The Burlington & Missouri River Railroad Co. v. Boestler

• Decision Date: 07 April 1864
• Citation: 15 Iowa 555
• Parties: THE BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY v. BOESTLER
• Court: Iowa Supreme Court

15 Iowa 555

THE BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY v. BOESTLER

Supreme Court of Iowa, Des Moines

April 7, 1864

[Syllabus Material]

Appeal from Jefferson District Court.

THE defendant subscribed to a contract or subscription list for five shares of stock in the Burlington and Missouri River Railroad Company, and "agreed to pay the same when called for," &c, &c., "provided, the town of Fairfield is made a point on said road; and that said road is put under contract in one year from the first day of September, 1853 ; provided also, that said stock is not to be called in faster than five per cent per month on the whole amount, and no installment is to be called in on said stock until the whole road from Burlington to Fairfield is put under contract, with condition to be built within twenty months from the time of letting such contract." The answer avers inter alia that "the road was not put under contract in one year from the first day of September, 1853 with a condition to be built in twenty months, and that it was never put under contract with a condition to be built in twenty months."

This answer was demurred to by the plaintiff, and the Court held that the answer set up a sufficient defense and the plaintiff appeals, assigning in this Court the following errors:

"1st. The Court erred in holding that before plaintiff could recover, a showing must be made that the whole road was put under contract before calling for the stock, with condition in such contract to be built in twenty months from the time of letting."

"2d. In deciding that a literal compliance with the conditions of the subscription was necessary to a recovery, and that a substantial compliance by building the road without objections from defendant, was not sufficient."

Affirmed.

David Rorer for the appellant.

We show substantial performance, but not in the precise manner of contracting contemplated by the subscription. Now we contend that unless defendant had notified the Company not to proceed on the credit or faith of his subscription, that he is bound, although the terms of the contract under which the road was built, were not precisely such as the subscription paper contemplated, did not contain a clause that the road should be built in twenty months, and was not made within a year from the first of September, 1853. Non constat that the road would have been any sooner or any better built, if contracted for in that particular way, and within that time. It was built, and non constat that defendants' stock is not worth all it would have been worth in the other event.

If he was delayed in the dividends, which he would have otherwise sooner received, the answer is that his right to such, was dependant on payment of the stock, which he has not done. The main object here is to build a railroad from Burlington to Fairfield. To secure this it is to be put under contract before the stock is collected. We have done more. We have built it. But it is said the contract was not made within one year, and did not provide for the road being built within twenty months; and that these things were contemplated. True, they were. But what for? Obviously to secure the building of the road. Well, it is built. Non constat that it would sooner have been built if let the other way. The grievance then is, that we built the road before asking payment of stock instead of forcing payments with which to build it.

A condition, so far as to the manner of performance, or manner of bringing about a performance, is sometimes inoperative in favor of a substantial performance. Merrill v. Bell, 6 Smeed & Marsh., 730 ; McAuley v. Billenger, 20 Johns. 88.

A town voted $ 400 to buy a fire engine, provided an equal amount be raised by subscription. It was not so raised, but a responsible man guaranteed the amount and the terms were adjudged complied with. Torrey v. Millbury, 21 Pick. 64.

Where the charter fixed the terms of subscription, a subscription embodying additional terms not inconsistent with the charter stipulation was holden as good at common law. Fisher v. The Evansville and Crawfordsville R. R. Co., 7 Ind. 407.

Negus & Culbertson and Wilson & Stubbs for the appellee.

No argument on file.

Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, Hon. JOHN F. DILLON, Hon. CHESTER C. COLE, Judge.

OPINION

DILLON, J.

The promise of the defendant to pay the subscription was dependant upon the performance of a prior act to be...