Mitchell v. Southern Railway Co.

<p>Action of assumpsit to recover fare for travel on the plaintiffs’ road.</p> <p>The material facts as found by an auditor, to whom the case was referred, are as follows.</p> <p>From the 25th of August, 1856, to the 5th of February, 1857, Mr. Ketchum, the defendant, and his wife, child and servants, frequently passed over the plaintiffs’ road, between Westport and New York, without paying fare, claiming a right so to do by virtue of a certain resolution of the railroad company hereinafter set forth! For the whole amount of that fare the plaintiffs were entitled to recover in this suit, unless the defendant was exonerated by that resolution from all obligation to pay it. I</p> <p>The railroad company was incorporated in May, 1844, by an act of the General Assembly, which act, (4 Private Acts, 1020,) and the acts in addition thereto, were in evidence in the case. In June, 1844, an unsuccessful effort was made to procure subscriptions to the capital stock. On the 13th of August, 1844, the grantees of the charter adopted certain rules, providing, among other things, that each person who should subscribe for stock should have power, at pleasure, within a certain time, and upon certain conditions, to surrender his stock to the company and thereby relieve himself from liability upon his subscription. It was further provided that each subscriber should advance one dollar per share on one quarter of the number of shares for which he should subscribe. The object of this arrangement was, to obtain the necessary subscriptions, organize the company, and raise funds for preliminary surveys. Under this arrangement 20,400 shares of stock were subscribed for, under date of August 14th, 1844, by a few persons, funds were raised for the surveys, and an executive committee was appointed by the subscribers. The surveys were completed in February, 1845. From that time until the 19th of May, 1846, no material progress was made in organizing the company or procuring the road to be constru

<p>APPEAL from District Court, Ada County.</p> <p>It will be seen by reference to the pleadings that this is an action brought by the county to recover money paid out upon an order of the board of county commissioners, from which order no appeal was taken. Our statute provides that an appeal may be taken from any order, decision or action of the board while acting in their official capacity bjr any person aggrieved thereby or by any taxpayer of the county where any demand is allowed against the county, or when any order, decision or action of the board is prejudicial to the public interest. This statute is broad and comprehensive, providing for an appeal from any order, action or decision in allowing illegal or prejudicial claims; and it would make no difference, so far as the application of the principle of law here invoked is concerned, whether the claims of Mr. Gess were wholly and totally illegal or not, as it would yet be necessary to review the matter by an appeal. This statute has always been interpreted, as we understand, to provide the only remedy for a review of the action of the board of county commissioners. (Idaho Rev. Stats., sec. 1776; Picotte v. Watt, 3 Idaho, 447, 31 Pae. 805; Meller v. Board of Commrs., ante, p. 44, 35 Pac. 712; Davis v.. Commrs., 4 Mont. 292, 1 Pac. 750; Morgan v. Board of County Commrs., ante, p. 418, 39 Pac. 1118; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259; Broivn v. Otoe County, 6 Neb. Ill; Clark v. Dayton, 6 Neb. 192; Ragoss v. Cummings, 36 Neb. 375, 54 N. W. 683; State v. Churchill, 37 Neb. 702, 56 N. W. 484; Sioux County v. Jameson, 43 Neb. 265, 61 N. W. 596; Martin v. Supervisors, 29 N. Y. 645; Brady v. Supervisors, 2 Sand. 449; Brady v. Supervisors, 10 N. Y. 260; Boutetourt Co. v. Burger, 86 Ya. 530, 10 S. E. 264; Board of Warren Co. v. Gregory, 42 Ind. 32. J It was certainly proper under the law for the county to refuse to allow Mr. G-ess’ bills in excess of the amount which was due him according to their contention. Ther

<p>Error from the district court of Stanton county. Tried below before Powers, J.</p> <p>The opinion contains a statement of the case. •</p> <p>The answer of the defendant denies the several allegations of the petition and presents the question of the statute of frauds as one of the issues in the case. By the general denial the defendant had a right to avail itself of the invalidity of the agreement under the statute of frauds. It was unnecessary to plead the statute as a special defense. (Browne, Statute of Frauds [3d ed.], sec. 511; 8 Am. & Eng. Ency. Law, 747, note 2; Berrien v. Southaclc, 7 N. Y. Supp., 324; Fountaine v. Bush, 41 N. W. Rep. [Minn.], 465; Tatge v. Tatge, 34 Minn., 272; Smith v. Theobald, 5 S. W. Rep. [Ky.], 394; Wiswell v. Tefft, 5 Kan'., 263; Bonham v. Graig, 80 N. Car., 224; Morrison v. Baker, 81 N. Car., 76; Amburger v. Marvin, 4 E. D. Smith [N. Y.], 393; Harris v. Knickerbacker, 5 Wend. [N. Y.], 638.)</p> <p>A party cannot recover on quantum meruit under an allegation setting up a special contract. (Eyser v. Weissgerber, 2 la., 463; Freherv. Geeseka, 5 la., 472; Formhoh v. Taylor, 13 la., 500.)</p> <p>The court erred in giving conflicting instructions. ( Was-son v. Palmer, 13 Neb., 376.)</p> <p>The court erred in refusing to give the twelfth instruction asked by the defendant. (Severance v. Melick, 15 Neb., 614; Housel v. Thrall, 18 Neb., 488.)</p> <p>If the court erred in overruling the demurrer to the petition, defendant waived the error by answering over, and going to trial upon the merits. (Poüinger v. Garrison, 3 Neb., 223; Mills v.. Miller, 2 Neb., 308; Harral v. Gray, 10 Neb., 188; Eorrington v. Minnick, 15 Neb., 400; Puck v. Peed, 27 Neb., 70.) »</p> <p>The defense that a contract is within the statute of frauds, to be available to defendant, must be specially pleaded. (Lawrence v. Chase, 54 Me., 196; Graffam v. Pierce, 143 Mass., 386; Brigham v. Carlisle, 78 Ala., 243; Martin v. Blanchett, 77 Ala., 288; Qtuynnv. McCauley, 32 Ark., 97