Chicago v. President

• Decision Date: 30 September 1876
• Citation: 1876 WL 10458,84 Ill. 145
• Parties: CHICAGO, PEKIN AND SOUTHWESTERN RAILROAD CO.v.PRESIDENT AND TRUSTEES OF TOWN OF MARSEILLES.
• Court: Illinois Supreme Court

84 Ill. 145

1876 WL 10458 (Ill.)

CHICAGO, PEKIN AND SOUTHWESTERN RAILROAD CO.

v.PRESIDENT AND TRUSTEES OF TOWN OF MARSEILLES.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of La Salle county; the Hon. EDWIN S. LELAND, Judge, presiding.

Mr. GEORGE S. ELDRIDGE, and Messrs. RICHOLSON & SNOW, for the appellant.

Mr. CHARLES BLANCHARD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

On the first day of August, 1871, appellant, by its president, executed an agreement, in writing, with appellee. Appellant, in the agreement, recites and acknowledges the fact, that appellee had issued bonds of the town to the amount of $10,000, bearing ten per cent interest, and payable in ten years, and had delivered the same to the company; and that the sole consideration for the issuing and delivery of the bonds was, that the company should construct and put into operation a railroad from Pekin to Chicago, through the town of Marseilles, in the State of Illinois; and that the company had sold the bonds and used the proceeds thereof in grading or partly grading a railroad from Pekin to Marseilles; and that the company had entered into a contract with Ralph Plumb, by which he had agreed to construct the same from Streator to Chicago, the following year.

The company there agrees and binds itself, that if, from any cause, it should fail to construct the road from Pekin to the town of Marseilles, it should pay to the president and trustees of the town of Marseilles, for the use of the town, the sum of money the company had received on the sale of the bonds, and the interest accrued thereon, upon the tender, by the town, of the stock issued to the town by the company. Appellee, on the 19th of September, 1873, brought suit on this agreement, to recover the money. It was averred that the time for constructing the road had expired, but it had not been built. It was also averred that appellee had tendered a return of the stock, and had demanded the money, but the company refused to receive the stock or pay the money.

After filing a demurrer to the declaration, which was overruled, defendant filed several pleas. The first denied the tender. The second averred that the contract was executed without any good or valuable consideration. The third plea set up that the time for constructing the road, as agreed between the company and Plumb, had not elapsed. The fourth plea averred that the time for building the road had been extended. Issues to the country were joined on the first, third and fourth pleas, and a demurrer was filed to the second, which the court sustained, and appellant abided by its plea. A trial was had, resulting in a verdict and judgment in favor of plaintiff, and defendant appeals.

It is urged that there was no time named in the agreement for the completion of the road. The instrument states that Plumb had contracted to construct the road the following year; and as the agreement was executed in 1871, no other reasonable conclusion can be reached, than it was to be completed during the year of 1872. This is manifest from the language employed. It will bear no other construction. It then provides, that if the road should not be constructed, the company would refund the money, with interest. When constructed? Obviously within the time specified. Why name the time within which Plumb had agreed to complete it, if not to fix the time when the company would pay the money if not completed? The recital was evidently made for some purpose, and what other could have induced it? The presumption is, that the parties intended to fix a period when the tender might be made and the money demanded. We can not conclude that it was intended that the time should remain undetermined for all coming time. Rational persons and the most ordinary business men would not do so absurd a thing as that. It seems to us, therefore, to be obvious, that a fair and reasonable interpretation of the agreement is, that if the road was not constructed according to Plumb's agreement, during the year 1872, the money should then be payable on an offer to return the stock and its being tendered to the company.

It is urged that the court below erred in sustaining the demurrer to appellant's second plea. It averred that the instrument sued on was executed without any good or valuable consideration whatever; that plaintiff was a legally organized municipal corporation, which had voted to subscribe $10,000...