16 Ga. App. 732 | Ga. Ct. App. | 1915
The suit was upon two contracts in which Power agreed to pay fifty dollars provided the Gainesville & Northwestern Railroad Company, along a specified route to be built from Gaines-ville to Robertstown, ran a regular passenger-train within two years from the date of the contract. The contracts of the various subscribers provided that the makers should give notes, '“one-half to be paid in 30 days and the other one-half to be paid within six months” after the first passenger-train had been operated on the railroad, but Power did not give the notes. The precise language of the condition of the contract was as follows: “The amount herein subscribed shall be binding upon us when the first passenger-train shall have been operated between the said Robertstown and the Gainesville Midland railroad station at Gainesville on a fixed passenger schedule, provided the same be done within two years from this date.” According to the uncontradicted evidence, the Gainesville & Northwestern Railroad Company operated a train which carried passengers and which was provided with a passenger-coach, with separate compartments for white and colored, some months before the two years expired, but the train to which the passenger-coach was attached also carried freight-cars and received and delivered freight at certain stations. The train had a fixed passenger-schedule, though there was some testimony that, perhaps due to the delivery of freight, the train was sometimes behind time m reaching designated stations. At the conclusion of the evidence the' judge directed a verdict for the plaintiff, for the principal amount of the contract and interest at seven per cent. Exception is taken to the verdict and to the direction of the verdict.
It seems plain from the evidence that a regular passenger-schedule had been fixed" prior to the running of the first train, and, so far as appears, the first train was used exclusively for passengers; and it may be that for that reason only the court would have been authorized to direct the verdict. However, we do not place our ruling upon that ground, but prefer the construction of the eon-
The contract required the plaintiff to operate a regular passenger-train from Gainesville to Eobertstown within two years. It ran a train which provided for the carriage of passengers and which actually carried passengers within the time stipulated in the contract. But the evidence shows that the train also carried freight-cars and transported and delivered freight. TJpon this fact the defendant in the lower court, plaintiff in error here, bases the contention that the contract was not complied with on the part of the obligee, and that by reason of this non-compliance he as obligor is released. So far as our opportunity for investigation has extended, we have been unable to find a case in which it has been decided whether a train which carries both freight and passengers comes under the definition of a passenger-train. It is true that in certain Illinois cases, construing a statute of that State which requires that passenger-trains stop at county sites, the courts held that all trains engaged in carrying passengers, running regularly every day upon an advertised time card of the company and equipped as all other passenger-trains, were passenger trains. Cleveland &c. Ry. Co. v. People, 175 Ill. 359 (51 N. E. 842); Illinois Central R. Co. v. People, 143 Ill. 434 (33 N. E. 173, 19 L. R. A. 119); Chicago & Alton R. v. People, 105 Ill. 657, 659. In the latter case it was held that the enactment in question would not include a freight-train or an excursion train or a special train. The point now before us
The contract was for the construction of the trial court, and we