The Williamsport and Hagerstown Turnpike Company vs. Joseph Hollman, 8 G. & J. 75

Stephen, Judge, delivered the opinion of the court. The question involved in this case lies within a very narrow compass. It arose in an action of assumpsit, instituted in the court below by the appellant against the appellee, to recover a certain sum of money, due on twelve shares of stock subscribed for by the appellee, who resisted the recovery upon the ground of a violation of the terms of the contract of subscription; the ground of the defence was sustained by the court below, and the right of recovery, thereby defeated. The only provision of the act of incorporation, upon which any thing like the semblance of a contract can be founded, is to be found in the ninth

section thereof. That

section authorizes the president and managers of the company to appoint three commissioners to lay out the road, in the nearest and best direction, from the eastern limits of the town of Williamsport, to the town of Hagerstown; and after having laid out and marked said road, they are directed to make out a plat of the same, specifying the courses and distances, and return said plat to the president and managers. It is to be observed, that this law emphatically makes it the duty of the commissioners, in designating the course the road was to run, to locate it in the nearest and best direction. If then the provisions of this

section can even be considered as entering into the essence of the contract between the parties, we do not think that the appellee can invoke to his aid, the provisions which it contains, under the facts agreed to exist in this case. It is distinctly admitted, that in changing the location of the road as marked out by the commissioners, the president and managers of the company, so far from infringing the provisions of the law, strictly complied with the letter of its requirements, by shortening the distance, and that the termination of the road at the town of Williamsport, was not changed by such alteration.

Under this aspect of the case it appears to us, that the president and managers in changing the location, so far from violating the principles of good faith and fair dealing with the appellee as a subscriber for stock in their company, acted strictly within the pale of their authority and only fulfilled a duty required of them by the charter of their incorporation.

At the time the appellee became a subscriber for stock, no location had been given to the road, except that which the law prescribed; to such location only, could he have looked at that time as an inducement to subscribe ; and we think that nothing has since occurred in the conduct of the company, or their agents, of which he has a right to complain.

Therefore there is no ground upon which he can claim to be discharged from the obligation to pay the money, resulting from his subscription, as he has substantially obtained, or might have obtained ail he contemplated when he became a subscriber, and that nothing has been done on the part of the company, which would lead to a forfeiture of their right to enforce such obligation by judicial process. With these impressions of the law and justice of the case, we are of opinion, that there is error in the judgment of the court below, and that the same ought to be reversed. judgment REVERSED AND PROCEDENDO AWARDED,