Piper v. Choctaw Northern Townsite & Imp. Co.
| Decision Date | 14 February 1906 |
| Citation | 85 P. 965,16 Okla. 436,1906 OK 11 |
| Parties | PIPER v. CHOCTAW NORTHERN TOWNSITE & IMP. CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 9, 1906.
Syllabus by the Court.
Where the conditions of a contract are such as to provide for the maintenance of the thing contracted for after construction, a petition in an action brought upon a contract to recover the consideration for such contract, is not demurrable for the reason that the petition states that the contract has been and is being performed, the words "is being performed" having reference to the maintenance of the citing contracted for.
[Ed Note.-For cases in point, see vol. 11, Cent. Dig. Contracts §§ 1664-1669.]
A railroad company for the purpose of aiding in the construction of its line of road, may accept and enforce an obligation payable to it conditioned upon the construction of its line of road to a given point within a given time, and the establishment and maintenance of a depot there.
A contract was given to the Watonga & Northwestern Railway Company promising payment of $250 to it if a line of railroad should be built from Geary, O. T., to Watonga, O. T., by June 1, 1901, and a depot established and maintained there. The charter of said railway company was afterwards amended changing the name of the corporation to the Choctaw Northern Railway Company, under which last name the line of road provided for in the contract was constructed. Held, that a demurrer to the evidence for that reason was properly overruled.
It is not an abuse of discretion for a trial court during the trial of a cause, to refuse an amendment to an answer, which sets up a new and additional defense, where no reason is given therefor other than that the trial court refused to allow the evidence desired to be introduced under a general denial.
[Ed Note.-For cases in point, see vol. 39, Cent. Dig. Pleading §§ 772, 794.]
Error from District Court, Blaine County; J. L. Pancoast, Judge.
Action by the Choctaw Northern Townsite & Improvement Company against W. B. Piper. Judgment for plaintiff, and defendant brings error. Affirmed.
Noffsinger & Hinch, for plaintiff in error.
J. B. Cheadle, for defendant in error.
This action is brought to enforce performance and payment of the following contract:
Indorsed on contract:
Upon the trial of the cause it was disclosed by the evidence that the railroad was built and put in operation as contemplated by the contract, and the station established at Watonga as provided for by the foregoing agreement. In short, it is not claimed by the defense offered in the case, but that the provisions of the contract to be performed by the railroad company had been fully and literally complied with. The defense offered was purely technical, and raised no issue upon the merits of the case. This is a character of defense not greatly favored by appellate courts, but the strict legal rights of the party will nevertheless be protected.
The first objection urged is that the trial court erred in overruling the defendant's demurrer to plaintiff's amended petition, and this for the reason that it averred the railroad mentioned in the contract was in process of construction at the time the contract was executed, and therefrom infers a variance between the contract and the averments of the petition. We find nothing in the contract which determines whether the railroad was then in process of construction or was not. Neither are we able to see how the defendant could be injured by the fact that the railroad, which he undertakes to aid in the construction of, was already in process of building.
A second proposition presented upon the demurrer is that the petition recites that the conditions of the contract sued on "has been and is being performed." It is urged that this is not an allegation of perfect performance of the contract, citing the provisions of the Oklahoma statute as follows: "In pleading the performance of the conditions precedent in a contract, it shall be sufficient to state that the party duly performed all of the conditions upon his part." The language of this statute is not, as urged by counsel for plaintiff in error, equivalent to a provision that an action cannot be maintained upon a contract except upon an allegation that all the conditions of the contract have been performed by the party pleading. The statute provides simply what is a sufficient allegation of the facts. It is unreasonable to suppose that this language of the statute was intended to preclude other conditions which entitled the party to recover, than those of complete performance of the contract, and in the contract under consideration there is an apt illustration, for the contract provides among other things, as a condition to liability thereon "that said railroad company shall establish and maintain a station within 450 feet of Main street, as at present located in the said city of Watonga." The words "establish and maintain" mean that a depot shall be established and thereafter maintained. The word "maintained" as therein used means a continuing obligation, and the pleader manifestly, by the language used, intended to declare that all the conditions had been performed by the railroad company, and the language used, "and is being performed," refers to the maintenance of the station at the point where the contract requires one. In view of the language of the contract sued on, we do not think there was error in overruling the demurrer on this ground.
The plaintiff in error also upon his demurrer to the petition presents the argument that a contract to locate a depot at a certain point is void, as being contrary to public policy and the argument is presented "that where a corporation like a railroad company has granted to it by a charter a franchise intended in a large measure to be exercised for the public good, any contract which disables the corporation from performing these functions, without the consent of the state, is a violation of the contract with the state, and is void as against public policy." The proposition here presented is not identical with the question presented this court in Enid Right of Way & Townsite Co. v. Lile, 82 P. 810, and L. K. McGuffin v. Coyle & Guss (not yet officially reported; decided January term, 1906) 85 P. 954. In the first the question presented was the power of...
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