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entitling the company to make their terminus in this field, the court held they could not interfere, as it would in effect be saying that the railway should not commence at the place at which the legislature had appointed it to commence. (1)

212. But suppose that, after the agreement is made for the party's giving his assent to the undertaking on certain terms, a material change is made in the organization of such undertaking, as, for instance, where the line of railway, the name, members, or the like are varied; still if the projectors, under their new organization, adopt and make use of that assent in obtaining their act, the persons incorporated by that act cannot refuse to deal with the party on the terms of the agreement. (m) If, on the other hand, the new association do not make use of the party's assent in obtaining the desired powers, there would seem to be no equity for the company who succeed in their place being bound by the terms on which that assent was given. (n)

213. Although a court of equity so far recognizes the connection between the company and the original projectors as to restrain the former from exercising the powers conferred by the act, in violation of arrangements made with the latter, and on the faith of which the act has been obtained; yet it seems highly questionable whether this doctrine can

(1) Hargreaves v. The Lancaster and Preston Junction Railway Campany, 1 Railw. Cas. 430.

(m) Stanley v. The Chester and Birkenhead Railway Company, 1 Railw. Cas. 58; S. C. 3 Myl. & Cr. 773; 9 Sim. 264.

(n) See the argument and the judgment of the Vice-Chancellor in Greenhalgh v. The Manchester and Birmingham Railway Company, 1 Railw. Cas. 92; S. C. 9 Sim. 416.

be carried further than what is requisite for securing to the opposite party the protection for which he bargained, and whether accordingly, as long as the company are content to lie by and make no use of the powers of their act in derogation of good faith, such opposite party can enforce a specific performance of the supposed engagement. Such a doctrine is at least open to very strong objection, on account of its manifest tendency to force upon the company the performance of what may often be in contravention of the tenor and purpose of their act, and so unduly to interfere with the discretion given them by the act. (0)

214. 1stly. Of the nature and effects of a contract, assuming it to be such as a railway company is capable of concluding, and 2ndly, to be so concluded as to bind the company; and herein, 1st, of the requisites of such contract; 2ndly, of the laws of construction by which it is governed; and 3rdly, of its legal incidents.

215. 1st. The requisites of a contract concluded by a railway company, so far as regards either the substance or form, differ in nothing from those of the contract of any ordinary person. There must therefore be, 1st, an opposite party capable of being contracted with; 2ndly, a mutual assent; 3rdly, a good consideration; 4thly, a lawful subject matter; and lastly, where the contract is such as falls within the Statute of Frauds, the requisites of that statute must be complied with. To instance the second proposition, a negotiation was entered into between the

(o); See Tomlinson v. The Manchester and Birmingham Railway Company, 2 Railw. Cas. 104.

respective agents of a canal company and an intended railway company about the withdrawal of opposition by the former to the latter's bill. The agent of the railway projectors in the first instance made an offer, which the agent of the other side rejected; the latter, however, subsequently became anxious to renew the treaty, and made an offer on his part embodying certain terms. The agent of the railway projectors acceding to these terms only in part, the agent of the canal company in the first instance refused to close with him, and again broke off the treaty; but subsequently he became willing to accept the proposed terms, and wrote to that effect to the other party, who, however, took no notice of the communication: it was held that, after rejecting the offer of the other side, the agent of the canal company was not at liberty at his own option, without the renewed concurrence of the former, to convert that offer into a binding agreement; and that there being no mutual consent, an agreement was never obtained; and a bill, consequently praying a specific performance of the supposed agreement on behalf of the canal company, was dismissed with costs. (p)

216. Again, to consider the fourth requisite, viz. the legality, &c. of the subject matter. Where a contract, which it is sought to enforce against the company, is illegal, or inconsistent with the company's act, and prejudicial to the shareholders, or such as the company are only induced to conclude by some

(p) Sheffield Canal Company v. Sheffield and Rotherham Railway Company, 3 Railw. Cas. 121. There is, however, an appeal pending in this case.

fraud, misrepresentation, or other dishonest practice on the part of the opposite party, the company are not liable. (q)

217. As to what is a sufficient compliance with the Statute of Frauds; where an order is given by a railway company for goods of more than 107. value, some of which are ready made at the time of the contract, and the rest are to be manufactured according to order, and the goods which are ready made are afterwards delivered and paid for, the acceptance of them is a part acceptance of the whole, such as satisfies the provisions of the Statute of Frauds, 29 Car. 2, c. 3, s. 17, and the 9 Geo. 4, c. 14, s. 7, as the whole forms one entire contract. (1)

218. 2ndly. The same laws of construction are applicable to the contracts of railway companies as to those of ordinary persons. The intention of the parties accordingly, as it is collected from the entire agreement, must be taken as the governing principle of interpretation in regard of all (s) such con

(9) Hill v. Manchester and Salford Water Works Company, 2 B. & Ad. 544; case of same name, 5 B. & Ad. 866; Clarke v. Imperial Gas Light and Coke Company, 4 B. & Ad. 315.

(r) Scott v. Eastern Counties Railway Company, 12 M. & W. 33.

(s) Jones v. The Great Western Railway Company, 1 Railw. Cas. 684. In that case there was an agreement for the purchase of a portion of a field by the company for 2291.; 1201. for the land, and 1091. for compensation for damage. The agreement contained a stipulation that in case additional land was wanted it should be taken and paid for at the same rate per acre. It was held that the company, upon their wanting a second portion of the same field, were to pay for it at the same rate per acre as for the former piece, and likewise for the damage that might be


tracts. A contract for the supply of locomotive engines contained a provision that each engine should be subject to the performance of a distance of 1000 miles with proper loads, and that a month should be allowed for the trial, during which time the manufacturers were to be liable for any breakage which might occur, if arising from defective materials or workmanship; but that if the company did not avail themselves of the trial, or it proved satisfactory, the manufacturers should be released from all further responsibility in respect of the engines. It was also agreed that the fire-boxes should be made of copper 7-16ths of an inch thick, and that the best materials and workmanship should be used. It was held that the obvious intention of the parties was by the trial to put an end to all questions as to the quality of the work and materials, and that consequently, after the trial was over and had proved satisfactory, the company could not, in the absence of fraud, take any objection on that score, though nine months afterwards one of the fire-boxes burst, when it was discovered that the copper was reduced to the thickness of 3-16ths of an inch. (t)

219. 3rdly. A contract to which a railway company is a party carries with it the like incidents as an ordinary contract. Where there is a condition precedent imposed by the contract on the opposite party, he must show it to have been performed or dispensed with, to entitle himself to recover against the com

done by the severance in addition; as the former payment could not be meant to include the damage.

(1) Sharpe v. Great Western Railway Company, 2 Railw. Cas. 722; S. C. 9 M. & W. 7.

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