Southern Pacific Co. v. Erickson

204 P. 942 | Or. | 1922

MoBB-IDE, J.

1. We cannot consider the alleged oral promises made by the plaintiff at the time or before the time the bond was executed. To do so would be to vary a contract complete on its face by introducing conditions which it did not contain when executed. This is especially the case where there is no charge of fraud or mutual mistake in leaving out certain conditions, and no attempt to have the instrument reformed in accordance with what is now claimed to have been the actual agreement of the parties.

2. The complaint alleges that plaintiff' and its predecessor in interest “have fully and completely performed each and every covenant and agreement on their part to be kept and performed,” which is sufficient to admit proof that they constructed and completed the line of railroad from Buxton to Tillamook, as required by the bond.

3. As there was no stipulation as to the time within which such road should be constructed, the law imports into the contract a stipulation that it should be so constructed within a reasonable time.

4. The question of reasonable time is governed by the particular circumstances of each case. In those instances involving the construction of railways it is not uncommon for the projectors to procure contracts for right of way months and even years before the actual construction of the road, and in many instances it is almost the initial step.

5. It is a matter of common knowledge that few railroads of any considerable length are built except upon money borrowed for the purpose and secured by mortgages upon the road and right of way; therefore, the fact that the road was not completed within a few months or even until 1912 does not indicate any unreasonable delay.

6. We take judicial notice that Buxton is on the east side of the Coast Range Mountains and Tillamook on the west side, and that the Coast Range is of considerable altitude and traversed by streams and cut by canyons. These are geographical facts which everybody knows and of which courts cannot assume to be ignorant. In view of the distance to be covered and the difficulties to be overcome we should rather be inclined to say that the residents of Tillamook were fortunate in having the road constructed as soon as it was.

Another consideration is that there was no delay to the injury of defendant. Until the company occupied the strip of land he had the same use of it that he had always had and was losing nothing by reason of having executed the bond. It will be observed that he never raised any question as to the delay of the company in building the road until the same had been completed. When Coates, the company’s agent, asked him for a deed in 1908 he refused, not on the ground that there had been delay in the construction of the road but because Coates wanted his wife’s signature to the deed and because a later survey by the county surveyor had disclosed the fact that a compliance with the bond would involve the conveyance of a little more land than he contemplated when he signed it. For these reasons he demanded $100 as a condition of the execution of the' deed by himself and his wife. He was not asked for the kind of conveyance his bond called for and was entirely justified in his refusal to execute a joint deed with his wife. But knowing, as he then did, that the company was proceeding with the work of building the road, he gave no intimation of a disposition to rescind the contract. Under the circumstances shown, although the testimony is somewhat meager, we are not prepared to say that there was any unreasonable delay in the construction of the road.

The fact that after the road was built a fill to grade was substituted for piling across defendant’s land was perhaps unexpected by him, although within the terms of the contract the company had a right to “build a grade thereon” and to take materials from the land for that purpose. He probably had in mind the idea that the trestle then proposed would be permanent, and is now naturally disappointed when this is supplanted by a fill which is a greater obstruction. While we are of the opinion that he is legally and equitably bound to make the conveyance requested, in consideration of the fact last alluded to and of the further fact that a compliance with his bond involves a sacrifice on his part of more land than was supposed when the bond was executed, the decree will be affirmed without costs to either party.

Appirmed.

Burnett, C. J., and Rand and Harris, JJ., concur.