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Statement of the Case.

by said agreement the sum of six thousand three hundred and twenty-five dollars, paid in cars furnished and advanced by defendant to the Georgia Pacific Railroad Company, on account of said cash payment, at the request of plaintiff. But plaintiff further avers that although it has fully complied with all the terms and stipulations of said agreement to be done and performed on its part, that although it located and constructed said railroad of the Georgia Pacific Railway Company by the way of the town of Anniston and connected the line of said railroad with the respective lines of the Alabama Great Southern Railroad Company and the Louisville and Nashville Railroad Company within the time and at the points agreed on, as is hereinabove fully set out and shown, the defendant has wholly failed and refused, and still fails and refuses, although often requested to do so, to pay to said plaintiff said sum of twenty-three thousand six hundred and seventy-five dollars, the balance due and unpaid upon said cash sum of thirty thousand dollars donated and agreed to be paid to plaintiff by said defendant upon the making of said connections as aforesaid, and by reason of the several matters and things set out and alleged herein the said defendant became, and is, indebted to the plaintiff in said sum of twenty-three thousand six hundred and seventy-five dollars, with interest thereon from date of the making of such connections, but has failed and refused, and still fails and refuses, to pay the same: wherefore this suit."

To the complaint the defendant filed a demurrer and also several pleas. The demurrer was to the effect that the contract set forth as the foundation of the action was without consideration and was contrary to public policy and void. The demurrer was overruled, and leave given to the defendant to file additional pleas. The original pleas were five in number, and to these six more were added. Of the original pleas one amounted to the general issue, denying the promise and undertaking in the manner and form alleged in the complaint; and one amounted to a plea of ultra vires, setting forth the charter of the defendant, showing the object of its incorporation to be the manufacture of pig-metal and other products of iron ore, and their sale, connecting with that business all

Statement of the Case.

such operations as are usual -and incidental thereto, and denying authority, under the charter, to make the agreement mentioned in the complaint. A demurrer to this last plea was sustained by the court.

Of the additional pleas two only require notice - the 10th and 11th. The 10th plea is given in full below, and so much of the 11th plea as is necessary to its comprehension.

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"Plea 10. And the said defendant, for further answer to the complaint, says that at the time of the making of the alleged agreement stated and set forth in the complaint, plaintiff was engaged in locating and constructing the Georgia Pacific Railroad under a contract with the Georgia Pacific Railroad Company, under and by which plaintiff agreed with said Georgia Pacific Railroad Company to locate and construct said railroad by the nearest, cheapest and most suitable route, from Atlanta, Georgia, through Alabama to Columbus, in the State of Mississippi, for a consideration to wit, twenty thousand dollars per mile for each and every mile of said road so located and constructed.

"That John W. Johnston, who negotiated and executed said contract with the defendant for plaintiff as vice-president, was, at the time said agreement was made, a stockholder and director of the Richmond and Danville Extension Company, and was also a stockholder and director and officer of the Georgia Pacific Railroad Company; that the Georgia Pacific Railroad Company was at said time, and is now, a separate and distinct company, and in nowise connected with plaintiff, except that some of the stockholders of said Georgia Pacific Railway Company, were also stockholders in said Richmond and Danville Extension Company, and plaintiff was locating and constructing said road under its contract with said company as aforesaid.

"That in causing said road to be built via Anniston it was necessary to deflect the same from its nearest, cheapest and most natural route from Atlanta to Columbus a great number of miles, to wit, five miles, at a great additional cost to said Georgia Pacific Railroad Company, to wit, one hundred thousand dollars, and defendant avers that said alleged agreement

Statement of the Case.

on defendant's part to influence the location of said railroad and to donate and pay to said plaintiff, among other things, the cash sum of thirty thousand dollars if plaintiff would locate and construct, or cause to be located and constructed, the railroad of the Georgia Pacific Railroad Company by way of the town of Anniston, was and is contrary to public policy and void, and ought not to be enforced against defendant or in favor of plaintiff."

Plea No. 11, after repeating the first paragraph of plea No. 10, alleges "that John W. Johnston, who negotiated and executed said contract with defendant for plaintiff as vicepresident, was, at the time a stockholder, director and officer of the Georgia Pacific Railway Company; and that he went to Anniston where defendant resided and did business, and represented to defendant that he was a director and officer of the Georgia Pacific Railway Company, and also a stockholder, director and officer of the Richmond and Danville Extension Company, and could control and induce the location and construction of said Georgia Pacific Railroad via the town of Anniston, and would do so if the defendant would donate and pay to plaintiff the said sum of thirty thousand dollars in cash, and deed to plaintiff, or as it might direct, the large quantity of real estate described in the complaint, which defendant avers was of value, to wit, twenty thousand dollars, and that said Johnston then and there informed the defendant that unless defendant acceded to his said demand to pay plaintiff said sum of money, and convey to plaintiff, or as it might direct, the large quantity of valuable real estate aforesaid, said road would not be constructed by the town of Anniston, but would be constructed by way of the town of Oxford, which said town is within three miles of the town of Anniston, and is a rival market to said town of Anniston, and thence direct to Birmingham, along the line of a preliminary survey already made; and to secure the location and construction of said road via the said town of Anniston, and to prevent the locating and building of said road by way of the rival town of Oxford, to the exclusion of the town of Anniston, defendant was forced to agree, and did agree, to pay the said sum

Citations for Defendant in Error.

of thirty thousand dollars in cash, and to convey to plaintiff, or as it might direct, the large quantity of valuable lands described in the complaint, as aforesaid."

To these pleas a demurrer was filed by the plaintiff and sustained by the court. The case was then tried upon the general issue by a jury, which rendered a verdict in favor of the plaintiff, assessing its damages at $27,067.42, upon which judgment was entered with costs, to review which the case is brought here on writ of error.

Mr. John B. Knox, for plaintiff in error, on the point on which the opinion turns, cited: Fuller v. Dame, 18 Pick. 472; Holladay v. Patterson, 5 Oregon, 177; Pacific Railroad Company v. Seely, 45 Missouri, 212; S. C. 100 Am. Dec. 369; Bestor v. Wathen, 60 Illinois, 138; Linder v. Carpenter, 62 Illinois, 309; Marsh v. Fairburg &c. Railroad Cc., 64 Illinois, 414; St. Louis &c. Railroad Co. v. Mathers, 71 Illinois, 592; Dudley v. Cilley, 5 N. H. 558; Dudley v. Butler, 10 N. H. 281; Davison v. Seymour, 1 Bosworth, 88; Cook v. Sherman, 4 McCrary, 20; Western Union Tel. Co. v. Union Pacific Railroad, 3 Fed. Rep. 1; Elkhart County v. Crary, 98 Indiana, 238; Noel v. Drake, 28 Kansas, 265; Byrd v. Hughes, 84 Illinois, 174; Smith v. Applegate, 23 N. J. Law (3 Zabr.) 352; Callagan v. Hallett, 1 Caines, 103; Providence Tool Co. v. Norris, 2 Wall. 45; Wardell v. Union Pacific Railroad, 103 U. S. 651; Koehler v. Hubby, 2 Black, 715.

Mr. H. C. Tompkins, for defendant in error, cited: Rives v. Missouri &c. Railroad, 30 Alabama, 92; Wilks v. Georgia Pacific Railway, 79 Alabama, 180; Cedar Rapids and St. Paul Railroad v. Spafford, 41 Iowa, 292; McClure v. Missouri River &c. Railroad, 9 Kansas, 373; Chicago and Atlantic Railway v. Derkes, 103 Indiana, 520; Spartanburg &c. Railroad v. De Graffenried, 12 Richardson (Law) 675; S. C. 78 Am. Dec. 476; McMillan v. Maysville &c. Railroad, 15 B. Mon. 218; S. C. 61 Am. Dec. 181; Rhey v. Ebensburg &c. Plank Road Co., 27 Penn. St. 261; Jewett v. Lawrenceburg &c. Railroad, 10 Indiana, 539; Martin v. Pensacola &c. Railroad, 8 Florida, 370; S. C. 73 Am. Dec. 713; Taggart v.

Opinion of the Court.

Western Maryland Railroad, 24 Maryland, 563, 581, 582 S. C. 89 Am. Dec. 760; Des Moines Valley Railroad v. Graff, 27 Iowa, 99; First National Bank v. Hurford, 29 Iowa, 579; Detroit &c. Railroad v. Starnes, 38 Michigan, 698; Buckspor &c. Railroad v. Brewer, 67 Maine, 295; International &c. Railroad v. Dawson, 62 Texas, 260; Chapman v. Mud Rivr &c. Railroad, 6 Ohio St. 119; Pixley v. Gould, 13 Bradwell (Ill.) 565; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587; Thomas v. Brownsville Railroad, 109 U. S. 522; Pneumatic Gas Co. v. Berry, 113 U. S. 322; Union Pacific Railroad v. Crédit Mobilier, 135 Mass. 367; Kitchen v. St. Louis &c. Railroad, 69 Missouri, 224; Ashurst's Appeal, 60 Penn. St. 290; European &c. Railway v. Poor, 59 Maine, 277.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

As appears from the pleadings, which are set forth in the above statement, some time previous to November, 1881, the plaintiff below, the Richmond and Danville Extension Company, a corporation created under the laws of New Jersey, entered into a contract with the Georgia Pacific Railway Company, a corporation created under the laws of Georgia, to locate and construct for the latter company, by the nearest, cheapest and most suitable route, a railroad from Atlanta in Georgia through Alabama to Columbus in Mississippi, at the rate of $20,000 a mile, to be paid in whole or part in the bonds of the railroad company; and in November, 1881, it was engaged in locating and constructing the road under the contract. At that time the defendant below, the Woodstock Iron Company, a corporation created under the laws of Alabama for the manufacture and sale of products of iron ore, was doing business at the town of Anniston in that State; and it then made a formal proposition in writing to the Extension Company that if it would locate and construct, or cause to be located and constructed, the railroad by way of the town of Anniston, then the Iron Company would donate and convey, or cause to be donated and conveyed, to the Extension Company sundry parcels of land both within and without the corporate limits of

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