Stevens v. Ambler , 39 Fla. 575 ( 1897 )

Carter, J.:

1. It is assigned as error that the referee erred in refusing defendants’ motion for a new trial. One ground of this motion was that the evidence was insufficient to-show that plaintiff performed his part of the contract sued upon. This agreement was unilateral and conditional, and in order to entitle plaintiff to a recovery thereon, it devolved upon him to prove that the conditions entitling him to payment of the money thereby contracted to be paid had been fully performed within the time specified there. It was held by this court in Martin vs. Pensacola and Georgia Railroad Co., 8 Fla. 370, S. C. 73 Am. Dec. 713, that where in the body of a subscription there is a stipulation for a particular enterprise as for thebuilding of a road to a particular place, or for its location upon a specified route, such stipulation forms a condition precedent, and unless strictly complied with, the party subscribing will be absolved from his obligation to pay. The same principle -was applied in the case of Persinger vs. Bevill, 31 Fla., 364; 12 South. Rep. 366, where a railroad was not completed and ready for operation until two months after the time limited in the obligation sued upon. It was there said that parties have the right to make their contracts so as to suit their mutual convenience and interests, and -when the courts can ascertain their meaning, they should so construe the contract as to give effect to that meaning. It was admitted by the plaintiff in his evidence before the referee that the extension of his railroad did not touch the land mentioned in the contract, but ran about 500 feet therefrom. The defendants’ obligation was to pay when plaintiff “shall extend his railroad southerly to sec. 35;” not when the railroad shall have been extended within 500 feet of sec. 85. “To” an object, does not mean within 500 feet thereof. As commonly used in this connection, it conveys to the mind the idea of movement toward and actually reaching a .specified point or object, and the meaning is not satisfied unless the point or object be actually attained. Moran vs. Lezotte, 54 Mich., 83, 19 N. W. Rep. 757, It is true that like almost all other words of our language, it may be used in a different or more limited! sense, and it will be so construed whenever the context, or the nature of the subject-matter to which it is applied, shows an intention to use it in such other-sense. But in the case before us- we discover nothing-whatever to suggest a meaning different from the one above given; and as it is clear that the extension of plaintiff’s railroad was not “to” section 35, we think the defendants cannot be held liable for any amount, under the contract sued upon. It may be that the-defendants derived every benefit from the extension, of the railroad as shown by the evidence that they would have derived from a strict compliance with the contract, though the evidence submitted to the referee-indicated very strongly a contrary view; but we can not hold the defendants liable upon the facts of this case without substituting a new agreement for them, which no court is authorized to do. The courts have-been frequently called upon to' adjudicate similar questions, and they are practically unanimous in denying; recovery.where the conditions have not been substantially complied with. Moore vs. Hanover Junc. and. Susquehanna R. R. Co., 94 Pa. St., 324; Lawrence vs. Smith, 57 Iowa, 701, 11 N. W. Rep. 674; Cooper vs. McKee, 53 Iowa, 239, 5 N. W. Rep. 121; The Davenport & St. Paul R. Co. vs. Rogers 39 Iowa, 298; The Davenport & St. Paul R. R. Co. vs. O’Connor, 40 Iowa, 477; Connecticut & Passumsic Rivers R. R. Co. vs Baxter, 32 Vt., 805; The Indianapolis, Delphi and Chicago R. R. Co. vs. Holmes, 101, Ind. 348; Crane vs. The Indiana North and South Ry. Co., 59 Ind. 165; City of Winona vs. Minnesota Railway Const. Co., 27 Minn., 415, 6 N. W. Rep. 795, 8 N. W. Rep. 148.

II. There was very indefinite testimony tending to show sales of defendants’ lands made by them at $50 per acre. On the other hand there was evidence tending to show sales at not exceeding $47 per acre. Whether the lands sold by defendants constituted the property referred to in the contract, the evidence does not definitely disclose. The referee evidently found that the lands so sold were the ones referred to in the contract and that; they were sold at $50 per acre, for on no other theory could he have given judgment for an amount exceeding $5,000 and interest under the terms of the contract. But even if the defendants did sell their lands at $50 per aore as contemplated at the time of entering into the contract sued upon, we are of opinion that no liability to plaintiff under the contract sued upon, attached, unless and until the plaintiff extended his railroad “to section 85.” Any other construction of the contract would leave the last clause without any consideration whatever. We think the contract on its face purports to bind defendants to pay plaintiff ten thousand dollars in case they sold their property to parties contemplating buying at $50 per acre, or five thousand dollars in case they did not sell the property, upon condition that plaintiff should extend his railroad southerly to section 35, and have same in operation by October 1, 1891. The concluding words of the last clause, “then, in that event, we hereby (agree) to pay said Ambler ten thousand dollars, instead oí Jive thousand dollars, as above, can. bear no other reasonable interpretation. This construction is not only consistent with, but emphasized by, the plaintiff’s testimony respecting the making of the contract, from which we quote as follows : “I had about nine or ten miles of road built from Archer down — about eight miles of road — down to a point near Williston, and the phosphate men in that section — the Early Bird section and through there — came to me and wanted me to extend it southerly, and I agreed to extend it for and in consideration of amounts they were to give me. As a rule they gave me $5,000 cash in advance. Mr. Stevens was in my office in Jacksonville and said he would contribute, and made that contract to give $5,000 on one event, or $10,000 on another. That was not to be paid in advance.

The plaintiff having failed to perform the condition precedent, vizthe extension of his railroad southerly to section 35 by October 1, 1891, he was not entitled to recover anything upon the contract sued upon. The judgment is, therefore, reversed and a new trial granted.