Moore v. Hanover Junction & Susquehanna Railroad , 94 Pa. 324 ( 1880 )

Mr. Justice Gordon

delivered the opinion of the court,

The main principles involved in this case were examined and passed upon in the case of the Hanover Junction and Susquehanna Railroad Co. v. Haldeman, 1 Norris 36. There, with the same corporation and same subscription list, as in the case now under consideration, it was, by this court, determined that the defendant’s subscription was properly treated as conditional, that the plaintiff had the power to bind itself to the performance of the stipulations contained in such subscription, and that a want of purformance thereof by the company would release the subscriber. In like manner it was held, in Caley v. The Philadelphia and Chester County Railroad Co., 30 P. F. Smith 363, that where the sudseription paper set out the termini and route of the proposed improvement, a material variance from either would operate as a release of a subscriber. As a reason for such conclusion it was said: “ If the above-stated doctrine be not correct, then has the defendant no remedy; for, as the directors, in changing the route of their road, are acting within the power conferred by the charter, he cannot prevent such change, though violative of the terms of the contract. He, therefore, occupies much the same position, in which, as we have shown, the general stock subscriber is placed when such change is made by virtue of an Act of Assembly.” Following these authorities, and the conclusion necessarily results, that the court erred in not permitting the defendant to show that the alteration made by the company'in the original route of its road, was, as to him and his interests, a material variation. The written contract to which he put his name, provided for the building of the extension of the Hanover Junction and Susquehanna Railroad, “ According to the survey made by the Philadelphia and Reading Railroad Company,” and this ran, it is said, within five hundred feet of the defendant’s mill. If then this was the contract of the parties, on what ground may the plaintiff recede from its part of the bargain and yet hold the defendant ? Is it on the ground that a change of a few hundred feet from the original survey is immaterial, and, therefore, the defendant is not harmed ? But this is the very point of the controversy, and who is to determine it ? The defendant contends that this change was material; that it was the position of the original survey which induced his subscription, and that his interests are seriously compromised by the alteration. If, as was held in Everhart v. The Railroad Co., 4 Casey 339, per Woodward, J., an essential modification in the charter of a company, either as to its objects or methods of execution, will release a general subscription, much more will the direct act of the company, destructive of the terms and conditions of its own contract, work such release. To all the subscribers to the stock of the corporation plaintiff but the defendant the alteration complained of might be indifferent or even advantageous, hence, they could not be heard to complain, whilst as to him, it might be very injurious : a material violation of his contract. To this conclusion the case of Miller v. Railroad Co., 6 Norris 95, has been opposed, but this case and the one in hand are as wide apart as the poles. In that case the defendant, Miller, set up a secret parol condition in order to defeat his subscription, but it was held that he could not be permitted so to do, on the ground that it would be unjust and a fraud upon his co-subscribers to permit him, on such grounds, to escape responsibility, and thus throw upon them an additional burthen. But the defendant, in the case in hand, is attempting to set up no secret parol arrangement, but a condition found in the subscription paper itself, and one to which all knew the company was to be held. We have, therefore, no hesitation in sustaining the 3d, 6th, 8th and 9th exceptions of the plaintiff in error. Not so the 7th exception. The defendant might have been asked whether or not the line of the proposed road, as found upon the ground running through his land, was an inducement for his subscription, but-it partakes too much of the character of guesswork for any one to undertake to say what he would have done under circumstances at the time unknown and unthought of. The plaintiff’s first point ought to have been refused; the doctrine involved in it, as a general rule, is no doubt correct, but it is not applicable to the present case without material modification. The remaining exceptions are dismissed as containing nothing tending to convict the court of error.

The judgment is reversed and a new venire ordered.