Cohen vs. The Bank of the State of Georgia. Reported in the decision. GARTRELL & LADSON, for plaintiff in error. Hall & HAMMOND, contra. SIMMONS, Justice. The chancellor did not abuse his discretion in granting this injunction. While it is true the courts should. be particular in granting injunctions against persons in the pursuit of their lawful business or rights, yet in this case, under the facts as disclosed by the record, the court did not err in granting the injunction. The plaintiff in error was attempting to erect a house across a public alley, twenty feet in width, on which alley the defendant in error was the owner of abutting property. Cohen, the plaintiff in error, does not claim or pretend that he had any right whatever to erect the building across the alley. True, he says that it would be high enough from the ground not to obstruct the free passage of the alley. The only thing he complains of is that the defendant in error, the complainant below, was not damaged by his illegal act, and therefore the court had no right to grant the injunction. The chancellor heard the evidence in the case, and he thought that the complainant had made out a case of special damage, and we will not interfere with his judgment. On the final trial, it will be for the jury to say whether the complainant proves its damage or not. Besides, the injunction cannot possibly hurt the plaintiff in error, because he has no legal right to erect this building across the public alley. Judgment affirmed. Johnson vs. The Georgia Midland & Gulf Railroad Co. Williamson vs. the same. JOHNSON VS. THE GEORGIA MIDLAND AND GULF RAILROAD COMPANY. WILLIAMSON vs. the same. 1. Notes given by a subscriber for capital stock in a railroad corporation, each note being given for an instalment of his subscription, and each being payable on completion of a twenty miles section of the road, "ready for the cross-ties, trestles and bridges," of which completion publication in a newspaper by the board of directors was to be conclusive notice, were mature and payable so soon as such publication was made, although the notes described the railroad as one which was to have a certain privilege, and although such privilege has not yet been secured. The securing of such privilege was not a condition precedent to payment for the stock. The specification of the privilege was part of the description of the railroad as it was to be ultimately, but not as it was to be at maturity and payment of the subscriptions to the capital stock. 2. Though it is specified in the notes that the road is to be operated independently of a certain existing railroad, this relates to what is to be done after the notes are paid, not before. 3. Though to procure the subscription, the corporation contracted that a side-track would be constructed upon the premises, or "at the place," of the subscriber, this stipulation contemplated that the side-track would be constructed after the payment, there being no agreement that its construction was to be a condition precedent. January 21, 1889. Promissory notes. Railroads. Stock and stockholders Contracts. Before Judge BOYNTON. Spalding superior court. August term, 1888. Reported in the decision. E. W. HAMMOND and T. R. MILLS, for plaintiffs in error. STEWART & DANIEL and HALL & HAMMOND, contra. BLECKLEY, Chief Justice. 1. The first question is, whether the notes or contracts sued upon were mature when the suits were brought. The stipulation on the subject of maturity is that the money Johnson rs. The Georgia Midland & Gulf Railroad Co. Williamson vs. the same. "becomes due and payable whenever the board of directors of said railroad company shall decide that the . . . . section of twenty miles, (starting at some point on E. T., Va. & Ga. railroad, either in Henry or Butts county, Ga.) or of so many miles as is necessary to complete a railroad of not less width than a standard gauge, between Columbus, Ga., and some point on the E. T., Va. & Ga. railroad, with the privilege of entering Atlanta, Ga., on the track of any railroad with terminal facilities there, is graded and ready for the cross-ties, trestles and bridges. Publication of said decision of said board of directors, in any newspaper published in Griffin, Ga., shall be final and conclusive notice to me of the same." We have studied carefully this somewhat confused and involved language, and our construction of it is, that the only matter constituting the substance of the condition precedent and forming the question for the board of directors to decide and give notice of their decision by publication in a newspaper, was the completion of the contemplated railroad, "ready for the crossties, trestles and bridges." There was no stipulation that the privilege of entering Atlanta was to be secured before the notes became payable. The clause relating to that privilege was introduced to describe the railroad as it was to be ultimately, not as it was to be at the maturity and payment of the subscriptions to the capital stock. It might be that the money sought to be raised from these subscriptions would be needed for the very purpose of securing the privilege in question, just as it might be needed for the purpose of carrying on to completion the unfinished railroad beyond the stage of readiness for cross-ties, trestles and bridges. We think the published decision of the board comprehends all that was essential either to be done or decided as a condition precedent to the payment of these notes. The pleas as expounded here raised no question as to the fact that completion was so far advanced as to prepare the road for the cross-ties, trestles and bridges. The matter of complaint was, that the Johnson vs. The Georgia Midland & Gulf Railroad Co. Williamson vs. the same. privilege of entering Atlanta had not been secured. Under the evidence, we think it had not been, for a mere proposal on the part of the East Tennessee, Virginia & Georgia Railroad Company, stating terms, etc., would not suffice for a privilege on the part of the new railroad, unless the terms had been accepted; and it seems no acceptance had taken place. But while we think that the privilege was unsecured, we are nevertheless of opinion that the maturity of the notes was not on that account postponed. 2. Nor would it affect the maturity of these contracts were the new road not operated entirely independently of the Central Railroad. Certainly how the road was to be operated was not intended to be a condition precedent to payments that were to be made before it was operated at all, and even before it was in a state in which it could be operated. No railroad is ready for operation in advance of laying down the cross-ties and constructing the trestles and bridges. Yet the stipulation here was to pay when the line lacked these requisites and all others which were to be supplied later if the board of directors made the stipulated decision and published it in the appointed way. How the railroad was to be operated related to a matter that was to occur after the notes were paid, not before. This being so, the mode of operation cannot be construed as a condition precedent. But even did it bear that construction, the evidence, we think, indicated that whilst there are amicable relations and business arrangements between the two roads, their respective operations are wholly separate and independent. 3. What has been said above, disposes substantially of both of these cases, save as to the one point in that of Williamson, which relates to the alleged agreement to lay down a side-track upon his premises or his place. Crawford vs. Hodge. It is not suggested that it was any part of that agreement that this work was to be done at any specified time, much less that it was to be done before he paid his money. It may be that his money is needed for the very purpose of performing this engagement. If he had wanted the side-track before his notes matured, he should have contracted to get it before, and not, as he did contract, to pay when the road itself was ready for the cross-ties, etc. If authority were needed to show that this matter as it stands was not a condition precedent, the cases of Chamberlin vs. Painesville Railroad Company, 15 Ohio St. 225, and Paducah & M. R. Co. vs. Parks, by the Supreme Court of Tennessee, 8 S. W. Rep. 842, would be sufficient. Moreover, the difficulty of supplying such a condition by parol evidence without some averment that it was left out of the writing by fraud, accident or mistake, would seem insuperable. Henderson vs. Thompson, 52 Ga. 149, and numerous other cases. Judgment affirmed. CRAWFORD vs. HODGE. Where, as in a written notice to sue, there is but a feeble presumption that a paper has been preserved, the defendant may introduce parol evidence of its contents, after proving that the plaintiff, on inquiry for it pending the suit, answered that it was lost, that she had made diligent search for it, that she believed it destroyed, but that she was bound by it. If her attorney in reply testify that the document has since been found, but he declines to produce it, the court should either admit the secondary evidence, or grant a motion made by the defendant to continue the case on the ground of surprise. The latter would be the better course. December 12, 1888. Notice. Evidence. Practice. Continuance. Before Judge FAIN. Bartow superior court. July term, 1887. |