Bell's Gap Railroad v. Christy

1. Where a number of persons not incorporated but associated for a common object, intending to procure a charter, authorize acts to be done in furtherance of their object by one of their number, with the understanding that he should be compensated; if such acts were necessary to the organization and its objects and are accepted by the corporation and the benefits enjoyed, they must be taken cum onere and be compensated for. 2. In such case the promoters of the enterprise must be a majority of them. A minority could not bind the association or corporation.

Error to the Court of Common Pleas of Blair county: Of May Term 1875, No. 66. This was an action of assumpsit, brought to the July Term 1873 of the court below, by Josiah M. Christy against The Bell’s Gap Railroad Company. The suit was brought to recover money expended by plaintiff in procuring the charter of the defendants, in payment of surveyors, &c., in making explorations and running the line of their road, &c., and also for his own services in the same matter; the whole occurred before the corporation came into existence, but plaintiff claimed that the defendants having accepted the results of his work, &c., they became liable to pay him. The company was incorporated by virtue of the Act of May 11th 1871, Pamph. L. 737. This act appointed commissioners— amongst whom were John Brotherline and the plaintiff — to receive subscriptions and organize under the name of The Bell’s Gap Railroad Company, to make a railroad of a gauge not exceeding three feet nine and a quarter inches, from the Pennsylvania Railroad, at Bell’s Mills Station, to a point on the top of the mountain near Tub Spring, on a route recently surveyed by G. W. Dorner, thence to a point on Clearfield creek, near “Fallen Timber,” not to exceed twenty miles in length, and from Tub Spring to Galitzen; the capital to be $100,000, in shares of $50 each. By a supplement of March 29th 1872, Pamph. L. 700, the company were authorized to extend their road over the mountain at Bell’s coal bank, “instead of a route recently surveyed and laid out by G. W. Dorner.” Inconsistent provisions in the original act were repealed. The case was tried February 5th 1874, before Dean, P. J. John Brotherline testified that about June 1870 the plaintiff and himself, upon consultation, determined upon an effort to construct a road up Bell’s Gap; they got out handbills for the call of a meeting for the purpose, to be held at the St. Charles Hotel, Altoona, on the 2d of July 1870. A meeting was accordingly held, at which the plaintiff and witness were present; the plaintiff was chosen president of the meeting; one Lytle was appointed engineer to ascertain the practicability of a route, and the plaintiff' was directed to attend to the matter, and have the survey made; the meeting was to organize a company in view of obtaining a charter; Lytle reported favorably of the route; witness prepared a bill; sent it to the legislature; it was passed in May 1871; witness and plaintiff gave notice of a meeting for the purpose of organizing the company ; a meeting was called also by other commissioners, to be held previously to the time fixed by witness ; it was held at Mr. Neff’s office in Altoona, and all the stock was taken there, and the company (defendants) organized; they commenced shortly afterwards, and built the road; the meeting called by witness and plaintiff never was held. On cross-examination witness said: The- bill which he prepared authorized the company to extend the road to Erie ; being informed that the bill could not be passed in that shape, he prepared a second bill, by which the road should go to Tub Spring, Fallen Timber and Galitzen, and not to exceed twenty miles in length ; this was passed. The first bill proposed a broad gauge road; there were also changes made in the commissioners by the second bill; witness and' Christy could not get the law passed to suit their wishes. Plaintiff testified as to the preliminary explorations, &c.; that Mr. Lytle’s services were discontinued and Mr. Dorner was employed as engineer; witness then stated the routes explored by Mr. Dorner; that the surveying party was under plaintiff'’s charge; he was with them during the time they were making the survey, except a few days; paid most of the expenses, &e. A final location was made by Dorner, and a regular profile was made, showing that the difficulties of ascending the mountain could be overcome; there were other locations made afterwards, and the first locations were necessary to determine the propriety of the latter. Witness went frequently to Harrisburg about the charter, and incurred expenses there; also to New York to procure funds to make the road. On cross-examination, he said that individuals, whom he named, at different times requested him to get up a company through Bell’s Gap, to get to their timber; that witness expected to be paid for his services; that at the meeting at Altoona on the 2d of July 1870, a board of directors was formed who authorized witness to go to New York, Washington and other cities to raise funds; when first making the survey the purpose was to get a road from Bell’s Mills to Erie, and a bill for that purpose was the one he wished passed; his idea was that he could make money out of the road as a corporator, to hold a position in the company which would pay him; individuals whom he named and who were interested on the road told him they would see him remunerated for his services; he expected to be remunerated by the company by a salary for his services; the road was to be a broad gauge road. Another witness testified that the company represented by the meeting of July 2d 1870, so far as they were there, two or three at, a time, authorized plaintiff to go on with the business; it was the calculation to pay him, but nothing was said as to how he was to be paid. There was other evidence of similar character as to plantiff’s services, and that Dorner’s map was used by defendants. Defendants gave evidence that the bill first sent to the legislature was for a broad gauge road from Bell’s Mills to Erie; the impression at Harrisburg being that the road was in the interest of a New York corporation, there were objections to its being reported, and it was then ascertained that the bill was for a different purpose from that which the parties in the vicinity of Bell’s Mills desired; the bill was then modified and was passed in the form before given; plaintiff did not make any efforts to get .the last-bill through; the termini in the original bill were Bell’s Mills and Lake Erie. The meeting was held on the 18th of May 1871; the plaintiff had notice of it; a committee was appointed to open books for subscription to the stock at Mr. Neff’s office, June 18th, at 1 o’clock; the meeting was advertised; the books were then opened and all the stock was subscribed. The road was made on the line mentioned in the supplement, not that in the original charter; Dorner’s survey was not used; the object of the original proprietors of the road was to reach Bell’s coal lands; the survey for the defendants was made by Mr. Ramsey. The stock was subscribed to a great extent by persons in the neighborhood of Bell’s Mills. Dorner’s map went into the hands of the defendants’ engineer; none of the line of the constructed road was laid on Dorner’s line; but his map was of service in the explorations. There was evidence also that the promoters of defendants’ road never employed the plaintiff. The defendants’ third and fourth points, with their answers, were as follows :— 3. If Christy was not employed by the company as a company nor by any one on behalf of - the company, or by any corporator or authorized agent of the corporation, but was employed, if at all, by individuals, his remedy, if he have any, is against such individuals, and not against the defendants. Answer. “We decline to instruct you as requested. Plaintiff claims he was one of those engaged in the inception of the enterprise, who, having in view the chartering of a company to build this road, made preliminary surveys to ascertain whether it was practicable to build a road at that point; that such surveys were necessary, and that in and about them he performed onerous duties that the others did not share; that he did so in expectation of compensation, upon a promise of those or a majority of those acting with him, that he should be paid by the company thereafter to be organized ; that when this company was organized it accepted and enjoyed the results of his work. If the facts be as plaintiff claims, he can recover from these defendants.” 4. The railroad for which Christy had the survey made was a broad gauge road with different termini, being from Bell’s Mills to Lake Erie, being an entirely different route from that on which the Bell’s Gap railroad is laid out and constructed, and is no benefit to defendants, and therefore plaintiff cannot recover. Answer. “ This point assumes facts here disputed, which we have left for your determination, with proper instructions in our general charge, and for that reason we decline to affirm it.” The verdict was for the plaintiff for $848.70. The defendants removed the record to the Supreme Court by writ of error. They assigned a number of errors to the charge and to the answers to the defendants’ points. The third and fourth errors were the answers to the defendants’ third and fourth points.