Butler v. Tifton, Thomasville & Gulf Railway Co.

1. The right of a railroad, company to contract for the location and maintenance of stations may be restricted by the fact that the public has an interest in the times and places for stoppage of trains to receive and discharge freight and passengers. 2. There is no such restriction, on the company’s power to contract to build a spur-track from its main line to a sawmill or other private enterprise. 8. The validity of such contract was recognized in. Bedgood v. Tifton Co., 116 Ga. 949, 951; and it was not error to overrule the demurrer. 4. Instead of reducing an agreement to writing, the parties, by reference, may ■adopt the terms of-a contract already in writing. 5. A party must be held bound by a ruling which he invoked, and by a judgment in his favor which he procured. 6. If in a pending suit the plaintiff offers an amendment, and the defendant demurs thereto on the ground that “it sets up a new and distinct cause of action,” and such demurrer is sustained, the jüügmentt dismissing such suit will not bar the plaintiff from suing on the cause of action sefout in the amendment offered, but disallowed for the reason that it was a new and distinct cause of action. 7. Such ruling on the demurrer further shows that the merits of the matter set out in the amendment were not, and could not have been, determined in the first suit. 8. It was error to sustain the plea of res adjudicata.

Action for breach of contract. Before Judge Humphreys. City court of Moultrie. August 8, 1904. Many of the facts involved in the present case are stated in 116 Ga. 945. While the record is voluminous, the following is a synopsis of what is material to an understanding of the points involved in the decision. The Union Lumber Company owned .1617 acres of land in Colquitt county, the timber privileges on which it sold to Huber & Stokes. On October 24, 1899, this firm entered into a contract with the Tifton, Thomasville and Gulf Railway Company, by which, in consideration that they would locate their sawmill on the premises and ship all the lumber cut from this land over the railway company’s line, the latter agreed to build a side-track to the sawmill and to haul the timber therefrom at a rate as low as that charged other shippers. On November 3, 1899, Huber & Stokes sold the timber and assigned this contract to Bedgood & Co. The latter, on April 21,1902, brought an action against the railway company for damages for breach of the contract to build the side-track. The company’s demurrer to this petition w;as sustained by this court (116 Ga. 945), on the ground that the contract sued on was not assignable. On the return of the remittitur Bedgood' & Co. offered an amendment to the petition, setting up that a competitor of the defendant had a line of road near the timber described; that it was to the advantage of the defendant to enter into an agreement by which it would secure the freight from the sawmill instead of allowing it to go over the other road; that for this reason the contract in reference to the side-track was made; that prior to the purchase by Bedgood & Co. of the timber from Huber & Stokes, and before the payment of any purchase-money therefor, Bedgood & Co. informed the officers of the railway company that they were negotiating to acquire the timber, and desired to know whether the railway company \$uuld carry°out the contract arid put in the spur-track if the plaintiffs should purchase the timber and have transferred to them the contract aforesaid; that the railway officials notified Bedgood & Co. that the railway company would carry out the contract with plaintiffs should plaintiffs purchase, and did then and there assent to the transfer of said contract to plaintiffs, and on this assent being given, plaintiffs parted with $7,550 in the acquisition of the timber rights ¿foresaid; that in addition to the above-mentioned consideration plaintiffs agreed, as a part of the trade, to assume and carry out the obligations of Huber & Stokes under the contract aforesaid, that plaintiffs were financially responsible, and the railway company agreed for the contract to be transferred to plaintiffs and agreed and fully bound itself to carry out for plaintiffs all the terms of the contract as it had bound itself to do with Huber & Stokes, and never denied its obligation until about the time of the filing of this suit; that about March 1, 1900, the railway company insisted under the contract upon plaintiffs giving to it the output of the mill, and again stated to plaintiffs that if plaintiffs would haul, the cut of the mill to the main line, then the railway company would hasten the construction of the spur-track and put it in at once, and to this end had its engineer mark out the line; that though plaintiffs were not bound to ship said lumber over defendant’s line until the completion of the spur-track, yet, relying on the obligation aforesaid, they did, as requested by the railway company, ship the output of their mill over the road. To this amendment the defendant demurred upon several grounds; among others, that the amendment sought to add a new and distinct cause of action. After argument it was ordered and adjudged, “that the amendment offered by plaintiffs to said declaration be disallowed on the ground that the same sets up a new aud distinct cause of action.” Thereupon, on July 21, 1903, Bedgood & Co. brought a new suit, containing, among other things, all the allegations set forth in the foregoing amendment, and alleging the items of damage and the extra expense of hauling lumber to the main line, aggregating $6,511.91. To this second suit the railway company filed both a demurrer and a plea of res adjudicata. The demurrer was both general and special, and attacked the petition on many grounds, among others, that the contract was vague and indefinite; not assignable; without consideration; void under the statute of frauds; involved the title to land, of which the city court had no jurisdiction; contrary to public policy, being an undertaking by a quasi-public corporation to perform an unlimited amount of work during an unlimited time. There were also many other grounds of special demurrer which it is unnecessary to state in detail. The court overruled the demurrer, to which judgment the railway company by cross-bill excepted. The court sustained the plea of res ad judicata, to which was attached as an exhibit the original suit with the amendment and the judgment disallowing the amendment on the ground that it set up a new cause of action. To the sustaining of the plea of res adjudicata the plaintiffs excepted.