New Haven And Northampton Company v. Joel Hayden &Amp; Others

• Decision Date: 25 January 1876
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: New Haven and Northampton Company v. Joel Hayden & others

119 Mass. 361

New Haven and Northampton Company v. Joel Hayden & others

Supreme Court of Massachusetts

January 25, 1876

[Syllabus Material]

Hampden. Contract against Joel Hayden and seven others. Writ dated in May, 1869. The declaration contained two counts. The first count was as follows: "And the plaintiffs say tat the defendants made an agreement in writing, a copy whereof is hereto annexed, whereby said defendants agreed to secure the right of way for the plaintiffs for their railroad, free of expense to the plaintiffs, from the westerly side of the town farm in Northampton, to the western terminus of the road in Williamsburg, for divers good and valuable considerations therin named, on the part of said plaintiffs, all of which have been fully performed by said plaintiffs. But defendants although requested, have neglected and refused to perform the stipulations on their part to be performed, as set forth in said agreement hereto annexed, whereby said plaintiffs have been put to great trouble and loss."

The second count was as follows: "And plaintiffs say defendants owe them the sum of forty-five thousand dollars for money paid for defendants by plaintiffs at defendants' request."

The copy annexed consisted of two papers signed by the defendants. The first was as follows: "Williamsburg January 26, 1866. To J. E. Sheffield, Esquire, Committee of the Northampton & New Haven Railroad Company. The undersigned, representing a large portion of business on the line of the proposed railroad from Northampton to Williamsburg, propose that, if your company will extend their road to Williamsburg as soon as practicable, we will undertake to secure good, responsible subscriptions to the stock of your company, to the amount of 1250 shares, and pay for the same in installments, as needed for building the road. We also propose to secure the right of way for the road, free of expense to your company, from the westerly side of the town farm in Northampton to the western terminus of the road in Williamsburg, and also to obtain the needful legislation in Massachusetts to merge or consolidate the Northampton and Shelburne Falls Railroad Company with the Northampton and New Haven Railroad Company, so as to form one corporation from New Haven to Williamsburg. It is understood that this proposition is not to be binding on our part, unless we can secure the taking of the amount of stock above named, and also the right of way, or make such arrangement in regard to the same as shall be satisfactory to your company; also that the stock (1250 shares) is not to share in the earnings of the road until the extension is in operation."

The second paper was as follows: "Williamsburg, August 13, 1867. To the New Haven and Northampton Company. The undersigned, whose names are subscribed to proposals submitted in January 1866 to the New Haven and Northampton Company for them to extend their railroad to Williamsburg, hereby agree that said company may go forward and secure the right of way for said road west of Northampton town farm, either by purchase or appraisement by the county commissioners, as said company may think best, and that it shall be done without prejudice to the legal rights of either party named in said proposals."

On June 30, 1873, the following agreement, signed by the parties, was filed in the case: "Judgment shall be rendered for the plaintiff as damages, as if upon a verdict, for three fifths of such sum as an assessor to be appointed by the court, unless agreed upon by the parties, shall find the plaintiffs have paid or are bound to pay for their right of way described in the contract, with interest thereon. Said assessors shall report each item, and the grounds of allowance or rejection, and shall also report any questions of law arising in the making of such assessment, if requested by either party, to this court, with right to take the same to Supreme Judicial Court. It is understood that the verdicts, awards and amounts paid shall be considered the value of the premises taken. Any outstanding claims in favor of the Nonotuck Silk Company against the plaintiff are agreed to be adjusted and paid by the said Joel Hayden and others, defendants in the above suit, but without prejudice to any claim said defendants may have on Lucius Dimock or said Nonotuck Silk Co. for contribution."

Joel Hayden died in November, 1873, and Thomas Talbot and others were appointed administrators of his estate in December, 1873. In June, 1875, after the former decisions upon other points of the case, reported 107 Mass. 525, and 117 Mass. 433, the Superior Court issued a summons to the administrators to appear and defend the action. This summons was duly served upon them, and, at October term 1875, they appeared by attorney and moved that the process be dismissed, as having been issued inadvertently and without authority of law, and that they be discharged from further answer.

Allen, J., ruled that the court had no authority to issue the summons and require the administrators to defend the action; and the plaintiff alleged exceptions.

Exceptions overruled.

G. M Stearns & N. A. Leonard, for the plaintiff. 1. The contract was not joint in such a sense as to require all the signers to be joined in the suit, and the action to proceed against all the survivors in case of the death of one. The plaintiff might sue such signers as it desired. The contract does not name any particular parties who shall execute it, but purports to bind each and every one who shall sign. The stipulations are several in their nature, and binding upon those who may deem that their business interests will be subserved by signing it. Springfield v. Harris, 107 Mass. 532. Mattoon v. Barnes, 112 Mass. 463. Warring v....