Gadsden & Attalla Union Railway Co. v. Gadsden Land & Improvement Co.

SHARPE, J. The plea of non est factum numbered 4 and filed August 21st, 1895, was a full answer to the complaint to which it Avas interposed for the reason that the complaint Avas alone for the breach of a contract alleged to lucre been contained in a deed. Idea 4 filed February 29th, 1896, and pleas 6 and 7 raise one and the same question which is, whether the contract disclosed in the deed, bound the defendant to build and furnish a hotel at the intended terminus of the plaintiff’s projected highland railway. By way of showing inducement, consideration and terms of the agreement, the deed recites the negotiations had between the defendant and Elliott acting as a promoter of the plaintiff corporation; which led to and Avere consummated in the execution of the deed. These negotiations Avere by Avriitings, beginning AAUth a request from Elliott to be informed of terms upon AAdiich the defendant’s dummy line railway properties could be bought. Being informed of the terms Elliott agreed to the price but proposed new terms, one of AAdiich was in effect that the defendant should build, furnish and open a hotel on the Highlands to AAdiich he proposed to build a dummy line, and that part of his payment should be deferred till the hotel Avas partly built and another part until it AA’as completed, furnished and opened. This proposition AATas met by a resolution of defendant’s directors, which begun by stating that Elliott’s proposition Avas accepted, but proceeded, without mentioning the hotel or highland rail-AAray, to provide for the deferred payments to be made absolutely and at stated times. Thereupon defendant’s president Avrote Elliott that “the board passed the accompanying resolution in reply to your proposition leay [517] ing -off line to Highlands and building hotel by the company and agree to sell you the road franchise and terminal facilities at foot of 9th street at price named, giving you six and twelve months on deferred payments with interest at 8% from date, if you propose carrying out your proposition, with the changes referred to you will signify your intentions and enclose me. check for $1,000 to pay for the 90 days’ option.” To this Elliott replied to the president “As per letter of Jan’y 3rd, I accept, your proposition to sell me the 'dummy line, and as per terms of sale herewith enclosed please find check for $1,000.” On the 11th day of February following a resolution was adopted by the defendant’s stockholders in which the action of the directors in selling the dummy line to Elliott was stated to be ratified and confirmed. The deed recites that “This resolution was amended as follows : ‘That whenever this company builds a hotel and furnishes it as required in the proposition made by Elliott and associates in original proposition, that said Elliott and associates shall build and operate a dummy line to the Falls and Highlands making not less than one trip evening and morning so long as the hotel is kept open, or the business justifies it. The Land Company furnishes ithe right of Avav as laid down in survey of J. (\ Wright, engineer.’” Subsequently the directors of the defendant by resolution directed that Elliott’s proposition of January 3d, 1890, should be inserted in the deed to be made to Elliott “to be part of the deed of conveyance so far as covered by said resolution of the 'stockholders confirming said sale.” Further on it was provided that “The said James M. Elliott, Jr., further covenants and agrees to build the dummy line to the Falls and the Highlands on Lookout Mountain as set forth in his original proposition as the same proposition is modified by the resolution of stockholders made on 11th Feb’y, 1890, confirming and ratifying the directors’ sale of said property.” We have stated the substance of the deed so far as it seems to bear particularly on the question presented, though the AAdiole instrument must be looked to in de [518] termining its meaning. So examining the deed we fail to find any undertaking to build a hotel. Its recitals show tli-at Elliott’vs proposition of January 3d, 1890, was not accepted as a whole and that so much of it as required the defendant to build, furnish and open a hotel was rejected. If the resolution Avhich follcwed upon that proposition is in this part ambiguous, yet Elliott -accepted, the counter proposition contained in the resolution as it aauis interpreted to him by the letter of defendant’s president, in Avhich the resolution is described as “lemdng off line to Highlands and building hotel by the company.” The requirement in the stockholders’ resolution that Elliott and associates should build a dummy line to the. Highlands whem-wer the defendant built there a hotel, though indicating that the. building of a hotel AA-as in contemplation, cannot be -construed as an agreement on the part of defendant to build. In this respect there is. not in the -contract taken as a wh-ole any such ambiguity as to admit of resort to the1 alleged subsequent -acts -or -conduct of the parties in aid of interpretation. There aatus no error in the. judgment. Affirmed.