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« "The State of Texas, Panola County.
“Know all men by these presents that we and each of us whose names are subscribed below, for and in consideration of T. S. Garrison constructing, equipping and operating a line of railroad from Timpson, Shelby county, Texas, to Carthage, Panola county, Texas, and the running of daily trains between said points for the accommodation of freight and passenger traffic on or before the first day of October, 1898, agree to pay the amounts set opposite our respective names to such persons as said T. S. Garrison designates, said amounts to be paid when the road is completed and daily trains are running over same to the town of Carthage. “J. W. Cooke
.$350.00* “The time of completion to Carthage was subsequently extended by agreement of parties to November 1, 1898. The appellant proceeded with the construction of the proposed road, which was known as the Marshall, Timpson and Sabine Pass Railroad, and by about the first of the year 1899 had completed it to within about half a mile of Carthage. Appellant then sold the road to the owners of competitive railroad, the Texas, Sabine Valley and Northwestern Railroad, and these parties by March 1, 1899, but not before, completed the proposed road to Carthage and had daily trains running thereon as stipulated in the contract. When the road was sold to them by appellant it was stipulated by him that it should be completed to Carthage as per contract though it would have suited the purchasers better to construct it by a different route to another point. On the completion of the line to Carthage appellant demanded the subscription but appellee rcfused to pay, whereupon this suit was brought.
“Appellee defended, first, upon the ground that time was of the essence of the contract, and that, as the road was not completed by November 1st, his liability for the subscription did not attach; and second, that as the road was not built to Carthage by appellant, but was sold out to and completed by parties who already had a railroad to Carthage, he was discharged from liability.
"Parol evidence was admitted to the effect that the subscribers had 231 contracted that the road should be in operation to Carthage by October or November 1st, because they expected it, by competition with the other railroad, to affect
the rate of freight on cotton to their advantage. A trial by jury resulted in a verdict for appellee.
“Questions: 1. Does the subscription contract show upon its face that time was of the essence of the contract?
“2. Did the trial court err in hearing proof as to the situation of the parties and the fact that the subscribers expected to derive benefit from the construction of the road by the date named, in the way of reduction in freight rates on cotton?
“3. Would the fact that appellant did not complete the road himself, but sold out to a rival road which completed it, constitute a defense to the action ?
“4. If parol evidence as to the situation of the subscriber at the date of the contract is admissible in explanation of its meaning and in aid of its construction, must such evidence be confined to the subscriber in question or may such inquiry include his cosubscribers who signed contemporaneously with him?
“5. Do the facts show that time was of the essence of the contract?"
“It is a familiar principle that in all cases where it is sought to enforce contracts consisting of reciprocal promises, and “where the plaintiff himself is to do an act to entitle himself to the action, he must either show the act done, or if it he not done, at least that he has performed everything that was in his power to do.' Accordingly, when by the terms of & contract one party is to do something at or before a specified time, and when he fails to do such thing within that time, he could not afterward claim the performance of the contract if the stipulation as to time were construed according to its literal terms. The rule of the common law was that 'time is always of the essence of the contract.' When any time is fixed for the completion of it, the contract must be completed on the day specified, or an action will lie for the breach of it": Pollock on Principles of Contracts, 462. The rule is also announced by the elementary text-writers that, at law, time is in general of the essence of the contract: Bishop on Contracts, Eec. 1344; Anson on Contracts, 331; Clark on Contracts, 596. See, also, Beach on the Modern Law of Contracts, sec. 617 et seg. We understand the rule to apply where one party agrees to pay money to the other in consideration of the doing of an act by such other within a specified time. In general in such a case the promise to pay cannot be enforced, unless the act
be performed within the time. Questions calling for its application have frequently arisen in cases like the one now before us—that is to say, in cases of subscriptions for the construction of railroads and other like improvements, and so far as we have been enabled to discover,- where there is nothing on the face of the contract itself tending to show that time was not of the essence of the engagment, it has been nearly if not. quite uniformly held, that 232 if the work was not completed within the specified time, the promisor was not liable. Such was the case of Slater v. Emerson, 22 How. 28. There “a railroad company became embarrassed, and were unable to pay the contractor, and a person interested in the company agreed to give the contractor his individual promissory notes if he would finish the work by a certain day," and it was held that the contractor could not recover because he had not finished the work within the stipulated time. The case was cited with approval and the rule was followed in the following cases: Hall v. United States, 96 U. S. 28; Jordan v. Newton, 116. Mich. 674, 75 N. W. 130; Persinger v. Bevill, 31 Fla. 364, 12 South. 366. See, also, to same effect, Indianapolis etc. R. R. Co. v. Holmes, 101 Ind. 348; Bohn Mfg. Co. v. Lewis, 45 Minn. 164, 47 N. W. 652. The principle has been applied even as to subscriptions for stock in a railroad company where the subscription is made upon condition that the road is to be completed within a certain time. But the case before us is a stronger one. A stockholder acquires an interest in the company, a property right; a promisor of a bonus to a railroad company acquires no right by a construction of the road. He looks only to the incidental advantages that may result from such construction. It would seem but reasonable that in the latter case the promisee should be held to a rigid compliance with the conditions of the contract. In the case of the Presidio Min, Co. v. Bullis, 68 Tex. 581, 4 S. W. 860, this principle was held applicable to a contract for the sale of real estate, to which ordinarily a less rigid rule applies. In that case the court say: "It was left entirely at the option of Cooke whether he would take the land at the end of the year or not; and, in such cases, it is the general rule, to which this case is no exception, that time is of the essence of the contract." So in this case the appellant did not bind himself to do anything, and the appellee merely promised to pay in consideration of the construction of the railroad on or before a certain day.
A contract to pay money in consideration that the promisee will build a railroad by a certain time implies very clearly that that money is to be paid only on condition that the road be constructed within the time; and in our opinion time in such a cage is of the essence of the contract. The fact that the parties by subsequent agreement extended the time for the completion of the road, shows that such was their own construction of the contract, and, even if it were a doubtful matter, ought to have a controlling effect in determining their intention. The cases mainly relied upon by counsel for appellant are Traer v. Stuart, 46 Iowa, 15, Front Street etc. Ry. Co. v. Butler, 50 Cal. 574, and Seley v. Railroad Co., 4 Wills. App. Cas., sec. 87. The contract in each of the two cases first mentioned contained special stipulations as to the time of payment, from which the court drew the inference that the time of special performance was not an essential feature of the contract. They are, therefore, whether correctly or incorrectly decided, distinguishable from the present case. Seley v. Railway Co., 2 Wills, App. Cas., sec. 87, 233 is based principally upon the authority of the other two cases, and may also be distinguished from the case before us by reason of a difference in the stipulations in the contract.
We answer the first question in the affirmative, and since the parol evidence introduced did not tend to show that the intention of the parties was not to make time an essential element in the agreement, we deem it unnecessary to answer the others.
Time as the Essence of Contracts is considered in the note to Jones v. Robbins, 50 Am. Dec. 597-600. If time is expressly made of the essence, the provision will not be ignored in equity: Glock v. Howard etc. Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17, 55 Pac. 713. Time is an essential element of a contract whereby one binds himself to convey a right of way on condition that within four months the construction of a railroad shall commence, and within three years he completed: Thornton v. Sheffield etc. R. R. Co., 84 Ala. 109, 5 Am. St. Rep. 337, 4 South, 197.
NOLAN V. MOORE.
[96 Tex. 341, 72 S. W. 583.) MARRIED WOMAN-Conveyance of Executed by Attorney in Fact. A power of attorney executed by a married woman authorizing the doneo of the power to sell her separate real property is valid, and her conveyance executed under such power, in which her ausband joins, transfers such property under a statute declaring that a husband and wife shall join in a conveyance of real estate, the separate property of the wife, and that no such conveyance shall take effect until acknowledged by her privily and apart from her husband before some officer authorized by law to take the acknowledgment of deeds. (p. 913.)
Frost, Neblett & Blanding, for the plaintiffs in error.
343 BROWN, A. J. On the twenty-second day of January, 1884, John T. Moore and Lula H. Moore were husband and wife and have so continued down to the present time. They resided at that time in Jefferson county, in the state of Mississippi. In her separate right Lula H. Moore owned in Texas the land in controversy, and on the day above stated, she being at home in Mississippi and John T. being in the state of Texas, the said Lula H. Moore executed and acknowledged, in the manner and form required by the laws of Texas, a power of attorney to James L. Autry, of Navarro county, Texas, by which she empowered and authorized the said Autry to sell and convey the land sued for in this case, as well as other lands in Texas. John T. Moore did not join in the power of attorney, which was forwarded to James L. Autry and recorded in Navarro county on the fourteenth day of February, 1884. On the thirteenth day of August, 1884, John T. Moore joined with Jamies L. Autry, who acted under the said power of attorney for Lula H. Moore, in executing a deed which conveyed the land sued for to F. L. Smithey for a cash consideration of nine hundred dollars then paid. At the date of the trial the land was worth fifteen dollars per acre without regard to the improvements, and with the improvements it was worth thirty dollars per acre.
On the sixteenth day of February, 1889, Lula H. Moore, joined by her husband. instituted this suit against the plaintiffs in error, who claimed under Smíthey, to recover the land, and judgment was given