55 Kan. 36 | Kan. | 1895
The opinion of the court was delivered by
The record in this case fails to show that the motion for a new trial was filed within three days after the rendition of the judgment. The recital in the record is as follows: ‘‘Afterwards, to wit, on the — day of-, 1890, said plaintiffs filed herein their motion for a new trial of this cause, which motion is in the words and figures following, to wit.” We therefore are not at liberty to examine the record for the purpose of determining such question as could only be raised on a motion for a new trial. (Deford v. Orvis, 52 Kas. 432; City of Eskridge v. Lewis, 51 id. 376.)
The tract of land conveyed included about 10 acres in a quarter-section, most of which was owned by the grantors. The main object in making the grant was. to enhance the value of the remaining property of the-grantors by the construction of the railroad and depots.. Ritchie platted a portion of the remaining lands into' city lots, expecting that the sale thereof at good prices; would be stimulated by the construction of the new railroad and the establishment and use of the depots
‘ 'And if said company shall fail to construct its line of railroad through said tract of land and erect thereon said passenger- and freight-depots within one year from this date, or shall fail to keep and maintain said depots and use the same as herein provided, then the conveyance of said real estate to said company shall be void, and said real estate shall revert to said John Ritchie and his heirs."
“From the time of completion of said passenger-depot up to the commencement of this action it was not kept open for the accommodation of passengers, and although there was a stove in the middle or office-room, no fire was kept in it except occasionally, and during part of the time the stovepipe was down. Temporary plank seats were left in the waiting-room on completion of the building, but they were removed at some time which does not distinctly appear. Passengers awaiting trains stood or sat upon the depot platform, the projecting roof at the side or end affording some shelter from snow and rain, but sometimes they would go into the office-room of the freight-depot where a fire was kept when the weather required it, and the freight-depot room was always unlocked, except when employees were absent at meals or temporarily on business,.and no passengers were excluded from said room, although there was no sign or notice posted to show that it was intended for the accommodation of passengers, and the only seating arrangements were 'two or three chairs. No passenger- or freight-traffic was ever refused at South Topeka.”
No tickets were kept on sale at the passenger-depot, until about 10 days before the commencement of the trial in the district court, which appears from the-record to have been on the 25th day of November,, 1889. No baggage was checked, and, hi fact, none of the ordinary facilities afforded by a passenger-depot were provided by the railway company. The build
“The general doctrine was finally settled that wherever a penalty or forfeiture is inserted merely to secure the payment of money or the performance of some act or the enjoyment of some right or benefit, equity regards such payment, performance or enjoyment as the real and principal intent of the instrument, and the penalty or forfeiture as merely an accessory and will therefore relieve the debtor party from such penalty or forfeiture whenever the actual damages sustained by the creditor party can be adequately compensated.”