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might become due and payable prior to the completion of the road to Myrtle Point. The

tive parts of the road, irrespective of its completion at the time agreed, or the construction of the depot and switch. agreed was a condition precedent to the pay. ment of the balance due on such completion.

3. Loss of profits to be realized from an enhancement of real estate values by the completion of a railroad within a certain time is too remote and speculative to be recovered as danage for breach of a contract to complete the road within such time.

4. There was not a total failure of the consideration for an agreement to pay part of a subsidy on the construction of a certain number of miles of railroad, and the balance on its completion within a certain time, where the road was completed, though not within the time agreed; and therefore the part payment cannot be recovered buck.

he payment of the last installment were to be concurrent events, and are, therefore, to be construed as mutual and dependent covenants; but the agreement to pay the four prior installments must be construed as independent covenants, dependent only upon the plaintiff's completing the designated sections of the road, because by the terms of the agreement the defendant might have been required to pay all of them before the final completion of the road to Myrtle Point. The stipulations of the agreement require the road to be completed to Myrtle Point by May 1, 1891, and to Roseburg December 31, 1891. The time of completion to these points must be regarded as material, because it was so stipulated by the parties from the first, and afterwards so treated, as evidenced by the modified agreement. Plaintiff could not recover upon the mutual and dependent covenant because it failed to complete the road to Myrtle Point within the time named, and was, therefore, in default. But it had graded the first 10 miles of the road prior to May 1, to wit, on or about Feb ruary 1, 1891, thereby earning 25 per cent. of the subsidy, and for this amount its right of action was complete on the day it finished the grade upon the undertaking of the defendant to pay at that time. This right of action continued unabated, notwithstanding the plaintiff afterwards made default in completing the road to Myrtle Point and Rose burg within the time stipulated. Those are conditions subsequent, as respects the right of action for the first installment, and nothing less than a failure of consideration could defeat the action; and this is not insisted upon by the defendant. So that, under the findings of fact, the conclusion of law that the action could not be maintained, is er

The plaintiff is, therefore, entitled to recover of defendant the sum of $375, and legal interest thereon from February 1, 1891. It follows that the judgment must be reversed, and the cause remanded to the court below, with directions to enter judgment for plaintiff in accordance with this opinion.

Appeal from circuit court, Coos county; J. O. Fullerton, Judge.

Action by the Coos Bay, Roseburg & Eastern Railroad & Navigation Company against J. H. Nosler. There was judgment for defendant on a counterclaim, and plaintiff ap peals. Reversed.

This is an action to recover upon a subsidy agreement, signed by the defendant, with others, and delivered to plaintiff. The agreement is as follows: "We, the undersigned, agree to pay to the Coos Bay, Roseburg & Eastern Railroad & Navigation Company the sums set opposite our names, respectively, in the manner following, to wit: Twenty-five per cent. when the first ten miles of said road are graded, commencing at or near Marshfield, Coos county, Oregon, and running eastward toward Roseburg, and via Coquille City and Myrtle Point; twenty per cent. when the rails are laid on the first ten miles; twenty-five per cent. when the second ten miles are graded; twenty per cent. when the rails are laid on the second ten miles; and the balance when the road is completed to Myrtle Point, Oregon. As a consideration for the following subscriptions, the said railroad company will maintain a depot within the corporate limits of Coquille City, Oregon, and a switch to tide water in the Coquille river at Coquille City, provided right of way and ground for wharfage are furnished. Road to be finished to Myrtle Point before January 1, 1891, and to Roseburg by December 31, 1891. [Signed] J. H. Nosler. $1,000.00.” Subsequently the following mod. ification thereof was executed by defendant, and delivered to and accepted by plaintiff, viz.: "Whereas, on or about the day of June, A. D. 1890, the undersigned did enter Into a certain contract with the Coos Bay, Roseburg, and Eastern Railroad Company in relation to the payment of certain sums set after our dames in the event of a railroad be ing constructed as therein set forth: Now, therefore, for the consideration therein expressed, we each for himself agrees to and with said company that said contract shall be, and the same is hereby, changed so that the following clause, to wit: 'Road to be


(30 Or. 547) COOS BAY, R. & E. R. & NAV, CO. v.

NOSLER. (Supreme Court of Oregon, April 5, 1897.) RAILROADS — SUBSIDY AGREEMENT INTERPRETA

TION-DAMAGES-CONTRACTS. 1. A railroad subsidy agreement provided for the payment of a certain per cent. of the subsidy when the first 10 miles of road was graded, other percentages at certain other points in the progress of the work, and the balance when the road was completed. The railroad company agreed to complete the road by a certain time, and to construct a depot and switch at an intermediate town. Hed, that the part payments were earned by the construction of the respec

1 Rehearing pending.

completed to Myrtle Point by January 1, J. W. Hamilton, for appellant. A. J. Sher1891, and to Roseburg by December 31, 1891,' wood, A. M. Crawford, W. R. Willis, and J. shall read as follows, to wit: 'Road to be fin- F. Watson, for respondent. ished to Myrtle Point from Marshfield before May 1, 1891, and to Roseburg within a year

WOLVERTON, J. (after stating the facts). from the time it reaches Myrtle Point.' We A solution of the most important questions also agree that, in case any delay is caused arising in this case depends upon the proper by reason of the procuring of the rights of

construction of the subsidy agreement as modway, collection of Coos county or Roseburg ified. The purpose of the action is to recover subsidy, or other just cause, that the afore. under the agreement, so that, when we have said times shall be extended a reasonable determined its true meaning, the measure of time further to cover such delays. This is plaintiff's remedy will become manifest; so upon the understanding that the survey be will also the remedial rights of the defendant. commenced immediately, and work follow Whether performance is necessary to a recovwithout delay. (Signed] J. H. Nosler.” It ery, and therefore constitutes a condition preis alleged in the complaint that there became cedent, must be determined by the intention due and payable to plaintiff under the agree- of the parties to the contract; and that inment the following installments, to wit: On tention must be ascertained from the terms of February 5, 1891, $250; November 30, 1891, the agreement itself, and the circumstances $200; July 12, 1893, $250; July 19, 1893, $200; attending its execution. “It cannot depend," and on August 25, 1893, $100. The defend- says Lord Ellenborough, "on any formal arant interposed three several defenses by way rangement of the words, but on the reason of recoupment or set-off. The first is based and sense of the thing as it is to be collected upon the condition that plaintiff was to from the whole contract." 1 Add. Cont. (Abmaintain a switch to tide water at Coquille bott & Wood's Ed.) *182; Glaholm v. Hays. 2 City, which it is alleged it has failed to ob- Man. & G. 265; McLure v. Rush, 9 Dana, 65; serve, although the right of way and ground Larimore v. Tyler, SS Mo. 661. Certain rules for wharfage have been furnished, for which have been laid down by which to ascertain defendant claims damages in the sum of and discover such intention, but it is only $250. The second is based upon anticipated necessary to refer now to such as are applicaprofits, fixed at $5,000, which it is claimed ble to the case before us. If, by the terms of defendant could have realized from his real a contract, money is to be paid by a day cerproperty in and adjoining Coquille City if the tain which is to or may happen before the road had been constructed according to the performance of the service, or by day certerms of the agreement. And, third, upon tain and there is no day certain for the perthe alleged payment of $250 towards his formance, the performance is not a condition subscription on February 5, 1891, the con- precedent, and the party may sue for the sideration for which it is claimed has wholly money without averring or showing performfailed by reason of the plaintiff's failure to ance. In such case the parties are left to the complete road to Myrtle Point, or to ex- mutual remedies on which they obviously detend the same to Roseburg, within the times pended. Cunningham v. Morrell, 10 Johns. stipulated, for which amount, with interest 202. But where a day is appointed for the from the date of payment, he prays judg- payment of money subsequent to the perment. Proof was offered by the defendant, formance of that which is the consideration and admitted over plaintiff's objection, tend- therefor, no action can be maintained for the ing to support the second defense, and the money before performance. Middlebrook v. court's instructions were in support of the French, 4 Conn. 1; Rider v. Pond, 18 Barb. validity thereof, to which objection was also 179. And where the undertaking goes only made, and error is assigned because such to a part of the consideration on both sides, objections were not sustained. Another in- and the breach thereof may be compensated struction excepted to by plaintiff is as fol- for in damages, it is then an independent unlows: "It is admitted in the pleadings that dertaking, but, if the undertakings are mutudefendant paid to plaintiff the sum of $250, al, and go to the whole consideration, they the same being the amount due from defend- are to be considered as conditions precedent, ant under said contract when the first ten and there must be a performance or a tender miles of sad railroad was graded.

If you

before a recovery can be had. Mr. Parsons find from the evidence in this case that plain- says of the latter rule: “That if the supposeil tiff has not constructed the said railroad to condition covers the whole ground of the conMyrtle Point within a reasonable time, as tract, and cannot be severed from it, or from provided in said contract, under the instruc- any part of it, a breach of the condition is a tion I have heretofore given you, then de- breach of the whole contract, which gives to fendant is entitled to recover the same from the other party the right of avoiding or replaintiff, and you should so find by your ver- scinding it altogether. But where the sun dict." The verdict was for defendant for posed condition is distinctly separable, so that $250, with interest at 8 per cent. per annum much of the contract may be performed on from February 5, 1891, and, judgment being both sides, as though the condition were not given in accordance therewith, plaintiff ap- there, it will be read as a stipulation, the peals.

breach of which only gives an action to the

injured party.” 2 Pars. Cont. *527. See, also, considered cause for delay in completing the Bean y. Atwater, 10 Am. Dec. 91; Dermott v. road as required, and by this stipulation he Jones, 23 How. 220; Add. Cont. (Abbott & must be bound; and, if any delay has been Wood's Ed.) *190. For full discussions and caused by reason of procuring the rights of illustrations of the rules here alluded to, see way, collection of Coos county or Roseburg note by Mr. Serjeant Williams to ge v. subsidy, or other just cause, plaintiff should Cole, 1 Saund, 319i; 2 Pars. Cont. 521, note have the benefit of such delay, and the time (r). Guided by these rules, we find no diffi- thereof added to the time fixed for compleculty in arriving at a satisfactory interpreta- tion to Myrtle Point, and the result would fix tion of the agreement in question. The de- the stipulated time of completion. The jury fendant undertook to pay plaintiff 25 per cent. is very properly the judge of whether any and of his subscription when the first 10 miles what delay had been caused by such hinwere graded, running eastward from Marsh- drances. So that, if plaintiff has earned either field; 20 per cent. when the rails were laid, or all of the first four installments prior to the etc.; and the balance, or 10 per cent., when stipulated time of completion to Myrtle Point, the road was completed to Myrtle Point. The it has its right of action accordingly, regardpayment of the last installment and the com- less of whether it has fully completed the pletion of the road to Myrtle Point were to be road to that place or not, and for full compenconcurrent events, and are, therefore, mutual sation if it has fully performed in that parand dependent; but, as touching all other pay- ticular without reference to its agreement to ments, it was contemplated, and so considered continue it to Roseburg. The full consideraby the parties, that they should be made prior tion having been made payable prior to the to the completion of the road to Myrtle Point, time of the stipulated completion to Roseburg, and dependent only upon the completion of the such completion must be regarded as a condidesignated sections thereof. The plaintiff has tion subsequent; and so must the stipulations its right of action for the apportioned consid- requiring the maintenance of a depot and eration as soon as it has performed the desig- switch to tide water at Coquille City. This nated work, because it has earned it, and is latter contemplates a continued service, and

entitled to it under the agreement. The stipu- from its very nature is a condition subselation for completion by the modified agree- quent; but the condition is such as might be ment is as follows: "Road to be finished to enforced, and perhaps a failure to comply Myrtle Point from Marshfield before May 1, with it would be visited with damages. Rail1891, and to Roseburg within a year from the road Co. v. Parks, 86 Tenn. 554, 8 S. W. 812; time it reaches Vyrtle Point." It was also Chamberlain v. Railroad Co., 15 Ohio St. 225; agreed that, in case delay was caused by rea- Swartwout v. Railroad Co., 24 Mich. 405. son of the procuring of the rights of way, col- Now, as to the defenses relied upon. The lection of the Coos county or Roseburg sub- legal effect of the one touching the failure to sidy or other just cause, that the times named build and maintain the depot and switch at should be extended a reasonable time to cover Coquille City has already been determined. such delays. The time designated for the com- As a basis of recoupment or set-off the depletion of the road to Myrtle Point must be fendant contends that he has been damaged considered as material, because the parties by reason of the fact that he owned and posevidently so intended it from the first, and so şessed considerable real property in and treated it in the execution and acceptance of about Coquille City, which he alleges would the modified agreement. The plaintiff was have been very materially enhanced in value required to complete the road so far within if the road had been fully constructed and the time fixed, and, if it failed, it was in de- equipped to Roseburg within the time fixed fault; but such default would not affect any by the agreement of subscription, and that right of action which might have accrued to he would have been able to have sold and it theretofore under the agreement for the com- disposed of the same at a large profit. It is pletion of specified portions of the work. It hardly possible to conceive of any principle could not, however, recover upon the depend- or rule by which such damages could be corent undertaking, unless the defendant waived rectly and definitely ascertained and deterthe stipulation touching such time of comple- mined. They rest upon a contingency which tion, nor could it recover upon such of the in- may never have happened had the road been dependent covenants respecting which per- completed as agreed upon. Would the prop. formance had been delayed beyond the time erty certainly have been disposed of by its fixed for such completion to Myrtle Point. owner? He may have retained it for higher Whatever may be the rule in equity respect- prices, as many have done during boom times, ing the matter, at law the time within which and finally not have sold at all.

Or we may a contract is to be performed is generally re- assume that his wisdom would have promptgarded as material, and no action can be ed him to sell every foot of his holdings. By maintained for recovery where performance what standard could his supposed profits be does not take place within the time limited. measured ? Would he have sold when values Bish. Cont. $ 1314; Slater v. Emerson, 19 were at their highest, or would he have been How. 238, 239; Warren v. Bean, 6 Wis. 120; satisfied with a reasonable profit? And then Morrison v. Wells (Kan. Sup.) 29 Pac. 601. we come back to the first principle: Would

The defendant stipulated what should be the property have been enhanced at all, and, if so, what would have been the ratio? So it case of Light Co. v. Miller (Ind. Sup.) 30 N. E. is that these alleged profits are purely specu- 23, the sole and only consideration for the lative, and extremely problematical. They subsidy had, in effect, entirely failed, and are too remote and uncertain to form the hence it was maintained that the amount basis of damages. The advantages which paid was the measure of the recovery. But would have accrued to the defendant by the the case here is different. There has been a completion and operation of the road would substantial compliance with the conditions of have been such as would have inure] to ev- the subscription,—that is to say, a very subery other individual similarly situated, such stantial and material condition of the subsidy as would have been enjoyed in common with has been complied with,-and hence there is other individuals of the community. This not a total failure of consideration. The dedoctrine is applied in offsetting benefits to be fendant can show and recoup such special derived from the construction of highways or and approximate damages as he has sustainrailroads against damages assessable for the ed by reason of the breach by plaintiff in not exercise of eminent domain. Whatever of completing the road to Myrtle Point at the peculiar or especial benefit that might accrue time fixed, if such is the case, and by failure or result to the lands of the party claiming to construct to Roseburg; but for such damdamages may be offset, but remote or specu- ages as have been shared by the community lative benefits in anticipation of a rise in in general, and himself among the rest, he property for town-site purposes, or generally can have no claim. For these considerations by reason of the proposed opening of a high- the judgment of the court below is reversed, way, construction of a railroad, or other im- and a new trial ordered. provements, cannot be considered. Such benefits are the common privilege of all the individuals of the community, and one cannot be

(30 Or. 382) permitted to profit by it more than another.

CONNOR et al. v. CLARK. Beekman v. Jackson Co., 18 Or. 283, 22 Pac. (Supreme Court of Oregon. April 5, 1897.) 1074; Mills, Em. Dom. $8 152, 153; Whitely

APPEAL--STIPULATION TO TRANSFER CAUSE-SUBv. Boom Co. (Minn.) 38 N. W. 753; Railway

SEQUEST AGREEMENT. Co. v. Waldo, 70 Mo. 629. The same princi- Hill's Ann. Laws, $ 2327, subd. 3, prople has been applied in cases where a city

vides that the transcripts in all appeals taken sought to recover damages from a railroad

from certain counties, "unless otherwise stipu

lated by the parties," shall be forwarded to the company for failure to comply with certain

next succeeding term of the supreme court, conditions of a subscription contract after the either at S. or P. An appeal was perfected city had fully complied upon its part. Mis- September 10, 1892, and the next succeeding

term was at S., in October. The parties stipusouri, K. & T. Ry. Co. v. City of Ft. Scott,

lated that the cause might be heard at P., 15 Kan. 435. See, also, Railway Co. v. where the next term would occur in May, 1893. Thompson, 24 Kan. 170. So has it to individ- The transcript was not filed at P. in time. uals. Railway Co. v. Bensley, 2 C. C. A. 480,

Held, that the parties could not, by a subse

quent agreement, transfer the cause to S., and 51 Fed. 738. Blagen v. Thompson, 23 Or. 239,

invest the court with jurisdiction by filing the 31 Pac. 647, is not in point, nor can the doc- transcript there. trine therein enunciated be made available

Appeal from circuit court, Crook county. in support of defendant's position. It cannot reasonably be supposed that a railroad com

Action by Connor Bros. against William

S. Clark. From a decree in favor of plainpany, in accepting subscriptions of subsidies

tiffs, defendant appeals. Dismisseu. in aid of the construction of its road, should have had in contemplation damages of the nature discussed that might accrue to each in- pellant. E. B. Dufur, for respondents. dividual subscriber should it fail in its enterprise. Such damages would not be the ap

PER CURIAM. This is a motion to disproximate and natural consequences of the

miss an appeal. The record shows that on breach.

March 24, 1892, the plaintiff's, by consideraJuch of what has been said will apply to tion of the circuit court of Crook county, the attempt to recoup for the installment of obtained a decree against the defendant, $2.30 paid. If it is true that the plaintiff com- from which the latter on September 10, 1892, pleted the grading of the first 10 miles of the perfected an appeal by serving and filing a road eastward from Marshfield by February notice thereof, with proof of service, and 5, 1891, then the plaintiff had earned this giving an undertaking therefor, but the tran. sum, and, being justly due, it has been paid, script was not filed in this court until June then, before the defendant can recoup, he 20, 1893. It also appears that at the time must show that he has been damaged. There the appeal was perfected the parties stipulathas not been a complete failure on the part ed to try the cause at Pendleton, but on of the company to build the road; indeed, it June 4, 1893, they entered into another was later constructed to Myrtle Point, but agreement, by which it was stipulated that not at the exact time in which the company the appeal should be heard at Salem; and was required to build it. So it cannot be the question is presented whether the transaid that there has been a total failure of script was filed within the time prescribed consid ration for the sul scription, In the by law. The statute declares that: “The

A-s. T. Richardson and G. W. Barnes, for ap

transcripts in all appeals taken from Wasco, 1892, and the next succeeding term of this Crook, or Sherman counties, unless other- court occurring at Salem on the first Monday wise stipulated by the parties, shall be for- in October of that year, the transcript should warded to the next succeeding term of said have been forwarded to this place; but the supreme court after the appeal shall be per- parties, having stipulated that the cause ,fected, and if said next succeeding term might be tried at Pendleton, exhausted, in after the perfection of said appeal shall be our judgment, the power conferred by the held at Salem, then the cause shall go to statute, and thereafter could not by stipulathat place for hearing and decision, and the tion transfer the appeal to Salem, or invest transcript shall be forwarded there by the the court with jurisdiction of the cause by first day of said term of court, as aforesaid; filing the transcript with the clerk here. If but in case the next succeeding term of the such a proceeding were permissible, then supreme court after such appeal shall be the parties to an appeal might, by stipulaperfected shall be held at Pendleton, then tion entered into at any time prior to the said cause shall be heard and determined first day of a term of this court, transfer at Pendleton, and such transcript shall be a cause from one place to another, and thus forwarded by the first day of said term at keep it in vibratory motion for an indefinite Pendleton." Hill's Ann. Laws Or. § 2327, period. We cannot think the statute consubd. 3. In appeals taken from a judgment templates such a transfer, and it follows or decree rendered by the circuit court in that the appeal is dismissed. either of these counties, the appellant, upon perfecting his appeal, must forward the transcript to the clerk at the place of holding

(30 Or. 375) the next succeeding term of the supreme

WILLIAMS v. CULVER. court; but the parties, by agreeing to try

(Supreme Court of Oregon. April 5, 1897.) the cause at one place, when by statute it is triable at another, thereby stipulate that


CREDIT ACCOUNT. the next succeeding term of this court shall

While the execution of a note is presumpbe other than that prescribed by law. If tive evidence that the maker owed the amount no agreement had been entered into by the expressed therein, the maker of a note in reparties, it would have been the duty of the

newal of a former pote may show as a defense,

against an action thereon, that, when the redefendant to have filed the transcript at newal was made, an unsettled account existed Salem on or before the second day of the ; in his favor against the payee, which it was October term for 1892, but, having stipulat- | agreed should be credited on the new note when ed at the time the appeal was perfected that

adjusted, and that the account was afterwards

adjusted, and the amount due him thereon was the cause should be tried at Pendleton, it

larger than the amount of the note. was incumbent upon the appellant to for

- Appeal from circuit court, Curry county; J. ward a copy of the record to that place by the first Monday in May, 1893. This duty

C. Fullerton, Judge. he neglected to perform, and, no order ex

Action by Jefferson Williams, Jr., administending the time within which the transcript

trator, against S. J. Culver, on a promissory

note. A demurrer to the answer was suswas to be filed having been obtained, this court on the Tuesday next following the

tained, and judgment rendered for plaintiff, first Monday in May, 1893, lost jurisdiction

from which defendant appeals. Reversed. of the cause; and, such being the case, ju- This is an action by the plaintiff, as adminrisdiction could not be conferred by the sub- istrator de bonis non of the estate of P. W. sequent stipulation of the parties to try the Williams, deceased, to recover the sum of appeal at Salem.

$863.67, alleged to be due upon a promissory It appears by the affidavits of appellant's note executed by the defendant to the decounsel that about April 1, 1893, he en- ceased, and interest thereon at the rate of 10 tered into an agreement with respondents' ; per cent. per annum from August 19, 1891, counsel-and in this respect he is corroborat- and the further sum of $100, attorney's fees. ed by the admission of the latter-whereby The defendant, after denying the material it was stipulated that the cause should be allegations of the complaint, alleges, in subtried at Salem, though the written memoran- stance, “that on August 19, 1891, the deceasdum to that effect purports to have been ed was the owner and holder of another note executed June 14, 1893; and this presents executed by the defendant more than six the inquiry whether the parties, having once years prior thereto, upon which a number of selected the place of trial, different from payments had been made, and against which that prescribed by law, can thereafter he had a counterclaim upon an account for change it without filing the transcript at work and labor performed for, and money the place agreed upon. if such a change paid and advanced to, the deceased, under an is permissible, and the stipulation was en- agreement with the latter that the amount tered into at the time stated in the affi- thereof should be deemed a payment upon the davit, it would necessarily follow that the old note, and that, at the time the new note cause was transferred to Salem before the was executed, the amount due the defendant appellant was in default at Pendleton. The from the deceased had not been settled or appeal having been perfected September 10, i agreed upon, nor had any part thereof been

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