29 Mo. 318 | Mo. | 1860
delivered the opinion of the court.
This was an action by the North Missouri Railroad Company against the defendant to recover one share of stock which he had subscribed thereto. The petition alleges that “ on the 23d of December, 1853, the defendant subscribed to the capital stock of said railroad company one share, amounting to one hundred dollars, by which he agreed to pay all calls upon said stock as the same should be made by order of the board of directors of said company, provided the road of said company passed through Macon county, on the dividing ridge which separated the waters of the Mississippi from the waters of the Missouri river, and on or near the route as it had been surveyed in range fourteen, in said county, pre
The question for our consideration involves the construction of the subscription paper, the terms of which are set out in the petition as above given, and whether the actual construction of the road Was a condition precedent to the payment of the subscription.
We think the contract, by a fair and reasonable interpretation, means that when the road is permanently located the stock becomes payable, and that when this is done the company has done all that is necessary to give them a right to demand it. This view better accords with the sense which common usage has annexed to the terms of the instrument, with the object of the subscription, and the nature of the'enterprise. The condition is that “ the road passes through Macon county, on the dividing ridge” designated in the subscription paper ; and these terms are to be understood and interpreted according to the subject matter to which they relate. They are here used evidently to designate the place where the road shall run or where the route or line of the road is to pass, and are equivalent to the expression “provided the road runs or is located through Macon county.” An example of the sense in which the words of the subscription are employed, is found in the charter of the company, where it speaks
But taking into consideration the objects of the subscription, the magnitude of the undertaking, and the' circumstances that the parties must have had in view at the time, and interpreting the instrument with reference to these, we think no doubt can be entertained as to its real intent and meaning, or as to the sense in which it must have been understood by the parties. The stock subscribed was for the purpose of building the road, and was the means by which it was to be accomplished. For this purpose it must be payable as the work progresses, and it would be unreasonable to suppose that the company intended to deprive itself of the power to make the subscriptions available for the very object for which they were made, and whenever its necessities required. On the other hand, it would seem equally unreasonable that, if the subscribers intended to make the construction of the road a condition precedent to the payment of stock, they should have omitted the most obvious and appropriate words to express such intent; for there is nothing whatever said in the instrument about constructing, building or completing the road; nor is there any equivalent expression.
The case of McMillan v. Mays. & Lex. Railroad Co., 15 B. Monr. 234, is analagous to this, where the question involved was the construction of a paper similar to that under consideration. The suit was to recover ten shares of stock subscribed by the defendant with a promise “ to pay fifty dollars on each share so subscribed in such instalments and at such times and places as may be required by the board of directors of said company, upon condition that said road shall be so located and constructed as to make the town of Carlisle a
The judgment will be reversed and remanded ;