Fremont Ferry & Bridge Co. v. Fuhrman

| Neb. | Jan 15, 1879

Maxwell, Oh. J. •.

Prom the facts admitted in the pleadings, it appears that the plaintiff obtained a charter from the territorial legislature, by which it acquired the exclusive right to erect and maintain a wagon bridge across the Platte river, between certain designated points, extending along the river a distance of about six miles near the-town of Eremont, in Dodge county; that after said charter was granted, Eremont precinct voted bonds to the amount of $50,000 for the purpose of erecting a wagon bridge within the boundaries named in said charter, and thereafter erected a wagon bridge across both the channels of said river, apparently with the consent of the plaintiff. Afterwards the-bridge across the south channel of the river was destroyed, and was replaced by the plaintiff, and the tolls collected for crossing the bridge owned by the precinct, and that owned by the plaintiff, were divided with the precinct.

In March, 1876, the plaintiff’s bridge across the south channel was destroyed, whereupon a meeting of the stockholders was held, at which the following resolution was adopted:

“Resolved, That in view of the indebtedness of the ■Kerry and Bridge Company, they will not build another bridge unless aided by donations from citizens.”

Beneath this .resolution the defendant signed his name as follows: “Henry Euhrman 100.”

The answer of the defendant admits he promised one hundred dollars to rebuild the bridge, but insists that after said promise was made the plaintiff removed its bridge to a point about one mile east of the former site, and then erected a bridge across the entire river and increased the rates of toll, etc. The case was tried to a jury in the court below, who found in favor of the defendant. Judgment having been rendered in favor of the defendant the plaintiff brings the cause into this court by petition in error. The errors assigned are:

First. That the verdict of the jury is not supported by the evidence and is contrary to law.

Second. That the court erred in overruling the motion for a new trial.

Third. That the verdict should have been in favor of.the plaintiff and against the defendant.

Fourth. That the judgment should have been in favor of the ^plaintiff and against the defendant.

No exceptions are presented by the record. The only question to be considered is, whether there is sufficient testimony to sustain the verdict.

It appears that Euhrman and Wilson were appointed a committee to solicit donations for the bridge and called upon a number of persons for that purpose. Mr. May testifies that at the time Euhrman signed the resolution there was nothing said as to the location of the bridge. Mr. Shed testified, “I objected to giving any-' thing because I thought they had spent enough on that bridge down there. I don’t know who said it, whether Mr. Euhrman or Wilson, but one of'them said the bridge was to he built down here on this street at Anderson’s place.” Mr. Wilson testified that Mr. Euhrman said (to Mr. Shed), “We are going to move the bridge down where Anderson’s is.” Mr. Pilsbury testified, “As near as I can remember the parties (Euhrman and Wilson) said they did not care where the bridge was built, so they could get over into Saunders county.” It also appears from the testimony that the subscription of the defendant was made about the 6th of March, 1876, and that the resolution relocating the bridge was passed on the 31st of March of that year.

The defendant, called as a witness on his'own behalf, denies positively that he stated to Shed and Pilsbury that the bridge was to be built at or near the Anderson bridge; but says that he stated to them that the bridge was to be replaced., As neither Mr. Pilsbury nor Mr. Shed testify positively upon that point, but merely state the facts to the best of their recollection, Euhlman?s testimony is at least of equal weight with theirs. It also appears from the testimony that lumber was ordered by an agent of the plaintiff from Nye, Colson & Co. to rebuild the bridge at the former site. A clear preponderance of the testimony shows that at the time the defendant signed the resolution promising to pay the sum of one hundred dollars, the intention of the plaintiff was to rebuild the bridge upon the site of the one destroyed. So. far as appears no action had been taken by the board of directors the time the defendant made the subscription, nor was any proposition pending before them from which it might be inferred that .the location was to be changed.

While there is some conflict in the authorities, the clear weight of authority seems to sustain the rule, that where several promise to contribute to a common object, desired by all, the promise of each is a good consideration for the promise of the others and can be enforced by suit, when the corporation or person to whom the subscription runs has incurred obligations on the faith of such subscriptions, and has complied with the conditions upon which they were made. But a party may impose a condition upon his subscription. If the promise was to pay one hundred dollars to rebuild the bridge at the place occupied by the former one, he would not be liable if the bridge was removed to another point without his consent, particulai’ly if the distance was as great as in this instance. This question was submitted to the jury, and a finding had in conformity to the clear preponderance of the testimony, liad the company not selected a location and built a bridge prior to the time the plaintiff subscribed the paper in question, the position of the plaintiff would be tenable, but having selected a location, in the absence of any affirmative action on the part of the plaintiff, the presumption would be that the bridge would be rebuilt on the former site. This is not a case where an unqualified promise was made to contribute for a bridge at any point within the six miles. The judgment . of the district court is clearly right and is affirmed.

Judgment aeeirmed.