Saugatuck Bridge Co. v. Town of Westport

39 Conn. 337

Opinion

PARK, J.

The objections raised by the defendants are all of a technical character. The plaintiffs were chartered for the purpose of constructing a bridge over Saugatuck river. To compensate them for the trouble and money expended in such construction, the legislature empowered them to take certain tolls from travelers unless the defendants should elect to'purchase the bridge when completed, in which case they were authorized so to do at a fair valuation, if the parties could not otherwise agree upon the compensation to be paid.

These facts rendered it obvious that if the town avail itself of the privilege granted, there could be but little inducement on the part of the corporation to be organized to go forward and construct the bridge, for in so doing they would be merely the builders for the town, and would be compelled to take as compensation whatever appraisement three disinterested freeholders should award them, whether more or less than the expense of construction. It would seem that the chances of gain were no more than equal to the risk of loss, and in this state of things it could 'hardly be otherwise than that tlie plaintiffs would be anxious to know in advance whether the defendants intended to take thé bridge from them as soon as completed; and, on the part of the defendants too, one would naturally suppose that there would be an inclination to determine thus early their optional privilege, in order that they might have a voice in determining the location, style, and general character of the bridge, if they were to purchase it. It was manifestly for the interest of both the parties that this question should be determined by the town in advance of construction ; and because they acted with seeming wisdom and discretion in the matter and made a contract with the plaintiffs binding themselves to purchase the bridge at a certain price when completed and open to public travel, their action is made the chief ground of complaint in the present case. It is said that the town had no power to purchase, or bind itself by contract to purchase, before the bridge was completed; that the charter substantially so declares, in order that the inhabitants of the town might have an opportunity to inspect the bridge, and observe the amount of public travel over it, so that they could act intelligently upon the question whether it was expedient for them to purchase or not; as well as ascertain the value of the bridge. .

The provision of the charter under which this claim is made is as follows; “ And provided further, that the town of West-port shall have the right to purchase said bridge and the franchise of said company at any time after the completion of said bridge and the opening of the.same for public travel, Ac.”

The defendants construe this, provision as declaring, by necessary intendment, that the town shall have no power to purchase the bridge before its completion, and of course no power to bind itself by contract to make the purchase until such completion. :

If the legislature had intended by the language used what the defendants claim, and for the reasons which they suppose, it is strange that the town should have been authorized to purchase the bridge as soon as completed and open to public travel, which would be long before the inhabitants would have been able to ascertain the amount of travel over it by use, or have had a fair opportunity to form a judgment as to its valuer by inspection. And furthermore, tlie town had all the means of ascertaining in advance of construction whether the bridge would be necessary for public travel, and’ what the cost of it would be, that towns ever have in regard to highways that they are called upon to lay out and construct for public use. Questions of this character can, in most cases, be as easily determined beforehand as afterwards.

We think the language of the charter was not intended to be construed in its strict literal sense in regard to the time when the town might purchase, or bind itself by contract to do so, when manifestly it was for the interest of both the parties that the decision should be made before the bridge was constructed. The legislature seem to have taken it for granted that inasmuch as they were chartering the plaintiffs for the express purpose of constructing the bridge, with the optional right of purchase on the part of the town, the plaintiffs would at all events construct the bridge; and to have used the language with this fact in mind, and without intending anything more by it than simply to give the town the optional right of purchase. And even if the charter is to be construed strictly, we do not see that the act of the defendants is unauthorized by its provisions, for they did not in fact purchase the bridge before its completion, but only bound themselves by contract to purchase it when it should be completed. We think this claim of the defendants is untenable.

But it is said that the commissioners did not perform their duty under the charter an i that consequently the plaintiffs were not legally organized as a corporation. The charter provides that the commissioners shall give public notice, in one or more newspapers printed in Bridgeport, of the time when and place where the books of subscription to the stock of the company should be opened, and that whenever the stock necessary to the construction of the bridge should be subscribed, they should distribute the same, and should give notice in one of the newspapers printed in Bridgeport of the first meeting of the corporation. This requirement of the charter with regard to the amount of stock co be subscribed, it is claimed fwas not complied with. It is said that stock necessary for the construction of the bridge was never subscribed and that the Superior Court has so found; and that therefore the commissioners had no authority to distribute the stock, or call the first meeting of the corporation.

But who is to determine when stock sufficient for the construction of the bridge has been subscribed ? Different tribunals may differ widely upon the question. The commissioners may have one opinion upon the subject, and the Superior Court quite another. Which is to determine the matter; Manifestly the question is left by the charter to the commissioners to determine. They are to distribute the stock, and call the first meeting of the corporation, when in their judgment sufficient stock has been subscribed for the construction of the bridge. But it is said that they knew that sufficient stock had not been subscribed, when they distributed thé stock. They may have known that the stock taken by itself would not be sufficient to build the bridge, but have been satisfied that the stock taken in connection with the contemplated contract with the defendants to purchase the bridge when completed, would be sufficient for the purpose as subsequent events proved it to be, for the plaintiffs were in fact able to construct the bridge with their seventy-three shares of stock, and did construct it in accordance with their contract with the defendants. It was doubtless this consideration that induced the commissioners to regard the seventy-three shares of stock as sufficient under the circumstances. And it was probably the action of the town with reference to taking the bridge when completed, that prevented the taking of more stock in the corporation. Monied men would not embark in' an enterprise like this, where they might be merely the builders of a bridge for the town, 'and be liable to have it taken from them by appraisement, as soon as completed. It seems to come with poor grace from the defendants to complain of what was caused by their own action, and especially when they have received all that they bargained for, and all that they could possibly have received if the utmost, amount of stock that the charter allowed had been takeji; and still more when they knew at the time they agreed to purchase the bridge, that seventy-three shares of stock were all that had been taken. They made their contract with full knowledge of what they now complain of, and we think they must abide by their contract so far as this claim is concerned.

Complaint is also made of the notice given by the commissioners of the time when the books of subscription to the capital stock of the corporation would be open, and the manner in which the commissioners received subscriptions to the stock. These claims are untenable, and need no consideration.

It is further claimed that no right of action existed in the plaintiffs at the time this suit was brought; because in the first place, they had assigned all their interest' in the contract made by them with the defendants, to Briggs & Co.; and, in the second place, if any interest remained in the plaintiffs after such assignment, it was conveyed to the defendants by their deed transferring the bridge and their franchise to them.

The court has found that the plaintiffs assigned the contract to Briggs & Co., as collateral security for the faithful performance on their part of a contract made by them with Briggs & Co., for the construction of the bridge. Surely such an assignment would not transfer all the plaintiffs interest in the contract to Briggs & Co. Suppose the latter had agreed with the plaintiffs to construct the bridge for the sum of ten thousand dollars. It would then be manifest that all the interest of the plaintiffs in the contract would not have been transferred; and can the amount of the sum secured by the assignment make any difference, farther than to show the extent of the equitable interest ? The legal interest in the contract would remain in the plaintiffs', however great might be the equitable interest in Briggs & Co.; and it would so remain notwithstanding the statute that allows an assignee, by making certain allegations in his declaration and proving them on the trial to maintain an action in his own name._ .The statute was never intended to supersede the bringing of ^actions in the name of tlie assignor, but only to afford an additional mode of proceedure, if the assignee should clioose to adopt it. We think there is nothing in this claim of the defendants; nor do we think that the deed given by the plaintiffs to the defendants, transferring to them the bridge, and their corporate franchise deprived the plaintiffs of the right to sue on the contract. The plaintiffs were bound to be ready and willing to transfer the bridge and their franchise under the contract, and to tender the same for the acceptance of the defendants on condition of payment, unless payment had been absolutely refused; and the fact, that the plaintiffs did more perhaps than was necessary under the contract, in order to entitle them to sue for the contract price of the bridge, could ,not deprive them of their legal existence as a corporation.

,Their corporate existence would remain notwithstanding such transfer, until the affairs of the corporation were settled. The creditors of a corporation would otherwise often be remediless.

It is further claimed that Saugatuck river is a navigable stream at the place where the bridge was erected, and that the défendants had no right under the general statutes of the state to construct a bridge over this stream. The case of Brown v. Towns of Preston & Ledyard, 38 Conn., 219, decides the contrary; besides which the plaintiffs’ charter expressly authorized them to construct a bridge across this river for public use; and empowered the defendants to purchase the same when constructed and open to public travel. The defendants decided to purchase according to the terms of the charter. They thereby substantially decided that the bridge would be convenient and necessary for public use. How could it be otherwise ? The defendants had no right to make the purchase for other purposes than for public use. The charter by necessary intendment so declares; and by such intendment further declares that _tlie defendants shall have the right to purchase the bridge provided they shall deem it-■necessary and convenient for public use. When therefore the defendants decided to purchase the bridge they intended to decide, and did, in fact decide that the bridge would be con- venicnt and necessary for public use; and tbeir decision wa<k as final and conclusive upon tlie question as like decisions aro in tlie lay-out of public highways. The charter therefore implied’/ authorized the bridging of this river by the town-through the instrumentality of the plaintiffs if the town should elect to purchase the bridge.

In conclusion we say that the defendants, having made a contract 'with the plaintiffs to purchase the bridge and franchise, when the bridge should be completed and open to public travel, as authorized by the plaintiffs’ charter ; and the plaintiffs having constructed the bridge in accordance with the terms of the contract, and having conveyed the same, together with their franchise, to the defendants, after 'the bridge was completed, and open to public travel; and the bridge and franchise having been accepted in behalf of the defendants by the committee appointed by the town for the purpose, the defendants must now abide by their "contract, and pay the plaintiffs the amount stipulated therein.

There is no error in the judgment complained of, and a new trial is not advised.

In this opinion the other judges concurred; except Seymour, J., who having been consulted in the case when at the bar. did not sit.