Sickels v. Anderson

• Decision Date: 28 October 1886
• Court: Michigan Supreme Court
• Parties: SICKELS and another v. ANDERSON.

30 N.W. 78

63 Mich. 421

SICKELS and another v. ANDERSON.

Supreme Court of Michigan

October 28, 1886

Error to Clinton.

A.D Griswold and S.D. Daboll, for defendant and appellant Anderson.

If the contract was to be performed on the happening of a future event, that event must fully happen. Detroit, etc., R Co. v. Starnes, 38 Mich. 698. The question of reasonable time should have been left to the jury. Byram v Gordon, 11 Mich. 531; Stange v. Wilson, 17 Mich. 342; Coon v. Spaulding, 47 Mich. 162; S.C. 10 N.W. 183. The court should, if it directed a verdict at all, have instructed them to find for the defendant. Druse v. Wheeler, 26 Mich. 195; Stevens v. Corbitt, 33 Mich. 458.

A.W. Scoville and Spaulding & Barker, for plaintiffs, Sickels and another.

The road was built substantially on the old line. If the charge affects the defendant at all, it is presumably to his advantage. Michigan, etc., R. Co. v. Bacon, 33 Mich. 466; Toledo, etc., R. Co. v. Johnson, 55 Mich. 456; S.C. 21 N.W. 888. The question of reasonable time is not in the case. The parties fixed their own time of payment, and their contract controls. Abell v. Munson, 18 Mich. 306; Amer.Law Reg. January, 1886, p. 98, note; Toledo, etc., R. Co. v. Johnson, supra.

MORSE J.

Plaintiff sued defendant upon the following obligation:

"ELSIE, July 6, 1872.

"For value received, we jointly and severally promise to pay Cobb & Sickels, or bearer, fifty dollars, with interest for one year, payable one day after the grading shall be done, and the ties on the ground, sufficient for the road-bed of the Owosso & Northwestern Railroad, between Owosso and Elsie.

"J.C. ANDERSON.

"JOHN WILSON."

The undisputed evidence shows that a railroad company, known as the Owosso & Northwestern Railroad, was projecting and working upon a line of road from Owosso to Elsie, in Clinton county. Both Anderson and Wilson were living in Elsie, and desirous of having said road completed. They gave, previous to the date of the above agreement, a donation of $50 to said road, which gift was evidenced in a writing of some kind, which does not appear in the record. The Owosso & Northwestern Railroad was indebted to the plaintiffs for ties furnished said road, and, in part payment of such indebtedness, Anderson and Wilson gave the obligation sued upon to plaintiffs, the first agreement being canceled and destroyed.

In 1872 the Owosso & Northwestern Railroad quit work upon the road-bed, and nothing more was done upon the same until 1883, when the Toledo & Ann Arbor Railroad Company went to work upon the old road-bed, completing the road, so that cars ran between Owosso and Elsie in the spring of 1884. The road completed by the new company did not run all the way upon the old line, but ran in a direct and shorter route, using some of the old road-bed.

After the Owosso & Northwestern road apparently abandoned the work, a portion of the road-bed during the 11 years was plowed up and cultivated by farmers along the line. There is no proof that the Owosso & Northwestern road had any existence, as a company, after 1872, or that there was any meeting of the directors. There is no showing by what right or authority the Toledo & Ann Arbor Company used this road-bed, except the testimony of a witness, who swears that, when this company first began work upon the road-bed, the old company claimed the line, and that he afterwards heard they had sold out to the Toledo & Ann Arbor road. Thereupon the court directed the jury to find a verdict for the plaintiffs, and judgment was entered against the defendant for $53.53.

The court said to the jury: "I am of the opinion that it is not material what railroad company graded and furnished ties for the road-bed. It seems to me the only question is whether the grading was done, and the ties furnished, in a reasonable time. It is my impression that the question I shall submit to the jury is whether the road-bed was put in condition, graded, and the ties put there in a reasonable time. That, I think, is an open question, and, perhaps, should be submitted to the jury. Now, gentlemen, do you desire to talk to the jury on that question? Mr. Daboll. We should like an opportunity to go and address the jury--First, upon the question of reasonable time; and, second, as to whether the conditions of the contract have been complied with; and, as to this question, we think your honor cannot properly take it from the consideration of the jury. We ask that this question be submitted to the jury with the other question as to reasonable time. The Court. We will treat your requests as made and refused, and give you your exceptions; and, upon further examining the authorities, I am inclined to direct a verdict for the plaintiff."

We think the court erred. The contract sued upon in this case grew out of a donation to the...