42 Ind. 181 | Ind. | 1873
The Indianapolis and Vincennes Railroad Company sued the appellee upon the following contract:
“For and in consideration of the benefits that the public in general, and we in particular, will derive from the construction of a first-class railroad from Indianapolis to Vincennes, we, the undersigned, agree to give, donate, and pay to The Indianapolis and Vincennes Railroad Company, the amount annexed to our names, respectively, when said railroad company shall have completed said railroad through Morgan county, Indiana, and have the same ready for the running of the cars through said county: Provided, always, that said railroad be located and made as nearly as practicable on the grade of the Indianapolis branch of the New Albany and Salem Railroad, from Indianapolis to Gosport, making Mooresville, Brooklyn, Centerton, and Paragon points; the same to be collectible without relief from valuation ' or appraisement laws.
“ December 14th, 1865. Jackson Record, $1,050.”'
And Others.
The appellants were afterward substituted as plaintiffs. The complaint was in five paragraphs. Each paragraph sets out and makes the contract a part of the complaint, alleges that the railroad company accepted and acted upon the agreement and subscription, and constructed such first-class railroad, making the places mentioned points thereon ; that it was so far completed in accordance with the contract arid condition, that on the- day of-, 1868, the same was ready for running cars through said county; that on that day and since, continuously, the cars of the railroad did and have run thereon; and thence hitherto she has operated the same as a railroad, transacting the freight and passenger business of the country along the line of the road through said Morgan county, to and from said city of Indianapolis ; that the said subscription of the appellee became and was due on said day, and is, together with the interest thereon, unpaid.
The second states that she did construct the road by way of those places, making them points thereon, and to a distance of-on said grade, south of Centerton; “thatat said point, diverging from and leaving said grade, she constructed her said road across White river, and thence along the east side of the same to the town of Martinsville, making said Martinsville a point thereon; thence, proceeding westward and crossing said White river again, at a point some two miles from said town she again intersected said grade, and thence constructed her said road along and upon said grade through to said town of Paragon, making said Paragon a point, and so continuing on said grade, she constructed her said road to the western line of said county, and thence on to -the town of Gosport, the terminus of said grade.
“And plaintiff avers that the construction of said road from said point of divergence from said grade, by the way of Martinsville aforesaid, to said point of intersection with said grade, in no wise affects the interest of said defendant, or makes the road less valuable to him.”
The third paragraph is like the second, omitting the statement that' the divergence, by the way of Martinsville, in no wise affected the interest of the appellee.
The fourth paragraph differs from the third by averring that the construction of the road from the point of divergence from the grade, by the way of Martinsville, was done with the acquiescence and consent of the defendant and with his full knowledge.
The fifth paragraph, after setting out the contract, contains the following:
“ That at and before the time of the construction of said road, it was agreed by and between Ambrose E. Burnside, as president and financial agent of the plaintiff, and the people of Martinsville, that if they would give, donate and pay to said
“ That thereupon the said defendant and the subscribers living upon the west side of White river, declared their intention not to pay their subscription and donation, and ceased their efforts to secure the sum of fifty thousand dollars by them before agreed to be raised and paid to said plaintiff, in consideration of said road, etc.
“ That thereupon the citizens living along and upon the east side of White river, between Martinsville and Indianapolis, proposed to Ambrose E. Burnside, as such president and financial agent, that if said plaintiff would locate and build her said road from Indianapolis to Martinsville on the east side of’ White river, by the way of Waverly in Morgan county, they, the said citizens living along said proposed route, would give, donate, and pay to the said plaintiff, for the construction of said road, the sum of fifty thousand dollars.
“Thereupon, on learning said facts and understanding that said Burnside was contemplating accepting said proposition, and locating and constructing said road upon the said east side of White river, they, the said defendant and the other subscribers upon the west side of White river, consulted and agreed with said plaintiff, that the location of said road might be changed so as to diverge from said old grade at a point below and south-west of said Centerton, cross White river to the east side, and run by Martinsville, and that they would pay to said plaintiff to the amount of their said subscription, before that time by them agreed to be paid.
“ That thereupon said plaintiff, accepting and acting upon said agreement and contract as modified as above described, proceeded to and did construct her railroad in pursuance thereof, and in accordance with every particular thereof, and did make Mooresville, Brooklyn, Centerton, Martinsville,and Paragon, in Morgan county, points thereon, and did locate
It then avers the completion and use of the road as in the others.
Demurrers were filed and sustained to the second, third, fourth, and fifth paragraphs of the complaint, and the appellants excepted.
The appellee answered in four paragraphs. The first is a general denial.
The second admits the execution of the contract and avers that prior thereto The New Albanyand Salem Railroad Company had located the branch mentioned through the towns named in the contract to be made points, and the entire line thereof on the west side of White river, in said county, and had made the grade, etc., on the line so located; that the grade then remained and was unoccupied, ready to be used by said railroad company, the appellants’ assignor, and was practicable in its whole length and proper to be used; that the company, on the - day of-, did locate its road upon said grade; that afterward, in ■ consideration of thirty thousand dollars paid and secured to be paid by the town of Martinsville, the company changed the location so as to place the line of its road from a point five miles above and north of said town of Martinsville, on the east side of White river, and abandoned the said location, grade, etc., between said towns of Centerton and Paragon, in said county, for eight miles, and constructed and now have the road on such altered line.
The third paragraph avers that the contract was made without any consideration.
The fourth avers that he was persuaded to execute the contract by the representations of the agents of the company, that she had prior thereto located the line of her rail
The fifth avers that the railroad company, by its agents, falsely and fraudulently represented to him that she had located her railroad through said county, on the west side of White river and on the grade of the said branch railroad, and would thereon construct the said road; that he, relying upon said representations and believing them to be true, executed the contract; that the road has not been so located, nor did said company construct said road on said grade, but abandoned the same for a distance of eight miles, between the towns of Centerton and Paragon, and for that distance located and constructed her said railroad on the east side of White river.
Demurrers were filed to the second, fourth, and fifth paragraphs of the answer, which were sustained to the fourth and overruled to the second and fifth. Exceptions were duly taken.-
The reply was in four paragraphs.
The first was a general denial.
The second averred that the work on the branch railroad referred to was done many years before the execution of the contract; that between the points of divergence in the location of said road from said branch, the old grade had wasted, the bridges decayed, the drains had filled up, and, for a large portion of the distance, no work had ever been done; that the work would be likely to wash away by high water if rebuilt, without an extraordinary expenditure
The third paragraph avers that on the —— day of September, 1867, the citizens residing upon the east side of White river, between Martinsville and Indianapolis, were very desirous of, and were making an effort to procure the location of said plaintiff’s road all the way on the east side of White river, from Indianapolis to Martinsville; that said defendant and the other subscribers of donations upon the
The fourth paragraph avers that she admits that the line of the said road was varied from the line of the said old grade, as set forth in the second paragraph of said answer, but says that before the delivery of the contract sued on, it was agreed by and between the said defendant and his co-obligors thereon and the plaintiff that the divergence and change should be made in the manner aforesaid; that relying upon the good faith of said defendant and said otherá, she so builded and constructed said road in manner aforesaid; that the said defendant and said 'Others stood by, so agreeing, as aforesaid, with a full knowledge of the facts, and made no objections to the same being so constructed.
It was after the issues were thus formed that the appellants were substituted as plaintiffs.
The cause was tried by a jury, and resulted in a verdict for the appellee. A motion for a new trial was filed and overruled, and proper exceptions taken, and final judgment rendered on the verdict.
The reasons assigned for a new trial were for refusing to give instructions asked, and for giving other instructions specified in the motion; for refusing competent evidence offered by them, and for receiving incompetent evidence offered by the appellee ; that the verdict was not sustained by the evidence, and was contrary to law.
The errors assigned by the appellants are,
1st. In sustaining demurrers to the second, third, fourth, and fifth paragraphs of the complaint.
2d. In overruling the demurrers to the second, third, and fifth paragraphs of the answer.
3d. In sustaining demurrers to the second and third paragraphs of the reply.
4th. In overruling the motion for a new trial.
There are ten other assignments, but they are all included in the fourth. They are reasons why the new trial should have been granted. If the reasons are not stated in the motion for a new trial, assigning them for error will not make them available in this court. If they are so stated, the general assignment of error for overruling the motion brings them before the court for examination and judgment.
The decision of the case depends principally upon the construction of the contract sued on. If we can determine what the parties meant by that contract, we can dispose of most of the questions discussed by counsel. We shall be aided very
By the contract, we learn that the railroad company was engaged in the construction of a railroad from Indianapolis to Vincennes, in this State; that, at some time before the execution of the contract, work had been done upon a branch railroad running through Morgan county; that Mooresville, Brooklyn, Centerton, and Paragon were towns along the line of that branch; that the appellee was desirous of having the railroad built from Indianapolis to Vincennes, and that those four towns should be made points on the road, and wc think we may also infer that the company lacked the means to build the road. The purpose of the company was to build the railroad, and the appellee believing that its construction would benefit the public, and himself in particular, in consideration of such benefits, agreed to donate and pay to the company the sum of one thousand and fifty dollars when the road should be completed through Morgan"county, ready for the running of cars through that county. The difficulty arises on the proviso. That required that the railroad should be located and made, as nearly as practicable, on the grade of the branch mentioned, making those four towns points. The body of the contract is plain enough. That is a promise to pay when a certain portion of the road is built.
If we were to consider the word “grade” in its primary or strict sense, perhaps it might be held to mean the rise and descent of the branch railroad, its levels; but we think it was not used in that sense. We think it was used with reference to the line of the road, as distinguished from gradient, or rise and descent. If we adopt the same rule with reference to the word “practicable,” we shall find that it may be used to express different meanings by contracting parties. To ascertain by reading a contract what a word means,' it is a safe rule to consider the whole contract, and from it determine the objects and purposes of the contracting parties, and to put such meaning upon the words used as will secure the accomplishment of those purposes and
Putting ourselves in the place of the contracting parties, as nearly as we can by the contract, let us endeavor to ascertain and determine what they meant by the words “ located and made, as nearly as practicable, on the grade,” etc. To do so, we must, as we have seen, look to the whole contract.
Taking the whole contract together, including the proviso, we think that the main purpose of the appellee was to secure the construction of the railroad, and if practicable, through the towns named in the proviso. To adopt the construction contended for by the appellee, and as given by the court below, makes the actual occupancy and use of the old roadbed the entire distance between stations material. There is nothing in the contract requiring such a construction; nothing indicating any purpose to make the adoption of the line of that branch railroad a condition, or desirable, only so far as to make the towns mentioned points on the new road. The completion of the railroad, ready' for the running of car's through Morgan county, and to and through those towns, so as to make them points on it, and give them and the county
The construction contended for by the appellee gives the railroad company no discretion in the selection of the ground to be occupied for the road. Even if it could be made upon as good ground as the grade of that branch, and if its construction upon such ground would be far more advantageous and beneficial to the company, the public, and the appellee, still, according to 'the construction contended for, its selection would defeat the collection of the money. Under such a construction the company was not only required to construct its road through those towns, but it must actually locate and make it upon the precise road-bed, ■if, in an engineering point of view, it was practicable to do so.
It is said that the appellee was interested in preventing the construction of the road to Martinsville, and in building up the towns named as its rivals, and on that account it was material to him to have the road built on.the old grade all the way. Inasmuch as no such motive or purpose appears
The proviso may, we think, be paraphrased and read, that said railroad shall be located and made, as nearly as practicable, on the grade of the Indianapolis branch of the New Albany and Salem Railroad from Indianapolis to Gosport, •'•'so as to make,” or “which will make,” or “thereby making” Mooresville, * * * . points, without materially changing its meaning, although it would be a little more apparent.
When the railroad company had built its road through Morgan county and completed it for the running of cars through that county, and had' made Mooresville, Broojklyn, Centerton, and Paragon points on the road, the defendant was liable on his contract, and all the rulings of the court based upon the construction of the contract, which required that the old grade of the branch road should be occupied otherwise than to make those places points, were erroneous.
We have not deemed it necessary to discuss any of the pleadings, .in particular, because the rulings upon all of them were based upon the same theory, except those denying the consideration and setting up the fraud.
As to the fifth paragraph of the-answer, it alleges false representations and fraud about the location of the road, that it had been located on the west side of the river; and yet he requires in his contract that it should be thereafter located. Again, he .fails to show any damage resulting to him by reason of the failure to construct the road on that line. Fraud without damage is no ground of defence. Wiley v. Howard, 15 Ind. 169; 2 Parsons Con. 771.
We do not deem it necessary to discuss or pass upon any of the questions involved in the motion for a new trial, as ■ under the construction given to the contract all that relates ■ to the practicability of locating and making the road upon*
The judgment of the said Morgan Court of Common Pleas is reversed, with costs; cause remanded, with instructions to grant a new trial, overrule the demurrer to second, third, fourth, and fifth paragraphs of the complaint, and to sustain the demurrer to second, fourth, and fifth paragraphs of the answer, and for further proceedings in accordance with this opinion and judgment.
I am unable to agree with the majority of the Court in the view which they have taken of this case. Upon the performance of certain acts by the company, constituting conditions precedent, the appellee, Record; promised to pay a certain amount of money. The part of the contract upon which the difference of opinion arises, is as follows: “ Provided always that said railroad be located and made as nearly as practicable on the old grade of the Indianapolis Branch of the New Albany and Salem Railroad, from Indianapolis to Gosport, making Mooresville, Brooklyn, Paragon, and Centerton points.” There are two things plainly stipulated for in this clause of the contract, i. That the railroad be located and made as nearly as practicable on the old grade, all the way from Indianapolis to Gosport; and 2. That Mooresville, Brooklyn, Paragon, and Centerton shall be made points. Tire route stipulated for is all on the west side of White river. The deviation from the line of the route contracted for commences some five miles above the town of Martinsville, crosses White river near that point, over an expensive bridge, and runs to Martinsville, a dis
Suppose the construction of the contract contended for by the appellee, and given by the court, does require the actual occupancy of the old road-bed the entire distance between stations, as nearly as practicable. Is not this precisely what was contracted for ? Not only does the contract require it between stations, but it requires it, in express terms, all the way from Indianapolis to Gosport. Except where that route is impracticable, it was the plain duty of the company to use
That I am right in the construction of this contract is,
In The New Albany, etc., Railroad Co.v. McCormick, 10 Ind. 499, the subscription was on the condition that the company should “ locate said railroad through the town of Lafayette, and cross the Wabash river north of Brown street in said town.” It was decided that the agreement required the company to cross the river, where a northerly line from the street would strike it; but it was not necessary to cross the river in the town unless such line struck the river within the same. In Shearer v. The Evansville, etc., Railroad Co., 12 Ind. 452, the condition was, that the road should be permanently located on the cast side of White river, within one mile of the line run from Indianapolis to Spencer, if Martinsville be made a point. The court said: “ Upon a careful examination of the testimony, we think it was not proven that the plaintiffs had performed all the conditions. We think the evidence does not show that the road was permanently located ‘within one
In Parker v. Thomas, 19 Ind. 213, and again in 28 Ind. 277, the condition was, that the road should be located within one-fourth of a mile of the plat of the town of Westport, etc. It was held that the condition was valid, and that a location within the agreed distance from the town plat was a condition precedent and essential to a recovery.
There is no intimation in any of these cases that questions regarding the pecuniary condition or ability of the company, or the interest of the company, or of the general public, can in any way enter into the question of construction. But each person subscribing has been given the benefit of his contract, by holding the company to a compliance with the plain stipulations thereof. In my opinion the judgment of the majority of the court adopts a wrong construction of the contract, and, without intending to do so, sanctions an act of bad faith on the part of the railroad company.
Petition for .a rehearing overruled.
