Cooper v. Sullivan Cnty.

• Decision Date: 31 October 1877
• Citation: 65 Mo. 542
• Parties: COOPER, APPELLANT v. SULLIVAN COUNTY ET AL.
• Court: Missouri Supreme Court

65 Mo. 542

COOPER, APPELLANT

v.SULLIVAN COUNTY ET AL.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Sullivan Circuit Court.--HON. R. A. DEBOLT, Judge.

This is a proceeding to enjoin the delivery of certain bonds of Sullivan county, held in escrow by McCullough, one of the defendants, and to be delivered by him to the St. Joseph and Iowa Railroad Company, or its successor, the Burlington and Southwestern Company, upon compliance by the company with the terms of a subscription made by the county court. The order of subscription and the other facts upon which this application is based, will be found fully stated in the case of the State ex rel. v. Sullivan County Court, 51 Mo. 522. The question of the forfeiture of the charter of the St. Joseph & Iowa Railroad Company by non-user or otherwise was not made in that case.

B. R. Vineyard and A. H. Vories for appellant

1. If the order of the subscription of May 1, 1871, had any force at all, it was made upon condition that the road should be commenced in six months and finished through the county in twenty-one months, and upon the condition that, if not so commenced and finished, the order making the subscription of stock might be set aside and rescinded by the county court. The railroad company having failed to finish the road in the twenty-one months after it was commenced, the county court had authority, by virtue of the contract between the parties, to annul its obligations to the company, which it did by the order of July 5, 1873. The evidence at the trial of this cause showed that, at the time this order was made, more than twenty-one months had passed, and still the railroad was not finished through the county. So far as the bonds of the county still in the hands of the trustee are concerned, the validity of the action of the county court in its order of July 5th, 1873, cannot be questioned. 2 Parsons on Contracts, 677-8-9 and 680, and notes (6 Ed). Chitty on Contracts 461, 625, 741, 742. Maloney v. Malcolm, 31 Mo. 45. Pierce on American R. R. Law p. 75.

Alex. W. Mullins and Geo. W. Easley for respondent.

NAPTON, J.

This case originated in the circuit court of Sullivan county, in April, 1872. After the decision of the case of the State on the relation of the St. Jo. & I. R. R. Co. v. Sullivan county, by this court at the February term 1873, an amended petition was filed on April 7th, 1873 the object of which was to restrain the receiver, McCullough, from paying over certain bonds alleged to be remaining in his hands, to the Burlington & South Western R. R. Co.

THE STATE EX REL. ETC. V. THE COUNTY COURT OF SULLIVAN COUNTY, 51 MO., 522 AFFIRMED.

Nearly all the questions presented by the pleadings and the evidence in this case were decided by this court in the case above referred to (51. Mo. 522) when this court affirmed the action of the circuit court in issuing a mandamus...