Thompson v. Oliver

18 Iowa 417 | Iowa | 1865

Dillon, J.

1. Promissory note: condition precedent. The appellant’s counsel, in his argument at bar, conceded the correctness of the case of The Burlington, &c., Railroad Company v. Boestler, 15 Iowa, 555; but ingeniously endeavored to distinguish friat case from the present.

In our opinion, the two cases are identical in principle. By the contract in suit, the defendant was not bound to pay unless the company finished and put their road in operation to Marion by the 1st day of January, 1861.

Nothing is alleged in the petition which is sufficient in law to dispense with this condition precedent. It cannot be contended that the “financial embarrassments of the company,” or “the stringency of the times,” will relieve them from the necessity of fulfilling their part of the contract. The plaintiff, as an assignee, claims under the railroad company. He stands in their place. His rights can mount no higher than their source. The allegations, that this contract was transferred by the company to Crosby, and by Crosby to the plaintiff, are material, as showing that the plaintiff has a right to bring the suit in his own name; but they are otherwise immaterial. The argument that the plaintiff furnished labor and materials which were used by the contractor (Crosby) in the construction of the road, and should therefore recover, although the road was not finished to Marion by the stipulated time, is based upon the fallacy that his derivative rights are greater than those of the railroad company.

The road not having been finished to Marion until nearly four years after the time mentioned in the contract in suit, there was neither a literal nor substantial compliance with the condition upon which alone the defendant’s promise would be legally binding; and the judgment of the court below sustaining the demurrer must be

Affirmed.