The morning news. [volume] (Savannah, Ga.) 1887-1900, 1892-06-08
NOT COMPELLED TO PAY
BECAUSE THE SITE OF THE TYBRE
HOTEL WAS CHANGED.

Judge MacDonen Dscides in the Case
of Enrich g Bro. and w. h. Ray
That the Contract Under Which
They Subscribed to the stock OF the
Tybee Hotel Company Does Not Re-
quire Them to Pay the subscrip-
tions-The Basis of the Decision.
Judge MaoDonell rendered an important
decision yesterday In the case Of the Tybee
Hotel Company against A. Ehrlich g. Bro.
that will be read with interest. The suit
was brought by the hotel company against
Ehrlich & Bro. to recover upon a subsorip-
ton for five shares of the capital stock Of the
Tybee Hotel Company, contained in the
following written contract:
SAVANNAH, GA, June 80, 1885
The Tybee Beach Company having donated
sixteen Cl6) acres of very desirable land on Ty-
bee Island to Herman Myers and associates for
hotel purposes; therefore, we. the undersigned
respectively subscribe TO the numbers of shares
at one hundred (Sl00) dollars each set opposite
our names, in the Tybee Hotel Company,
corporation to be organized petition for incor-
Doration this day filed, to get charter at
present term OF court, the minimum capital of
said company to be forty thousand ($4O,O00l
dollars, with liberty to increase the same, and
mutually agree to pay said sums subscribed
Under this agreement Ehrlich & Bro. sub
scribed for five shares of stock of the hotel
company. They claimed in the suit that the
subscription was made on the faith Of the
representation in the contract that the
Tybee beach Company had donated sixteen
acres of very desirable land on the island
for hotel purposes; that the hotel was to be
built upon the particular site SO alleged to
be donated. which was located within 800
yards of the Ocean house, and which they
approved and regarded as a proper
site; that they subscribed on the
faith Of this particular donation and site
that the sixteen acres referred to have never
been donated to, are not owned and never
have been owned by the hotel company;
shat the hotel was not located there, but
mile distant on the south end Of the island,
on site which they regard as undesirable
and for which they never would have SUBJ
scribed; that they never agreed, directly or
indirectly, to any change in the contract;
that it has been changed. and they were
thereby released from liability for their
subscription.
THE HOTEL CoMPANY's CLAIM.
The case was tried May IL, and the judge
reserved his decision
The counsel for the company maintained
that the application for the charter and the
charter itself became part of the subscrip-
ton contract, and were to be construed to-
gether with it; that the powers granted in
the charter show that the corporation was
not to be limited to any particular site, and
denied that il was bound to build upon a
site acquired by donation; that the hotel
company from its inception was intended
to be authorized and was authorized to ac-
qure and build upon the site which was
finally chosen, and that Ehrlich & Bro
were not thereby released from their liza
bilty.
The facts in the main were uncontra.
dcted and the case turned principally upon
hn fr1nk Of tha nnf TbA
liminary question raised was whether the
petition for incorporation and the GARTER
OF the company were to be construed as
parts of the subscription contract
Judge MacDonell. in his review Of the
case, says:
The petition for Incorporation was fled on
the same day that the shares were subscribed,
June 30, 1855. 1t must be remembered that the
subscription contract refers in express terms to
this petition and charter. 1t is a subscription
to shares in the Iy bee Hotel Company, cor
poratiOn to be organized petition for incor
poration this day filed SO as to get charter at
present term of court)' The subscribers were
bound to take notice of the petition itself, of
the fact that it already filed and of the
time when the charter would be granted. In
subscribing they authorized or ratified the filing
ofthe petition as an act done for their mutual
benefit. and IN effect, enrolled themselves as
associates Of the petitioners, whether they ever
actually acquainted themselves with its terms
or not. They committed themselves to shares
in that corporation. If the prayers of the Pc
tiOn we're Objectionable they were bound to OBJ
Ject before subscribing. Subscribing with such
notice and without objection. IN the absence of
any allegation of fraud or misrepresentation in
this regard, they were as effectually bound to
the enterprise set forth in the petition
though they had contracted with reference to
charter already obtained, for the charter is
identical in terms with the petition; the powers
granted are those which were prayed for. We
think, therefore, that the petition and charter
are to be construed together with the other
"a Sl1h2printlCn dptnrTp in
ing what the contract was, and the liability of
defendants is TO be ascertained by reference TO
The LANGUAGE OF both as constatIng Instruments.
THE INTENTION OF THE PARTIES.
The intention of the parties is the controlling
question in constructing subscription for
shares as any other contract. 1.-The construc-
ton which will uphold a contract in whole and
in every part is to be preferred, and the whole
contrsc should be looked TO in arriving at the
construction of any part" Code S 3,757.
Considering first the subscription paper, its
preamble is as follows: The Tybee Hotel Com
pany having donated sixteen acres Of very
desirable land on Tybee Island to Herman
Myers and associates for hotel purposes; there
Tore, we, the undersigned. respectively sub
scribe, ETC.
The concluding word, therefore" expresses
clearly that the facts promised were tie
motive and consideration inducing the assent
OF subscribers. The donation is positively
stated as an accomplished fact. The donors,
Gonees. subject matter and purposes of the
donation are set forth. No other donation as
a. uuuCemelJ was In contemplation Inc
statement that these sixteen acres were ''of
very desirable land on Tybee Island" brings
.hem distlnctively as an object Of desire into
me consideration. What was the particular
land intended to be meant as having been so
donated This was shown by the minutes of
tue Iybee Beach Company Of June %, 1888,
Two days prior to the subscription) put in
evidence by the plaintiff, from which it appears
mat the Tybee Beach Company had given an
option on sixty-four building lots in ward Of
5ercy Sugden's map of Tybee Island for ninety
Jays In consideration of So to Herman Myers
anu associates for the purpose Of erecting
Ifst class modern appointed hotel to cost not
less than $4,000. inclusive of furniture, to be
ready for occupancy by June 1, 1889, upon the
toHoWlng conditions ut is to be distinctly
peFstood and 50 accepted by Herman Myers and
nLs associates that the lots and parcels Of land
aIe ony to be optional and decided for hotel
purposes, and when they cease from any cause
70 Ie exclusively used for such purposes that
each and all and every part of them are to re-
vert u Eha al