Missouri Pacific Ry. Co. v. Tygard

• Decision Date: 31 October 1884
• Citation: 84 Mo. 263
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. TYGARD et al., Appellants.
• Court: Missouri Supreme Court

84 Mo. 263

THE MISSOURI PACIFIC RAILWAY COMPANY

v.TYGARD et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Bates Circuit Court.--HON. JAS. B. GANTT, Judge.

AFFIRMED.

A. Henry, T. J. Galloway, P. C. Fulkerson, W. P. Johnson, and E. J. Smith, for appellants.

(1) The notes were a bonus or donation to the railroad on certain conditions, and the road did not comply therewith, and there can be no recovery. In a case of conditional subscription (which must be distinguished from a donation) it was held by the Iowa Supreme Court that a depot at a town should be inside and not outside of it. R. R. v. O'Connor, 40 Ia. 477. (2) But if the conditions had been strictly complied with, the contract could not be enforced as it is against public policy and is void. 14 Hun. 392; Dix v. Shaver, 1 Hill 518; R. R. v. Seely, 45 Mo. 212; Holloway v. Patterson, 5 Oregon 177. (3) But even if the depot had been located within the city of Butler, it was not within three fourths of a mile of the court house by any line of travel, and the contract for this reason was not complied with by the railroad. Wood v. Dennett, 2 Starkie R. 89; Leigh v. Hind, 4 M. & R.; Atkins v. Kinner, 4 Excheq. Rep.Railey & Burney for respondent.

(1) Under our statute the notes and contracts in controversy are not invalid as being contrary to public policy. Even without the statute they would be valid. Revised Statutes, section 765; Berryman v. Ry. Co., 14 Bush 755; First Nat. Bk. v. Hendrie, 49 Ia. 402; Cumberland Valley v. Ry. Co., 9 Watts 458; McClure v. Ry. Co., 9 Kan. 373; Pierce on Railroads, 60, 61; Racine Co. Bk. v. Ayers, 12 Wis. 512; Workman v. Campbell, 46 Mo. 305; Pacific R. R. v. Seeley, 45 Mo. 212; 23 Albany L. J., pp. 85, 86. (2) The contract being silent as to how the distance from the court house to the depot should be determined, it should be measured by a straight line. Pierce on Railroads, 63; 1 Redf. on R. R. 414; 1 Rorer on R. R. 482; Cedar Falls, etc. v. Rich, 33 Ia. 113; Courtwright v. Strickler, 37 Ia. 382; Butler v. Barr, 18 Mo. 357; Allen v. Kingsberry, 16 Pick. 235; Kingsland v. Chittenden, 61 N. Y. 618; Slade v. Etheridge, 13 Ired. L. R. 687; Lake v. Butler, 85 Eng. Con. L. R. 91; Jewett v. Stead, 88 Eng. C. L. 349; Burnett v. Thompson, 6 Jones L. R. 211. (3) Under the terms of the contract the railroad was not required to build its depot within the corporate limits of the town of Butler, said contract providing “and shall also establish and construct a depot within three-fourths of a mile of the court house in said city of Butler.” McGregor v. Ry., 38 Ia. 592; Wooters v. Ry., 54 Tex. 294. (4) The plaintiff substantially complied with the requirement of the contract to complete its road to Pleasant Hill by January 1, 1881, and this was sufficient. People v. Holden, 82 Ill. 93; Courtwright v. Deeds, 37 Ia. 503; State, etc., v. Hastings, 24 Minn. 78; Hodgman v. Ry., 23 Minn. 153; Von Hostrup v. City of Madison, 1 Wall. 291; Stockton R. R. v. Stockton, 51 Cal. 334; State, etc., v. Town of Clark, 23 Minn. 422. (5) The plaintiff having complied with the conditions of the contract became entitled to the possession of the notes and contracts, and could sue thereon without actual delivery of the same. 1 Parsons on Notes, 51; Couch v. Meeker, 2 Conn. 302; Taylor v. Thomas, 13 Kas. 218; State Bk., etc., v. Evans, 15 N. J. L. 155; Shirley v. Ayres, 14 Ohio, 307; Regan v. Howe, 121 Mass. 424; Bishop on Contracts, 764; Campbell v. Wolf, 33 Mo. 459; Bowling v. Hax, 55 Mo. 448; 1 Daniel on Neg. Instruments, 54.

BLACK, J.

This was a suit to recover the possession of one hundred and seventy-three notes, or subscription contracts, given by various persons to the Lexington and Southern Railway Company, to aid in the construction of that road. The defendant, Tygard, held the notes in compliance with a stipulation contained in each note, to the effect that if the company should complete and put in operation its railway of standard gauge from the town of Pleasant Hill in Cass county to the city of Butler in Bates county, and should establish and construct a depot within three-quarters of a mile of the court house in the city of Butler, all to be done and completed as aforesaid by or before the first day of January, 1881, then the notes were to become the property of the company, were to be delivered to it, and were to be paid according to their tenor; but if the company should fail so to do, then the notes were to be delivered to the makers. The persons who made these notes were made defendants on motion of Tygard. After the notes were given, and in 1880, this company was consolidated with the plaintiff, which became entitled to them on complying with these conditions in the contracts stated. It is admitted that the road was completed and put in operation from Butler to a point within one mile of Pleasant Hill, and that the depot was established and constructed within the specified time; but the defence is, that the depot was not located within the corporate limits of the city of Butler, nor within three-quarters of a mile of the court house; that one mile of the Pleasant Hill end of the road was not completed within the specified time; and that the notes ought to be held void from considerations of public policy.

1. An inspection of the contract will show no agreement to place the depot or to build the road into the corporate limits of Butler. There was some evidence tending to show that the depot as located was not within three-quarters of a mile of the court house, by any then traveled road, but it was conceded that the depot was within less than that by direct measurement, and this the circuit court held sufficient. This ruling is assigned as error. Where a line is given in a deed, or commissioner's report, to be run from one point of measurement to another, it must be taken to mean a straight line, unless there is a different intent expressed. Allen v. Kingsbury, 16 Pick. 238; Jenks v. Morgan, 6 Gray 449; Henshaw v. Mullens, 121 Mass. 143; Butler v. Barr, 18 Mo. 357. Where the road is to be located within a specified distance of a certain point, and nothing is said as to the manner of measurement, the law is well settled that the distance is to be measured by a direct line, and not by the traveled route. R. R. v. Rich, 33 Iowa 113; Pierce on Railroads, 63; 1 Rorer on Railroads, 482; 1 Redfield (6 Ed.) 414.

2. On trial it was admitted that this road formed a junction with the Atchison, Topeka and Santa Fe Railroad, at a point one mile from Pleasant Hill, and from that point to Pleasant Hill the L. & S. road used the track of the A., T. & S. F. R. R. to May, 1881. This mile of the L. & S. road was graded on January, 1881, but not ironed and put in use until May, 1881; but the road was in full operation from Pleasant Hill to Butler and beyond at the stipulated time. Undisputed evidence also shows that the plaintiff owned its depot, stock yards, and tracks thereto at Pleasant Hill, which the A., T. & S. F. road used. State ex rel. v. Town of Clark, 23 Minn. 422, was a proceeding by mandamus to compel the town to issue bonds, which were to be issued on condition that the railroad company should, on or before a specified day, have completed, ironed, and equipped its line of road from Wells to Mankato, and have the same in operation for transportation of passengers and freight. The road was completed to a point within a fourth and half mile of Wells, and from that point it ran over the track of another road into the village of Wells, and this was held to be a substantial compliance with the contract. The People ex rel. v. Holden et al, 82 Ill. 93, was a like proceeding. The bonds were not to be delivered until the railroad was completed, equipped, and in successful operation from Paris to Danville. The road was thus built from Paris to a point one mile from Danville, where it formed a connection with the Toledo, Wabash and Western Railway, and by an arrangement with that road, ran over its track to Danville, and this was held to be a compliance with the terms of the contract. There must be a fair and substantial compliance with the conditions of the contract, and this is all that is required. These...