Wood v. Coosa

Decision Date31 March 1861
Citation32 Ga. 273
PartiesConstantine Wood, plaintiff in error. vs. Coosa and Chattooga River Railroad Company, defendant in error.
CourtGeorgia Supreme Court

Complaint in Walker Superior Court. Tried before Judge Walker, at the February Term, 1861.

The Coosa and Chattooga River Railroad Company brought their action in Walker Superior Court, against Constantine Wood, to recover the sum of $75 00, the installments due on five shares of stock in said company subscribed by said Wood.

Defendant pleaded the general issue, and, in addition thereto, that the company had not complied with their charter; that he subscribed his stock previous to the time of organization of said company, and that a large portion of its stock has since been illegally transferred to another charter, without the consent of the stockholders.

The case was tried at the February Term, 1861. Plaintiff read to the jury, from a small book, the following paper:

Georgia—Walker County:

We, the undersigned subscribers, agree to pay to the Commissioners of the Coosa and Chattooga River Railroad Company the number of shares of stock annexed to our names, at one hundred dollars per share, when said company shall be organized, in such installments as may be called for by the directors. Sept. 5, 1856.

CONSTANTINE WOOD,

JAS. M. EASTERLING,

R. M. POWELL.

Plaintiff then introduced Thomas E. Patton, to whose competency defendant objected, because it appeared from the preliminary examination of the Witness that he was a stockholder in the company. The objection was overruled, the Court holding the witness competent for the purpose for which he was offered, and he testified that a certain book shewn to him, was kept by the commissioners appointed under the act of the Legislature organizing the company, for the purpose of recording their proceedings as such commissioners.

Plaintiff then introduced in evidence the following extracts from the book to which Patton's testimony relates, to-wit:

LaFayette, Ga., 3d Nov., 1852.

Two of the Commissioners for Ringgold, R. A. Ramsay and M. Dickson, met with the Commissioners of La Fayette, and elected James Hoge in place of R. N. Acock, resigned, and appointed the first Monday in December next as a general meeting.

THOS. E. PATTON, Sec'ry pro tem.

LaFayette, Ga., Nov. 7, 1853.

At a meeting of the Commissioners for La Fayette this day, Spencer Marsh resigned his office as commissioner, and Edwin Dyer was appointed to fill the vacancy occasioned by his resignation.

JAMES HOGE, Sec'ry pro tem.

State of Georgia—Walker County:

We, whose names are hereunto subscribed, agree to pay to the Commissioners of the Coosa and Chattooga River Railroad Company the number of shares annexed to our names, at one hundred dollars each share, this 15th Oct., 1856.

                ----------------------------------------------
                |                                |no. shares.|
                |--------------------------------|-----------|
                |James Hoge,                     |182        |
                |--------------------------------|-----------|
                |A. W. T—                        |182        |
                |--------------------------------|-----------|
                |A. Shaer,                       |182        |
                |--------------------------------|-----------|
                |John Caldwell,                  |182        |
                |--------------------------------|-----------|
                |Dan'l Major,                    |182        |
                |--------------------------------|-----------|
                |John Gray, per Edwin Dyer, Ag't,|182        |
                |--------------------------------|-----------|
                |Eli Gorse",                     |182        |
                |--------------------------------|-----------|
                |A. B. Culberson,                |182        |
                ----------------------------------------------
                

GeorgiaWalker County:

We, the undersigned, Commissioners of the Coosa and Chattooga River Railroad Company, do hereby certify that we have proceeded according to the provisions of said charter, and have received the above subscriptions of stock from those whose names appear above, with the number of shares to their names annexed, each share representing one hundred dollars. Given under our hands and official signature, this 15th October, 1856.

T. E. PATTON, Com'r,

JAMES HOGE, Com'r,

EDWIN DYER, Com'r.

GeorgiaChattooga County:

We, whose names are hereto subscribed, agree to pay to the Commissioners of the Coosa and Chattooga River Railroad the number shares annexed to our names, at one hundred dollars each share, this 16th October, 1856.

                ------------------------------------------------------------------
                |names.                            |no. shares.|      |          |
                |----------------------------------|-----------|------|----------|
                |Edwin Dyer,                       |           |182   |18, 200 00|
                |----------------------------------|-----------|------|----------|
                |J. E. Wardlaw,                    |           |182   |18, 200 00|
                |----------------------------------|-----------|------|----------|
                |I. R. Gamble,                     |           |182   |18, 200 00|
                |----------------------------------|-----------|------|----------|
                |                                  |           |546   |          |
                |----------------------------------|-----------|------|----------|
                |Subscribed to Walker Commissioners|1, 456     |      |          |
                |----------------------------------|-----------|------|----------|
                |                                  |           |2, 002|          |
                ------------------------------------------------------------------
                

According to the provisions of said charter, and have received the above subscription of 546 shares, at one hundred dollars each, making, with the subscription received by the Commissioners of Walker county, two thousand and two shares, it being the requisite amount of said charter for organization.

A. P. ALLGOOD, Com'r,

CHARLES PRICE, Com'r,

BENJAMIN BRANNON, Com'r.

LaFayette, 18th November, 1856.

According to previous notice published in the Southerner, a newspaper published in the town of Rome, Georgia, and also in the Courier, in the same place, in terms of the charter, the stockholders of the Coosa and Chattooga River Railroad Company met for the purpose of organizing said company, and it appearing that the requisitions of the charter have been complied with in the subscription of stock, and that the stock was represented, we proceeded to hold an election for the first board of directors of said company, and upon counting out the votes, the following persons were elected: Edwin Dyer, [John D. Gray, Augustus B. Culberson, Lewis R. Gamble, James C. Wardlaw, Daniel Major, James Hoge. Given under our hands, etc.

EDWIN DYER, Com'r,

JAMES HOGE, Com'r,

T. E. PATTON, Com'r.

Resolved, That the treasurer collect an installment of five per cent. upon the stock of our railroad company, and that the secretary of the board proceed to advertise for the payment of the same, in terms of the charter.

Resolved, That we call for an installment of ten per cent., to be due and payable on the first Wednesday in January next, and that the secretary publish notice of said call, in terms of the statute.

To the introduction of all and every portion of these extracts, except the resolutions in regard to the instalments, the defendant objected; the objections were overruled and the evidence admitted.

Plaintiff then read in evidence certain newspapers, shewing publication of the notice of the calls for payment of stock.

Green G. Gordon testified: That the plaintiff had an office and place of business in La Fayette; had organized as a company and commenced work in constructing a railroad about August or September, 1858, and has continued to work, off and on, ever since; have graded some seven oreight miles of the road, at an expense, he thinks, of $15,000 or $20,000.

A. H. Mirze testified: That the day before the return day to the Court at which defendant was sued, he was going to defendant's house to serve the writ in this case, and met the defendant, who seemed to know what witness was going to see him for, and stated to witness that he was then going to town to pay up his stocks, or what was due on his stock, when witness told him if he would go and pay up like a man he would not charge any cost.

The testimony was objected to by defendant, and the objection overruled.

Plaintiff here closed.

Defendant introduced as a witness, Thomas E. Patton, who testified, on being shewn the book, that the paper therein signed by defendant, Esterling & Powell, was in the handwriting of Mr. Hoge, and that witness acted as commissioner when said paper was executed or subscription made, and that no money was paid at that time or any other in his knowledge.

Defendant closed, and the Court charged the jury as follows:

1. The defendant does not deny subscribing the agreement introduced in evidence, but insists that he has two grounds of defense: 1st. That there is no such corporation as the Coosa and Chatooga River Railroad Company; and 2d. That if there be such a corporation he is not a member of it, not having done anything sufficient to bind him to pay the stock.

2. The burden of proof is on the plaintiff in these two issues. When the plaintiff introduced the act of incorporation; the record of the proceedings of the charter commissioners certifying that all the requisites of the charter had been complied with; the election of officers by the stockholders; the books of the corporation containing an account of their proceedings, and proved a user of the privileges of the franchise; that the company had a place of business to carry out the objects for which they wereincorporated, and that the business has been managed by directors so chosen, and that the corporation has gone on and expended considerable sums in forwarding the business of the corporation, a prima facie case of the existence of the corporation according to the terms of the charter is shown, which, if not rebutted, would be sufficient to authorize you to find the issue in favor of the plaintiff.

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