Railroad Company . Hinsdale. phos & Burlington Company succeeded to the interest of the Toledo & Grand Rapids Company in the subscription contract between itself and the defendant, it must have done so in a way, and by means prescribed by the statute for the sale and not for the consolidation of railroads. Arguments drawn from the statutes of consolidation, lose much of their force when applied to the case under consideration. It is true, that it has been held in Mansfield, Coldwater and Lake Michigan R. R. Co. v. Stout, 26 Ohio St. 241, that when railroad companies consolidate under the act of 1856, the new corporation thereby created may perform the conditions named in subscriptions to the capital stock of the original companies, and require the subscribers to pay their installments. But that was a case of two roads consolidated, in which the new company, by virtue of the provisions of the statute, acquired the ownership and control of stock subscriptions, and all the property of every description, of each of the old companies. By section 3384, of the Revised Statutes, when the consolidation is consummated, "all and singular, the rights, privileges and franchises of each. of the companies, and all the property, real, personal and mixed, and debts due on account of subscriptions of stock, or other things in action, shall be deemed to be transferred to and vested in such new company, without further act or deed." And as by the statute, all debts, liabilities, and duties of either of the consolidating companies thenceforth attach to the new company, it is proper that the new company should succeed to stock subscriptions, choses in action, and other property as a fund from which to discharge the obligations of the respective companies. But a company purchasing the road-bed and right-of-way for a railroad, owned by another company, does not thereby, in the absence of special agreement, assume the debts of the vendor, and does not require the assets of the latter with which to pay such debts. When a railroad company sells its road-bed and right-ofway, because unable, from want of means, or other cause, to complete the construction of its proposed line of road thereon, no transfer, as enacted by section 3412 of the Revised Statutes, can be made against the dissent of any stockholder, Railroad Company &. Hinsdale. expressly declared and filed in writing, without a guaranty from the grantee company, that it will cause to be issued to him certificates of its capital stock, equal in amount to his pro rata interest as a stockholder of the grantor, in the amount of which the property is sold. The defendant had no option to dissent or acquiesce in the sale. He was not a legal stockholder, and could have had no voice or standing in the meeting of stockholders, called by the president of the company to deliberate and pass upon the proposed sale; and if he had refused his assent to the sale and transfer, he was not in a position to compel the grantee company to issue to him pro rata certificates of its capital stock. Nor, as a conditional subscriber only, and without any of the privileges of a stockholder, was he in a position, upon a consummation of the sale and payment of any purchase-money, to demand & proportionate share of the amount realized. If the defendant did not dissent, or had not the right to enter an effective dissent, the sale would progress to its consummation; but with no status as a stockholder in the Toledo & Grand Rapids Railroad Company, and with no statutory right to have stock assigned to him in the Toledo, Delphos & Burlington Railroad Company, we do not think it is within the meaning of the statute permitting the sale of the road-bed and right-of-way of an unfinished road, that the latter company, or the plaintiff by virtue of consolidation, should have a right of action against the defendant, on his unpaid contract of subscription. The sale and transfer of conditional stock subscriptions, do not therefore, as we think, come within the purview of section 3409 of the Revised Statutes; and in accordance with the aforegoing considerations, we have reached the conclusion that the judgments of the circuit court and court of common pleas should be affirmed. Judgment accordingly. Baltimore & Ohio Railroad Company v. Walker. BALTIMORE & OHIO RAILROAD CO. v. WALKER. Railroad companies— Watchmen at crossimgs—Contribution-Rev. Stats., sec. 3333. 1. A railroad company which has the possession and control of a railroad in this state, and is managing and operating the same, as the lessee thereof, is one "owning the tracks" of such railroad, within the meaning of section 3333 of the Revised Statutes, which provides that: "When the tracks of two railroads cross each other, or in any way connect, at a common grade, the crossings shall be made and kept in repair, and watchmen maintained thereat, at the joint expense of the companies owning the tracks." 2. The necessity for keeping the crossing in repair, and maintaining watchmen thereat, grows out of the use and operation of the railroads crossing each other at a common grade, and the benefits thereof accrue to the companies using and operating the roads; and, as such lesseecompany, while operating its road receives the benefit and security resulting from a safe crossing and the services of the watchman, it takes them subject to the burden of their expense, as provided by the statute. 3. Where two or more are under a joint obligation to perform some lawful. duty involving the expenditure of money, and one of them performs the whole duty and discharges the obligation, he is entitled to have contribution from the others equally bound with him; and this is so whether the obligation arises from contract or operation of law. The right depends upon equitable principles rather than upon contract, but from the equitable obligation the law implies a contract to equalize the common burden, and if there is no circumstance rendering the equities otherwise than equal, and no express agreement, the contribution should be so made that the common burden shall be borne equally by all bound by the common obligation. 4. The statute (section 3333 of the Revised Statutes) imposes upon railroad companies, the tracks of whose roads cross each other at a common grade, the joint duty and obligation of making and keeping in repair the crossing and maintaining watchmen thereat, and requires the expense thereof to be borne by the companies jointly. The burden is common to both companies, and where either performs the whole duty and pays the whole expense, it is entitled to recover from the other its equal proportion thereof. (Decided March 13, 1888.) Error to the Circuit Court of Knox County. On the 2nd day of January, 1882, Goshorn A. Jones, receiver of the Cleveland, Mt. Vernon & Delaware Railroad VOL. 45-37 Baltimore & Ohio Railroad Company . Walker. Company, filed his petition in the court of common pleas of Knox county against the Baltimore & Ohio Railroad Company, alleging "that the said Cleveland, Mt. Vernon & Delaware Railroad Company is a corporation, created and organized under the laws of the state of Ohio, and under said corporate name, built, constructed and operated a line of road extending from Hudson to Columbus, Ohio, by the way of Akron and Mt. Vernon, Ohio, and have conducted and operated said railroad under said corporate name from about the 1st of July, 1873, up to the 1st day of December, A. D. 1881. That on or about the 27th day of September, 1880, the said Goshorn A. Jones was by the judge of the court of common pleas within and for the county of Summit, Ohio, in a certain procceding therein pending against said Cleveland, Mt. Vernon & Delaware Railroad Company appointed receiver of said railroad company, which position he accepted by executing a bond to the acceptance of said court, and entered upon the discharge of his duties as receiver; that he is still acting in the said capacity. The said plaintiff says that the said defendant, the Baltimore & Ohio Railroad Company is a foreign corporation, created and organized under the laws of the state of Maryland, and is now and was on the 1st day of July, A. D. 1873, the lessee of the Sandusky, Mansfield & Newark Railroad Company, a corporation created and organized under the laws of the state of Ohio, and as such lessee the said defendant manages, controls and operates the line and track of said Sandusky, Mansfield & Newark Railroad Company from the city of Sandusky to the city of Newark, in said state of Ohio, and through the county of Knox and a portion of the city of Mt. Vernon, and the said defendant, the Baltimore and Ohio Railroad Company runs its passenger and freight trains, locomotive engines and cars, and machinery, over and upon said track and line of road. The said plaintiff says that the rail- ́ road track of said Cleveland, Mt. Vernon & Delaware Railroad Company, and the railroad track of the Baltimore & Ohio Railroad Company on the Lake Erie division, a short distance southwest of Mt. Vernon, Ohio, cross each other at a common grade; that the crossing at said point was made and con Baltimore & Ohio Railroad Company v. Walker. structed by the said Cleveland, Mt. Vernon & Delaware Railroad Company about the 1st day of July, A. D. 1873; that all the material used and labor performed in constructing said crossing, including the materials used and labor performed in building the watchman's house, were all furnished, supplied and paid for by the said Cleveland, Mt. Vernon & Delaware Railroad Company; that said crossing and house for a watchman was done, and constructed for the common interest, benefit and necessity of the Cleveland, Mt. Vernon & Delaware Railroad Company, and the defendant, the Baltimore & Ohio Railroad Company; the plaintiff says that from the 1st day of October, 1873, the said Cleveland, Mt. Vernon & Delaware Railroad Company have kept, maintained and paid the salary of a competent watchman, who performed all the necessary work, labor and services required by the laws of Ohio; that the services of said watchman were for the mutual benefit of the said plaintiff and the said defendant, and such as was and is required by the laws of Ohio, to be kept and maintained at railroad crossings. The said plaintiff says that the amount of expenditure necessary to be made for the construction and repairs, and maintainance of said railroad crossing, with the amount paid the watchman, and for erection of the watchman's house, from said 1st day of October, 1873, to the 1st day of December, A. D. 1881, amounts, with interest, to the sum of ($5789.05), five thousand seven hundred and eighty-nine dollars and five cents, an itemized statement of said account of expenditures is hereto attached, marked Exhibit "A" and made a part of this petition. "The said plaintiff further says, that said defendant became and was liable to bear and pay one-half of said expense, and the said defendant is now indebted to the said plaintiff in the sum of ($2894.52), two thousand eight hundred and ninetyfour dollars and fifty-two cents, the one-half of the said sum of $5789.05, the amount paid out and expended by the said plaintiff as aforesaid, with interest included. "The plaintiff has frequently requested and demanded of the said defendant payment of the said sum due the plaintiff, |