| Va. | Jan 14, 1909
delivered the opinion of the court.
The appellant, the Tidewater Railway Company, assigns error to the action of the circuit court sustaining the demurrer to the original bill. But the rule is well settled, that when a demurrer to a bill is sustained, with leave t-o the plaintiff to amend, if the plaintiff exercises that privilege, he cannot afterward be heard to object to the decree on the original bill. Fudge v. Payne, 86 Va. 303" court="Va." date_filed="1889-09-17" href="https://app.midpage.ai/document/fudge-v-payne-6808368?utm_source=webapp" opinion_id="6808368">86 Va. 303, 10 S. E. 7; Connell v. Railway Company, 93 Va. 44" court="Va." date_filed="1896-04-09" href="https://app.midpage.ai/document/connells-exors-v-chesapeake--ohio-ry-co-6809496?utm_source=webapp" opinion_id="6809496">93 Va. 44, 24 S. E. 467, 32 L. R. A. 792, 57 Am. St.
This appeal, therefore, only calls for a review of the; decree dismissing on demurrer the amended bill.
The material allegations of that bill are as follows: That the appellee, John L. Hurt, being the owner of 2,000 acres of land on the waters of Staunton river, in Pittsylvania county, entered into a contract in writing with the appellant, whereby he agreed, in consideration of $800 and the further consideration of the adoption by the appellant as the location for its proposed raiiway, or a branch thereof, a line crossing appellee’s land, to •sell and convey to appellant a strip of land for right of way 100 feet wide, with such additional land contiguous thereto as might be required for slopes of cuts and other designated purposes, containing 6.5 acres; that appellant was allowed 90 days from the date of the contract within which, at its option upon notice in writing of such intention, to demand a deed to the land in controversy; that, at the date of the contract, appellant had adopted as the location for its railroad a line crossing Hurt’s land, and was actually engaged in the construction of the proposed road from the West Virginia line, at or near New River, through Southern Virginia to Tidewater; that the entire line of railway at that time had been let to contract, and was then being constructed, a large part of the work thereon having been completed; that the contract was made subject to- the approval and acceptance of appellant’s general manager, and had been accepted by him; that Hurt was duly notified of such acceptance, and a conveyance of the‘land was demanded; that the appellant had been put in possession of the land by Hurt, and with his knowledge and consent had made valuable- improvements thereon, and had expended large amounts of money in the construction of its railroad over and through the saíne; that the taking possession of the land.and the making of valu-' able improvements upon it were done" pursuant to the contract
The circuit court was of opinion that the introductory recital, “whereas, the party of the second part proposes to build a line of railway from the West Yirginia State liner at or near New River, through Southern Yirginia to Tidewater,” was the chief inducement and principal consideration for the contract; that “courts of equity do not entertain bills for specific performance of contracts to build railroads and other works of improvement which require the exercise of skill and discretion in construction and the expenditure of large sums of money which it may be impossible to obtain;” and consequently the agreement was lacking in mutuality of remedy and a bill for its specific execution could not be maintained.
We cannot concur in that interpretation of the contract. Obviously, the paragraph quoted was merely by way of pi\amble and inducement, but does not constitute a covenant between the appellant and appellee that the former will build such a line of railroad. The covenants found in the body of the instrument are simple in character and reciprocal, specific and definite in terms. As remarked, they impose upon the appellant the obligation to locate the main line, or a branch of the proposed road, through the appellee’s land; and the appellant is given the period of ninety- days from the date of the contract at its option to demand a deed to the 6.5 acres of land : and, upon the execution - by the appellee of a proper deed, to pay him $800, the purchase price of the land.
The amended bill distinctly alleges the performance by the appellant of the first of the foregoing requirements, also the giving of the required notice of its intention to demand the •deed, and appellant’s readiness to pay the purchase money upon the execution and delivery thereof by the appellee. Under such circumstances, there can be no possible obstacle in the way •of specific performance of the contract. Indeed, the effort of ■the company to acquire the property for its uses by contract is made a condition precedent to the exercise of the power of •eminent domain; and only in the event of inability to agree upon price or terms with the owner could the appellant resort "to condemnation proceedings. Va. Code, 1904, sec. 1105-f, cl. 20. The legislature would not have imposed upon the appellant the useless ceremony of entering into a contract which ■could not be enforced.
At most, the prefatory language in regard to building the railroad was only a representation, an inducement to the contract, the truth or falsity of which would exert proper influence with the court in exercising a discretionary jurisdiction in the matter of granting or refusing specific performance. In -this instance, the verity and good faith of the representation is •established, so far at least as the demurrer is concerned, by the allegations, which may be here repeated, that at the date of the -contract the appellant “was actively engaged in the construction •of its proposed line of railway from the "West Virginia line, at -or near Mew River, through Southern Virginia to Tidewater; ■that its entire line of railway at that time had been let to con-tract, and was then being- constructed, a large part of the woi-k ■thereon having been completed.”
“Surely plaintiff will not be required to perform its contract which is not a condition precedent before it can call on defendants to perform theirs, which alone can secure plaintiff in the rights it acquired under the contract.” Minneapolis & St. L. Ry. Co. v. Cox, 76 Iowa, 306" court="Iowa" date_filed="1888-12-21" href="https://app.midpage.ai/document/minneapolis--st-louis-railway-co-v-cox-7103750?utm_source=webapp" opinion_id="7103750">76 Iowa, 306, 41 N. W. 24, 14 Am. St. 216.
There is still another view of the case in which the appellant is entitled to prevail. The amended bill alleges part performance of the contract by the appellant, under circumstances which affect the conscience of the appellee,' and his failure to carry out the contract would operate a fraud upon appellant’s rights. Lester v. Lester, 28 Gratt. 737" court="Va." date_filed="1877-07-26" href="https://app.midpage.ai/document/lester-v-lester-6806356?utm_source=webapp" opinion_id="6806356">28 Gratt. 737; Stokes v. Oliver, 76 Va. 72" court="Va." date_filed="1882-01-12" href="https://app.midpage.ai/document/stokes-v-oliver-6806878?utm_source=webapp" opinion_id="6806878">76 Va. 72, 82.
It follows from these views that the decree appealed from must be reversed, and the case remanded for further proceedings.
Reversed.