
    
      The Greenville & Columbia Rail Road Company vs. John T. Coleman.
    
    The charter of a Rail Road Company allowed the Company to select such route, between fixed points, “asa majority of the stockholders should deem most advisable,” and provided that, “after the selection of the route, any stockholder, who may be dissatisfied with the route selected, shall have the right to withdraw his subscription,” &c. “ provided such stockholder shall have designated, at the time of subscribing, the route which he desires to be selected for the location of the road:”—
    Held, that such stockholders as had designated the route which they desired to be selected, were entitled, when the company met for the purpose of selecting the route, to vote upon the question of selection.
    
      Held, also, that a subscriber who had not designated, at the time of subscribing, and in the book of subscriptions, the route he desired to be selected, was not entitled to withdraw; and that he could not shew, by parol, that he had instructed the agent, who subscribed for him, to designate the route he desired to be selected.
    
      Held, Jurlhtw, that the Company were not bound to select the most practicable route between the fixed points.
    
      
      Held, still further, that a slight change or deflection from the route first selected, adopted by the Company, did not absolve a stockholder who had not designated the route he desired to be selected:
    A stockholder in a Rail Road Company, held not, under the circumstances, to be absolved from his liability to pay to the Company the amount of his subscription, by an amendment of the charter, procured, without his consent, by a majoiity of the stockholders, authorizing the Company to build a branch of their road eleven miles long, and by the Company’s actually building such branch.
    A. B. intending to take stock in a Rail Road Company, authorized one of the commissioners to receive subscriptions to subscribe for him: his name was entered by another commissioner who acted as clerk: the entries were certified by all the commissioners, and A. B. afterwards voted by proxy as a stockholder: — Held, that he was liable as a stockholder.
    
      Before Frost, J. at Greenville, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    
      “ The action was brought to recover ten instalments on 250 shares in the Greenville & Columbia Rail Road Company, held by the defendant. It was not denied that the defendant had subscribed for 250 shares and had paid the first instalment. If the defendant were chargeable with assessments, it was admitted that they had been duly called for.
    “ It appeared in evidence that, in December, 1845, a charter was granted for the construction of a rail road from Columbia to Greenville, (11 Stat. 324) the route of which was fixed by the charter, to be through Newberry and Laurens districts, and by the Court Houses of those districts. When the books were opened, under this charter, only the sum of five hundred dollars was subscribed towards the capital stock of the company by the people of Laurens district. The people of Greenville district were incensed at the supineness of the Laurens people, and determined to procure an amendment of the charter, which should not require the road to be built through Laurens village. An amendment of the charter was obtained in 1846, (11 Stat. 408) the design of which was, “ to give Laurens village the go-by.” By the sixth section of this amended charter, it is provided that, when the company is formed, they may cause surveys to be made from any part of the South Carolina Rail Road to New-berry village, and thence to Greenville village, and may select such route as the majority of the stockholders may deem most advisable ; and after the selection of the route, any stockholder, dissatisfied with it, may withdraw his subscription from the company; and said company shall refund to him all instal-ments paid in ; provided, such stockholder shall have designated, at the time of subscribing, the route to be selected for the road.
    “Before the books were opened for stock, under this amended charter, a power of attorney was executed by a large number of persons, designating themselves “ citizens of Greenville district,” to the defendant, “ to subscribe for them the number of shares set against their names,” in the stock of the Greenville and Columbia Rail Road, when the books shall be opened. The defendant’s name was among the subscribers for 250 shares.— Messrs. B. F. Perry, R. B. Duncan, and the defendant, were appointed commissioners on the 15th February, 1847. They opened a book, endorsed “ Greenville and Columbia Rail Road “ Greenville Commissioners’s book.” In this book was entered the following agreement for the subscription of stock: — “ We, and each of us, who have signed our names hereto, have agreed to take the shares annexed to our names, respectively, in the Greenville and Columbia Rail Road Company, when formed, and to pay the shares subscribed by us, respectively, by instal-ments, as the said company may call for them, according to the Acts of incorporationdated Greenville, 1 March, 1847. In columns under this agreement the names of subscribers are signed, in the handwriting of R. B. Duncan, one of the commissioners. Another list in the same book contains the subscription list, with the amount of the first instalment, as it was paid by the several subscribers. The commissioners also made a report of shares subscribed to a meeting of the stockholders, convened at Newberry, showing the names of the subscribers, the number of shares each had taken, and the payment of the first instalment. In all these lists the name of the defendant was entered. The two lists first mentioned were subscribed by him, together with the other commissioners. The last mentioned list was signed by Earle, in the place of the defendant, who had, before that time, been elected a director of the company.
    
      “ The first meeting of the company was held May 11, 1847, in Columbia, at which the company ivas organized by the election of a president and directors. To the date of this meeting, Abbeville and Anderson had not subscribed to the company, and those districts were not represented in the meeting. The defendant, together with many other subscribers, joined in the execution of a proxy to several persons, of whom the defendant was one, in these terms: — “ We, who have signed our names hereto, have subscribed the number of shares annexed to our names, respectively, in the stock of the Greenville and Columbia Rail Road Company, and appointed J. H. Joyce (and others,) oí-an]? one or more of them, to be our proxies, to represent us and our shares, and to vote for us for president and directors of the said company, and to do anything else necessary to form the said company, and promote the object contemplated.” This instrument is dated the 7th of May, 1847. The defendant and. one or two other Greenville stockholders were elected directors. By the 20th by-law, adopted at this meeting, it was provided that the routes and location of the road should be determined at a meeting to be called by the Direction for that purpose, or at a general meeting.
    “ Meetings of the Board of Directors, or “ the Direction,” as they are styled in the Act, were held May 12, June 14, and August 7, at each of which the defendant was present.
    “ At the meeting, 12th May, it was resolved that books of subscription should be opened at Abbeville C. H. Greenville C. H. Cokesbury, Anderson and Pendleton. At the meeting* June 14, surveys were ordered of routes from Columbia, to Newberry, and from Newberry C. H. to Laurens C. H. At the meeting in August, a letter was received by .the Direction from Joel Smith in behalf of certain citizens of Abbeville district, requesting the survey of a route through that district; the cost of which they otfer to pay, if the route surveyed should not be selected. They state that several public meetings had been called, the. object of which was to get the road located through Abbeville and Am derson to Greenville.
    “ They further state, that $80,000 had already been subscribed and $300,000 promised, and they request that the survey desired should be made and the books opened for subscription, before a meeting of the stockholders should be called to select a route. At this meeting it was resolved to keep open the books until the whole amount of stock should be subscribed ; and that the commissioners should repftrt, monthly, to the secretary in Charleston ; and, also, that the route be surveyed, on condition that persons on that route pay the expense of the survey, and that the surveys be completed before the first of October next. A letter from the defendant to Joel Smith was produced, dated August 11, 1847. In this letter the defendant adverts to the efforts which the citizens of Abbeville were making on the subject of the proposed road; and says, if the amount of stock spoken of be taken, it would be in their power to carry the rj)ad from Aiken, which may be the view of the Abbeville people.— The defendant suggests his views to the effect that the Abbeville people who subscribed will go into the meeting, and the majority of the stockholders will govern. The charter authorizes the company to run from any point of the South Carolina Hail Road to Newborry village, and thence to Greenville village. The defendant then proposes that the road should be run from Aiken to Newberry C. H. and thence back to the ridge, and on the ridge through Edgefield, Abbeville and Anderson to Greenville. This, the defendant says, would comply with the requirement of the charter; and, in that event, a portion of the stock subscribed for the other route will go in favor of the Aiken route. He adds, a meeting of the Direction will be held on Wednesday after the first Monday in September; and perhaps the propriety of calling a meeting of the stockholders to locate the road may be discussed.
    
      “ A meeting of the Direction was held at Greenville, September 8, 1847, at which the defendant was present. A resolution was offered, and seconded by the defendant, that the expense of the survey through Abbeville and Anderson districts, heretofore ordered, be paid out of the general funds of this company. After being negatived, it was reconsidered and adopted. It was also resolved, that the secretary should give notice, by advertisement, of an application to the Legislature, at its next session, for an amendment of the charter, to permit the company to run a branch through Abbeville to Anderson.
    “ On the 2d August, 1847, the defendant paid to James L. Gantt, Secretary and Treasurer of the Greenville and Columbia Rail Road Company $2,750, on account of the first instalment of the subscription in Greenville district. The balance of the first instalment was not then paid, because it was received in funds not bankable. The first payment to the Treasurer by the Abbeville commissioners was made in January, 1848 ; and the first payment by the Anderson commissioners was made in March, 1848. Nothing was ever paid to the Treasurer by the Laurens commissioners.
    “ The zeal and activity of the citizens of Abbeville and Anderson districts, stimulated the citizens of Laurens to exertion in procuring stock to be taken in that district, in order to secure the location of the road through Laurens village, and prevent its location on the other side of the Saluda river. This rivalry was satisfactory to the subscribers in Greenville, since it was the very thing designed by the amendment of the charter which was granted in December, 1846.
    “ A meeting of the stockholders was convened at Newberry, November 19, 1847, to select a route for the road.
    “ To this meeting the defendant and a large part of the Greenville subscribers united in the appointment of B. F. Perry and William Choice to be their proxies, by a written instrument to the following effect: — “ We, whose names are hereto signed, being stockholders in the Greenville and Columbia Rail Road Company, for the several shares set down opposite to our names, do appoint B. F. Perry and William Choice, being stockholders in the said company, to be our proxies to represent our respective stock, and to vote for us according to our respective rights m the meeting of stockholders to be held at Newberry C. H. on Friday after the third Monday in November next, and in all other meetings until this power shall be revoked.” Dated October 4, 1847.
    “ When the meeting was organized, a committee was appointed to verify proxies, of which C. P. Sullivan, Esq. and Col. Ware were members. The committee made a report of the stock represented at the meeting by proxy and in person, and the number of votes which the stock so represented was entitled to give in the proceedings of the meeting, viz:
    Anderson district, total number of shares, 6,212, votes 1,918
    Abbeville district, total number of shares, 8,728 “ 2,638
    4,556
    Fairfield and Richland, total number of shares,. 250 “ 49
    Columbia,. 3,234 “ 545
    Charleston,.1,130 “ 241
    Newberry,.5,183 “ 1,277
    Lexington,.410 “ 130
    Laurens, . 6,762 “ 2,392
    Greenville,.6,173 “ 1,503
    Total,.38,012 “ 10,714
    “ When this report was made, C. P. Sullivan, Esq. proposed, in the meeting, that the report of the committee should be returned to the committee, with instructions to require the original subscription lists of the commissioners appointed to take stock to be produced, with the returns of the commissioners of the stock taken. This proposal or resolution was laid on the table.
    “Col. Ware, who was examined as a witness by the defendant, testified that he was one of the committee to verify proxies. Only the proxies were exhibited. The returns of the commissioners were urged by the committee. The report was made without the returns. A resolution offered in the meeting to require the returns was rejected.
    
      “ Cross-examined. The commissioners from Anderson and Abbeville were present. The committee were aware payment of $5 per share, at the time of subscribing, was necessary. They were not altogether satisfied that the payments had been made. The committee did not call on the commissioners from Abbeville and Anderson. The committee were not divided on the report. It was agreed that the question should be made in the convention. The non production of the subscription lists was not noticed in the report. The Greenville and Laurens stock was reported on no better evidence than Anderson and Abbeville. He thinks Laurens, Abbeville and Anderson stood on the same footing. Attention was particularly directed to the conditional stock. He does not know what was the opinion of the committee. He conferred only with Mr. Sullivan, and they agreed that-Mr. Sullivan should bring the subject to the notice of the meeting in the manner it was done.
    “ The amount of the Abbeville and Anderson subscription was $298,000 — of Greenville, $123,000 — of Laurens, $135,000— together $258,000.
    “The subscriptions in Laurens, Anderson, Abbeville and Lexington, were made on condition that the route designated by the instrument of subscription should be selected. When the route by Anderson was adopted by a majority of the meeting, Laurens aud Lexington withdrew their subscription. Nothing has been paid to the Greenville and Columbia Rail Road Company by the subscribers in those districts, nor demanded. The Newberry, Columbia and Charleston stock was unconditional, and amounted to 2,063 votes. The Greenville stock, also unconditional, amounted to 1,503 votes.
    “ The reports of the President and Surveyor to the meeting, were not entered on the minutes. Mr. Gantt said he believed the originals were in his office at Charleston. They were not delivered to him until the minutes of the meeting had been entered in the book.
    “ According to a report of the proceedings, made by Mr. Sullivan to the Laurensville Herald, (admitted in evidence) it was represented, to the meeting, that the cost of the road from Columbia, by Newberry and Laurens, to Greenville, would not, in any view, exceed $1,200,000; and, according to some opinions, not more than $1,000,000. Length of the road 115 miles. The Abbeville and Anderson route, 144 miles, was estimated to cost $1,400,000. If the road to Greenville was located through Anderson village, the length would be 158 miles, and the estimated cost, $1,600,000. From the report of the engineer, made to a meeting of the Greenville and Columbia Rail Road Company, 16th July, 1851, the estimated cost of the road from Columbia to Greenville, by the way of Brown’s, with branches to Anderson, 9 miles, and to Abbeville, 11 miles, was $1,353,000. This included land for the road, depots, &c. and expenses.
    “ A resolution was offered by Gen. Thompson, of Greenville, that “ it is inexpedient to adopt any route for the road definitely,” which “ was rejected by almost a unanimous vote.”
    
      “ Col. Irby offered a resolution to consider the deflection of the route through Abbeville and Anderson to Greenville, which was under discussion when the meeting adjourned to 7 o’clock, P. M. The discussion was then resumed. Mr. Pope, of Newber-ry, offered an amendment, that the route through Abbeville and Anderson should be adopted. The meeting adjourned. Saturday, the 20th, the consideration of the route was resumed. On motion of Dr. Sill, it was resolved that the subject of the route, which had produced much excitement in the meeting, should be referred to a committee of one from each district, to take the subject of the route into consideration and report to the meeting. Mr. Poinsett, a Greenville stockholder, was appointed chairman of the committee. The committee reported a resolution, “ that the meeting adopt the route for the Greenville and Columbia Rail Road from Columbia, through Newberry, Abbeville and Anderson to Greenville, with a condition, that if $140,000 be obtained for a branch to Laurensville, the company will build the branch as a joint stock company; and also, that in the event of the establishment of a branch to Laurensville, the road shall be extended from Laurensville to Greenville, or from Anderson to Greenville, as a majority of the company shall desire.” The resolution was laid on the table.
    
      “ ‘ The route for the Greenville and Columbia Rail Road, from Newberry O. H. through Abbeville and by Anderson 0. H. to Greenville, was called up, and adopted by a large majority.’
    “ The minutes do not shew how the stockholders voted individually ; but, from the testimony of Messrs. Gantt and Perry, and the admissions of counsel, it appears that the entire Charleston vote, the Columbia vote, and almost the entire Newberry vote, which were unconditional, were united with the Abbeville and Anderson vote in fovor of the route ; while the entire vote of Laurens and Greenville were given against that route.
    “ ‘After the route was adopted by a large majority, the delegates from Greenville and Laurens retired from the meeting.’ The same day a letter was addressed to the meeting, signed by Messrs. Perry, Duncan and Earle, “ commissioners,” dated November 20,1847. The subscribers notify the meeting that all the Greenville stock was taken, “ under the belief and express understanding,” that the road would be located to Greenville through Newberry and Laurens; that the stock was all subscribed before Abbeville and Anderson were thought of; and that, in consequence of the location of the road through the latter districts, the stockholders in Greenville held themselves discharged, and would require the company to refund. Notice is also given of the withdrawal of the Greenville subscribers from the direction, and of the resignation of the commissioners. It is averred, in conclusion, that Greenville originated the scheme, but never contemplated a location through Abbeville and Anderson, and it is objected that the route adopted is impracticable.
    “ At a meeting of the company, held in May, 1848, a communication was received from the Greenville stockholders, giving notice of their having withdrawn from the company, and of their appointment of attorneys to receive, on their account, repayment of the sums they had paid, in which it was decided, unanimously, that the Greenville stockholders should not be permitted to withdraw.
    
      “ In his report to this meeting, the President states the result of a survey by Maj. Bliss, of the routes to Greenville by Anderson village and by Brown’s — the former 33 miles, with a grade of 65 feet in the mile, is estimated to cost $319,000 with heavy iron, and $197,000 with light iron; the latter route, 37 miles, with a grade of 55 feet, is estimated to cost $346,000 with heavy iron, and $198,000 with light iron. It is also suggested that the Greenville stockholders may be induced, from the result of the survey, to re-consider their conclusion and unite with Laurens, or in some other way join in the enterprise.
    
      “ It appeared from the report of the President to this meeting, that the Greenville stockholders had obtained from the Legislature, at the session of 1848, a separate charter to construct a road, on the condition that the Greenville stockholders should release the Greenville and Columbia Rail Road Company from the obligation to construct a road to Greenville. Encouragement is held out to the Greenville stockholders to unite in some way with the Greenville and Columbia Rail Road Company.
    “ A meeting of the company was held at Abbeville, October 19, 1849. At this meeting, the construction of a branch to Ab-beville was resolved on. The citizens of Abbeville had subscribed $75,000 for its construction. Stock from Greenville, to the amount of $152,000, and from North Carolina, to the amount of $36,000, was tendered to the Greenville and Columbia Rail Road Company, if that company would undertake the construction of the road to Greenville on a route surveyed from Brown’s. The details of this proposal were submitted to the Direction, with instructions not to commence the construction of the road, unless they were satisfied that the Greenville subscription was sufficient for its completion. If the road were undertaken by the company from Brown’s to Greenville, the road to Anderson village would become a branch of the Greenville and Columbia Rail Road. The rights and interests of Anderson in this change of its position were at this meeting provided for in a manner to satisfy the stockholders of that village. To carry into effect these proposed undertakings, an amendment of the charter of the Greenville and Columbia Rail Road Company was obtained from the Legislature in December, 1849. (11 Stat. 575). By this Act, the company was empowered to construct a branch to Abbeville with the funds subscribed. It was also enacted, that the line of the road constructed be established from Columbia to Newberry C. H. thence through Abbeville district to Anderson C. H. including a branch to Abbeville C. H. thence at or near Dr. Brown’s to Greenville C. H.
    “The Legislature, in aid of the Abbeville branch and of the road from Brown’s to Greenville C. H. made an additional grant to the company of $75,000.
    “All that was thought material in the issues has been reported. If, in the argument on the appeal, a more detailed and minute statement of the evidence reported, or if any evidence not reported may be required, the notes of evidence can supply what may be desired.
    “ For the defendant, it was contended that he was discharged from liability as a stockholder on the grounds:
    “ First. That his subscription to the stock of the company, and his engagement to be liable to pay the amount of his subscription, were made on the condition that the road should be constructed from Newberry, through Laurens, to Greenville C. H.
    “ Second. That by the Acts of 1845 and 1846, the Greenville and Columbia Rail Road were required to construct the road on that route ; and that by selecting the route through Abbeville and Anderson, the company had violated its charter.
    “ Third. That by the extension of the original design of the charter, granted in 1845 and amended in 1846, by the adoption of the branch to Abbeville and by the establishment of a branch to Anderson in the location of the road to Greenville C. H. from Dr. Brown’s, the defendant ceased to be liable as a stockholder and,
    
      
      “ Fourth. That the selection of the route through Abbeville and Anderson in the meeting of the stockholders, at Newberry Court House, was effected by the fraudulent representation of stock in that meeting by the Abbeville and Anderson voters, who were not entitled to be received into the meeting as stockholders, because they had not made the payment on each share at the time of subscribing, which was required by the charter.
    “ The jury were told that the first ground insisted on for the discharge of the defendant from liability for the instalments due and demanded on his subscription of stock, presented a question of law, to be decided by the Court and not by the jury. They were accordingly instructed that, by a proper construction of the Act, a subscriber had not the right to withdraw his subscription to the stock of the company, unless he designated the route he selected, at the time of subscribing, in the act or instrument of subscription; and that the defendant, having subscribed an agreement to take a certain number .of shares, without any stipulation that the road should be constructed on any designated route, had not the privilege of withdrawing his subscription.— The same conclusion, they were told, would be attained if the liability of the defendant on his agreement to take stock were decided by the rules of the common law, without any reference to the charter.
    “ On the second ground, the jury were also instructed, as a matter of law, that the company, under the amended charter of 1846, were not limited or restrained in the selection of any route between Newberry and Greenville C. H: but that the same was left wholly to the will of a majority of the stockholders.
    '• On the third ground, they were instructed that the defendant, as a stockholder, was bound by the act of the majority in the location and construction of the road, however contrary that might be to the opinion or interests of the defendant in respect of the direction, length or cost of the road.
    
      “ The firarth ground was submitted to the jury as a question of fact, with a clear intimation of my opinion that the evidence did not sustain the charge of fraud which was made by the de-fence.
    “ Under these instructions, the jury rendered a verdict for the plaintiff.”
    In the case against Jefferson Choice, his Honor’s report is as follows.
    
      “ The action was brought to recover ten instalments due on 25 shares subscribed by the defendant in the stock of the Green-ville and Columbia Rail Road Company. The defendant had joined in the power of attorney to John J. Coleman to subscribe for the signers in the stock of the Greenville and Columbia Rail Road Company the number of shares set opposite to their names. The defendant’s name appeared in the two lists of the commissioners, in Duncan’s handwriting, and as a subscriber in the two proxies which were particularly stated in the report of Coleman’s case. All the evidence in that case was admitted in this.
    “ The defendant proposed to offer evidence that the defendant told Coleman, at the time of signing the power of attorney, that he must enter the defendant’s subscription with the condition that the road should be constructed through Laurensville; and, also, that at the time when the defendant paid the first instalment, he instructed the commissioner that the money was not to be paid to the Greenville and Columbia Rail Road Company, unless the road were located through Laurensville.
    “ This evidence was held to be inadmissible, because the defendant could not claim, under the Acts granting the charter, the privilege of withdrawing his subscription if dissatisfied with the route selected, unless he had designated the route in the agreement by which he engaged to take stock: and not having done so, the defendant could not, either by the terms of the charter, nor by the rules of the common law, offer evidence of a verbal stipulation for a particular route. A verdict- was taken for the plaintiff.”
    The defendant, Coleman, appealed, and now moved for a new trial, on the following grounds, to wit:
    
      1. Because, it is respectfully submitted that his Honor erred in charging the jury, as a matter of law, that the defendant could not avail himself of any condition annexed to his subscription, unless it was designated in writing at the time of subscribing.
    2. Because his Honor held that the majority of the company could locate the road as they pleased under the charter, when it is submitted that the charter limited the company to the selection o 1 the most practicable route from Newberry C. H. through Laurens to Greenville C. H.
    3. Because his Honor instructed the jury, as law, that the route adopted by the company was authorized by the charter and the defendant bound by it, although he withdrew from the company after the road was located at the Newberry convention, and had no further connection with the company.
    4. Because his Honor held that the change made by the company, in the location adopted at Newberry, so as to make a branch to Abbeville C. PI. and another from Dr. Brown’s to Greenville O. H. did not discharge the defendant from liability on his subscription.
    5. Because his Honor charged that the defendant subscribed for all changes and additional expenses that might be made or incurred by the company.
    6. Because the road was located at the Newberry convention, by persons who were not stockholders, but permitted to vote, and in fraud of the rights of the defendant.
    
      7. Because the company, after the location of the road by the Newberry convention, did not regard the Greenville stockholders as any longer members of the corporation, and subsequently took a portion of them back into the company upon conditions inconsistent with the charter, and proceeded to procure an amendment of the charter, so as to provide for the construction of the aforesaid branches, without the consent of the defendant, and thereby discharged him from his subscription.
    8. Because the location of the road from Columbia to New-berry C. H. thence to Anderson C. H. and Greenville C. H. was in violation of the charter and fraudulent, and the defendant thereby discharged from his subscription; and that the company could not, by any subsequent change in the location, render him responsible as a stockholder.
    9. Because the subscribers in Anderson, Abbeville and Lau-rens, and all others who subscribed on condition, had no right to vote upon the question of locating the road.
    10. Because the verdict of the jury was contrary to law and evidence.
    The defendant, Choice, also moved for a new trial, on the grounds stated above, and, likewise, upon the additional grounds, to wit:
    1. Because the Court refused to permit the defendant to prove that he instructed his attorney, John T. Coleman, one of the commissioners, to subscribe for him on condition that the road was located through Laurens.
    2. Because the Court would not receive evidence that the defendant paid the first instalment on his stock upon the condition that the money was not to be paid over to the company unless the road was located through Laurens, but to be refunded to him if not so located.
    3. Because the subscription was not made in the stock book by the defendant’s said attorney, but by R. B. Duncan, who had no authority to make it.
    
      Sullivan, Young, for appellants,
    cited 3 Hill, 48; Plarp. 33; 2 Bail. 305 ; 10 Mass. Rep. 393; 5 Hill’s N. Y. R. 385 ; 4 Johns. Ch. 573.
    
      Perry, contra.
   In the case against Coleman, the opinion of the Court was delivered by

Withers, J.

The grounds of appeal are numerous, and have all received the consideration of this Court. Most of them, it is hoped, may be disposed of in a satisfactory manner, without any extended course of observation.

The defendant claims to have become exempt from all liability to the company.

The first ground for this is, that a route differing from that which he designated, upon subscribing, has been fixed by the company. These are the words, “ and after the selection of the route, any stockholder, who may be dissatisfied with the route selected, shall have the right to withdraw his subscription,” &c. “provided such stockholder shall have designated, at the time of subscribing, the route which he desires to be selected for the location of the road.” (11 Stat. 409.)

It is enough to say that there is no evidence whatever that the defendant, Coleman, made any such qualification at the time of his subscription, in any form; and the ruling on the circuit, that such a qualification should appear in the act or instrument of subscription, was pertinent only to another case, (that of Choice) tried at the same time, and which will be adverted to hereafter.

It is next insisted, that a majority of the company consisted, in legal contemplation, only of a majority of those who had subscribed unconditionally; whereas, subscribers in Lexington, Laurens, Abbeville, Anderson and Fairfield, were allowed to vote upon the question of the route, notwithstanding they had qualified their subscriptions by designating a particular route as the condition of them, and thus had preserved to themselves the right of withdrawal. In the charter of December, 1845, no provision, such as is above extracted, appears; all subscriptions therein contemplated were absolute. That charter was forfeited by a failure to secure the requisite amount of stock. It was revived in December, 1846, and a competition was then intended to be excited between sections of the State on the west and east side of Saluda river, intermediate between Newberry Court House and Greenville, that is to say, between the people of Abbeville and Anderson, on the one part, and those of Laurens on the other, as well as to stir up interest in other sections of country, and in Charleston and Columbia. For not only was a subscriber authorized, by the latter Act, to designate the route he preferred, but that route itself was left to be the subject of competition. Ill the original charter, that of 1845, it was fixed to be from Columbia to Greenville, passing through the villages of Newberry and Laurens ; whereas, by the reviving and amending Act of 1846, the company were allowed to “ cause surveys to be made of the different routes from any part of the South Carolina Rail Road to Newberry village, and thence to Green-ville village, and may be allowed to select such route as a majority of the stockholders shall deem most advisable.” (11 Stat. 409).

Thus it appears that the route fixed by charter was only from some point on the South Carolina Rail Road to Newberry, and thence to Greenville. A majority of stockholders were to determine all else touching the route.

The argument is, that no one was a stockholder to vote on the question of the route, except him who had subscribed unconditionally. Then suppose every one had subscribed conditionally as to the route, how would the company ever have been organized?; or, if the idea could be advanced that such subscribers could vote upon the organization of the company, that they might be stockholders quoad hoc, yet, when the matter of the route arose, must retire because they were not stockholders, — we should have a state of things amounting to the ridiculous and absurd.

It seems obvious that the defendant himself insisted on a far more reasonable position, when he endeavored to rouse the people of Abbeville district to a liberal subscription by the very inducement that they could control the-.location of the route to their own advantage; although he now complains that they acted upon his suggestion. In his letter of August, 1847, referred to in the report, he distinctly contemplated that they should vote upon the route. It might be added, that at the moment we hear this objection from the defendant to the conditional subscriber, we also hear him urging that he occupied the same condition himself; and yet he became a director of the company^ and voted by proxy upon the question of the route. The jury were well warranted in finding, as they did, that it was no fraud on Coleman that such subscribers participated in settling the route ; indeed, it appears, that if every one of such subscribers had been excluded, there would still have been left, of unconditional subscribers, a majority in favor of the route selected, being those from Charleston, Columbia and Newberry.

The extracts before made from the charter of 1845, and the amendment of it in 1846, must dispose of another ground taken for the appeal, to wit: — that the company were bound by the limitations of their charter, to the most practicable route from Newberry Court House through Laurens to Greenville.” Surely it cannot be believed that the selection of such route as the majority of the stockholders shall deem most advisable,” from Newberry village to Greenville village, imposes the obligation to fix the route absolutely through Laurens. Still less can this be believed, when the very object of the amendment of the charter was to emancipate the company from the necessity to traverse Laurens district, and open to them a very wide discretion in fixing the route between the villages of Newberry and Greenville, the sole ascertained points.

Yet the defendant insists upon another view which presents a question of more gravity. The route resolved upon, and of which he complains, was this, to wit: — from Newberry Court House through Abbeville, and by Anderson Court House to Greenville. When this was resolved upon, on the 20th November, 1847, the representatives of the Greenville stockholders withdrew, and announced that the Greenville subscribers were no longer members of the corporation — and, afterwards, the money they had paid was demanded back, but it was refused by the company, which, in May, 1848, decided, unanimously, that the Greenville stockholders should not be permitted to withdraw. In December, previous, they had procured from the Legislature a separate charter to construct a road, on the condition that they should release the company from the obligation to construct one to Greenville. From what has been said, it will follow that, up to this period, we do not hold the defendant absolved as a corporator; that is to say, in fixing the route already described, we do not think the company violated the charter, and, therefore, violated no contract with defendant. The surveys from Anderson Court House to Greenville indicated difficulties as to grade and cost, and an idea was entertained that some better route could be ascertained to Greenville, than from the village . of Anderson direct, as well as a hope that some adjustment could be effected with the subscribers at Greenville, whereby they would become reconciled. Such better route was found from Brown’s, a point nine miles short of Anderson Court House, to Greenville, which attracted the attention of the company, and many of the subscribers of Greenville. Meantime, citizens of Abbeville had subscribed $75,000 to build a prong from the main trunk to the Court House of that district, and desired the company to undertake it. The company procured an Act of the Legislature, at the December session of 1849, (11 Stat. 575,) empowering it to construct the branch to Abbeville, and receive the money subscribed, or to be subscribed, for that purpose, to increase their stock, from time to time, if found necessary,— to establish the line of the road to be “ from Columbia to Newberry Court House, thence through Abbeville district to Anderson Court House, (including the branch to Abbeville Court House) and from, at, or near Dr. Brown’s, in Anderson, district, to Greenville Court House” — .and $75,000, in stock of the State in the South Carolina Rail Road Company, to be taken at par, was granted to the Greenville and Columbia Rail Road Company by the Legislature, “ for the purpose of aiding in constructing the branch road to Abbeville Court House, and in completing the road to Greenville.” Before the passing of this Act, overtures were received by the company of stock from Greenville and from North Carolina, in all amounting to $188,000, and the same was tendered, if that company would undertake the construction of the road from Brown’s. Neither in this transaction, nor any otherwise, does it appear that the defendant has participated in the affairs of the company,, since the location of the line of road, at Newberry, in November, 1847. The company is now engaged, however, in constructing their road according to the route fixed by the Act of 1849.

The further question raised by the defendant is, whether the matters, hereinbefore first recited, do not constitute such a change in the objects and operation of the corporation, such additional undertaking and burthen, as to change the contract into which he entered; and he opposes to the amending Act of the Legislature the provision of the Constitution of the United States, prohibiting a State from passing any law impairing the obligation of a contract.

This question well deserves consideration; and it would be agreeable to treat it more at large than our opportunity will now permit.

It is agreed that a charter is a contract, and is under the protection of that clause of the Federal Constitution to which allusion has been made. It vests rights and creates valuable interests, and may not be repealed, enervated, or essentially changed; yet common- reason would seem to suggest, that when the end is a great public enterprize, such as the construction of a Rail Road, the power that granted the franchise might, upon application by the controlling authority of the corporation, deal with the original structure that created it, in a manner that would be inadmissible touching a contract between two persons, or with even a grant for a tract of land to an individual. It was probably such a thought as this which led Lord Brougham (in Ware vs. The Grand Junction Water Works Company, 2 Rus. & Mylne, 470,) to observe, as follows “ It was said that if corporate bodies of this description are allowed to make such an application” (meaning an application to Parliament for an alteration and extension of its powers) "those who rely on that constitution are deceived, because they come in on the faith and footing of its being a partnership of a certain kind, and now tt is sought to be materially varied. But are not a man’s eyes open to the fate that attends him when he enters into a body of dhis kind 1 Does he not know that he is liable to this contingency, and either that the company ought to have the power of obtaining an alteration in the constitution, or that he ought to come in as a member of it under certain conditions and restrictions?” We do not, however, intend to rule any thing on the subject, nor to say that a member of a corporation may not be absolved by changes in the charter procured without his consent by a majority of his fellows. Nevertheless, it would appear reasonable to say, that if the corporation did acts to which a member did not object, either because he was supine or because he would not attend when he might and should have done so, it would not be harsh to hold hito estopped from disputing his acquiescence, especially when, liabilities, duties and burthens might accrue thereby upon the corporation.

The considerations already-expressed have conducted us to the conclusion that there is no cause of just objection to that location of the road that carried it through Abbeville district by Anderson Court House to Greenville. It follows, that the line might deflect before it reached Anderson Court House and be liable to less objection. The road does thus go from a point on the South Carolina Rail Road to Newberry Court House, and thence to Greenville, by a route established by a majority of the stockholders, which is conformable to the provision of the amended charter on that subject, under which Coleman subscribed. It can be no objection that a divergence at Brown’s has been resolved on, though it be a departure from the original scheme, of proceeding direct from Anderson Court House; nor is it matter of just complaint that this is fixed and sanctioned by the Act of Assembly of 1849. Then the matter is reduced to this: Is the undertaking to build a branch of eleven miles to Abbeville Court House such a violation of contract with the defendant, such a departure from the substantial provisions of the charter, as to absolve him from all obligation to pay the money he promised on subscribing?

We cannot so regard it. For this particular work, $75,000 were supplied by individual subscribers. Partiy to aid this structure, $75,000 more, in the form of stock in the South Carolina Rail Road, were granted to thé company who are plaintiffs here, by the State. Now it cannot be assumed, that a work so inconsiderable, when compared with the whole enterprize, and attended by the circumstances stated, of private contribution and public bounty, must prove an additional and distinct burthen upon the stockholders. Whether a degree of variation . from the original scheme of a line of Rail Road may be a clear benefit, or an equivocal advantage, or an unmitigated additional burthen, may not be a complete answer to the language held by a contracting party, — non licec in fcodera veni — yet such a consideration must have weight in some cases that must arise, and has forced itself upon the attention of minds that have been drawn to this question. For example, in the case cited for the defendant, The Hartford and New Haven Rail Road Company vs. Crosswell, (5 Hill, N. Y. 383,) it was said by Nelson, C. J. “ I do not deny that alterations may be made in the charter by the procurement of the company without changing the contract so essentially as to absolve the subscriber. Such would be the case, perhaps, in mere formal amendments, or those which are clearly enough beneficial, or at least not prejudicial to his interests. A modification of a grant may frequently be advisable, if not necessary, in order to facilitate the execution of the very object for which the company was originally established; and I admit there are intrinsic difficulties in the way of laying down any general rules by which to distinguish between the two kinds of cases., Each must depend upon its own circumstances, and be disposed of with a due regard to the inviolability belonging to all private contracts.” Similar views have been expressed by the Courts of Pennsylvania, as may be seen in 2 Watts & Surg. App. 160; and 10 Watts, 367.

We cannot trace the similitude between this case and that of The Hartford and New Haven Rail Road Company vs. Crosswell. In that case, a company chartered to make a Rail Road from Hartford to New Haven, procured and accepted an amendment, empowering them to lay out $200,000 of additional stock, in the purchase and employment of Steam Boats in connexion with their Rail Road. The subscriber was protected from being driven into this new and foreign enterprize.

In the case of Natersch vs. Irving and others, (to be found in Gow on Part. App. 398) Lord Eldon restrained, by injunction, the Alliance British & Foreign Life and Fire Insurance Company, at the instance of the plaintiff, a member, from adding to their business, that of taking marine risques. So in Cunliff vs. The Manchester & Bolton Canal Company, (2 Rus. & Mylne, 470, note,) the corporation were restrained by the vice Chancellor, from affixing their seal to a petition to Parliament for an Act to convert a portion of the canal into a rail way, and from applying any of the corporate funds to that object. A case of like import may be found in the same book, Ware vs. The Grand Junction Water Works Company, where Lord Brougham declined to restrain the company from petitioning Parliament for a change in their operations, and left the complaining member to appear before that High Court and uige his rights; and he also declined to determine whether the change contemplated affected the inviolability of the contract; and restrained the execution of new operations, in the mean time, in order that Parliament might intervene. He dreaded opening the doors of Chancery to litigation of that kind, while he considered Parliament the all sufficient and appropriate tribunal for such contests between a member and a majority of his fellows. We-may not say the like here; for the constitutional guaranty of the inviolability of contracts shuts out the power of the Legislature as completely as that of the Court, from all interference with the obligation of any contract. But so palpable was the departure from the substance of the contract, in each of the cases just referred to, compared with any such thing to be extracted from the one now before us, that we can derive no guide from them.

When we consider the magnitude of the enterprize undertaken by the Greenville and Columbia Rail Road Company— the length of their line — the impossibility of foreseeing, at the outset, the best location as developed by future minute exploration — the necessity, in which they found themselves at the beginning, to stir up competition between different sections of country — the active agency of defendant in this particular, and touching Abbeville interests especially' — when we advert to the further considerations, that there is no certainty the eleven miles of road to Abbeville Court House will abstract a dollar from the original funds of the corporation — or that it will operate otherwise than as a mere incidental feeder to the main track, constructed by funds superadded to those before in the exchequer of the Company — that the defendant entered into a company with a discretion so large as this, (vide sec. 26 of the charter of 1845), to wit: — “ That the said company may unite with, and become a part of, the South Carolina Rail Road Company, if the two companies shall agree upon terms of amalgamation, and all the privileges granted by this Act shall, in' that event, be assigned to and become privileges of the said South Carolina Rail Road Company” — we think we should not be warranted in holding, that so inconsiderable a matter as the prong to Abbe-ville Court House, under the circumstances which appear in connection with it, shall not be accounted germain to the line of road from Columbia to Greenville, but shall work so great a consequence as to absolve every subscriber who has not specifically approved it from all obligation to pay his subscription.

We thus attain the conclusion that the motion of the defendant, Coleman, be dismissed.

In the case of Choice, the opinion of the Court was also delivered by.

Withers, J.

This case has been heard in connection with that of the same plaintiffs vs. John T. Coleman, and the same positions have been assumed for this defendant. So far, what has been said in Coleman’s case, will apply here.

But this defendant contends for the benefit of other positions, to wit: — (1) That he instructed his agent, John T. Coleman, to subscribe on the condition that the road should be located through Laurens; (2) that evidence ought to have been received but was excluded to shew that he made the first payment, accompanied with the condition, that the money was not to be paid over to the company, unless the road should be located through Laurens, and failing that, it was to be refunded to him, — and (3) that R. B. Duncan, and not Coleman, entered his name in the book for subscriptions.

As to the last ground, it is sufficient to observe that Duncan and Coleman were two of three commissioners appointed to open the book for subscriptions; that Duncan entered all the names of subscribers and made all other requisite entries, as a clerk of the commissioners; and all these entries, including those affecting this defendant, were certified by the three commissioners, including Coleman, who was Choice’s agent to subscribe.

If any thing else were necessary to settle this point, it will be found in the fact that Choice joined in proxies, as a stockholder, and thus voted, on more than one important occasion. He, therefore, stands committed as a subscriber, not only by authority previously delegated, but also hy subsequent ratification.

The other two grounds may be considered together.

There is little doubt that the opinion very generally prevailed among the Greenville stockholders that the route of the road should be through Laurens. It was so fixed at first — but that matter was deliberately left open, in fact, a formed purpose was entertained (as the evidence shews) to give Laurens the “ go by.” The master purpose of the Greenville subscribers certainly was to procure a road to the village-of that district, by some route or other; this is placed beyond question, as well by the amending Act of 1846, as by other clear evidence. Now we have seen that the right of a subscriber to withdraw by reason of dissatisfaction with the line selected for the road, was put on the ground that he “ shall have designated, at the time of subscribing, the route which he desires to be selected for the location of the road.”

What manner of designation is here required 1 The time is clear, to wit: — when the subscription was made; and the very day of it was directed to be inserted by the commissioners. Transcripts of the books opened elsewhere, were to be forwarded to the commissioners at Greenville — “containing a list of the subscribers, with such designations as are contained in the subscription books” — and they were to call the subscribers together for the purpose of organizing the company. We cannot doubt that the preference of a particular route should have appeared in the book of subscription. This was the view actually adopted at Laurens, Abbeville, Anderson, and elsewhere. How, otherwise, could the subscribers, when they came together, know each other as to an essential characteristic ? That a condition, so important as this, should rest in a private communication by principal to agent, not appearing on the face of a written power of attorney, or rest in a verbal communication to a commissioner, or to the whole body, is too clearly repugnant to the necessary ends which we must impute to the provision of the law to be admitted for a moment. If we needed illustration, we might find it abundantly under that principle of agency which recognizes a distinction between a power vested in’ an agent and instructions given to him as to its exercise. In such cases, a power is actually and legally vested in the agent, and enures to the protection of the person who deals with him to the full extent of it, and the instructions are not in diminution of the power, but are personal directions to guide its exercise. The question of damage or infidelity must remain between principal and agent only.

It results, therefore, that in the case of Choice also, the motion must bo refused; and it is ordered accordingly.

Evans, Wardlaw and Frost, JJ. concurred in both cases.

O’Neall and Wi-iitner, JJ. as President and Director of the company, did not hear the cases and gave no opinion.

Motions refused.  