Charleston & Jeffersonville Turnpike Co. v. Willey

16 Ind. 34, 1861 Ind. LEXIS 5

• Court: Indiana Supreme Court
• Decided: May 27, 1861
• Status: Published

Opinion

Perkins, J.

Suit upon a note, of which a copy follows:

“$1,166.66-|.

“Twelve months after date, the Charleston and Jefferson-ville Turnpike Company promise to pay John P. Willey, Shiveral Willey, and Dennis Willey, jointly, the sum of $1,166.66|-, payable twelve months after date, without relief from valuation or appraisement laws, said sum being the third and last installment in the purchase of the Central Plank-road and its appurtenances of said Messrs. Willey by said Turnpike Company.

“ D. H. McDaniels, '

“May 23, 18’59. . . Pres’t of C. da J. Turnpike Co."

Answer: 1. General denial. 2. That it was not necessary for the Charleston and Jeffersonville Turnpike Company to purchase the plank-road. 3. That the. plaintiffs had not executed, for the conveyance of the road,- suoh a deed as they agreed to execute for that purpose.

Demurrer sustained to second and third paragraphs. Trial, and judgment for plaintiffs.

The demurrer was rightly sustained to the second paragraph of the answer. That was designed to raise a question of power in the corporation. The turnpike company was created and vested with powers by a private act. The Court could only know the quantum of power conferred through an examination of the act; but the Court could only examine it when pleaded and proved, or admitted. The defendant did not plead it in this case; and as she^was seeking to avoid her own obligation, on account of defect of power, she should have made that defect manifest. t

It is easy to see that a power to purchase the plank-road, in this case, might have been appropriately inserted in the charter of the turnpike company; or even been an incident to her general power. If there was an existing plank-road from Charleston to Jeffersonville, which had so gone to decay as to be useless for travel, but the company owning it had the right of way, the graded track, bridges, toll-houses, &c., and the turnpike company had a charter for a gravel turnpike between the same points, and could purchase the right of way, grade, bridges, &c., of the plank-road company, instead of obtaining, constructing, and buildingáb origine, if we may use the expression, certainly a note for the consideration of such purchase would be good.

The third paragraph is bad, because it admits the execution of a deed pursuant to the contract, and undertakes to deny that the deed conformed to the contract; and yet it neither states the contents of the deed executed, nor gives a copy of it. That paragraph is a negative pregnant, asserting, not fa°te, but a proposition of law without the facts upon which it rests. A pleading is not necessarily demurrable because it contains a negative pregnant, but that now under consideration is so. 2 Bouv. Dic., p. 187, tit. Neg. Preg.

H. Crawford, for the appellant. J. 8. Harvey and J. W. Hay, for the appellees.

Per Curiam.

The judgment below is affirmed, with 5 per cent, damages and costs.

By counsel for appellant: The directors of the turnpike company had no power to do any other acts than their charter authorized, and their powers are to be fairly yet strictly construed. Bank of Augusta v. Earl, 13 Pet. 520; Perrine v. Ches. and Del. Canal Co., 9 How. 172; Pearce v. Mad. and Ind. Railroad Co., 21 How. 442; East Anglian Railroad Co. v. Eastern County Railroad Co., 7 E. L. & E. R. 505; McGregor v. Dela, and Dover Railroad Co., 16 id. 180; Mayor of Norwich v. Norfolk Railroad Co., 30 E. L. & E. R. 120; Halstead v. New York, 5 Barb. 218; same case affirmed, 3 Com. 430; Abbott v. Balt, and Rapp. St. Packet Co., 1 Md. Chan. 542; Albert v. Sav. Bank, 2 Md. R. 159; Snyder v. Prest., &c. Rockport, 6 Ind. 237.

The plaintiffs had more than a year in which to perform their agreement to convey, and can not maintain this action without showing an actual or offered conveyance. Leonard v. Bates, 1 Blackf. 172; Warner v. Hatfield, 4 id. 392; Shirley v. Shirley, 7 id. 452 ; Mix v. Ellsworth, 5 Ind. 517.