Roseburg Railway Co. v. Nosler

Mr. Justice Bean, after stating the facts in the foregoing language, delivered the opinion of the court. 1. It was held on the former appeal, and is the law of the case, that, while the plaintiff had a right of action against the defendant on the subsidy contract for any installment earned by it prior to the time fixed for the completion of the road to Myrtle Point, it cannot recover installments where the designated performance had been delayed beyond the time fixed in the contract. It is therefore claimed by the defendant that, inasmuch as the complaint shows on its face that but one installment was earned within the time specified, which was paid, and fails to allege that the delay in the completion of the road was on account of any of the causes specified in the contract, it does not state a cause of action. But the point *303 is made for the first time in this court, so that the defect, if any, is cured by the verdict. The complaint alleges full and complete performance by the plaintiff. This is denied by the answer, and, as an affirmative defense, it is alleged that the delay in the completion of the road was not on account of the causes specified in the contract, but was owing wholly to the negligence bf plaintiff. The cause of the delay was thus made an issue, and tried without objection, and the defective statement of a cause of action in the complaint, if any, was thereby waived : Houghton v. Beck, 9 Or. 325 ; Davidson v. Oregon & Cal. R. R. Co. 11 Or. 136 (1 Pac. 705); Aikin v. Coolidge, 12 Or. 244 (6.Pac. 712); Nicolai v. Krimbel, 29 Or. 76 (43 Pac. 865). 2. But the court was in error in ruling that delays in the construction of the road caused by rainy and inclement weather were a sufficient excuse for nonperformance of the contract by the plaintiff within the stipulated time. It is an elementary rule of law that, whenever a party by his contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding delays from any cause, for he might have provided against them in his contract: Oakley v. Morton, 11 N. Y. 25 (62 Am. Dec. 49). And therefore the plaintiff was bound to complete the road to Myrtle Point by the first day of May, 1891, unless its failure to do so was on account of some of the stipulated causes specified in the contract, none of which include delays on account of the ordinary conditions of the weather. It is stipulated that delays caused on account of procuring rights of way, collection of Coos County or Roseburg subsidy, or other just cause, shall operate as an extension of the time specified, a reasonable time on account thereof. But the term “other just cause” means delays by reason of some act of the defendant, or of the law, or by an act of God, and does *304 not include those caused by ordinary weather, because the parties to the contract must have anticipated delays from such a source, and, not having stipulated in reference 'thereto, the plaintiff was required to complete the road within the time fixed, notwithstanding the ordinary condition of the weather. For this reason, the judgment of the court below must be reversed, and the cause remanded for a new trial, and it is so ordered. Reversed.