250. Cr. the within note by Two Hundred and Fifty Dollars upon Jos. J. Printup's note. J. E. PARK, Sec."

Defendant\'s Counsel objected to reading the same in evidence upon the following, among other grounds:

1st. Because the said Company, by its charter, had no right to enter into a contract of that character.

2d. That they had no right to take or give notes payable on demand.

3d. Because the paper offered in evidence did not express that it was given for value received—which objections were over-ruled by the Court, and the said note admitted in evidence —to which decision and ruling of said Court, admitting the said paper in evidence, Counsel for the defendant excepted.

The plaintiff closed the testimony, and the defendant moved to dismiss the case, upon the ground that the plaintiff had not made out, by the proof, such a case as entitled the said plaintiff to recover; which motion was over-ruled by the Court; to which decision and ruling defendant excepted.

The defendant then introduced the proceedings of a meeting held on the 10th of September, 1846—the minutes and proceedings thereof, which are as follows:

"Rome, September 1oth, 1846. According to adjournment, the subscribers to the stock of the Memphis Branch Rail Road & Steamboat Company of Georgia met this day at the courthouse. Philip C. Guin was called to the Chair and W. T. Trammell requested to act as Secretary. The object of the meeting was explained by Judge King, to be to ascertain the progress made in the subscription of stock, and for the construction, and then to proceed to the organization of the Company. It was determined by the meeting that the conditional subscription to the stock previously made should be laid aside, and that the commissioners appointed to receive subscription should be requested to open a book of subscription in strict accordance with the charter—this was done. The number of shares required by the charter for the organization of the company having been subscribed, the commissioners stated that fact to the meeting; and besides, that the first instalment required to be paid by the charter had beenpaid in and was in their possession and ready to be disposed of, as the meeting should direct. The meeting of the subscribers took into consideration the statements placed before it, and on motion, it was unanimously agreed that the meeting of subscribers should resolve itself into a convention of stockholders of the Memphis Branch Rail Road & Steamboat Company of Georgia. It was then moved that the number of directors should be seven, and that as the regular number of shares had been subscribed and the first instalment paid in, agreeably to the provisions of the charter, on motion of Judge King, Resolved, That the number of directors of this company consist of seven members, any four of whom, or three besides the president, should constitute a quorum. The motion was agreed to, and the stockholders proceeded to the choice of directors—on counting out the ballots, it appeared that Messrs. Jno. P. King, Daniel Tyler, W. R. Smith, Alfred Shorter, D. R. Mitchell, John E. Park and J. W. M. Berrein had received a large majority of the shares.

These gentlemen were therefore declared to be elected directors of the Memphis Branch Rail Road and Steamboat Company of Georgia for one year from this date. On motion of D. R. Mitchell, Esq., Resolved, by the stockholders of the Memphis Branch Rail Road and Steamboat Company of Georgia, that the stockholders shall not be required, by any order of the board of directors, to pay any funds for the purpose of constructing of said road farther west than the town of Rome, without the unanimous consent of the stockholders given at a regular meeting of the same—passed. On motion, the meeting adjourned. P. C. GWIN, Chm'n.

W. T. TrammELL, Sec."

At a meeting of the directors on the 27th Sept. 1848, it appearing to the board that Jno. P. King, for Daniel Tyler, subscribed seven hundred and fifty shares to the, stock of the company and paid five dollars per share thereon—it farther appearing that said Tyler hag not recognized said subscription orrefunded the said advance, it is ordered that said stock be transferred to the individual name of the said King, and the said subscription be taken, deemed and considered the individual subscription of the said King, provided, however, the said King shall return, to be cancelled, the original subscription in the name of said Tyler.

8th November, 1848.

Resolved, That the company accept the amendments to the charter, authorized by the Legislature of Georgia, by Act approved 29th Dec. 1847.

12th March, 1850.

Resolved, That this convention accept the amendment of the charter of this company, authorized by the Legislature.

The cost of the road was admitted to be One Hundred and Forty Thousand Dollars.

The defendant then offered in evidence an extract from the minutes and proceedings of the company on the 14th day of April, 1846, as follows:

The undersigned, a portion of the original contractors of the Rome & Memphis Branch Rail Road Company of Georgia, having this day met in the town of Rome for the purpose of taking preparatory steps for the permanent organization of said company, have resolved to open books of subscription for the capital stock of said company, the subscription to the stock to be valid and binding on the subscribers for the stock, only on condition that Alfred Shorter, J. W. M. Berrien and William Nesbit sign the relinquishment this day drawn up for their signature, relinquishing all their title, interest and claim in and to the said charter, and on condition that the requisite amount of stock be subscribed to authorize a legal and permanent organization of the said company; and on the further condition, that the subscribers for stock be permitted to pay their instalments in work upon the road in grading, bridging, getting timber, &c., for superstructure at cash prices; and should the Ga. Rail Road Company and Macon & Western Rail Road Co. or other railroad companies be subscribers for stock, that the said company be allowed to pay the instalments that may become due on their stock subscribed, in iron, gudgeons, cars, &c, of good and substantial quality—the value of the same to be determined by competent and disinterested judges, at cash rates, except such an amount of cash as may be necessary to pay the salaries of engineers and agents and for the right of way, which is to be advanced by said company, until the road is put in operation. And should the subscribers for stock and the said rail road companies fail to pay in work as above, and in iron, &c, as above, when required, legally, by the directors hereafter to be appointed for the management of the said Rome & Memphis Branch Rail Road Co. then they will respectively be required to pay their subscription in cash, or instalments thereon as the same may be ordered and required by the board of directors.

Signed, D. R. MITCHELL,

EDWARD WARE,

JOSEPH WATERS,

JOHN SMITH,

Corporators.

At a meeting of directors 7th April, 1847, the following resolution was passed:

Resolved, That the company adopt a good second-hand rail road iron, not less than 2¹/₂by ³/₈ of an inch thick, at $60 per ton, delivered at Kingston, as was proposed by Col. King, subject to the inspection of the Chief Engineer.

At a meeting 28th April, 1847—

Resolved, That the President of the Memphis Branch Rail Road & Steamboat Co. of Ga. be authorized to receive from Reuben Herndon his certificate of stock and deliver to him his ten per cent. note—1st. Because his subscription is worthless and never will be complied with. 2d. Because it is deemedmaterial to have said Herndon\'s testimony in the appeal case of Benjamin Reynolds vs. the Company, to be tried on Friday next.

The defendant then offered to prove by N. Yarbrough and A. T. Hardin, that the subscription of Daniel R. Mitchell was made upon the express condition that the depot was to be located in the upper end of the City of Rome, near where the Presbyterian Church now stands, near to some property in which he, Mitchell, was interested, and this was stated publicly in a meeting, by John P. King, a large stockholder and principal mover in organizing the said company, and that King stated in the meeting, and pledged himself, that all the road cost over $70,000 he, King, would pay; which being objected to by the plaintiff, was rejected by the Court. Defendant excepted.

The following is the testimony for the defendant:

W. T. Trammell sworn, says: That he acted as secretary at the meeting 10th Sept. 1846; that there was no money paid or offered to be paid, as he saw or heard of.

Nathan Yarbrough sworn, testified: That he was present at the first and second meetings of the company, and no money was paid or offered to be paid; that the paper in evidence, upon which the suit was instituted, was given in place of payment in cash of the first instalment for stock; that he had no recollection that any certificate of stock was ever given to the defendant; that the removal of the depot, or the location at the fork of the river instead of the place near the Presbyterian Church, depreciated property in the upper part of Rome, where Mitchell was interested, fifty per cent.; that those who applied for certificates of stock obtained them and gave their notes; have no recollection of the defendant getting any...