delivered the opinion of the Court.

After the full discussion of the legal principles of these cases, to be found in the decision in Nesbit v. L. C. and C. R. R. Co., 2 Speer, 698, the present case may be briefly disposed of. That case goes far to support the motion for a non-suit in this case.

Nesbit’s case was for extra work in excavating indurated gravel, rock and earth, called hardpan, which the President of the Company had often said should be paid for, over and above the contract: and the two engineers swore that such excavations constituted extra work to be paid for, “under the allowance of the engineer.” Nesbit’s was an important case, and received much judicial consideration. But the Court finally decided, that Nesbit’s claim was for the very work embraced by his express contract; and however plausibly proved, was not extra work, but fairly within the contract, and therefore not the subject of a lawful demand. Nesbit was accordingly non-suited, notwithstanding the verbal promises of the President, *333and the good will of engineers to get him an extra allowance of money.

Now, wherein does that case differ from the present? Col-cock & Co. urge that certain expenses they were put to in carrying operatives, tools and materials on the Hamburg Railroad, should be refunded to them by the present defendants. The plaintiffs do not claim for extra work, but they claim the price they paid for getting the working done, that is, the freight paid by them for materials, &c., required. But it will be seen at a glance, that if Nesbit had claimed the wages of his workmen for excavating hardpan, or for tools of proof required to excavate this induration of rock and sand, his claim could have been no better, because it would still have been out of his contract. So far, therefore, Nesbit’s case and the present are the same in a judicial, legal, and rational understanding. Both cases are simply id; an extra sum of money beyond the amount assured to them, but claimed under certain peculiar understandings of the claimants, not found in either contract as written. So far, then, the legal identity of the two cases is palpable; and Nesbit’s case would decide the one before the Court.

But they differ in one respect. It is the custom of Railroad Companies to allow their contractors to carry their materials, tools, &c., on their own rail roads, free of cost. And it is a fact, that the L. C. and C. Company have become the purchasers of the Hamburg Railroad, and the two roads have thus become one estate of the defendants. But in the meantime, and before this amalgamation of the two, the present plaintiffs had been put to the costs and expenses they now claim, by carrying their materials, (&c., upon the Hamburg Railroad. This cost is the amount the plaintifls claim to be refunded by the present suit, and over and above what the resident said on this head. It is a further fact, that the L. C. and C. R. R. Company did make the following entry in their minutes of proceedings, to wit:

“Appendix C. Minutes of the Board of Directors of the L. C. and C. R. R. Company, ISth January, 1840.

“The President laid before the Board a communication from Mr. E. S. Cheeseborough, the resident engineer, in *334behalf of the contractors on the L. C. and C. R. R., suggesting an arrangement with the Hamburg Company, to allow them to receive their stores from the depository at Branchville, without paying their freight in cash, and -of charging the amount against them as so much received on account of their work-Mr. King offered the following resolution, which was adopted by the Board: Resolved, that each contractor on our road be, and he is hereby authorized to draw on the Company in favor of the South-Carolina Canal and Railroad Company, in payment of freight on the South-Carolina Canal and Railroad Company» due by the contractors respectively.”

“Minutes of the Board of Directors of the South-Carolina Canal and Railroad Company, March 20th, 1840.

“Read an application from several persons, contractors upon Louisville, Cincinnati, and Charleston Railroad, praying to be allowed to pass on the Hamburg Railroad without paying their passage money in cash. On motion, it was resolved, that passage tickets not transferable, issued by the Louisville, Cincinnati, and Charleston Railroad Company, to their contractors, shall be received by this Company as so much cash.”

Now, then, does this state of the plaintiffs’ case render their claim binding in law? We have seen by Nesbit’s case, that the President’s declarations make no difference in such a contract, because the contract must still be taken as the limits laid down by the parties themselves. But it remains to be considered, what is the force of ihis entry. It is that the L. C. and C. R. R. Company engage to pay the freight of their contractors upon the Hamburg Railroad, to save the necessity of their paying cash down; but the amount so to be debited to the defendants, to be accounted for by the contractors in their final settlement; and such settlement having been so adjusted, this suit is brought to recover that amount as so much illegally exacted of the plaintiffs. The whole negotiation was a present accommodation and credit allowed to the contractors, to be finally refunded to the defendants on pay day. Such an arrangement is the precise opposite to any extra allowance to the contractors. It amounts to payment in advance, and cannot be construed into any concession or acquiescence in what the President is sup*335posed to have admitted. On the contrary, it affirms that the contractors are to answer in the final settlement for such freight, although to be debited in the first instance to the L. C. and C. Railroad.

Thus, then, the entry plainly negatives the claim of the plaintiffs and the supposed admissions of the President, and reaffirms the original contract, and therefore does not help the verdict. Finally, the merit of the plaintiffs’ demand seems resolved into this question. Does the custom of Railroads to allow their contractors to pass up and down free of cost, bind the Company to pay the debt contracted by the plaintiffs for freight upon another Railroad? There is a wide difference between a Railroad allowing their contractors, as it may be convenient, to pass up and down in their regular train of cars, when there is room to spare, and the paying for their passage money on other Railroads. The former is an accommodation without positive loss. The latter would be an assumption to pay the debt of another, which requires a valuable consideration. It would be very like a friend, who, being in the habit of using your horse gratis, should undertake to hire a horse and charge the hire to you, because you were in treaty for him, and after-wards actually purchased the horse he had hired. But the answer to such a demand would be, that it takes both parties to alter as well as to make a binding contract. Such extension, therefore, of the Railroad custom, cannot be allowed. Upon the whole, then, we can perceive no substantial distinction between Nesbit’s and the present case. I. As in that case, so in this, the plaintiffs’ claim is for money beyond their contract, and such a demand should be made plain, or it fails. 2. The President, even if he intended so much, could not have so altered the written contract where there is no consideration. 3. The entry of the Company proves their understanding of the arrangement with the Hamburg Company for the convenience of the plaintiffs, but not to pay their debt out of the money of the Company.

Whether, therefore, we take the evidence of the plaintiffs, or unite it with that of the defence, we can perceive no legal *336foundation for the plaintiffs’ claim. The verdicts are therefore set aside, and non-suits granted in both cases.

dissenting. Said, that the case of Nesbit v. The Louisville, Cincinnati, and Charleston Railroad Company, 2 Speers, 698, settled properly the rule, by which cases of contractors were generally to be decided. They were entitled to the compensation which their contracts gave them, and no more, for work plainly embraced in them, although it might turn out to be abundantly more difficult of execution than was expected. But I think this case is a fair exception to the general rule. In it, I am satisfied, the plaintiffs ought to retain their verdict. For the custom on Railroads, that contractors should use free of charge such part of the roads as might be finished and in use, so as to give them the facilities of more readily obtaining their supplies, transporting their tools and building materials, was proved. That the defendants Avere substantially the owners of the Hamburg road, cannot be denied. That the contractors contracted to do the work, expecting to have the use of the road according to the custom, must now be taken as also undeniable, for the jury have so found. Under these circumstances, the promise of the President, that the plaintiffs should be refunded the money, which by law they Avere bound to pay on the Hamburg road, cannot be regarded either as without consideration or without authority; for the Company really obtained the plaintiffs’ work for that much less than would otherwise have been charged. It is too, fairly to be argued, that both parties understood when the contract Avas made, that the plaintiffs should use the road, without charge, and hence, therefore, when forced to pay it, the promise to refund it was exactly that which ex equo et bono, the Company ought to have done. The case can be tested in another Avay. If they had been in law, as they were, in fact, the owners of the Hamburg Railroad, and the plaintiffs had used the road for the whole time they had been at work and had been charged for the freight, but had not paid it, and the defendants were now suing to recover it, could they against the proof in this case succeed? They could not: for the prooí' *337adduced here would already show, that as against the plaintiffs, no charge was intended to be made. The President unquestionably had the power to bind the Company in all matters, where it may be fairly inferred ho was their legal organ. He alone on the part of the Company entered into the contract with the plaintiffs to do the work. The binding obligation of that contract has never been denied. It is fair to conclude that such a promise as this, which was necessary to give effect to the main contract, and was, like it, with the assent of the Company. But independent of that, the travelling and carrying of freight on the road is so much an every day’s business, that whatever the President directs in relation to it, is regarded as the action of the Company, until they otherwise order. This regulation for the plaintiffs’ benefit was of that character, and hence, I should say, prima facie, the contract is the contract of the Company, and after the finding of the jury upon the point submitted to them, I do not perceive how the fact can be denied.