64 W. Va. 181 | W. Va. | 1908
The circuit court of Cabell county having dismissed their bill against the Guyandotte Valley Railway Company and the Chesapeake & Ohio Railway Company, praying the cancellation of a certain contract, purporting to vest in the former company an interest in the coal in 3,100 acres of land, belonging to the plaintiffs, as a cloud upon the title to said land, P. C. Adams, W. L. Rector, G. H. Chenowith, J. N. Chenowith and Brooks Summerville have appealed from the decree.
From the bill it appears that George F. Miller, George N. Biggs and O. W. Watts, owners of certain lands, situate in Lincoln county, and containing about 3,100 acres, entered into the contract in question on the 20th day of July, 1899. On March 27, 1902. they conveyed the land to J. D. Porter, who, on the same day, conveyed it to P. C. Adams and W. L. Rector. On the 28th day of December, 1903, Rector conveyed an undivided three-sixteenths of it to G. FI. Cheno-with, J. N. Chenowith and Brooks Summerville. All the
Like that of most of the other smaller streams of this state, the course of the Guyandotte River is far from straight. Its meanderings are numerous and divergent in direction, there being many crooks and bends in it, in consequence of which it runs at different places in different directions, though it maintains a general course, not very clearly indicated by the evidence. The railroad follows the river. The land in question is not located on the river or the railroad. The shortest distance between it and the railroad is two and one-half or three miles, over a high ridge, which would make access to it from that point by a spur or branch road impracticable. From other points upon the road it lies distant from five to seventeen miles. In view of this peculiar situation, it is somewhat difficult to determine just what the parties meant by the term “opposite the land,” used in the clause requiring the railroad to be completed to that point by the first day of January, 1903. This element of uncertainty forms the basis of contention as to whether that condition was complied with. According to the testimony, the point on the railroad from which it is practicable to reach the land by a branch road is the mouth of the Big Ugly Creek. There, on the completion of the road, what is known as Gill Station was established, and, from it, to the land the distance is about ten miles up Big Ugly Creek. In the spring of 1902, the road had been built to a place called Mid-kiff, some ten miles below Gill Station. From this point it
What was intended by the stipulation for the completion and operation of the railway opposite the land is to be ascertained, not by any arbitrary rule, or the technical meaning of the term “opposite. ” We must assume that both parties to the agreement entered into it in good faith. Therefore, their intention must be gathered from the instrument, considered as a whole, and as disclosing the circumstances under which they entered into it, their relative situation and the purposes each had in view. We are not to suppose that either, at that time, contemplated, expected or suspected any attempt on the part of the other to set up an arbitrary or technical signification of any term used. Each looked-to, and was controlled by, the substance, rather than the form, of the contract.’ The advantages sought by the railway company were aid and assistance in the construction of its' road. Those anticipated by the land owners were enhancement of the value of their land, to be conferred by the construction of the road in proximity thereto, and a means of marketing the coal to be taken therefrom, whether by themselves^ their lessees or persons to whom they might desire to sell the land. These inducements to the agreement on both sides indicate more clearly and with greater certainty the intention of the parties than the signification of the word “opposite,” as disclosed by the definition thereof found in the dictionaries. This gives it a more certain construction or meaning than it would be possible to arrive at, by adhering to the abstract definition; for -unrestrained and unqualified by reference to any related object, it would be wholly
Failure of the railway company to comply with the condition having been shown, the propriety of the remedy invoked by the plaintiff is dependent upon the character of that con
No authority need be cited for the proposition that the -completion and operation of the railroad opposite the land is a condition precedent. To say otherwise would be tantamount to saying a purchaser may obtain a deed for land, or possession thereof, without paying the purchase money under •a contract expressly providing that the terms of the purchase shall be cash, payable on delivery of the deed or before entry on the land. It could not be supposed for a moment that the parties intended an interest in the land should vest in the railway company except upon the building of the railroad. That was the substance of the thing which it was stipulated
So far, the rules stated and the instances mentioned pertain to contracts in which the parties have not used terms expressly purporting to make time an essential element. Under the practically unlimited right and power of parties to make such contracts as they see lit to make and bind themselves to such extent, and in such manner, as they please, they may make performance of any covenant or condition, however unimportant or trivial in character, a condition precedent. Though time of performance may be comparatively or really unimportant in a practical sense, they have the power to stipulate with one another that failure to observe it shall be fatal and put an end to the contract. They may make the entire transaction turn upon that as a condition precedent. In Bettini v. Gye, cited, Blackburn, Judge, said: “Partiesmay think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfillment of such a thing a condition precedent, it will be one: or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent is not really vital, and may be compensated for in damages, and if they sufficiently express such an intention, it will not be a condition precedent.” in the quotation from Parsons on Contracts, reference is made to the distinction between essentiality found by construction and essentiality made by express stipulation. It is also referred to in Cosby v. Honaker, 57 W. Va. 512. Authorities are there cited for the well settled proposition that, when time has not been made essential by the terms of the contract, the covenantee may, after default, make it essential by a demand for performance after a reasonable time, accompanied by notice that no further time will be allowed. And this is true of covenants merely to pay money, breach of which is com-pensable in damages, easily and certainly ascertainable, since
The stipulation under consideration here relates to a condition, the non-performance of which may inflict injury not easily or readily susceptible of ascertainment or compensation. It is not like failure to pay money on a specified day. It is not a covenant for breach of which an action would lie. However great the resultant injury from the breach or failure, damages could not be recovered. No means are provided for compelling performance. In the event of failure to perform within the time stipulated, the gravity of the injury would depend upon the period of delay. Delay of one month, or six months, might not be serious, but, if such delay is permissible, why not a delay of one year, five years or ten years? How could the court fix a time within which the delay would be deemed innocuous, and beyond, fatal? It cannot make a contract for the parties. In Anew of the nature of the stipulation and the subject matter thereof, the parties saw ' fit to fix a time Avithin which the condition should be performed, and then said, if it should not be performed
¡nThe right to. .cancellation at the-instance, of ¡the plaintiffs .is disputed on the ground of their ..having purchased the land after the execution of the contract, and three of them after th!e; expiration of • the time stipulated for the completion of the road. Their purchase, no matter when made, put them in the shoes of Miller, Biggs and Watts, and conferred upon them all the rights and powers.fheir grantors had, respecting the land. No title had vested in the railway company when they purchased. Though they -purchased with notice of the contract, they did so knowing the condition, upon the performance of which the vesting of title under it depended, had not been performed. Upon what principle they are estopped from clearing their title of a now worthless and dead contract we are unable to perceive.
Complaint is predicated on the overruling-of the demurrer, because Miller, Biggs, Watts and -Porter were not. made parties. They no longer had any interest in the land or the
The decree appealed from will be reversed and the contract canceled and annulled. Costs in this Courts as well as in the court below, are awarded to the appellants.
Reversed. Contract Omicelled.