Witter v. Mississippi, Ouachita & Red River R. R.

Mr. Chief Justice English delivered the opinion of the Court; On the 30th, April, 1857, the Mississippi, Ouachita and Red River Railroad Company commenced an action of assumpsit against Daniel T. Witter, in the Hempstead Circuit Court, to recover calls due and in arrear upon shares in the capital stock of the company subscribed by him. The declaration alleges the organization of the company under and for the purposes designated in its charter, etc.; that on the 10th September, 1852, Witter subscribed for five shares, of $100 each, of the capital stock; that the directors had made six assessments and calls up.on the stockholders, at times which are stated, from the 10th November, 1852, to the 13th of February, 1856, and that the aggregate sum of the calls due upon stock subscribed by Witter, with interest, etc., was $261 40, which he had failed to pay after due notice, etc. On the 7th June, 1858, the cause was submitted to a jury on the general issue, with leave to give special matter in evidence. Whereupon the following agreement of facts was read in evidence b3r consent of parties. “ John Dockery, and others, on the 29th of November, 1852, filed in the office of the Secretary of State of Arkansas, the charter of the Mississippi, Ouachita and Red River Railroad Company, under the general corporation law, approved 8th Januar3r, 1851, and became a corporation; and, on said 29th of November, 1852, filed in said office a certificate thereof, for the purpose of constructing a railroad from a point on the bank of the Mississippi river, at or near Gaines’ Landing, in the State of Arkansas, through, or near Camden, on the Ouachita river, thence to some point on Red river, at or near Fulton, to some point on the boundary line, between the State of Arkansas and the State of Texas; that the same charter, in substance, passed the General Assembly, and was approved on the 22d of January, 1855, and declared a public act. Before the fixing or location of the road, the defendant subscribed for and became the proprietor of the shares of stock mentioned in the declaration, of one hundred dollars each, in said company, for the purpose of aiding in the construction of said railroad, between the points specified in the said charter, and the whole number of shares is 15,000. On the 20th of October, 1853, and not before, the company commenced opening the road by making an authorized survey of the said road, and fixed, located and established the same by the authority of the company, and which has not since been changed, as follows, namely: Beginning on the west bank of the Mississippi river, at Ferguson’s point, four miles on an air line, and about eighteen miles by road, north of Gaines’ Landing, thence to Camden, and thence to Red river, and crossing at a point called the cutoff, thence to the boundary line between the State of Arkansas and the State of Texas, and this is the present, fixed, established, and located line of said road, by the authority of the company. Fulton, on a straight or air line, is twenty miles north of the cut-off, and, by usual traveling wagon-road, forty miles, and both points are on the east bank of Red river. Dooley’s Ferry is ten miles south of Fulton, on a straight or air line, and twenty miles by the usual traveling wagon road. The cut-off is ten miles south of Dooley’s Ferry, on Red river, by an air line, and twenty miles by the usual traveling wagon road. Fulton is the highest of the three points. The hills run in near to Fulton, and the overflow there, east of Red river, is not over two or three hundred yards wide. The road, as established and located from Camden to the cut-off, does not touch or pass through Hempstead county at all (where defendant resides), and the nearest point is about one mile. If the line of the road had been fixed and located on a straight line to Dooley’s Ferry, it would have passed through the eastern portion of Hempstead county. If it had been run to Fulton, it would have passed through the entire length and a large part of the southern portion of Hempstead county. Fulton is the contemplated terminus on Red river of the Cairo and Fulton Railroad, and has been a place of notoriety and business for twenty years, and more. According to the survey and report of the engineer of the company, made in 1854, and adopted by the company, it appears that the distance from Ferguson’s point, on the Mississippi river, to Fulton, on Red river, by way of Camden, is 163 miles, 2,141 feet, and the estimated cost of construction $436,-268 48. From Ferguson’s, by way of Camden, to Dooley’s Ferry, on Red river, 155 miles, 2,465 feet, and the estimated cost of construction $421,254 92. From Ferguson’s, by way of Camden, to the cut-off., on Red river, and which has been made the point of crossing Red river, 154 miles, 3,945 feet, and the cost of construction $436,-692 74. From Camden to Fulton, on Red river, 68 miles, 3,165 feet, and estimated cost of construction $157,649 98. From Camden to Dooley’s Ferry, on Red river, 60 miles, 3,200 feet, and estimated cost of construction of the road $142,636 36. From Camden to the cut-off, on Red river, 59 miles, 4,680 feet, and estimated cost of construction $158,074 18; and of these several routes, the engineer, in the said report, says: From the result of the experimental survey, it may fairly be assumed that, in point of grade, curvature and general practicability, there is no preference to be given to any one of these routes, until you reach the approaches to Red fiver, when, unquestionably, that by way of Dooley’s Ferry is the best, from the fact that the banks of this stream are reached on an elevated ridge instead of through an overflow. The routes to Red river at Dooley’s Ferry and the cut-off, will, upon a revision of the line, place them upon an equality in respect to distance, with cost in favor of Dooley’s ferry. The crossing of Red river can be easily effected at either place by a bridge of moderate cost. The route then to the Texas terminus, would be about the same, presenting no obstacles to the construction of a cheap and permanent road. I am of the opinion that the requirements of your charter will be fully complied with by crossing the river at Dooley’s ferry. As to whether your road could be removed so far south as the Cut off, without a violation of your charter, is a question which I leave to your superior knowledge in these matters. Fulton is on section 20, township 13 south, range 26 west, and the cut-off is in section 22, township 16 south, range 23 west; Camden is in section 23, township 13 south, range 17 west. The road has not been fully constructed, nor are there means in the hands of the company, now sufficient, collected, with which to construct and complete the same, but some grading has been done upon the road between Ferguson’s and Camden. Not much has been doné on the line of road from Camden to the cut-off, on Red river; but the company is still in existence, and has its officers and agents, and are still prosecuting the work of the eastern division of the road. There is no evidence of any direct assent or dissent, on the part of the defendant, to the establishment and location of said road, only that the defendant refused to pay, after the location thereof at the cutoff, instead of at Fulton. The calls sued for, were regularly made, and have not been paid by the defendant. The interest on calls is ten per cent, from the time they become due until paid; and, of the calls made, the defendant was duly notified, as required by the charter of said company. The calls have not exceeded 33-J per cent, per annum. The calls sued for, with interest unpaid, amount to the sum stated in the declaration. All of which evidence was admitted by consent, and without objection,” Witter then proved, “ that John Dockery was President and general agent of the company, and, to obtain subscriptions in questions, stated and represented, in public speeches and private conversations, and as an inducement to so subscribe, that the road contemplated by the charter would fun through Hemp-stead county, to Fulton, and would thus be a great benefit to the people of the county, and would be good stock; and Witter made the subscription under the belief and on the understanding that the road would be fixed, established, located and run to the points indicated in the charter.” Which testimony, on the motion of plaintiff, the Court excluded, and the defendant excepted. The defendant also proved that “ at the cut-off the bottom, east of Red river, is six or eight miles wide, and subject to an overflow of four feet in depth; on the west, opposite Fulton, Dooley’s ferry and the cut-off the bottom is subject to an average depth of overflow of about five feet.” Which evidence was also excluded, on motion of the plaintiff etc. The Court, at the instance of the plaintiff and against the objection of defendant, instructed the jury as follows: “If the jury believe, from the testimony, that defendant subscribed for and took the number of shares of stock in said company, alleged in the declaration, and that the calls were regularly made thereon, as alleged, and defendant had due notice of such calls, agreeable to the requisitions of the charter of the company, and that none of such calls have exceeded thirty-three and one-third per centum per annum on said stock, and that these calls have not been paid as alleged, then the jury will be bound to find for the plaintiff and they will assess the damages to the amount of such calls, with the interest thereon, severally accrued from the time the same became due and payable up to the present moment, at the rate of ten per centum per annum.” The defendant moved the Court to instruct the jury as follows, viz: “1. To entitle the plaintiff to recover in this action, the material allegations in the declaration must have been proved to the satisfaction of the jury. “ 2. If it appear that a charter was granted for the purpose of constructing a railroad from a point on the bank of the Mississippi river, at or near Gaines’ Landing, in the State of Arkansas, through or near Camden, on the Ouachita river, thence to some point on Red river, at or near Fulton, to some point on the boundary line between the State of Arkansas and the State of Texas, and that the defendant subscribed to the location, building and construction of said road, it is a contract of mutual obligation, requiring a compliance with the charter in that respect, on the part of the company, and payment or compliance, on the part of the defendant, and if it also appears that the plaintiff, after such subscription, fixed, established and located the road, from Camden to Red river, at the cut-off, on Red river, instead of at a point at or near Fulton, and that such deviation is material and substantial, it amounts to anon-compliance of the contract and agreement, on the part of the plaintiff, and deprives it of the right of recovering the calls in question, unless it further appears that the change in the road was assented to by the defendant. “ 3. Where the line or route of a road, with points of beginning and ending, are specified in a charter, and a person becomes a subscriber for stock in such road, it is a contract that the road shall be fixed, located and constructed on the line or route thus specified, with only such- necessary deviations as the work, in its progress, may require, and a material and a substantial change in the route or location of the road, by the corporation, without the assent of the stockholders, is a violation of the contract on the part of the corporation, and discharges him from liability on his subscription.” The first was given, but the second and third were objected to by the plaintiff, and the same were refused, to which decision the defendant excepted. The jury returned a verdict in favor of the plaintiff for the amount of calls, etc., sued for; and the defendant moved for a new trial, on the grounds that the verdict was contrary to law and evidence — that the Court excluded from the jury competent evidence offered by the defendant — misdirected the jury on the motion of the plaintiff, and refused instructions moved by defendant, etc. The motion was overruled, the defendant excepted, and appealed. In this Court the parties have made an agreement of record as follows: “ It is agreed that all the aets of the Legislature, in relation to the Mississippi, Ouachita and Red River Railroad, were referred to as evidence, and treated as public acts, and are to be noticed as such; that they were solicited and accepted by the President and Directors of said company, under the authority of a majority of the stockholders of said company. That this be taken as part of the bill of exceptions, as if actually inserted therein, and be applied to all the cases of said company in this Court brought to January term, 1859, from Hempstead county.” The corporation was formed, as expressed in the third section of its charter, (Acts of 1844, p. 221,) for the purpose of constructing and maintaining a railroad from a point on the bank of the Mississippi river, at or near Gaines’ Landing, through or near Camden to some point on Red river, at or near Fulton, thence to some point on the boundary line between the State of Arkansas and the State of Texas. Thus the charter fixed the general course of the road, and definitely designated the point from which it was to start, two points by which it was to pass, and definitely the point where it was to terminate. These points were doubtless fixed upon by a concurrence of the views of the persons who were concerned in getting up and putting on foot the enterprise of constructing the road, and were inserted in it, and established by the charter. The location of the line of the road between these points, was left to the President and Directors of the corporation, {sec. 17,) aided, of course, by competent engineers, etc. And even as to the fixed points, a reasonable latitude was allowed them, in order to enable them to place the road upon the most advantageous ground at or near those points. It was to construct a railroad upon the route thus fixed by the charter, that the appellant became a subscriber to the capital stock of the company, and the charter was the law of his contract. It appears that after the charter of the company was drafted and filed in the office of the Secretary of State, under the general corporation law, and after the appellant became a stockholder, the President and Directors of the company caused an experimental survey to be made of the route, by an engineer, and upon his report, abandoned Fulton as the crossing point on Red river, and located the road so as to cross the river at the cut-off, twenty miles distant from Fulton, on a direct line; giving the cut-off preference also to Dooly’s ferry, a crossing point ten miles nearer to Fulton than the cut-off’, and which, according to the engineer’s report, was equally, if not more, eligible than the cut-off. After the road had been so located, the act of 14th January, 1857, (Pamph. Acts 1856, p. Ill,) was passed, the 4th section of which is as follows: “ That said company may, and shall have power to locate the line of said road, between the termini thereof by the way of Camden, and at or near said termini, so as to comply with the true meaning and intention of said act for the construction of said road, in what said company may deem the most practicable manner, and best for its interest; and that such line and location of said road and termini as said company shall have adopted, or may adopt, shall be in all respects valid and binding as if specified at length in the charter of said company. One of the objects of this section was, doubtless, to sanction the abandonment of Fulton, by the company, as a crossing point, on Red river. The effect of the section manifestly is, that the road shall begin and terminate at or near the points — the termini designated in the charter, and shall pass “ byway of Camden,,” but the line of the road from Camden to the boundary line between Arkansas and Texas, was to be as it had been, or might be adopted by the company. The company was not to be bound, however, to locate or construct the road so as to cross Red river at or near Fulton. This conclusion is inevitable, we think, because Camden is still designated as a passing point between the termini of the road, and Fulton is not — Fulton is evidently ignored. The 21st section of the original charter of the company is as follows: “ The said company hereby reserves to itself the right either to accept or reject any act of the General Assembly, altering or amending this charter, which shall be decided by the vote of a majority of all the stock, exclusive of that taken by the State, at a meeting of the stockholders, regularly convened for that purpose.” If the act of 14th January, 1857, was accepted by stockholders representing a majority of all the stock, etc., as provided by the above section of the charter, its provisions are obligatory upon the appellant, and all other persons who have subscribed for stock in the company; because it was a part of the law of their contract of subscription, that amendments made to the charter by the General Assembly might be accepted by a vote of a majority of all the stock. The agreement of the parties, made of record in this Court, is, that the act referred to, etc., was accepted by the President and Directors of the company, under the authority of a majority of the stockholders, etc. But this agreement fails to show an acceptance of the act as provided by the 21st section of the charter, because it does not appear that a majority of all the stock was owned or represented by the majority of the stockholders,, who accepted the act, etc., etc. The stockholders, however, who solicited or assented to the passage of the act are bound by it; but if the appellant has not assented to it, he is released from his contract of subscription, if the act sanctions or authorizes a material departure from the route prescribed for the location of the road by the provisions of the charter under which he became a stockholder. Such, at least, seems to be the rule established by the current of decisions on the subject. See Middlesex Turnpike Co. vs. Locke, 8 Mass. 268; Same corporation vs. Swan, 10 ib. 385; The Proprietors of the Union Locks and Canals vs. Towne, 1 N. H. 44; Hester vs. Memphis & Charleston R. R. Co. 32 Miss. R. 378; The Hartford & New Haven Railroad Co. vs. Croswell, 5 Hill (N. Y.) 382; Barret vs. The Alton & Sangamon Railroad Co., 13 Ill. 540; Pierce on Am. R. R. L., p. 78 to 100; Winter vs. Muscogee Railroad Co. 11 Geo. R. 438; Mississippi, Ouachita and Red River Railroad Co. vs. Cross, ante. Mr. Justice Woodbury, in the case cited from 1 N. Hamp., aptly expresses the principles upon which this rule is founded. He says: “ This is a dispute between a private corporation and one of its members. A recurrence to the nature of the liabilities of members to their own corporation, will, we apprehend, divest the case of many of its difficulties. Every individual owner of shares, etc., expects, and indeed, stipulates with the other owners, as a corporate body, to pay them his proportion of the expense, which a majority may please to incur in the promotion of the particular object of the corporation. “ To make a valid change in this private contract, as in any other, the assent of both parties is indispensable. The corpotion, on one part, can assent by a vote of the majority; the individual, on the other part, by his own personal act. However the corporation, then, may be bound by the assent to the additional acts, (of the Legislature,) this defendant, in his individual capacity, having never consented to either of them, is under no obligations to the plaintiffs, except what he incurred by becoming a member under the first act. Consequently, the assessments sued for, if raised to advance objects essentially different, or the same objects in methods essentially different from those originally contemplated, are not made in conformity to the defendant’s special contract with the corporation, and this action, sustainable on that contract alone, cannot be supported * * * * Notwithstanding the laudable object and great utility of the additional acts, still, if they effected a material change, he is able to say non hcec in fcederá veniP In the case of Winter vs. The Muscogee Railroad Company, the Supreme Court of .Georgia said; “We do not pretend to deny that alterations may be made in the chartej of an incorporated company, in furtherance of the design and objects of the company; but in all such cases, due regard must always be had to the inviolability of private contracts. The original contract of the parties cannot be materially or essentially altered by an amendment of the charter, so as to bind the subscribers thereto, without their consent.” The counsel for the appellee insist, however, that the change of location is not a material one, in the case now before us, in the legal interpretation of the word; and that the appellant cannot avail himself of the change to absolve himself from his contract with the company, because the change is prejudicial to his individual interest, etc. That the change is shown to be advantageous to the company — that there was no change as to the termini, but only as to an intermediate point — no change of corporate object or identity — that the road, as located, will still accommodate the same trade and transportation, and substantially subserve the same general interests which the enterprise contemplated to subserve at its inception, etc. This is, doubtless, the great question in this case — whether the abandonment of Fulton, as a crossing point, on Red river, and the location of the road so as to cross the river at the cut-off, twenty miles from Fulton, is a material change in the location of the road, in the legal sense of the term. The case of Barret vs. The Alton & Sangamon Railroad Co., 13 Ill. 506, favors, to some extent, the positions taken by the counsel for the appellee, as above stated. In that case, the charter under which Barret subscribed for stock, provided for the location of the road from Alton, on the Mississippi river, in Madison county, by the way of Carlinville, in Macoupin county, New Berlin, in Sangamon county, to the city of Springfield, in the county of Sangamon. The Legislature passed an amending act, authorizing the company to change the location of the road so as to run the same direct from Carlinville to Springfield. The board of directors accepted the provisions of the act, and changed the route of the road accordingly. By this change the line of road was shortened about twelve miles, and the aggregate cost of construction considerably lessened; but did not run within twelve miles of New Berlin. Barret actively opposed the passage of the law, and the change in the route of the road'. The alteration was generally desired by the stockholders. Although Barret was a resident of Springfield, he was largely interested in real estate in the immediate vicinity of New Berlin, the value of which would have been much enhanced by the construction of the road through that place. He was sued for assessments upon his stock, and relied upon the alteration in the route of the road under the act amending the charter, as a defence to the action. The Supreme Court of Illinois held that the change in the route was not such as to release him from his contract of subscription. The judge who delivered the opinion of the Court, said: The special reasons which may have influenced him to become a subscriber to the stock of the company cannot be taken into consideration. * * * * * It is wholly immaterial whether he became a subscriber because he believed that the stock would, of itself, be a profitable investment, or because of the incidental benefit which he might receive from the construction of the road in the immediate vicinity of his lands. *' * * * * The rule in relation to contracts of this character must be general in its operation. What will discharge one stockholder from the payment of his subscription, must be held to have the same effect as to others. * * * * The matter of injury to one, or of benefit to another, cannot affect their respective liabilities. The true question, then, is not whether the defendant was deprived of any incidental benefit by the change in the location of the road, but whether the amendment of the charter worked such a change in the compaay as releases the subscribers from their engagements, at least, such of them as have not assented to the alteration. * * * * * * An alteration in a charter may be so extensive as to work a dissolution of the contract of subscription. An amendment, which essentially changes the nature or object of a corporation, will not be binding on the stockholders. * *' * * A road intended to secure the advantages of a particular line of travel and transportation, cannot be so changed as to defeat that general object. The corparation must remain substantially the same, and be designed to accorfiplishthe same general purposes, and subserve the same general interests. But such amendments of the charter as may be considered useful to the public, and beneficial to the corporation, and which will not divert its property to new and different purposes, may be made without absolving their subscribers from their engagements. The straightening of the line of the road, the location of a bridge at a different place on a stream, or a deviation in the route from an intermediate point, will not have the effect to destroy or impair the contract between the corporation and the subscribers. * * * * The incidental benefits which a few subscribers may realize from a particular location, ought not to interfere with the general interests of the public, and of the great mass of the corporators. * * * The subscribers are sufficiently protected against any invasion of their legitimate rights. The original location must be pursued, unless a change is sanctioned by the Legislature. The alteration must be accepted by the managers of the company, before it becomes obligatory on the stockholders. And the latter will not even then be bound, if their interests are materially affected by the alteration; and in such case they may not only avoid the payment of their subscriptions, but may recover back such sums as they have advanced thereon. * * * The alteration in the present case (continues the Judge) is not of such a radical character as to exonerate the stockholders from the payment of their subscriptio'ns. The general features and objects of the corporation continue unchanged. The termini of the road remain the same, the only change consisting in a, deviation from an intermediate point. The work is still designed to accommodate the same line of travel and transportation, and promote the same general interests. The length of the road is reduced, and the cost of construction diminished. The change will be useful to the public,” etc. In Hester vs. Memphis and Charleston Railroad Co. 32 Miss. Rep. 380, Hester relied upon a change of location of the road to release him from his contract of subscription for stock, etc., and the court said: “ It appears by the acts of the Legislature in question, etc., that the route of the road was prescribed in the act of 1850, to begin at some point on the northern boundary of this State, and pass through the town of Holly Springs, and thence easterly through this State, to some point on the Alabama line, and it is admitted by the pleadings that the plaintiff in error became a subscriber under that charter, etc. The act of 1854 repealed all parts of the act of 1850 inconsistent wdth it, and gave the company power to enter the State at any point on its northern boundary, and to pass out of it at any point they might desire, on the eastern boundary, and it is averred that by virtue of this act the road has been located upon an entirely different route from that prescribed in the act of 1850. It appears by the geographical position of the country, that if the road had been constructed from Holly Springs to the eastern line of the State, it must have passed through the counties of Tippah and Tishomingo, in the latter of which the plaintiff in error resided; and this may he fairly presumed to have been a consideration to his subscribing for stock. * * * Under these circumstances was he bound to pay his subscription? He had agreed to become a stockholder in the road as located by the charter,of 1850. His contract of subscription had direct reference to that charter, and the road as located by it, and that location was most material to his rights and obligations as a member of the company, inasmuch'as the State had no power without his consent to change it, nor had the corporate authorities, nor a majority of the members the power to bind him to the alteration which the State might make at their instance, without his consent, there being no such power in the charter. He was bound to pay for the purpose of constructing the particular road in which he had agreed to become a stockholder; and when the route which was fixed when he became a subscriber, was materially changed, he had the right to consider the enterprise to which.he had bound himself, as abandoned and his contract at an end. These principles are well sustained by authority * * * * * and are sanctioned by this court in New Orleans, etc. R. R. Co. vs. Harris, 27 Miss. R. 517.” This case is more in accordance with our views of the law than the case in 13 Illinois. Both cases, however, agree in the general principle, that the change in the location of the road which will release a non-assenting subscriber, must be a material one — and the application of the rule to particular cases, must necessarily be controlled, to some extent, by surrounding circumstances, the character and condition of the country through which the road is to be constructed, the interests to be subserved, and the objects to be accomplished by the enterprise. And the apparent want of harmony in the decisions arises more, perhaps, from the diversity of circumstances under which the rule is applied than from any difference of opinion as to what the rule is. In Hcster,s case, the charter under which he subscribed required the road to pass through Holly Springs, and upon that route it would have passed through his county. By the amendment of the charter, no change was contemplated in the points where the road was to enter, and depart from the State of Mississippi, but an abandonment of Holly Springs as an intermediate point, was authorized by the amendment, and consequently the road did not pass through the county in which Hester resided, as the route to which he subscribed would have done. This was decided to be a material departure, and an unwarranted invasion of his contract, notwithstanding the new route accommodated, perhaps, the same line of travel and transportation, and substantially subserved the same general interest. The primary object of the route fixed by the original charter of the appellee, was not, perhaps, so much to accommodate any great line of travel, transportation or channel of commerce as to connect with the Mississippi river the districts of country through which it was to pass, to develop and accommodate the agricultural and other interests along the line of the road, afford facilities for the transportation of the products of the country, and doubtless to enhance the value of real property, etc. Perhaps the subscribers looked ultimately to a connection on the boundary line of the State, beyond Fulton, with a great railroad, to be constructed from thence to the Pacific ocean. But the primary objects of the enterprise being such as are above indicated, perhaps more consequence was attached by the subscribers to intermediate points than would have been if the primary purpose of the enterprise had been to accommodate some great line of travel, transportation or channel of commerce flowing in at the termini of the route. Be all this as it may, it was as much a part of the contract of the appellant under the charter, that the road should be so located as to cross Red river at or near Fulton, as it was that it should start from a point on the Mississippi river, at or near Gaines’ Landing, pass through or near Camden, and terminate at a point beyond Fulton, on the boundary line between this State and Texas. The same law which designated the termini of the route, fixed the .intermediate points; and we have no warrant for saying that the Legislature in enacting the charter, or the appellant in becoming a stockholder under it, attached more consequence to one than the other. If the company could depart twenty miles from Fulton, in fixing a crossing point on Red river, without any violation of the appellant’s contract, they could have departed an equal distance from Camden in fixing the line of the road from one terminus to the other, without any invasion of the contracts, or release of the large body of subscribers who were doubtless induced to take stock in the road in consequence of the provision in the charter that it should pass through or near that place. If the company had desired to keep within the spirit of the charter, and depart from Fulton so far only as was necessary to fix upon the most advantageous point for crossing Red river to be obtained at or near that place, it appears from the report of the engineer that this object might have been accomplished without departing so far from Ful ten as the Cut-off, Dooly’s ferry being, in his judgment, an equally, if not more eligible crossing point, and ten miles nearer to Fulton than the cut-off. Motives of policy rather than necessity, must therefore have induced the selection of the cut-off as the crossing point. There is no evidence that the appellant assented to this change in the route, or to the passage of the act sanctioning it; on the contrary, the agreement of the parties is that he refused to pay assessments upon his stock after the location of the road at the cut-off instead of Fulton. No absolute rule can be laid down as to what is a material departure to be applied to all cases, each case depending very much upon its own peculiar circumstances. The materiality of the change is treated in the decisions referred to in the course of this opinion, as a question of law to be determined by the court, upon facts ascertained by the jury, or agreed upon by the parties; and so we have treated the question in this case. Our conclusion is, that the departure from Fulton was material and unauthorized by the charter under which the appellant became a subscriber for stock in the road, and there being no evidence that he solicited, or assented to the passage of the act sanctioning the departure; or that the act was accepted by a vote of a majority of all the stock, etc., he was released from his contract of subscription, and the verdict of the jury upon the evidence, should have been in his favor. The judgment of the court below refusing the appellant a new trial, must be reversed, and the cause remanded with in structions to grant him a new trial, etc., etc. The foregoing opinion applied also to the cases of Witter vs. Mississippi Ouachita and Red River R. R. Co. Hannah vs. same same. same vs. same same. Smith vs. same same. same vs. same same. N. W. Smith vs. same same. same vs. same same. Mitchell vs. same same. same vs. same same. Phillips vs. same same. same vs. same same. Blevins vs. same same. Collins vs. same same. Conway vs. same same. Cross vs. same same. Ferguson vs. same same. Purdom vs. same same. On appeal from the Circuit Court of Hempstead county.