Tifton, T. & G. Ry. Co. v. Bedgood

• Decision Date: 10 January 1903
• Parties: TIFTON, T. & G. RY. CO. v. BEDGOOD et al.
• Court: Georgia Supreme Court

43 S.E. 257

116 Ga. 945

TIFTON, T. & G. RY. CO. v. BEDGOOD et al.

Supreme Court of Georgia

January 10, 1903

Syllabus by the Court.

1. Contract rights, coupled with liabilities, or involving a relation of personal confidence between the parties, cannot be transferred to a third person by one of the parties to the contract without the assent of the other.

(a) The trial judge erred in overruling the demurrer to the petition.

Error from city court of Moultrie; W. A. Covington, Judge.

Action by R. A. Bedgood & Co. against the Tifton, Thomasville & Gulf Railway Company. Judgment for plaintiffs. Defendant brings error. Reversed.

Dessan Harris & Harris, J. H. Merrill, and J. A. Wilkes, for plaintiff in error.

Pearsall & Shipp, for defendants in error.

LITTLE J.

It appears from a petition filed by the firm of R. A. Bedgood & Co. against the Tifton, Thomasville & Gulf Railway Company and from the exhibits attached thereto, that in October 1899, A. Huber and R. L. Stokes, composing the firm of Huber & Stokes, purchased from the Union Lumber Company all the timber suitable for sawmill purposes on certain lots of land, aggregating 1,617 acres, in Colquitt county, and that on the same day they entered into a contract with the Tifton, Thomasville & Gulf Railway Company, obligating and binding the railway company to put in a side track to the sawmill of Huber & Stokes, located on the land upon which the timber sold and conveyed was then growing; that in November, 1899, Huber & Stokes, for a consideration of $7,550, transferred all of their right, title, and interest in the timber aforesaid, and also their contract with the railway company, to R. A. Bedgood, who purchased the same for petitioners; that in February, 1900, Bedgood, in writing, sold and transferred to petitioners the timber and leasehold interest in the land on which it was situated, and they, as well as Bedgood and the firm of Huber & Stokes, relied on the contract made between the railway company and Huber & Stokes, which obligated the railway company to construct the side track, and, but for this contract and obligation to construct the side track, petitioners would not have purchased said timber; that before they purchased it they conferred with the vice president and secretary of the defendant company, and were assured that the latter would construct the side track not later than the first of the year 1900; that the railway company has totally failed and refused to put in the side track, and that by reason of such failure petitioners have been damaged in the sum of $4,560.05. A copy of the contract between the railway company and Huber & Stokes is as follows: "State of Georgia, Colquitt County. This agreement, made and entered into this the 24th day of October, 1899, by and between the Tifton, Thomasville and Gulf Ry. Co. of Thomas county, and said state, of the first part, and Huber & Stokes, of Colquitt county, and said state, of the second part, witnesseth: That the said Huber & Stokes have located, near the line of the T., T. & Gulf's Railroad, a certain sawmill. Now the said Huber & Stokes for and in consideration of the exchange of certain timber in the 8th district of said county, of which leases have this day been made and exchanged between the said Huber & Stokes and the Union Lumber Co., and for further consideration that the said Tifton, Thomasville & Gulf Ry. Co. will put in a side track to connect with said mill on said line of railroad about fifteen hundred (1,500) feet long. And the said Tifton, Thomasville & Gulf Ry. Co. obligate themselves to haul the entire output of lumber, or as much as said Huber & Stokes ship over any line of railroad at as low rate of freight as any competing railroad for said mill, and in no event is the said Tifton, Thomasville & Gulf Ry. Co. to charge more than the rate charged the Union Lumber Co. for similar freight. And the said Huber & Stokes obligate themselves to ship all lumber cut by them over said company's railroad except the local bills that may be cut by them. In witness whereof, the said parties have this day set their hands and seals the day and year above written. [ Signed] Tifton, Thomasville and Gulf Ry. Co. [ L. S.] Per J. W. Hightower, V. P. [ L. S.] Huber & Stokes [L. S.] Signed, sealed, and delivered in the presence of [Signed] G. G. Henderson, J. F. Cooper, N. P., Colquitt Co., Ga." On the back of said contract were the following transfers: "Georgia, Colquitt County. For value received we do hereby set over and assign all of our right, privilege, interest, and franchise in and to the within contract to R. A. Bedgood, his heirs, assigns, and legal representatives. Witness our hands and seals this Nov. 3rd, 1899. [ Signed] A. Huber [L. S.] R. L. Stokes. [ L. S.] Signed, sealed, and delivered in the presence of Matt J. Pearsall. Z. H. Clark. N. P. C. C." This transfer was duly filed and recorded in the office of the clerk of the superior court of Colquitt county. There was also upon said contract the following transfer: "Georgia, Dooley County. For value received, I hereby set over and assign all my rights, privileges, and franchise in and to the within contract to R. A. Bedgood Company (a firm composed of R. A. Bedgood, J. L. Butler, and O. M. Grady), their heirs, assigns, and legal representatives. Witness my hand and seal this Feby. 2nd, 1900. [ Signed] R. A. Bedgood. [ Seal.] Signed, sealed, and delivered in the presence of [Signed] W. H. Cribb, N. P. D. C."

To the petition making the case above set out, the defendant filed a general and certain special demurrers on a number of grounds, which were overruled by the court, and the defendant excepted. As we have reached the conclusion that the petition on its face does not show any right of action in the plaintiffs, it is not necessary that the grounds of the demurrer should be taken up seriatim. We will therefore confine ourselves to a discussion and decision of one proposition of law raised by the demurrers, which must control the case adversely to the plaintiffs below, to wit, that the transfer of the contract gave plaintiffs no right of action against the railway company for a breach thereof.

1. It is alleged in the petition that, before plaintiffs purchased from Huber & Stokes the timber which they intended to cut into lumber, they conferred with the vice president and secretary and treasurer of the railroad company, and were assured by these officers that the railroad company would carry out the contract it had made with Huber & Stokes to construct the side track, and it is insisted by counsel for defendant in...