City of Winona v. Minnesota Ry. Const. Co.

• Decision Date: 07 October 1880
• Citation: 27 Minn. 415
• Parties: CITY OF WINONA <I>vs.</I> MINNESOTA RAILWAY CONSTRUCTION COMPANY.
• Court: Minnesota Supreme Court

27 Minn. 415

CITY OF WINONAvs.

MINNESOTA RAILWAY CONSTRUCTION COMPANY.

Supreme Court of Minnesota.

October 7, 1880.

This action was originally brought in August, 1874, against the Minnesota Railway Construction Company and Horace Thompson, to recover damages for the conversion, by the defendants, of certain negotiable bonds, with interest coupons attached, to the amount in the aggregate of $100,000, which had been executed by the plaintiff and deposited with the defendant Thompson, cashier of the First National Bank of St. Paul, to be held by him in escrow until the performance by the construction company of a contract made by it with the plaintiff on April 23, 1870, and, upon full performance of that contract, to be delivered to the construction company.

By the terms of the contract, the plaintiff, to aid the company in the construction of the railway from St. Paul to Winona, known as the St. Paul & Chicago railway, agreed to execute the bonds in question and deposit them in escrow, and the company agreed to build, equip and put in operation, within three years from the date of the contract, a good and substantial railway from St. Paul to Winona, and to connect at Winona by bridge or ferry with the La Crosse, Trempealeau & Prescott railroad. The contract contained

certain minor provisions as to the completion of certain parts of the railway, and provided as follows in regard to the delivery of the bonds by the depositary: "It is further agreed as to the delivery of said bonds as follows: * * Third — That if a railroad is not built, equipped and put into operation from St. Paul to Winona (except the bridge at Hastings) as aforesaid, connecting at Winona, by bridge or ferry, with the La Crosse, Trempealeau & Prescott railroad, within three years from this date, then and in that event the said bonds and coupons shall be by said depositary returned to said city of Winona, or to its duly authorized agents; but in no case shall the said bonds, or any part thereof, be delivered by said depositary to the said Minnesota Railway Construction Company until a truss bridge is constructed across the Mississippi river at Winona, connecting the said St. Paul & Chicago railway, or the Winona & St. Peter railroad, with the La Crosse, Trempealeau & Prescott railroad, at the present terminus of the last-named railroad. But if, in each and every of the respects above mentioned, the said railroads and several parts of said railroads are built, equipped and put into operation within the times and in the manner above agreed, and said railroad bridge constructed as above provided, then and in that event, and in that event only, shall the said bonds be delivered to the said Minnesota Railway Construction Company by said depositary."

On March 27, 1872, the construction company, claiming to have fully performed the conditions entitling it to the bonds, demanded and received them from the defendant Thompson. This action was brought in August, 1874. In its original complaint the plaintiff alleges the making of the contract, (a copy of which is attached to the complaint as Exhibit A;) that the company, when it obtained the bonds from Thompson, had not performed the acts which by the contract were made a condition precedent to the delivery of the bonds to it; that the company had not then nor has it yet built, equipped and put in operation a good and substantial

railway from St. Paul to Winona; nor built and equipped, or caused to be built and equipped, any railway from St. Paul to Winona and connected said railway, at Winona, by bridge or ferry, with the La Crosse, Trempealeau & Prescott railroad; that there was not then, nor has there yet been built, equipped and put into operation from St. Paul to Winona a good and substantial railway, or any railway, connecting at Winona with the La Crosse, Trempealeau & Prescott railroad; that the defendant company has not built or caused to be built, or aided in any manner in building, a bridge across the Mississippi river at Winona or elsewhere, connecting said railroad from St. Paul to Winona, or any railroad, with the La Crosse, Trempealeau & Prescott railroad; that the defendant company has not, nor had it at any time, put on, or caused to be put on, or aided in putting on, any ferry on the Mississippi river, at Winona or elsewhere, connecting such railway from St. Paul to Winona, or any railroad, with the La Crosse, Trempealeau & Prescott railroad; nor has it ever put on, or caused to be put on, or in any manner aided in putting on, any ferry on the Mississippi river at Winona, or within twenty miles of the city of Winona.

The defendants in their answers to this complaint averred full performance of all the conditions prior to the delivery of the bonds. The issues raised by these pleadings were tried, and judgment ordered for the plaintiff, and defendants' motion for a new trial denied. On appeal to this court, the order denying a new trial was reversed. See City of Winona v. Thompson, 24 Minn. 199, where the questions then made upon this contract are fully stated.

The case having been remanded to the district court, the plaintiff, in January, 1878, applied for and obtained leave to amend its complaint by setting up an alleged scrivener's error in drafting the contract, by reason of which it failed to express the agreement of the parties, and by inserting the following averment: "Nor had the Minnesota Railway Construction Company, or any other company or person, on the twenty-eighth day of March, 1872, or on the twenty-fourth day of April, 1873, or at any time before the commencement of this action, constructed or caused to be constructed across the Mississippi river, at Winona, or elsewhere, a truss railroad bridge connecting the said St. Paul & Chicago railway, or the Winona & St. Peter railroad, with the La Crosse, Trempealeau & Prescott railroad, at the terminus of the last-named railroad, as the same was fixed on the twenty-third day of April, 1870, or elsewhere." As a condition of the leave to make the first of these amendments, the plaintiff was required to and did dismiss the action as against the defendant Thompson. The construction company appealed from the order allowing the amendments, but the appeal was dismissed, (25 Minn. 328,) and it thereupon answered the amended complaint, putting in issue the alleged mistake, alleging in detail performance of each of the conditions of the contract, and alleging as follows in regard to the truss bridge at Winona: "That long previous to said last-named date," (March 27, 1872,) "a truss railroad bridge was constructed across the Mississppi river at said Winona, connecting the said St. Paul & Chicago railway and the Winona & St. Peter railroad with the La Crosse, Trempealeau & Prescott railroad, at the terminus of the last-named railroad on the east bank of the Mississippi river, as said terminus was fixed at the date of said contract, Exhibit A; and defendant further alleges that said truss railroad bridge, so constructed as aforesaid, has, ever since the same was so constructed, been maintained, renewed and repaired, and was at the time of the commencement of this action, and still is, so maintained and in operation for the passage of railroad trains across the Mississippi river at said Winona."

In answer to the averments of mistake in the contract, the answer further alleges that "the plaintiff has, ever since said contract was executed, adopted the same in the form and language in which it now is, and asserted and claimed rights thereunder, and has never until the month of January, 1878, pretended or claimed that said contract was not in all things the exact record and evidence of the contract and agreement that was entered into by and between said parties plaintiff and defendant hereto; nor has the said plaintiff, until about the date last aforesaid, ever pretended or claimed that there was any mistake in the preparation or drawing of said contract, but has frequently ratified, adopted, and confirmed said contract, and predicated rights thereunder, in this, to wit." After alleging that the plaintiff pleaded this contract and claimed rights thereunder in a suit brought against it by one Cowdrey, on certain coupons of the bonds in question, in the United States circuit court for Minnesota, the answer proceeds: "And defendant avers that on account of the adoption, ratification and...