Wellersburg & West Newton Plank Road Co. v. Young

Eccleston, 3., delivered the opinion of this court. This is an action of assumpsit which was ’ tried upon the general issue. For the purpose of proving the plaintiff to be a corporation, letters patent issued by the governor of Pennsylvania, were offered in evidence, to the admissibility of which the defendant objected, but the court permitted the same to go to the jury; and the defendant excepted. We are not, however, called on to revise that decision, inasmuch as there is no appeal on the part of the defendant.

The plaintiff also gave in evidence the following “subscription list, book or paper:” “1850. — -We, the subscribers, do hereby obligate ourselves, our heirs, executors and administrators, to pay to the Wellersburg and West Newton Plank Road Company, the sum of twenty-live dollars, for each share of stock respectively subscribed in said company, one dollar upon each share, part of said twenty-five dollars, being paid at the time of subscribing.” Then follows a list of subscribers names with the number of shares taken by each; the shares so taken amounting to 2746. In this list, the name of the defendant appears as a subscriber for eight shares. Some of the subscribers in this list are, but many of them are not, included in the names ⁴⁸² mentioned in the letters patent; the defendant being one of those not so included. Samuel W. Pearson is the last subscriber on the list whose name appears in the .letters patent.

After his signature there are twenty subscribers, the defendant being the eighteenth. Thomas J. McKaig and ffm. W. Mc-Kaig, are the last two. Each of them testifies, that his name signed to the said subscription list is in his handwriting, ffm.

W. McKaig says his subscription was taken by Thomas Shriver, who then had the book — “that he paid for his stock so subscribed for, and received a certificate of stock from the plaintiff.” This witness also states that the defendant subscribed when he did. T. J. McKaig says he “was present when the subscription to said stock was made by the defendant.” This witness, likewise, testifies, that “the plaintiff made Che plank road, from Cumberland to West Newton, in the years 1851 and 1852, at a cost of about one hundred and twenty-thousand dollars, and has had toll-gates on the road in both States, and has been collecting tolls thereon ever since.” The testimony of Wm. Wickafd is, that he subscribed for one share of the stock of the plaintiff, on which he paid one dollar in money at the time of subscribing. That Mr. Shriver, the president of the company, afterwards called on him to collect the instalments from the other subscribers in Cumberland, with the understanding, that he, the witness, was to receive as his compensation, a certificate for the share of stock for which he had subscribed.

That he promised to collect the instalments from the subscribers in Cumberland, on this and the several subscription lists, and deposite the money collected in the Cumberland bank of Allegany, to the credit of the plaintiff; that some of the subscribers paid in full, others in part only. He called on defendant twice for his subscription — he thinks in 1851 or 1852 — the defendant promised to pay it, but did not do so, he told witness he had not the money, and requested him to call again. Wickard says, the certificate for the share he subscribed for was issued to him, and he was paid in part for his services in money. That the plank road has been constructed from Cumberland to West Newton, about seventy miles in length.

Part of the road, about seven ⁴⁸³ miles, lies in Maryland, and the balance in Pennsylvania. The part in Maryland, has been constructed upon the bed of a turnpike known as the Cumberland and Somerset Turnpike Road. Edwin T. Shriver testifies, that the plaintiff had an account in the Cumberland bank of Allegany, of which the witness was cashier; that the money collected by Wickard was deposited in said bank, to the credit of said plaintiff, and checked out by Thomas Shriver, as its president, and by the secretary of said company; that Thomas Shriver was actively engaged in performing his duties as president for nearly two years. The witness, John Beall, says he subscribed for shares in the capital stock of said company, which he paid for, and obtained a certificate of stock from the company.

The company purchased machinery from him, and his stock was paid for in that way. Without offering any proof on his part, the defendant prayed the court to instruct the jury, “that there is no evidence in the cause to show, that the plaintiff was authorized to enter into the contract offered in evidence by the plaintiff in this cause, even if they shall believe that the same was executed by the defendant, and that therefore their verdict must be for the defendant.” This prayer the court granted; to which ruling the plaintiff excepted. And by this appeal the subject is presented to us for revision. The appellee insists, that the court were right in granting the prayer, because the charter of the corporation was not produced, and, in its absence, there was no evidence of the powers conferred by it.

The letters patent, he says, only proved the fact, that the appellant was a corporation; but with what powers, or for what purposes does not appear. Nor does it even appear that the corporation was authorized to construct a plank road, or indeed, any road. The mere name is no proof of the objects for which the charter was designed. And the fact, that the road was constructed, is no proof that the company had power under its charter to construct it.

And, indeed, it is evident, that its powers were exceeded, because the charter in Pennsylvania could give no authority to build a road and ⁴⁸⁴ erect toll-houses, <fcc,, in Maryland, where there is no act of the legislature granting (he power to do so. The appellee further insists, that conceding the charter gave the plaintiff authority to make such a contract in Pennsylvania, as that given in evidence, still it does not appear from the proof in the cause, that the plaintiff had authority to make the contract in this State. The view taken on this point, by the appellee’s counsel, is, that although a charter granted by one of the United States may authorize the corporation to make contracts in that State, which are consistent with the design and nature of the corporate body, still, similar contracts, if made in a different State, cannot be sustained or enforced in the courts of the latter State; unless it is shown by the charter itself, that by the true construction of its language, it gave authority to make such contracts in the State where they are thus made. In Angel & Ames on Corp.. 139, (Ed. of 1832,) whilst considering what contracts in general may be made by a corporation, they say, that “having been made for a specif,c purpose, it. cannot only make no contract forbidden by its charter, which is, as it were, the law of its nature, but, in general, can make no contract which is not necessary, either directly or incidentally, to enable it to answer that purpose.

In deciding, therefore, whether a corporation can make a particular contract, we are to consider, in the first place, whether its charter, or some statute binding upon it, forbids or permits it to make such a contract; and if the charter and valid statutory law are silent upon the subject, in the second place, whether a power to make such a contract may not be implied on the part of the corporation, as directly or incidentally necessary to enable it to fulfil the purpose of its existence, or whether the contract is entirely foreign to that purpose.” See 8 G. & J., 318 & 319. And at page 145, Angel and Ames say, “when the charter or act of incorporation, and valid statutory law, are silent as to what contracts a corporation may make, as a general rule,, it has power to make all such contracts as are necessary and usual in the course of business, as means to enable it to attain the object for which it was created, and none other. The ⁴⁸⁵ creation of a corporation for a specified purpose, implies a power to use the necessary and usual means to effect that purpose.” The prayer of the defendant presents the question, whether there is any evidence tending to show, that the plaintiff had authority to enter into the contract sued upon 1 The suit is instituted in the name of “The Wellersburg and West Newton Plank Road Company,” which is the name of the corporation as appears in the letters patent, issued by the governor of Pennsylvania; in which he recites, that an act of the General Assembly of that State, “provides for the organization of a company, by the name, style and title of ‘The Wellersburg and West, Newton Plank Road Company/ subject to all the provisions and restrictions of an act, entitled ‘An act regulatiug turnpike and plank road companies/ ” and that “the stipulations, conditions and things in the said act, regulating turnpike and plank road companies, directed to be performed, have in all respects been fully complied with.” And in the letters patent the governor declares, that in pursuance of the power and authority given to him by law, he does create and erect the subscribers to the stock of said company, and also those who should thereafter subscribe, into one body politic and corporate, to have all the privileges and franchises incident to a corporation; and the said subscribers and those who should afterwards subscribe, their successors and assigns, are generally “to be invested with all the rights, powers and privileges, with full force and effect, and to be subject to all the duties, requisitions and restrictions specified and enjoined in and by the said acts of the General Assembly, and all other laws of the Commonwealth.” It is also in proof, that the defendant subscribed for eight aliares of stock; that sundry other persons were subscribers, some of whom paid in part and others in full; and that certificates of stock were issued by the plaintiff to some of those whose subscriptions were taken by Thomas Shriver, the president of the company, by whom the subscription of the defendant was taken. The proof likewise shows, that the plaintiff constructed a ⁴⁸⁶ plank road at a cost of about one hundred and twenty thousand dollars; and has, from the time of its construction, had toll-gates on the road, and has been collecting tolls thereon.

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