
    T. H. Colcock & Co., v. The Louisville, Cincinnati, and Charleston R. R. Company, and J. W. Letson, v. The same.
    The custom of Rail Road Companies to allow tlieir contractors the free use of their own roads, cannot be extended so as to bind a company to pay the expenses of its contractors on a road belonging to a distinct corporation.
    After a company has entered into a written contract for the performance of certain work, the promise of its President, to allow additional compensation to the contractors for the same work, is without consideration, and not binding on the company.
    Tried before Mr, Justice O’Neall, at Charleston, Spring Term,1845.
    The plaintiffs respectively in the above stated cases, by scaled articles of agreement between them and the defendants, dated the 30th of July, 1838, and which were produced in evidence by the plaintiffs, contracted to perform certain work in excavating and embanking a road-way, for which the defendants promised, on their part, to pay them a certain stipulated price expressed in the articles. The plaintiffs executed the work, and defendants paid them the price stated in the articles. After the contract was made, and the plaintiffs had commenced the work, and were in the course of executing it, the chief engineer of the Company, by the authority and direction of the President, (as he stated,) promised the plaintiffs and other contractors, that the expenses of passage and transportation (on the South-Carolina Railroad) which they were incurring, should be allowed in a final settlement. The plaintiffs sued in assumpsit on these promises, and proved their accounts for passage and freights on the Railroad, paid by them. The defendants moved for a non-suit, on the ground chiefly, that the promises declared on and proved were without consideration, there being no other consideration alleged or proved, than the execution of the work which they had already by their sealed contracts bound themselves to perform.
    The motions for non-suit were overruled, and the resolutions of the respective Boards of Directors of the Louisville, Cincinnati, and Charleston Railroad Company, and the South-Carolina Canal and Railroad Company, and the other evidence referred to in the report of the presiding Judge, were produced for the defence.
    These were actions of assumpsit, brought by the plaintiffs, contractors on the Railroad, to recover for sums which they had paid to the South-Carolina Canal and Railroad Company, for the transportation of provisions and tools.
    The proof was, that these plaintiffs contracted in reference to the supposed facility of passage, and transporting free of charge, their supplies and tools on the Railroad. But as the Hamburg Railroad belonged to the South-Carolina Canal and Railroad Company, a distinct corporation from the Louisville, Cincinnati, and Charleston Railroad Company, (although most of the stock in the former was under the contract of purchase, then transferred to the latter,) the plaintiffs were charged for transportation on it: the chief engineer proved, that by the express direction of General Hayne, the president of the Company, he agreed with the contractors that they should be refunded the cost of transportation and passage, which they might pay on the Hamburg Railroad. Major Colcock proved, that he was the resident engineer on the road, that he understood that the building implements or tools, and supplies for the contractors, were to be carried free of charge on the Hamburg Railroad. This he understood from the chief engineer; and he frequently ordered the contractors to keep an account of the amounts paid by them for transportation on the road, so that it might be allowed in the settlement of the contracts. The amounts so paid by the plaintiffs were proved. On the closing of the plaintiffs cases, the defendants moved for non-suits on the grounds: 1st. That the promise was without consideration. 2d. That it was not binding, because the agent had not authority to make it. The presiding Judge overruled the motion. He thought that it might be that the contracts to work on the Railroad, might have been made in reference to the facility of transportation free of charge on the Hamburg road, which substantially belonged to the defendants; and if so, a promise to refund would be on a sufficient consideration. The promise was made, as was proved by McNeil, under the order and by the authority of the President of the Company, and until the contrary appeared, he would not say his promise was without authority.
    In the defence, it appeared from General Adams’ testimony, who was a contractor, that he knew nothing of any such promise as that proved for the plaintiffs. He said the price was a liberal one for the contractors. Letson and others asked him to join in an application to be allowed transportation. He declined. On the 20th March, 1840, it appeared from the books of the South-Carolina Canal and Railroad Company, that the tickets of the Louisville, Cincinnati, and Charleston Railroad Company,for the transportation andpassage of their contractors, were to be received as cash. On the 18th January, 1840, the Directors of the Louisville, Cincinnati, and Charleston Railroad Company, resolved that the contractor's should have tickets for transportation and passage, which should be in place of cash, and to be in part of contracts. It appeared by Mr. Young, the officer of the Company, that these tickets or orders for freight and passage were brought in, and deducted from the requisitions by the engineers in favor of the contractors.
    The cases were submitted to the same jury, who were told that if they believed the contractors contracted to work for the Louisville, Cincinnati, and Charleston Railroad Company, with the expectation of having transportation and passage free on the Hamburg Railroad, which substantially belonged to the defendants, and on being legally compelled to pay, that the agent of the Company properly authorized to do so, had promised that the sums which they were obliged to pay should be refunded, the plaintiffs were entitled to recover, otherwise not. The jury found for the plaintiffs. The defendants appealed on the annexed grounds:
    1. That the promise on which the action was brought, and which the plaintiffs’ witnesses proved, was a promise founded on no consideration, inasmuch as the plaintiffs were already at the time of the promise bound by their written contract with the defendants, to do all the work that they did do, at a certain price stated in the contract, and the promise proved was a promise, without any new consideration, to pay an additional price for the same services.
    2. There was no evidence that the said promise was made by any person authorized by the defendants to bind them by such a promise.
    3. That the verdict was against law and evidence.
    Peronneau, Mazyck & Finley, for the motion.
   Richardson J.

delivered the opinion of the Court.

After the full discussion of the legal principles of these cases, to be found in the decision in Nesbit v. L. C. and C. R. R. Co., 2 Speer, 698, the present case may be briefly disposed of. That case goes far to support the motion for a non-suit in this case.

Nesbit’s case was for extra work in excavating indurated gravel, rock and earth, called hardpan, which the President of the Company had often said should be paid for, over and above the contract: and the two engineers swore that such excavations constituted extra work to be paid for, “under the allowance of the engineer.” Nesbit’s was an important case, and received much judicial consideration. But the Court finally decided, that Nesbit’s claim was for the very work embraced by his express contract; and however plausibly proved, was not extra work, but fairly within the contract, and therefore not the subject of a lawful demand. Nesbit was accordingly non-suited, notwithstanding the verbal promises of the President, and the good will of engineers to get him an extra allowance of money.

Now, wherein does that case differ from the present? Col-cock & Co. urge that certain expenses they were put to in carrying operatives, tools and materials on the Hamburg Railroad, should be refunded to them by the present defendants. The plaintiffs do not claim for extra work, but they claim the price they paid for getting the working done, that is, the freight paid by them for materials, &c., required. But it will be seen at a glance, that if Nesbit had claimed the wages of his workmen for excavating hardpan, or for tools of proof required to excavate this induration of rock and sand, his claim could have been no better, because it would still have been out of his contract. So far, therefore, Nesbit’s case and the present are the same in a judicial, legal, and rational understanding. Both cases are simply id; an extra sum of money beyond the amount assured to them, but claimed under certain peculiar understandings of the claimants, not found in either contract as written. So far, then, the legal identity of the two cases is palpable; and Nesbit’s case would decide the one before the Court.

But they differ in one respect. It is the custom of Railroad Companies to allow their contractors to carry their materials, tools, &c., on their own rail roads, free of cost. And it is a fact, that the L. C. and C. Company have become the purchasers of the Hamburg Railroad, and the two roads have thus become one estate of the defendants. But in the meantime, and before this amalgamation of the two, the present plaintiffs had been put to the costs and expenses they now claim, by carrying their materials, (&c., upon the Hamburg Railroad. This cost is the amount the plaintifls claim to be refunded by the present suit, and over and above what the resident said on this head. It is a further fact, that the L. C. and C. R. R. Company did make the following entry in their minutes of proceedings, to wit:

“Appendix C. Minutes of the Board of Directors of the L. C. and C. R. R. Company, ISth January, 1840.
“The President laid before the Board a communication from Mr. E. S. Cheeseborough, the resident engineer, in behalf of the contractors on the L. C. and C. R. R., suggesting an arrangement with the Hamburg Company, to allow them to receive their stores from the depository at Branchville, without paying their freight in cash, and -of charging the amount against them as so much received on account of their work-Mr. King offered the following resolution, which was adopted by the Board: Resolved, that each contractor on our road be, and he is hereby authorized to draw on the Company in favor of the South-Carolina Canal and Railroad Company, in payment of freight on the South-Carolina Canal and Railroad Company» due by the contractors respectively.”
“Minutes of the Board of Directors of the South-Carolina Canal and Railroad Company, March 20th, 1840.
“Read an application from several persons, contractors upon Louisville, Cincinnati, and Charleston Railroad, praying to be allowed to pass on the Hamburg Railroad without paying their passage money in cash. On motion, it was resolved, that passage tickets not transferable, issued by the Louisville, Cincinnati, and Charleston Railroad Company, to their contractors, shall be received by this Company as so much cash.”

Now, then, does this state of the plaintiffs’ case render their claim binding in law? We have seen by Nesbit’s case, that the President’s declarations make no difference in such a contract, because the contract must still be taken as the limits laid down by the parties themselves. But it remains to be considered, what is the force of ihis entry. It is that the L. C. and C. R. R. Company engage to pay the freight of their contractors upon the Hamburg Railroad, to save the necessity of their paying cash down; but the amount so to be debited to the defendants, to be accounted for by the contractors in their final settlement; and such settlement having been so adjusted, this suit is brought to recover that amount as so much illegally exacted of the plaintiffs. The whole negotiation was a present accommodation and credit allowed to the contractors, to be finally refunded to the defendants on pay day. Such an arrangement is the precise opposite to any extra allowance to the contractors. It amounts to payment in advance, and cannot be construed into any concession or acquiescence in what the President is supposed to have admitted. On the contrary, it affirms that the contractors are to answer in the final settlement for such freight, although to be debited in the first instance to the L. C. and C. Railroad.

Thus, then, the entry plainly negatives the claim of the plaintiffs and the supposed admissions of the President, and reaffirms the original contract, and therefore does not help the verdict. Finally, the merit of the plaintiffs’ demand seems resolved into this question. Does the custom of Railroads to allow their contractors to pass up and down free of cost, bind the Company to pay the debt contracted by the plaintiffs for freight upon another Railroad? There is a wide difference between a Railroad allowing their contractors, as it may be convenient, to pass up and down in their regular train of cars, when there is room to spare, and the paying for their passage money on other Railroads. The former is an accommodation without positive loss. The latter would be an assumption to pay the debt of another, which requires a valuable consideration. It would be very like a friend, who, being in the habit of using your horse gratis, should undertake to hire a horse and charge the hire to you, because you were in treaty for him, and after-wards actually purchased the horse he had hired. But the answer to such a demand would be, that it takes both parties to alter as well as to make a binding contract. Such extension, therefore, of the Railroad custom, cannot be allowed. Upon the whole, then, we can perceive no substantial distinction between Nesbit’s and the present case. I. As in that case, so in this, the plaintiffs’ claim is for money beyond their contract, and such a demand should be made plain, or it fails. 2. The President, even if he intended so much, could not have so altered the written contract where there is no consideration. 3. The entry of the Company proves their understanding of the arrangement with the Hamburg Company for the convenience of the plaintiffs, but not to pay their debt out of the money of the Company.

Whether, therefore, we take the evidence of the plaintiffs, or unite it with that of the defence, we can perceive no legal foundation for the plaintiffs’ claim. The verdicts are therefore set aside, and non-suits granted in both cases.

Evans J., Butler J., Wardlaw J., and Frost J., concurred.

O’Neall J.

dissenting. Said, that the case of Nesbit v. The Louisville, Cincinnati, and Charleston Railroad Company, 2 Speers, 698, settled properly the rule, by which cases of contractors were generally to be decided. They were entitled to the compensation which their contracts gave them, and no more, for work plainly embraced in them, although it might turn out to be abundantly more difficult of execution than was expected. But I think this case is a fair exception to the general rule. In it, I am satisfied, the plaintiffs ought to retain their verdict. For the custom on Railroads, that contractors should use free of charge such part of the roads as might be finished and in use, so as to give them the facilities of more readily obtaining their supplies, transporting their tools and building materials, was proved. That the defendants Avere substantially the owners of the Hamburg road, cannot be denied. That the contractors contracted to do the work, expecting to have the use of the road according to the custom, must now be taken as also undeniable, for the jury have so found. Under these circumstances, the promise of the President, that the plaintiffs should be refunded the money, which by law they Avere bound to pay on the Hamburg road, cannot be regarded either as without consideration or without authority; for the Company really obtained the plaintiffs’ work for that much less than would otherwise have been charged. It is too, fairly to be argued, that both parties understood when the contract Avas made, that the plaintiffs should use the road, without charge, and hence, therefore, when forced to pay it, the promise to refund it was exactly that which ex equo et bono, the Company ought to have done. The case can be tested in another Avay. If they had been in law, as they were, in fact, the owners of the Hamburg Railroad, and the plaintiffs had used the road for the whole time they had been at work and had been charged for the freight, but had not paid it, and the defendants were now suing to recover it, could they against the proof in this case succeed? They could not: for the prooí' adduced here would already show, that as against the plaintiffs, no charge was intended to be made. The President unquestionably had the power to bind the Company in all matters, where it may be fairly inferred ho was their legal organ. He alone on the part of the Company entered into the contract with the plaintiffs to do the work. The binding obligation of that contract has never been denied. It is fair to conclude that such a promise as this, which was necessary to give effect to the main contract, and was, like it, with the assent of the Company. But independent of that, the travelling and carrying of freight on the road is so much an every day’s business, that whatever the President directs in relation to it, is regarded as the action of the Company, until they otherwise order. This regulation for the plaintiffs’ benefit was of that character, and hence, I should say, prima facie, the contract is the contract of the Company, and after the finding of the jury upon the point submitted to them, I do not perceive how the fact can be denied.  