Davenport & St. Paul R. R. v. O'Connor

Day, J. I. Appellant assigns as error the giving of the following instructions: “ 1. To entitle the plaintiff to recover it must show, hy a preponderance of evidence, a substantial performance on its part of the conditions upon which the said note and subscription were to be paid by the defendant^ and if you find from the evidence that the plaintiff lias constructed its railroad from Davenport, Iowa, to said town of Wheatland, or near to, or in the vicinity thereof, and within reasonable distance of said town, for the accommodation of its inhabitants and business, and that the plaintiff has erected a station or depot at said town, or within a reasonable distance thereof, for the said accommodation of the residents and business of said town, then you will be warranted in finding a substantial performance on the part of plaintiff, of the conditions upon which said note and subscription were to be paid; and, if you further find from the evidence, that payment of said- note and the amount of said subscription had been demanded, and payment refused by the defendant, and that the necessary time had elapsed to mate the same due by installments before the commencement of this suit, then the plaintiff would be entitled to recover the amount of said note and subscription.” “ 2. If you find that there has been substantial compliance by the plaintiff with the conditions upon which said payments were to be made, as to the construction of its railroad, and a station to and at said town of Wheatland, for the accommodation of the business and residents of said town, and that there has been a demand and refusal as aforesaid, the plaintiff may recover, although it may not have been shown that final assessments were made on said note and subscription list and demand made for payment of such assessments at and during the time the work on said road was progressing, and although the plaintiff may not in fact have located or constructed its railroad and station within the limits of the town of Wheat-land.” [480] These instructions, we think, in so far as they refer to the location of the roacl and depot, are erroneous. The contract of subscription provides that no more than one per cent shall be called for until the committee named-1 contract • subscription. s^-iaU be satisfied that the railroad has been per-manently located within the limits of the town of Wheatland, with a station at the same. At may mean in or near to. To determine its meaning here, we must consider it in connection with the other words in the same sentence. There is no ambiguity in the requirement that the road shall be located within the limits of the town of Wheatland. But why should the subscriber be particular to contract that the road should be located within the limits of the town if he intended to allow the company to locate its depot outside the limits of the town and simply near to, or within convenient distance of it. It is plain there could be no advantage to the town or any resident of it in- having the road run through it, and the depot outside. It is clear to us that the true construction of this contract requires that both the road and .the depot shall be located within the town of Wheatland. The defendant had the right to impose his own terms upon his subscription, and having promised to pay upon the performance of certain conditions, it is not competent for the court to compel him to pay upon the performance of other conditions, and upon terms under which he would probably have been unwilling to subscribe. II. It is claimed, however, that the subscription paper was turned over to plaintiff by the committee named, and that it 2_. • became binding from that time. The subscription paper provides that it shall be turned over to the company and become binding on the subscribers when the committee named shall be satisfied that the road has been permanently located to and within the limits of the town of Wheatland, with a station at the same. Without being satisr fied of these facts, the committee had no authority to turn the paper over to the company and make it binding. Jesse Stine is the only member of the committee who tes [481] tified on behalf of plaintiff, and bis whole testimony-in-chief is as follows: “ On the 6th day of January, 1870, I and the committee became satisfied that the company had complied with the conditions of the subscription, and I went to Davenport and turned the subscription over to the • company, and I took a receipt for it.” It is to be noted that he does not testify that the committee became satisfied, as the subscription requires, that the road had been located within the limits of the town of Wheatland, with a station at the same, but simply that the committee became satisfied that the company had complied with the conditions of the subscription. Probably the committee construed the contract as the court below construed it, and thought that its conditions did not require the location of the road and station within the limits of the town. It is certain that the committee were not satisfied that the road and station were located within the town, for, upon cross-examination, this witness states: “ The company did not build its road within the limits of Wheatland, and has not a depot in Wheatland, and never located its road to run into Wheatland, and it never run nearer than it now does.” It is plain that the committee did not become satisfied of the existence of the facts, upon which depended their authority to turn the subscription paper over to plaintiff, and that the delivery of the subscription to jfiaintiff was unauthorized, and it did not thereby become binding. The judgment must be REVERSED.