Blake v. Brown

45 N.W. 751, 80 Iowa 277, 1890 Iowa Sup. LEXIS 215

• Court: Supreme Court of Iowa
• Decided: May 26, 1890
• Status: Published

Opinion

Given, J.

— I. Appellants contend that, after the work was first suspended for want of funds, the defendants and other subscribers for stock, residing in Keokuk county, agreed to waive all claim for stock on account of payments made, or to be made, on their subscriptions, and to execute promissory notes for the balance unpaid, so as to furnish means for the prosecution of the work; that the notes in suit, with many others, were accordingly executed and delivered; and that plaintiffs were thereby induced to resume work, and spent large sums thereon. The defendants say that they made no such .agreement. There is testimony tending to show that such a proposition was discussed and generally assented to by the subscribers in Keokuk county, and that releases of all claim for stock were signed in a book used for that purpose. There is nothing to show that defendants ever consented to or signed such a release, except that they were active in procuring subscribers to give their notes, — a fact that does not necessarily indicate such an agreement on their part. The railroad company was without means to prosecute the work. The subscriptions could not be used as notes could be. There is nothing in the fact of giving the notes that shows a waiver of the right to stock.

Defendants deny having made such an agreement, and Mr. Adams, who was taking notes, and who filled up these notes and the receipts given therefor, states that no paper was signed relinquishing the right to stock. The receipt given for the notes as a payment on the subscriptions recites that “said shares reserved and set apart for him or his assigns on the condition of the fulfillment of the terms of subscription.” It was not contemplated at the time these notes were given that the St. Louis and Cedar Rapids Company would fail to complete the road ; indeed, the very object of converting the subscriptions into notes was that it might complete it. We do not discern any good reason, as matters then stood, for such an agreement as is claimed. We think the findings of ■ the district court on this issue are fully sustained by the testimony.

II. That no capital stock has or ever can be furnished to defendants, appears beyond question. In the view we take of the notes sued upon, it is unnecessary that we consider whether this constitutes a failure of consideration or not. The notes were given August, 1869, payable “ when the cars are running from Ottumwa to Sigourney on the line of' said road.” The cars were not running on that line until December 29, 1883, — a period of over fourteen years. The note, construed in the light. of its language and the subject-matter, shows clearly that it was contemplated by the parties that the railroad company would complete the road and have the cars running within a reasonable time. It surely was not contemplated that it should have all the future in which to comply with this condition. The district court found that three years was a reasonable time in which to have had the cars running. In view of the condition of the road at the time the notes were given, this was ample time ; but, whether it was or not, it is very clear that fourteen years was far beyond a reasonable time. Had the notes been made payable if tbe railroad company should have the cars running in a reasonable time, it would not be claimed that they could recover after a delay of fourteen years, and yet such was manifestly the meaning and intention of the parties. It follows from these conclusions that the consideration for the notes, whether given for stock or as a bonus for the completion of the road within a reasonable time, has totally failed. As the foregoing conclusions fully dispose of the case, it is unnecessary that we notice other points made in the argument. The judgment of the district court is

Affirmed.