Winter v. The Muscogee R.R. Co.

• Decision Date: 31 July 1852
• Docket Number: No. 62,62
• Citation: 11 Ga. 438
• Parties: John G. Winter, plaintiff in error. vs. The Muscogee Railroad Company, defendants in error.
• Court: Georgia Supreme Court

11 Ga. 438

John G. Winter, plaintiff in error. vs. The Muscogee Railroad Company, defendants in error.

No. 62

Supreme Court of the State of Georgia

JULY TERM, 1852.

Assumpsit, &c., in Muscogee Superior Court. Tried before Judge Powers, November Adjourned Term, 1851.

This was a suit by the Muscogee Railroad Company against John G. Winter, upon a subscription for $10,000 of the Stock of the said Company. When the case was called for a hearing, counsel for Winter moved for a continuance, or. the ground of the absence of one Dubois, by whom he expected to prove the location of the present Muscogee Railroad; a fact material to the defence. The Court refused the motion, holding that he would recognize the fact that the present Muscogee Railroad ran to Fort Valley as a part of the history of the times. This decision was excepted to by counsel for Winter.

Counsel for Winter then moved to continue the cause, on the ground that Abner Powers, Judge of the Macon Circuit, then presiding in Muscogee Superior Court, had no jurisdiction; the Hon. Alfred Iverson, the Judge of said Court being interested in the cause; in which event the Statute provided that the Justices of the Inferior Court should preside.

The Court overruled the motion and counsel for Winter excepted.

The cause being ordered to trial, a pannel of twenty Grand Jurors were reported in attendance. Ten of these were challenged for cause, on the ground that they were either individually stockholders, or were citizens of Columbus, which city was a stockholder to the amount of $150,000. The Court ordered the pannel filled to twenty-three, from which he allowed the challenge to ten for cause. Counsel for Winter then moved the pannel should be filled with disinterested talesmen to at least eighteen. Which motion the Court refused; but ordered the Jury to be stricken from the thirteen Jurors remaining on the list. The plaintiffs being the appellant, struck one, and the remaining Jurors were impannelled to try the cause. To which decision counsel for Winter excepted.

It appeared from the minutes of the Board of Directors, that on the 12th of February, 1848, John G. Winter being presentand the President of the Company, the following By-law was adopted, viz:

" That the amount of stock of all those of the stockholders in the Muscogee Railroad Company, who fail or refuse to pay up the instalments already called in, or which may be called in by the 10th of March next, shall be held and deemed to be due for the full amount of their and each of their subscriptions for stock in said Company, and that the President do proceed to cause suits to be instituted against all such stockholders as shall fail or refuse as aforesaid, for the full subscriptions for stock in said Company."

Counsel for Winter insisted that suit could not be sustained against him on his subscription, without proof of a demand for the instalments, and a refusal to pay. Which position the Court overruled, and counsel for Winter excepted.

The main question in the cause arose upon the plea of defendant, that the Company had materially changed the route of their road and thus released him from his contract of subscription. Upon this point, the facts appeared as follows:

The subscription was as follows: "We, the undersigned, do hereby subscribe for the number of shares in the capital stock of the Muscogee Railroad Company, which are placed opposite our names; and agree to pay to said Company the sum of One Hundred Dollars per share in such amounts and at such times as the same may be called for by the Board of Directors of said Company." Winter subscribed for one hundred shares of the stock.

The Muscogee Railroad Company was incorporated by an Act of the Legislature, passed at its session in 1845, by which the Company were authorized to build a road from the City of Columbus to some point at or near the Macon and Western Rail-Road, between Macon and Atlanta, these being the two termini of the Macon and Western Railroad.

By an Act amendatory of the charter, passed by the General Assembly in February, 1850, the Muscogee Railroad Company were authorized " to connect their Railroad with the South-western Railroad at Fort Valley or at any point between Fort Valley and the City of Macon."

On the 10th of April, 1851, the following resolutions were passed by the Board of Directors of the Muscogee Railroad Company, John H. Howard being President, (Winter being no longer a member of the Board.)

" Resolved, That the Company, in consideration of the subscriptions which have been recently made to build the twenty-one miles of road from Fort Valley to the contemplated east terminus of the Muscogee Railroad, do here by relinquish to the Southwestern Railroad Company, for the use of said subscribers, all the right that it possesses to occupy the ground selected for the said twenty-one miles of road, and agrees to terminate its road and franchises at the point, fifty miles eastward of Columbus, known as the Wolf-Pen.

" Resolved, That this Company hereby pledges itself to unite in an application to the Legislature to have the said twenty-one miles appended to the Southwestern Company, and detached from this Company."

Counsel for Winter requested the Court to charge the Jury— " That the charter of the Muscogee Railroad Company, as it existed at the time of defendant's subscription, is as much a part of the contract as though the same had been embodied in the caption to the subscription paper, and that no material alteration could be made in said contract by the Muscogee Railroad Company or by the defendant, without the consent of both parties. Therefore, if the Jury find that the road in the course of construction is a different road from that set forth in the original charter, then defendant is not bound for the instalments called in, unless the assent of defendant to such change of route has been proved; or if the Jury find that the terminus of the present road is at a point not contemplated by the original charter, although it may be embraced in the amended charter, yet the defendant is not bound, unless his assent to such amended charter is proven."

The Court refused so to charge, but instructed the Jury— " That the charter constituted a part of the contract of subscrip-tion, and that an alteration in the route of the road, which would defeat the original object intended by the corporation, would release the defendant, if made without his consent; but if the original object was carried out by the change of route, under an amendment of the charter, obtained against the consent of the defendant, such change of route would not release the defendant; and if the Jury believed that the plaintiffs, by joining the Southwestern Railroad at Fort Valley or any other point, has succeeded in reaching a point at or near the Macon Railroad, this being a terminus in the original charter, it would not in the opinion of the Court, be such an alteration of the contract as would release the defendant. This is matter of fact which the Jury must determine upon; and if from the evidence they believe that the original objects and purposes of the defendant, in subscribing to the first charter and first route, was materially defeated by the amended charter and change of route, then he was not further bound by his subscription, and they should find for the defendant."

To which charge and refusal to charge, counsel for Winter excepted.

Defendant's counsel farther requested the Court to charge the Jury—"That the amendment of the charter could not affect the contract of subscription, because it would be repugnant to the Constitution of the State and of the United States, in this, that it would impair the obligation of the contract."

Which the Court declined giving in charge, saying it was already sufficiently covered by his charge. To this decision Winter excepted.

Upon these several exceptions error has been assigned.

Moses, for plaintiff in error.

H. Holt, for defendants in error.

By the Court.—Warner, J. delivering the opinion.

The first ground of error assigned on the record in this case, is the refusal of the Court below to continue the cause, on account of the absence of Dubois, a witness for the defendant, by whom he expected to prove the present location of the Muscogee Railroad; the Court holding, that it would recognize the existence of the fact which the defendant desired to prove by the witness, that the present route of the Railroad ran from Columbus to Fort Valley. According to the rule which this Court has heretofore adopted, we shall not control the discretion of the Court, in refusing to grant a continuance of the cause on the state of facts presented by this record; there is not such an abuse of the discretion confided to the Court below as will authorize this Court to control it.

The second ground of error taken in the record is, that Judge Powers, who is the Judge of the Macon Circuit, had no jurisdiction to preside at the trial of the cause; inasmuch as Judge Iverson, who is the Judge of the Chattahoochee Circuit, is interested in the cause; that the Act of 5th December, 1801, provides, " that in all cases brought in the Superior Courts or any of them, where either of the Judges thereof shall be a party, or interested therein, it shall be the duty of three or more of the Justices of the Inferior Court to preside at the trial of the same " Prince, 433. By the Act of 8th December, 1806, the Judges of the Superior Courts of this State are authorized to alternate in their respective districts, any law to the contrary notwithstanding. Prince, 434. Because the Justices of the Inferior Court may preside at the trial of a cause in which the Judge of the Superior Courts of the circuit for which he was elected, is a party or interested therein, it does not necessarily follow that a Judge of the Superior Courts of another circuit may not. The Judge of the Macon Circuit had the power and authority, under the Constitution and laws of this State,...