119 Ky. 939 | Ky. Ct. App. | 1905
Opinion of the court by
Affirming.
' The appellant R. Monarch owned a tract of land containing about 27 acres of laud in Daviess county, Ky., within a ¡short distance of the city of Owensboro. Conceiving that the connection of this tract of land with the city by a street car line would greatly enhance its value, he obtained a franchise from the municipality to operate a street car system over certain of its streets, presumably with the intention of extending it to his own property. Appellee also had a franchise to operate a street car system through the streets of the city of Owensboro. Appellant, deeming that appellee, in extending its system along Triplett street, was invading
“This memorandum of agreement made and entered into this twelfth day of June, 1893, by and between R. Monarch, of Owensboro, Kentucky, of the first part, and the 'Owensboro City Railroad Company, of Owensboro, Kentucky, of the second part.
“Witnesseth: That the parties hereto have made the following contract:
“R. Monarch has granted and hereby agrees to convey by proper conveyance to be hereafter made by himself and wife to the said company a right of way ten feet wide from the Roost or Main street road, west of Owensboro near Paradise Garden and from a point on said road which lies between the land of Dr. G. P>. Tyler and Dr. J. Hale, extending south the same width to Monarch’s land as may be required for necessary siding and assigns transfers and -sets over to said company all lights of every description under an ordinance of the Owensboro city council passed and adopted on the- day of 1S92, giving him and such persons as he might associate with him the right to construct and operate a street car system in Owensboro on all the streets named in said ordinance and said Monarch agrees to transfer said grant and franchise to said company by any proper writing to be hereafter made and delivered and to ask the consent of the Owensboro city council to such transfer and said Monarch further agrees to dismiss his suit now pending in the Daviess circuit court against said company.
“In consideration of the above, the city railroad company agrees to construct the extension of its railway from said point on said Roost i*oad to the Lancaster road on*943 Monarch's land and on the right of wav described, thence up Fifth street to the terminus of the present street car line on said street, or as near said street as practicable, as soon as the right of way can he procured to the terminus of said Fifth street line.
“The said extension is to be completed as soon as practicable from this date and is to he operated, during the period of said company's original franchise.
“The said company agrees to put in and maintain three cattleguards on the line from Alain street to Monarch’s land at points to he selected by said Monarch and said parties are to procure the right of way up said Lancaster .road and Fifth street and if any expense is attached thereto it is to he borne jointly.
.“In witness whereof the said parties hereunto have subscribed their names this the day and year first herein written. [Signed] R. Monarch, Owensboro City R. R. Co., By W. E. Whiteley, President.”
After the execution of the foregoing contract, appellant dismissed his action, and sought to obtain a right of way over a country road leading from the city limits of Owensboro to a point near his land, which was essential to appellee’s performing its contract of extending its line to his property. The right of way sought by appellant over .this road Avas refused by the county authorities having the matter in charge, and it then became evident that an extended time Avould be required in which to secure the right of way necessary to enable appellee to perform its contract. AAlth this fact confronting them, on the. 18th day of September, 1893, the original agreement was modified by the parties as folloAvs:
“In pursuance of the agreement of June 12, 1893, R. Monarch has this day made and deliArered to the Owensboro*944 City Railroad Company a written transfer of all - rights and privileges acquired by him under the ordinance of the common council of the city of 'Owensboro enacted October 19, 1892, and requesting said council to approve said transfer and it is now agreed by said Monarch and said city railroad company that each is to have until the first day of May, 1894, in which to execute and complete the stipulations of their aforesaid agreement in regard to said city railroad.
“This the eighteenth day of September, 1893.”
In 1896 appellant made a tender to appellee of what he .seemed to consider a fulfillment of his agreement, and demanded performance of its covenants, which being refused, •lie instituted this action in equity, alleging the foregoing facts and the terms of the contract, and praying as a relief a judgment requiring appellee to specifically perform the terms of the contract, or, if that Ava-s deemed impracticably, for a judgment against it in damages for the sum of $57,000. The manner of his performing the conditions precedent to his contract by appellant, his. demand of performance from appellee, and its refusal, are thus set forth in the. petition: “Plaintiff .‘dates that on the- day of May, 1896, he tendered and offered to deliver to the defendant a properly executed conveyance to defendant by his wife and himself of the right of way over the land mentioned in said contract of June 12, 1893, to be conveyed by him to it. At the same time he tendered and offered to deliver- to defendant certified copies* of the ordinance of October 19. 1892, of the city council of Owensboro, and a certified copy of the ordinance of April 6, 1896, of the trustees of the town of Herrwood, granting rights of way in said city and town respectively; and accompanied said copies with a written transfer of all the right, title, and interest
By the original contract, appellee was to extend its lines to appellant’s property as soon as practicable after the necessary right of way conld he procured from his property to the terminus of its Fifth street line By th.e agreement of September 18, 1893, the lime in which each of the parties was to perform his part of the contract was definitely fixed to the 1st day of May, 1894. The.obtention of the right of way was a condition precedent io the extension of the line. The petition shows affirmatively that this right of way was obtained by appellant and tendered to the appellee on the - day of May, 1890, two years after the date fixed in the amended contract of 1893. Passing the question of variance between the contract sued on and thát proved, in our opinion this tender was too late. Having determined upon a definite time in which the contract was to be performed, it was necessary, before lie could maintain an action against the appellee for a breach of its covenant, to allege and prove, if it was denied, the performance by him on or before May 1, 1894, of those covenants necessary to be performed to enable it to carry out its contract. Upon his failure to tender the necessary right of way by the stipulated time, appellee had a right to consider the contract rescinded. It must be borne in mind that before the trial of the case, appellant abandoned his claim to the equitable remedy of specific performance, and caused the action to be transferred to the common-law docket; and therefore the authorities cited in support of the equitable rule that time will not be considered as of the essence of the contract unless the party invoking it is put in a worse condition by its lapse than he otherwise would have been, have no application.
Conceding in full the principle stated by appellant — that, where a parly to a contract has received a substantial part of the consideration, he can not, as a rule, urge the nonperformance of the remainder within a stipulated time, without placing the other ¡tarty in statu quo — that principle has no place in the facts of this case. Admitting, for the purposes of the argument, that appellant made a proper tender of his rights under the ordinance of the council of the city of Owensboro granting him the franchise to operate a street car line over its streets, that the franchise was valid, and also that he in due time dismissed his action for an injunction, this had all been done prior to ihe amending of the contract on September 18, 1893. With this partial compliance of his contx*act before him, he fixed the time for the performance of all the remaining covenant» by the 1st day of May, 1894. Pint that which he claims as a. partial performance was without value either to himself or to appellee. The granting of the franchise to operate a street car line over the streets of the municipality was in dix’ect violation of section 164 of the Constitution, which forbids the granting of such franchises except to the highest and best bidder after due advertisement. In the case of Nicholasville Water'1
Judgment affirmed.