48 P. 361 | Or. | 1897
after making the foregoing statement of the facts, delivered the opinion, of the court.
A solution of the most important questions arising in this case depends upon the proper construction of the subsidy agreement as modified. The purpose of the action is to recover under the agreement, so that, when we have determined its true meaning, the measure of plaintiff’s remedy will become manifest; so will also the remedial rights of the defendant. Whether performance is necessary to a recovery, and therefore constitutes a condition precedent, must be determined by the intention of the parties to the contract, and that intention must be ascertained from the terms of the agreement itself and the circumstances attending its execution. “It cannot depend,” says Lord Ellenborough, “on any formal arrangement of the words, but on the reason and sense of the thing as it is to be collected from the whole contract”: 1 Addison on Contracts (Abbott & Woods’ Ed.), *182; Glaholm v. Hays, 2 Mann. & Gran. 265; McLure v. Rush, 9 Dana, 65; Larimore v. Tyler, 88 Mo. 661. Certain rules have been laid down by which to ascertain and discover such intention, but it is only necessary to refer now to such as are applicable to the case before us. If, by the terms of a contract, money is to be paid by a day certain which is to or may happen before the performance of the service, or by a day certain and there is no day certain for the performance, the performance is not a condition precedent, and the party may sue for the money without averring or showing performance. In such case the parties are left to the mutual remedies on which they obviously depended: Cunningham v. Morrell, 10 Johns. 202 (6 Am. Dec. 332). But where a day is appointed for the payment of money, subsequent to the performance of that which is the consideration therefor, no action can be
Guided by these rules, we find no difficulty in arriving at a satisfactory interpretation of the agreement in question. The defendant undertook to pay plaintiff twenty-five per cent, of his subscription when the first ten miles were graded, running eastward from Marshfield; twenty per cent, when the rails were laid, etc., and the balance, or ten per cent., when the road was completed to Myrtle Point. The payment of the last installment and the completion of the road to Myrtle Point were to be concurrent events, and are therefore mutual and dependent; but, as
The defendant stipulated what should be considered cause for delay in completing the road as required, and by this stipulation he must be bound, and if any delay has been caused by reason of procuring the rights of way, collection of Coos County or Roseburg subsidy, or other just cause, plaintiff should have the benefit of such delay, and the time thereof added to the time fixed for completion to Myrtle Point, and the result would fix the stipulated time of completion. The jury is very properly the judge of whether any and what delay had been caused by such hindrances. So that, if plaintiff has earned either •of or all the first four installments prior to the stipulated time of completion to Myrtle Point, it has its right of action accordingly, regardless of whether it has fully completed the road to that place or not, and for full compensation if it has fully performed in that particular, without reference to. its agreement to continue it to Roseburg. The full consideration having been made payable prior to the time of the stipulated completion to Roseburg, such completion must be regarded as a condition subsequent, and so must the stipulations requiring the maintenance of a depot and switch to tide water at Coquille City. This latter contemplates a continued service, and from its very nature is a condition subsequent; but the condition is such as might be enforced, and perhaps a failure to comply with it would be visited with damages; Paducah Railroad Co. v. Parks, 86 Tenn. 554 (8 S. W. 842); Chamberlain v. R. R. Co., 15 Ohio St. 225; Swartwout v. Michigan Air Line R. R. Co., 24 Mich. 405.
Now, as to the defenses relied upon. The legal effect of the one touching the failure to build and maintain the
Much of what has been said will apply to the attempt to recoup for the installment of $250 paid. If it is true that the plaintiff completed the grading of the first ten of the road eastwari from Marshfield by February
Reversed.