Wear v. Jacksonville & Savannah Railroad

Walker, J. The subscription to the capital stock of this road, upon which this suit was instituted, was not payable until it became due on an assessment to be thereafter made by the directors, and not then, unless the grading of the road was undér contract. The subscription also contains a condition that no money should be paid, unless the road should cross the Peoria and Oquawka Railroad not less than two miles west from Elm-wood. The evidence shows that the grading of the entire road had been contracted, and the contract partly executed, previous to any assessment on this subscription. This, we think, fully meets this condition of the subscription. The evidence also shows that the road, as located and as contracted to be constructed, crosses the Peoria and Oquawka road more than two miles west from Elmwood, and there is nothing in this record which indicates any design, by the appellees, to cross that road less than that distance west from that point. This condition, we think, refers to the final and permanent location of the road, and not to its completion, as one of the conditions was, that the money should not be payable until the grading was placed under contract. If this condition requires the completion of the road before payment, why insert the other condition ? It would be wholly useless. This then fully disposes of these objections. It is also urged, that the judgment of the court below should be reversed, because the evidence fails to show that appellant had any notice of the time when the installments, as assessed by the directors, became due. In all cases in which the parties have fixed, by the agreement, a time for its performance, the payor or obligor must take notice of the time of payment or performance. But when the payee or obligee, by the terms of the contract, has the right to determine the time of the payment or performance, by the payor or obligor, it is necessary that he should have notice of the time, before an action can be maintained to recover on the contract. When the fact or circumstance upon which the performance depends, lies more particularly in the knowledge of the promisee than the promisor, the former must give the latter notice. Chit, on Cont. 556. In this case, the times when, and the amounts in which, this subscription was to be paid, depended upon the action of the payees, and the evidence of their determination, fixing the amounts and times of payment, was recorded in their books, under their contract, and in their possession, and that fact lay particularly in their knowledge, and they should have given notice to the appellant. Spangler v. Indiana and Illinois Central Railroad Company, 21 Ill. R. 277; Barrett v. Alton and Sangamon Railroad Company, 13 Ill. R. 504. For the want of evidence of notice of the calls, in conformity to any rules adopted by the road or otherwise, the verdict and judgment were not warranted, and were therefore erroneous. It is likewise objected, that the court erred in not carrying the demurrer to the special plea back, and sustaining it to the declaration. The demurrer was joint, and could not be several to the different counts of the declaration, even if it could have been carried back to that pleading, and as the common counts, were clearly good, the demurrer could not have been sustained unless all were defective. Again, when this demurrer was interposed, the general issue had been filed to the entire declaration, thereby traversing every material fact in its several counts. It is contrary to the rules of practice, both in courts of law and equity, to permit a party to plead and demur at the same time, to the same pleading. When a plea is filed and an issue formed to any precedent portion of the pleadings, it waives all right to demur to it, unless the plea shall be first withdrawn. There was therefore no error in refusing to sustain the demurrer to the plaintiff’s declaration, as the defendant, by filing the general issue, had estopped himself from questioning its sufficiency by demurrer. But for the error indicated, the judgment of the court below must be reversed, and the cause remanded. Judgment reversed.