38 Miss. 23 | Miss. | 1859
delivered the opinion of the court.
Plaintiff in error was sued in this action by the defendants to recover a certain amount of tolls claimed to be due them from plaintiff, for passing his stage-coach, as mail contractor, through defendants’ toll gates, defendants being an incorporated company for the purpose of constructing a plank road on the public highway between Yazoo City and Benton.
The plaintiff in error pleaded the general issue, and under this plea relied on establishing a failure of consideration.
. For this purpose, a witness was introduced, who proved that the plaintiff in error, at the time mentioned in the complaint, was running coaches and carrying the United States mail between Benton and Yazoo City; that the toll-gates of defendants in error were located on the public road, at each end of the plank road; and that defendants in error so located their toll-gates that plaintiff in error could not pass with his said coaches, or carry the mail, except by passing through said gates. That during the time for which the account sued on is charged, said plank road was wholly impassable; that the said plank road could not be travelled or passed over by said coaches at all; and, instead of being a convenience or benefit to plaintiff in error, that the same was a great hindrance and injury. And the question arises upon this state of facts, whether the defendants in error are entitled to recover upon the account sued.on.
The court instructed the jury, that if they believed from the evidence, that the defendants in error were an incorporated company, authorized to construct the road, erect toll-gates, and charge toll, and that the coaches of the plaintiff in error passed through said gates, as stated in the account filed, that defendants in error had a right to recover the toll authorized by their charter, notwithstanding the condition of said road.
This instruction is assigned for error here.
Conceding the correctness of the principles established in the cases cited by counsel for defendants in error, we yet think that they are inapplicable to the case before us.
This suit is founded upon the implied promise of plaintiff in error to pay to the defendants the rates allowed by their charter, for passing plaintiff’s coaches over their plank road.
It is not the design of this charter to confer upon the corporation the right to demand of every citizen travelling the public highway, a specific sum for the benefit of the corporators, without any consideration moving from the corporation to such citizen therefor. It is not in the power of the legislature thus to appropriate private property for private use, and without any consideration or benefit to the person whose property or money is thus claimed. But all duties imposed upon corporations aggregate, by law, and all benefits conferred at their request, raise implied promises, which the law will enforce. See Angelí on Corporations, 176, 2d edit.
It is no answer to this view, to say that the charter of the corporation is not forfeited until a judicial declaration in a direct proceeding for that purpose, has been made. No such defence is here relied on. It is admitted by the pleadings, that the defendant is a corporation, with capacity to contraci, according to its charter. Like natural persons, it may enforce the performance of such contracts against all persons dealing with it. But like natural persons, the law will hold it to the performance, on its part, of those duties, and obligations, and mutual promises, out of which the implied contract sued on arises, and upon which, as a consideration, it is founded.
This corporation, on its part, agrees and promises that it has a plank road within the points prescribed by its charter, in such condition, that the traveller applying for the purchase of the privilege of passing over it, can enjoy the right so professed to be purchased. The traveller, on his part, in consideration of this undertaking and promise on the part of the corporation, agrees to pay the rates of toll authorized to be charged, or agreed on. To authorize the corporation to sue for and recover such toll, when it has no road over which the traveller can pass at all, in violation of its implied contract, and without the discharge of those duties, on its part, which constitute the only consideration of the promise on which it seeks a recovery, would be to establish a doctrine, in relation to corpora
The idea suggested in argument, that there is no contract, express or implied, between the parties to this record, but that the contract is between the State and the corporators, involves a legal contradiction. The action is in form ex contractu. The declaration is certainly very defective, but enough appears to show that it is a personal action, and not in form ex delicto. It seeks the recovery of a debt, which it alleges the plaintiff in error owes to, and unjustly detains from, the defendants in error. It is, therefore, a declaration upon a contract between the parties to this record, or no cause of action is stated at all. Indeed, it is undeniable, that if there is no contract, either express or implied, between these parties, then this is a “ false clamor,” and has no place justly in court. But this theory is wholly erroneous. The contract between the State and the corporators, is one entirely distinct from the contract here declared on. The contract with the State gives capacity and ability to this corporation to erect their road and toll-gates, and to contract with the public in reference thereto, under certain restrictions. Whether that contract has been complied with, so as to entitle them to their corporate existence, is a matter between the State and the corporators.
But with every individual claiming the right to use the road, the corporation thus created has a right to contract, and does contract, either expressly or by implication of law, before any right of action in this form can arise; and both public policy and private right forbid that any exception should be ingrafted upon the doctrine of contracts, in favor of these corporations, by the courts, not clearly granted by their charters. They are created for the public convenience; they voluntarily assume their obligations to the State, as well as to private individuals; and no sound reason of policy or justice is perceived, why they should not be held as strictly to the observance of their contracts and duties as other suitors in court.
That they may be liable to “ frivolous and vexatious litigation,” is only an incident to the right to sue and be sued, which they have invoked for their benefit, and they have the same protection against such ills which belong to natural persons, among the most
The distinction between suits by a corporation against persons contracting with it to enforce the performance of such contracts, and suits against corporations for neglect of the duties imposed by their charter, showing no special peculiar damage sustained from the neglect or breach of duty complained of, is too obvious to need remark.
The cases cited by counsel are of this latter class, and have no application to the principle here involved.
In the view here taken, the instruction of the court below was erroneous.
Let the judgment be reversed, cause remanded, and a venire de novo awarded.