Garner v. Hall & Farley , 122 Ala. 221 ( 1898 )

TYSON, J.

— The complaint in this case, after setting out the contract in haec verba, avers “that the road was finished to a point Avithin 1 mile from the center of the city of Ozark from one or the other of its terminal points, to-AA’it: Bainbridge, Ga., and Montgomery, Ala., prior to the 1st day of October, 1890, on to-wit, the first day of May, 1890; and that, said road was of standard guage and laid Avith steel rails and the note matured October 1, 1890.” The only defense interposed at the trial from Avhieh this appeal is prosecuted, was the statute of limitations of six years. In the pleas it was averred that the road Avas completed according to the contract sued on prior to and on the 27th day of September, 1889; this being more than six years before the commencement of this suit. When this case Avas here on a former appeal this court said: “It is evident the parties understood that the road might be completed at an earlier date than the first of October, 1890, and that it was their design to mature the note earlier than that date, if, and when the road should be earlier completed. The question then is, were the conditions and terms necessary to mature the note, complied with and performed more than six years before the bringing of the suit? These were that the railroad should be finished acording to the contract, a decision by the board of directors to that effect and notice to the obligor. Certainly upon proof of these facts at any time after the execution of the contract, the obligor could not have defeated a recovery upon the ground that the note did not mature until October 1st,. 1890; and if the obligation matured as to defendant prior to October 1st, 1890, it must have matured also as to the plaintiffs. * *

“The finishing of the road was indispensable to fix a liability upon the defendant. * * The real intention of the parties was to fasten a matured liability whenever and as soon as the road was finished according to contract, provided it was finished not later than October 1st, 1890.’’ — Garner v. Hall & Farley, 114 Ala. 166.

In Hall v. Sims, 106 Ala. 561, Justice Haralson, in construing a contract containing substantially the same conditions and terms as the one under consideration, said: “It was the reasonable bona ficle completion of the work, according to the terms of subscription and not the declaration of the directors, that bound the defendant to pay his note. If they made a false declaration, defendant would not have been bound thereby to [¡ay. * * * It was the truth of the fact declared, and not the mere declaration of it, that was important and controlling.” The court held in that case that notwithstanding the directors had made a declaration that was insufficient to mature the note, it might be shown by the holder of the contract by parol that the road had been completed according to its terms, thereby maturing it on the 1st day of October, 1890.

The declaration made by the directors on the 27th day of September, 1889, and the notices published in the Montgomery Advertiser and the Ozark Star were insufficient to mature the note. — Hall v. Sims, supra. The written demand of date October 1st, 1889, upon the defendant for the payment of the note signed by Woolf oik, president, and Wiley, president, reciting that it was due and the road had been completed according to the terms of the .contract were mere declarations by an agent, and in the absence of all evidence touching the scope of their authority by the railway company to make them, they could not affect the rights of plaintiffs. — Brush Electric Light & Power Co. v. City Council of Montgomery, 114 Ala. 433, and authorities there, cited. The contention that plaintiffs were estopped by the resolution of the directors and the published notices is without merit; it affirmatively appearing that defendant refused to act upon the representations contained in them. — Sullivan v. Conway, 81 Ala. 151; Caldwell v. Smith, 77 Ala. 159; Bigelow on Estoppel, p. 638.

The undisputed facts are that the road was finished from within one-half of a mile of the center of Ozark, of standard gauge and laid with steel rails to the Chattahoochee river on September 27th, 1889-; that trains both freight and passenger were being operated over it between these points. That at the Chattahoochee river the company used boats to transfer freight and passengers across the river from September 27,1889, to about May, 1890, where they were transported from that point over the road to Bainbridge, Ga., but this was only a temporary arrangement' until the bridge could be built. That when the railway company was incorporated for the construction of the road, it contemplated the building of a bridge across the river, and to this end procured an act of Congress to be passed allowing it. The contract for the contraction of the road embraced and included the construction of this bridge and it was constructed and completed under this contract about Feb. 1, 1890. That this bridge constitutes a part of the road between Ozark and Bainbridge. The road from the other terminal point, Montgomery, was completed in May, 1890.

The only remaining question presented for decision is whether the construction of the bridge across the Chattahoochee river was necessary by the terms of the contract to the completion of the road between Ozark and Bainbridge. It will be observed that by the terms of the contract the railway company was to finish its road to a point within one-lialf mile of the center of the city of Ozark from one or the other of its terminal points by the 1st day of October, 1890, in a certain manner, and its failure to do so rendered the contract void. Had this company undertaken tc enforce the collection of this note before building the bridge, it would have been a perfect answer that the road hacl not been finished. TfM'bridge was necessary to, a successful operation of the-' trains over the road as a continuous line.

In the case of Freeman v. Matlock, 67 Ind. 99, the suit was on a promissory note given for the common capital stock in a certain railroad containing the stipulation, “that the maker, for the purpose of aiding in the construction of said railroad'and in consideration thereof, promised to pay, upon the arrival of the first train of cars on said road at a certain place, to the order of the railroad company, a certain sum of money; and that if said road was not completed by a certain day and the cars running to said place, said note should be null and .void. The evidence showed that the cars which ran to the place and on the day mentioned in the note, were not run over the located and established line of the road, but over a temporary track laid down for the purpose, and that it was four months after that day before the cars were running to said place on said road.” The court held, that it was not necessary that the road should be perfect and finished in every particular and its tracks well ballasted; but it should have been so far completed on its located and established line, that the cars might have been and were run as stipulated in the note and with reasonable regularity thereafter and that the road was not completed, within the meaning of the note and that it was therefore void. See also the following cases which support these views: The Indianapolis, Delphi and Chicago Railroad Co. v. Holmes, 101 Ind. 348; The M. K. & C. R’y Co. v. Thompson, 24 Kan. 170; The People ex rel. C. P. & S. W. R. R. Co. v. The Town of Clayton, 88 Ill. 45. The case of Cass County v. The C. B. & Q. R. R. Co., 25 Neb. 348, is not, in our opinion, in conflict with the principles announced in these cases, and if it can be so construed, we would decline to follow it. I-Iad, before the construction of the bridge, the cars and engines of the railroad company been transferred across the river by means of boats or other temporary instrumentalities, this would not affect our conclusion.

We hold, therefore, that the note never matured until October 1st, 1890, as the bridge was not completed in such manner as to allow trains to pass over it with reasonable safety until between the 22nd day of January and the 1st day of February, 1890. The affirmative charge was properly given for the plaintiffs.

Judgment affirmed.