44 Wash. 124 | Wash. | 1906
Lead Opinion
This action was commenced in September, 1893, to recover the sum of $2,000 and interest upon the following contract:
“Walla Walla, W. T., April 1, 1888.
“Whereas, G. W. Hunt is contemplating the construction of railroads for the purpose of furnishing additional and cheaper transportation for that portion of Washington Territory lying south of Snake River, and parts of Umatilla county, Oregon, and is soliciting assistance therein; and whereas, the undersigned is desirous of obtaining such transportation; therefore, in consideration that said G. W. Hunt or his assigns, shall within nine months from the date hereof, build and put in operation in the usual manner a standard gauge railroad, beginning at or near Wallula Junction, Washington Territory, and extending thence eastwardly, via Eureka Flat to Walla Walla, Washington Territory, the said road to extend to the head of Eureka Flat and to be completed there by December 1, 1888, and to the city of Walla Walla, W. T., by January 1st, 1889, and shall transport or cause to be transported to some convenient harbor of shipment, at tide water on Puget Sound, all produce of the country that I shall desire to ship after the construction of said road, at a rate not to exceed the rate on such produce charged from Walla Walla to Portland, on other railroads. And to aid in the execution of said enterprise, I promise to pay G. W. Hunt or his assigns, the sum of two thousand dollars, one-half of the same to be due and payable when said railroad is constructed and put in operation between said Wallula and said Walla Walla, via Eureka Flat, and the remaining half in one year from that date, said sum to be payable in cash or good and merchantable wheat, at the rate of not less than fifty cents per bushel, delivered at any depot or shipping station on said railroad. The last payment to bear interest from date of completion of the railroad aforesaid, until paid at the rate of six per cent per annum. This agreement to be deposited with the Executive Committee of the Walla Walla Board of Trade, to be delivered by them only on compliance by said G. W. Hunt with the terms hereof on his part. Should said G. W. Hunt or his assigns fail to
“Attest: J. C. Painter. (Signed) C. B. and Wm. H. Upton.”
The plaintiff, G. W. Hunt, alleged that all of the conditions of said contract had been performed upon his part. The defendants admitted the execution of said contract, but in substance denied the other allegations of the complaint. Several affirmative defenses were pleaded, but as no evidence was admitted in support thereof, their consideration was withdrawn from the jury. , From a judgment in favor of the plaintiff, this appeal has been taken.
It appears from undisputed evidence that said road was commenced at a point known as Hunt’s Junction, about one mile from Wallula Junction; that it was built thence in a northeasterly direction to Eureka Station, located within that certain territory known as Eureka Flat, and that it was thence extended in a southeasterly direction to Walla Walla. It further appears that a branch line was built from Eureka Junction in a northeasterly direction to Pleasant View, which the respondent contends is located at the head of Eureka Flat. There is no serious contention but that the road as built was completed to Pleasant View and also to Walla Walla within the stipulated time. Nor is there any serious contention but that it maintained freight rates and rendered service to the public as required by the contract, at all times prior to the commencement of this action. The road as constructed was not built by G. W. Hunt personally. He organized a corporation known as the Oregon and Washington Territory Railroad Company, in which he owned substantially all of the capital stock, a few shares being held by others to perfect the organization, and said corporation built the road. He contends that he $as obliged to act through the agency of said corporation, as he had to obtain a right of way, and that being unable to secure the same by purchase, he had to
The trial court instructed the jury that it was for them to determine from the evidence, as an issue of fact, whether Hunt’s Junction was “at or near Wallula Junction.” The appellants at the trial contended and now contend that, as Hunt’s Junction was one mile from Wallula Junction, it was not at or near said point, and that the respondent did not perform the conditions of the contract which required him to begin said road at or near Wallula Junction; that by reason thereof the appellants’ motion for a nonsuit interposed at the proper time, should have been granted, and that the court erred in said instruction. We have carefully examined the evidence, and after considering the same in the light of all of the surrounding circumstances, and with due regard to the general location, direction and length of the road as built, think the court committed no error in submitting said issue to the jury.
The main line of the road from Hunt’s Junction to Eureka Station covered a distance of about twenty-three miles, and from Eureka Station to Walla Walla a distance of about thirty-one miles. The distance upon the branch line from Eureka Station to Pleasant View was about nineteen miles. The evidence shows that the territory known as Eureka Flat, being several miles in width, commenced about six miles southwest of Eureka Station, which was located thereon, and extended thence about' twenty-five miles in a northeasterly direction to, or possibly a short distance beyond, Pleasant View. The evidence as to whether Pleasant View, the northeasterly terminus of the branch road, was at the head of Eureka Flat, was conflicting, and this issue being properly submitted to the jury was decided in favor of the respondent.
“It is the duty of the court to interpret and construe this contract and you must be bound by the construction of it given by the court, and I instruct you that it is not a contract to construct and operate a main line of railroad from a point at or near Wallula Junction, Washington, to Walla Walla, Washington, by way of the head of Eureka Flat, but it is a contract to construct a standard gauge railroad from a point at or near Wallula Junction, Washington, to Walla Walla, Washington, by way of Eureka Flat as a locality, and to extend either by a main or a branch line, a standard gauge railroad to the head of Eureka Flat.”
The appellants have assigned error upon this instruction. We think the court’s interpretation of the contract was right.
The principal contention upon which the appellants rely for a reversal is that the respondent is not entitled to recover as the road was not built by him or his assigns, but was built by the Oregon and Washington Territory Railroad Company. The court instructed the jury that, if the respondent procured the road to be constructed by said company, he had thereby complied with his contract in that regard. We think this construction of the contract was proper. The object of the appellants in making their subscription was to obtain a road which would secure them reasonable freight charges
The court further instructed the jury as follows:
“Before you can find for the plaintiff you must find from the evidence that there was a substantial compliance with the conditions of the written instrument, and in arriving at your conclusions as to whether he has substantially met the conditions put upon him by this contract you have a right to consider all the surrounding circumstances, the character of the country, and the character and number of the population. In other words you must try to put yourselves in the position of the parties at the time the contract was made and decide what was their intention.”
The appellants now contend that prejudicial error was committed in giving this instruction. They insist that a strict performance of the contract was necessary in every respect, and that a substantial compliance therewith was not sufficient. They claim (1) that the road should begin at Wallula Junction and not one mile therefrom; and (2) that it should have been built by the respondent personally or by his assignees, and not by any corporation not his assignee. In support of this contention for a strict and technical performance of the contract, they cite, with others, the following cases: Town of Birch Cooley v. First Nat. Bank, 86 Minn. 385, 90 N. W. 789; Memphis etc. R. Co. v. Thompson, 24.
“This rule of substantia] compliance, however, does not apply to contracts for the issuing of municipal bonds to aid in the construction of a railway; for they are not within the reason of the rule. In such cases, whether the bonds are delivered or not, neither the railroad nor any part thereof ever becomes the property of the municipality; but the ownership thereof remains unimpaired in the railroad company. It parts with nothing. Memphis etc. R. Co. v. Thompson, 24 Kan. 182. The issuing and delivery of the bonds in such a case as this one are, and can only be, authorized by the vote of a majority of the electors of the municipality, and no officers thereof can modify or waive the conditions upon which the electors vote to authorize the delivery of the bonds. . . . Again, where a majority of the voters of a town, whether they own any property therein or not, are authorized to, and do conditionally, incumber all of the property within the limits of the town to provide a bonus to a railroad company, strict performance of all of the conditions should be exacted of it.”
Later on in its opinion the court quotes with approval the following language from State ex rel. Minneapolis etc. R. Co. v. Minneapolis, 32 Minn. 501, 21 N. W. 722:
From this language it is apparent that a strict rule was invoked on behalf of a municipal corporation, which had endeavored to impose a burden of indebtedness upon all of its taxable property. No financial obligation of any municipal corporation is in question in this action. Although the contract here involved provides for a subsidy in aid of railroad construction, nevertheless it is between private individuals, and affects their rights only. It neither involves the power of taxation nor the right of a municipality to issue its bonds in aid of railway construction.
In Virginia etc. R. Co. v. Lyon County, supra, cited by appellants, the court recognized the rule that a substantial compliance with the terms of a subsidy contract was sufficient. But as there was an absolute failure on the part of the railroad company to carry out the provisions of its contract in a material respect, it was held not entitled to recover.
We have carefully examined the entire record, including the instructions given, and those refused, and from such examination are unable to conclude that any prejudicial error has been committed. The appellants have had a fair trial. The verdict is sustained by the evidence. No prejudicial error was committed in admitting or rejecting evidence, nor in denying appellants5 motion for a nonsuit, nor in overruling their motion for a new trial.
The judgment is affirmed.
Mount, C. J., Hadley, and Root, JJ., concur.
Dissenting Opinion
(dissenting) — It seems to me that the contract in suit clearly calls for the construction of a continuous line of road from at or near Wallula Junction to Walla Walla by
