Thomson v. Cent. Pass. Ry. Co.

• Decision Date: 14 November 1910
• Citation: 80 N.J.L. 328,78 A. 152
• Parties: THOMSON v. CENTRAL PASS. RY. CO.
• Court: New Jersey Supreme Court

78 A. 152

80 N.J.L. 328

THOMSON

v. CENTRAL PASS. RY. CO.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1910.

Syllabus by the Court.

Error to Supreme Court.

Action by William R. Thomson against the Central Passenger Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The judgment recovered by the plaintiff in the circuit court was removed by writ of error to the Supreme Court where it was reversed for the reason given in the following per curiam opinion:

"This action was brought by Thomson to recover damages for the breach of a contract under seal, alleged to have been made by the defendant company to one Albert M. Jordan. It appears from the proofs that at the time of the making of this contract there were a number of suits pending against the defendant company, the effect of which was to interfere with the construction of their railroad. For the purpose of bringing these litigations to an end the agreement in question was made, and by its terms the company agreed to pay Jordan $10,000 in cash, or in its first mortgage bonds, if Jordan should bring about a discontinuance of them. The suits were discontinued. Jordan subsequently assigned the agreement, and his rights under it, to one Sweigard, and the latter in turn assigned the agreement, and the rights of Jordan thereunder, to the present plaintiff. The result of the trial was a verdict and judgment in favor of Thomson."

"Numerous errors are assigned and argued by counsel before us. It is only necessary, however, to consider one of them, and that is the refusal to nonsuit or direct a verdict. In order to entitle the plaintiff to recover, the burden rested upon him to show that the suits which have been referred to were brought to a conclusion through the efforts of Jordan, for, unless this was so. neither Jordan, nor those claiming under him, are entitled to the compensation called for by the agreement. We have examined the proofs carefully for the purpose of determining whether any evidence of this kind was submitted to the trial court and jury, and find absolutely none. The plaintiff having failed to show performance of the contract by Jordan, the motion to nonsuit or direct a verdict should have prevailed."

"The judgment under review will be reversed."

Ell H. Chandler, for plaintiff in error.

Bourgeois & Sooy and Thompson & Cole, for defendant in error.

GARRISON, J. The Supreme Court reversed the judgment of the circuit court upon the single ground that the plaintiff had adduced no testimony from which the jury could legitimately find that the suits against the defendant had been dismissed through the efforts of Jordan. We are not willing to say that a verdict ought to have been directed on this ground, and hence find it unnecessary to pass upon the question whether under the terms of the contract set up in the declaration the burden was upon the plaintiff to show that Jordan had performed his contract or upon the defendant to show that he had not.

There was, however, another ground advanced by the defendant upon which we think that a verdict ought to have been directed, viz., that "the undisputed evidence shows that the agreement is not the agreement of the company either by direct authorization or by any ratification thereof."

The agreement that was the basis of the action was of a peculiar character, and not in the ordinary course of the defendant's business. It provided, first, that the defendant, the Central Passenger Railway Company would deliver to Albert M. Jordan the sum of $10,000 in par value of the bonds of the company to be secured by a mortgage to be created upon its properties; secondly, that the company acknowledged itself to be indebted to said Jordan in said sum to be paid to him in case the mortgage and bonds were...