70 Miss. 542 | Miss. | 1893
delivered the opinion of the court.
The rights of none except the parties to the contract are involved in this suit. It is not embarrassed by the claim of any third person, and the only question is, what is proper as between the town and the railroad company? There can be no dispute of the fact that the vote for the subscription was with reference to the guaranty by the company that the road would be built to a certain point within a time named; and failure to accomplish this entitled the town to a cancellation of the bonds, and a return of any interest paid on them. If the bonds had been negotiated as contemplated, the only reliance of the town for indemnity for the breach of the contract would have been the bond it took for that purpose; but, as the bonds remained in the hands of the company, it is proper to decree their surrender and cancellation, whereby the contract made will be carried out, according to the intent of the parties.
The fact that the petition of citizens, and the order of the town authorities for the election, did not specifically mention the proposed completion of the road to a point and within a period named, makes no difference, since it is apparent that the written proposal of the company for a subscription on this basis was the foundation of the petition and order for an election, with reference to which both are to be read. The proposal of the company, containing the assurance of the completion of the road as stated as an inducement to the town to subscribe and pay by bonds, accompanied the petition of citizens for an election; and upon these the order for an election was made, and all must be read together as one whole. While there was not a condition strictly, there was a stipulation, the breach of which gave the town a right of action on the bond it took as security.for the performance of the stipulation ; or, as a more effective and appropriate rem
The extension of time to complete the road by the town authorities was of no effect, for' the want of power in the municipal board to materially vary the contract authorized by the vote at the election held. This ease is widely different from County of Randolph v. Post, 93 U. S., 502, which rests upon the doctrine of estoppel, if it has any support at all. Here there is no feature of that sort.
The decree is reversed, and cause remanded; or a decree may be entered here, if desired, cancelling the bonds.
