Mineral Point Railroad Co. v. Keep.

that the causes of action accrued to defendant in Wisconsin and not elsewhere.

That plaintiff and defendant are non-residents of Illinois, and that both reside in Wisconsin, and plaintiff is a corporation created and existing under the laws of Wisconsin, and keeps its office and place of business there, and has none in Illinois.

That contract and cause of action sued for were created and to be performed in Wisconsin, where both parties then did and still do reside. Properly sworn to.

On leave, defendant filed two replications to above plea.

1st. That plaintiff is a body corporate in Illinois, and existing, doing business, and having an office in said State, under the act of February 15, 1855.

2nd. That under the act of 15th February, 1855, plaintiff built and is now operating a railroad from the dividing line of the States of Wisconsin and Illinois, to the depot of the Illinois Central Railroad at Warren, in Jo Daviess county, and was, at the date of the suit, transporting persons and property upon it. Demurrer, general and special, to these replications, overruled. There was a rejoinder to replications, and trial, and verdict for defendant.

Motion for a new trial was overruled and excepted to, with judgment of respondeat ouster.

David B. Martin and Lucius D. Coman file an interpleader, and state,

That the property attached belongs to them, as mortgagees, by mortgage dated 1st January, 1856, recorded 25th April, 1856, of all the road bed, superstructure and equipment, for securing bonds and coupons for $320,000.

Issue was joined on this plea, and trial and verdict for interpleaders and judgment for them, and that sheriff deliver up the property attached to said interpleaders.

The court modified the judgment by vacating that part which required the sheriff to deliver up the property to them.

Defendant below, upon affidavit, moved to set aside this last order, and for an order to the sheriff to return the property attached, to the interpleaders, which the court overruled.

Defendant below then filed the following pleas :

1st.

2nd.

General issue.

Set-off, and account filed under it.

3rd. Non est factum, without oath.

4th. Non-performance of condition of contracts by plaintiff. 5th. Non damnificatus.

6th.

Payment.

7th. Performance by defendant of all the conditions of the contracts.

Mineral Point Railroad Co. v. Keep.

8th. Non-performance by defendant of his contract to build road, viz.: did not construct the road in time and in a workmanlike manner.

General replication to each plea.

Defendant withdrew the items of his set-off for $5,000 for subscription to stock of company by plaintiff.

Before the cause came on for trial, the defendant moved for leave to re-file the foregoing item, having since its withdrawal procured evidence to establish it. Which was allowed.

The contract between the plaintiff and defendant for the construction of the road, dated 6th September, 1854, and the accompanying estimates and specifications, were read.

Plaintiff offered to read his own letter of the notice of his intention to abandon the contract in evidence. Defendant objected. Overruled, and the following letter was read:

HON. PARLEY EATON, President, etc.

Warren, December 15, 1856.

Dr. Sir:-On account of the failure of the Mineral Point Railroad Company to pay my estimates for the last three months, and their total failure to pay me anything on my estimate due the 10th inst., I am compelled to declare the contract between me and the company, dated Sept. 6th, 1855, forfeited, for such failure on the part of the company. I have carried along the work and raised the money as long as I can do it. I did intend to go through even if I had to advance all the estimates, but find that I cannot without the company pay estimates, and therefore for such default, am compelled to declare the contract forfeited. The work on section 31 will be suspended entirely. My sub-contractors on other parts of the road will finish their contracts under me, or I shall fulfill my contracts with them. But it must be understood that no future work is done under my contract aforesaid of Sept. 6, 1855. The company can take possession of the whole road if they desire it, and I will settle with my sub-contractors, or they can let them finish their jobs, just as they choose. If they go on and finish, as I am willing they should do, I shall pay them as I contracted. I shall claim of the company what the work is worth. I take this step very reluctantly, gentlemen, I can assure you, but I am compelled to do it. I am desirous of making an amicable settlement with the company, if it can be done, aud will endeavor to do what is right. I shall be at Janesville next week, and I hope to hear from you and perhaps see you. Judge Eaton and Mr. Temple could undoubtedly arrange the whole matter with me satisfactorily.

Yours truly,

J M. KEEP.

M. H. Carpenter, sworn. Says he is attorney for defendant, and was such on a former trial of this case; that he heard the testimony of Charles Temple, a witness for defendant on that trial, since deceased. That he took down the testimony of said Temple at the time, and then produced the minutes so made by him on that trial, and that he believed the minutes so taken by him were correct. That he could not state his testimony min

Mineral Point Railroad Co. v. Keep.

utely from his recollection, but must rely upon his minutes taken at the time.

He then read from the minutes so kept and produced by him. To the reading of the whole testimony from the minutes, the plaintiff objected.

The defendant then called and examined several witnesses. The defendant below offered the receipt of T. C. Holcomb, for $1,007.12, and thereupon examined W. T. Henry in explanation thereof, who stated,

That Holcomb was a sub-contractor under defendant. Keep ordered me to take his receipts and give him vouchers for them. This receipt was for money advanced, less fifteen per cent. Defendant said I might advance to within the amount due from defendant to the sub-contractor. We had an account of Holcomb's work. Engineer reported the work of each section distinct. Defendant authorized us to pay Holcomb, so we did not exceed what was due defendant from him to Holcomb.

The Holcomb order, composed of items amounting to $1,007.12, was read in evidence.

The court, at the instance of defendant, gave the following instruction, among others:

"4th. If the jury believe, from the evidence, that the defendant made advances to one Holcomb, and seeks to charge the defendant with such advances, then the jury should reject the testimony, unless the plaintiff has shown further, by the evidence, that the defendant was indebted to said Holcomb, at the time of making such advances, to an amount equal to the money advanced, if such was the limit of the authority to plaintiff to make such advances."

At instance of plaintiff, the court instructed the jury as follows, among others, viz.:

"4th. If the jury believe, from the evidence, that advances were made to defendant by the company, and, at the time the advances were made, it was the agreement between the defendant and the company, that the same were to be taken out of any subsequent estimates due him, and that estimates were made defendant afterwards, and the company elected to take the estimates out of such estimates, the retaining payment out of such estimates by the company, is not such a non-performance and default on the part of the company, as would authorize defendant to declare the contract terminated."

"5th. That under the contract sued on this cause, the plaintiff was authorized to retain fifteen per cent., which was not demandable until the completion of the contract; and if the jury believe, from the evidence, that the defendant abandoned the work voluntarily, and did not complete the contract, with

14

OTTAWA, APRIL TERM, 1859.

Mineral Point Railroad Co. v. Keep.

out fault on the part of the company, then the defendant cannot recover the retained per cent. in an action based upon the contract, and as to that item the jury should find for the plaintiff."

"7th. The covenant in this contract to pay at the end of each month for the work done during that month, was dependent upon the progress of the work, so far as respects the amount to be paid, but was not dependent on the covenant to finish the work by a certain day; these are independent covenants; and if the defendant covenanted to complete the work, and refused and neglected to complete the same, he cannot recover for work not done by him."

"9th. The defendant cannot recover under the contract for any more work than was done by him up to the time he rescinded it."

The jury found a verdict for the defendant for the sum of $10,749.38 debt, and $982.37 damages.

Plaintiff moved for a new trial, which was overruled, and judgment rendered for the amount, to all which the plaintiff excepted.

The following errors are assigned:

1st. The court erred in overruling plaintiff's motion to quash the writ of attachment for want of a sufficient affidavit.

2nd. In sustaining a writ of attachment against a domestic corporation created by the laws of this State.

3rd. In sustaining the defendant's demurrer to the plaintiff's plea in abatement to the facts set forth in the affidavit for attachment.

4th. The court erred in entertaining jurisdiction of the cause under the summons; because there was no service on any person in the employ of, or connected with the company.

5th. In striking from the files the affidavits of the persons on whom the pretended service was made.

6th. The affidavit does not contradict, but explains the return of the sheriff, and should have been received by the court.

8th. In requiring the plaintiff to plead to the action, and in holding the service sufficient.

9th. In taking jurisdiction of the cause, there being no notice under the attachment or service under the summons.

10th. In submitting the question of the jurisdiction of the court to be tried by, and passed on by, the jury.

11th. In overruling the motion for a new trial on the issue raised by the plea to the jurisdiction submitted to the jury. 12th. In overruling the motion of the plaintiff to re-file the account filed with the pleas, and withdrawn on former trial. 15th. In permitting Carpenter, defendant's attorney, to read

Mineral Point Railroad Co. v. Keep.

from his minutes what the witness, Temple, had testified on a former trial.

16th. In giving the instructions asked for by the defendant. 18th. In overruling the plaintiff's motion for a new trial, and in entering a judgment in the cause in the form entered.

19th. In changing the order first made, and in overruling the motion of the interpleaders for a return of the property from the sheriff.

W. B. SCATES, and M. Y. JOHNSON, for Plaintiff in Error.

LELAND & LELAND, for Defendant in Error.

BREESE, J. Several objections are made by the appellants to the proceedings in this cause, some of which, deemed the most important, we will notice.

The first is, that there was no service of process in the original suit, and that the court erred in requiring the defendants below, to make any further appearance in the cause than to object to the service.

The service was as follows: "Executed the within writ by delivering a true and correct copy of the same to J. R. Booth, agent, and J. W. Dexter, conductor of said Mineral Point Railroad Co., this 2nd February, 1857, the president of said company not residing in this State."

It is provided by an act amendatory of chapter 83, R. S. 1845, passed in 1853, (Scates' Comp. 243): "In all cases where suit has been, or may hereafter be brought against any incorporated company, process shall be served upon the president of such company, if he reside in the county in which suit is brought, and if such president be absent from the county, or does not reside in the county, then the summons shall be served by the proper officer by leaving a copy thereof with any clerk, cashier, secretary, engineer, conductor, or any agent of such company found in the county, at least five days before the trial, if suit be brought before a justice of the peace, and at least ten days, when suit is brought in the Circuit Court."

This act does not seem to be confined to domestic corporations, in its terms, nor do we think it should be, when the purpose of the act is considered. It seems to us, it was designed for just such cases as the present, where railroad companies, having their offices and officers in foreign States, do their business, have their agents and their property in this State. It is a convenient way provided, to get service upon them, so as to subject their property to their contracts, and it is a proper consequence of the provisions of this act that they should be deemed