Coffin v. Black

• Citation: 54 S.W. 212
• Parties: COFFIN v. BLACK et al.
• Decision Date: 02 December 1899
• Court: Supreme Court of Arkansas

54 S.W. 212

COFFIN v. BLACK et al.

Supreme Court of Arkansas.

December 2, 1899.

Appeal from circuit court, Randolph county; John B. McCaleb, Judge.

Action by Maxwell Coffin against Bunk Black and others. Judgment for defendants, and plaintiff appeals. Reversed, and remanded for a new trial.

This was an action brought in the Randolph circuit court, June 2, 1897, by Maxwell Coffin against Bunk Black, J. T. Turner, and William De Clerk, on a promissory note given by them, in words and figures as follows, to wit: "Pocahontas, Ark., May 1, 1896. Six months after date, we, or either of us, promise to pay to Maxwell Coffin, or order, the sum of $300: provided, the said Coffin by that date, or within a reasonable time thereafter, builds, equips, and operates, or causes to be built, equipped, and operated, a practical, standard-gauge railroad from Hoxie, in Lawrence county, Ark., to the east bank of Black river, opposite the town of Pocahontas, Randolph county, Ark.: and provided, further, that at the completion and operation of said road as aforesaid, or within a reasonable time thereafter, the said issues and delivers, or causes to be issued and delivered, to the undersigned, paid-up capital stock in said road to above amount; otherwise, this to be void. [Signed] Bunk Black. J. T. Turner. Wm. De Clerk." The complaint alleged performance of the conditions of the note on the part of plaintiff, and refusal to pay on part of the defendants. Defendants answered in three paragraphs, to each of which the plaintiff demurred, in words and figures as follows (omitting caption), to wit: "Comes the plaintiff, by his attorneys, and demurs to defendants' amended answer herein, as follows, viz.: To paragraph 1, because it does not state facts sufficient to constitute a legal defense to plaintiff's cause of action. To paragraph 2, because the facts therein set out do not constitute a legal defense to plaintiff's cause of action. To paragraph 3, because the specifications therein set out are not responsive to the terms of the contract as set out in plaintiff's complaint, and are not necessary to complete a practical railroad, as set out in said contract." The court sustained the demurrer to paragraphs 1 and 2, and overruled it as to paragraph 3, which is in words and figures as follows, to wit: "For further cause of defense, defendants deny that the said Coffin has built, or caused to be built, and equipped, the kind of railroad described in said contract or mentioned in said complaint, and deny that a railroad of any kind has yet been built and equipped between the points mentioned in said contract and complaint; and that in many material respects plaintiff has failed to perform the things imposed upon him in said contract, as follows, viz.: (1) Plaintiff has not built a practical road; the same being submerged and rendered impassable during ordinary high-water conditions, not being above overflow. (2) The roadbed is incomplete and unfinished, in the sense of the contract sued on; the building thereof being stopped before it was elevated above the ordinary overflow. (3) The Black River terminal has never been provided with the necessary Y's, turntable, tanks, machine houses, etc., necessary to the completion of a practical railroad, as contemplated in said contract. Defendants say their signature to said...