Garner v. Hall & Farley

| Ala. | Nov 15, 1896

COLEMAN, J. —

The contract sued on in this case is an exact copy in all material respects of the contract sued upon, in the case of Hall v. Sims, 106 Ala. 561" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/hall-v-sims-6516078?utm_source=webapp" opinion_id="6516078">106 Ala. 561. Unless we depart from the construction placed upon the contract in that case, this case must be reversed. In construing the contract in that case we said : “But it is evident the parties understood that the road might be completed at an earlier date than the first of October; and that it was their design to mature the note earlier than that date, if, and when the road should be earlier completed.” We are of opinion that this is the proper construction of the contract. The question then is, were the condition and terms necessary to mature the note, complied with and performed, more than six'years before the bringing of the suit? These were, that the railroad should be finished according to contract, a decision by the board of directors to that effect, and notice to the obligor. Certainly upon proof of these facts, at any time after the execution of the contract, the obligor could not have defeated a recovery upon the ground that the note did not mature until October 1st, 1890, and if the obligation matured as to defendant prior to October 1st, 1890, it must have matured also as to plaintiffs. The defendant was entitled to prove these facts if he could, under his plea, of the statute of limitations of six years, to show that the note matured, more than six years before the beginning of the suit.

The seventh plea of defendant was defective. It failed to aver, as a fact, that the board of directors declared that the road had been finished as provided in the contract, and it should have averred the further fact that the railroad had been finished on the 27th of September, 1889, or some period more than six years before the commencement of the suit, and prior to the decision of the board of directors.

The eighth plea of defendant averred as a fact, the decision of the board and notice, but it also failed to aver as a fact, that the road was finished when the decision of the board was made and the notice given. As stated in Hall v. Sims, 106 Ala. 561" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/hall-v-sims-6516078?utm_source=webapp" opinion_id="6516078">106 Ala. 561, supra, the-declaration and notice by the board alone were not sufficient to mature the obligation. The finishing of the road was indispensable to fix a liability upon the defendant ; and in that case this court held, that although the decision of the board declared that “the road had been finished to-a point within one mile of the city of Troy,” whereas the contract declared that it should be finished to a point within one mile of the center of the city of Troy, the plaintiffs had the right to show by párol as a fact that the road was finished as provided in the contract, and to show that this was done on the 6th of March prior to October 1st, 1890, as the time when the contract matured; and reversed the case, for the error of the trial court in excluding the parol evidence. The trial court committed a similar error on the present trial in excluding all the notices given by the plaintiffs that the road had been completed on the 27th of September, 1889. We presume that the notice published in the Montgomery Advertiser was excluded because it stated that the railroad had been constructed and completed, passing through and into Ozark, instead of “to a point within one-half mile of the center of Ozark.” It was- entirely competent to show by parol in connection with the published notice, as a fact, that the road was finished to a point within a half mile of the center of the city of Ozark. — Hall v. Sims, 106 Ala. 561, supra.

The provision in the contract that publication of the notice in the Montgomery Advertiser, “shall be final and conclusive” of notice to the obligor, does not exclude all other kind of notices. It declares the effect of such a notice. The real intention of the parties, was to fasten a matured liability, whenever and as soon as the road was finished according to contract, provided it was finished not later than October 1st, 1890. The plaintiff was not bound to publish notice in the Montgomery paper of the decision of the board of directors, in order to make the notice valid. Personal notice would have been equally effective. We cannot see that the refusal of the court to permit the defendant to introduce evidence, that he was notified by publication, and personally, by the plaintiff,, that the road had been finished, and that plaintiff demanded payment of him, more than six years before the bringing of the suit, was error without injury. It may be that if this evidence had been admitted, the defendant would also have connected it with the evidence showing that the board of directors had made a proper and sufficient declaration or decision that the railroad had been finished.

We find no error in the ruling of the court under the pleading's.

Reversed and remanded.