Louisa H. Parsons, Executrix, etc., Appellant, v. Henry A. Tilden et al., Respondents

Louisa H. Parsons, Executrix, etc., Appellant, v. Henry A. Tilden et al., Respondents. (Argued November 24, 1874; decided December 8, 1874.) This action was brought to enforce a clause in a contract of sale by plaintiff’s intestate to defendants Tilden and Hazard, of certain hotel property in Lebanon, Columbia county. The following is the clause in question : “ Fifth. The said Tilden and Hazard are to enter into an agreement with the said Parsons, that in case the Lebanon Springs Railroad is constructed and brought through the town, that they will pay him, in one year from the time of the completion and operation of said road, the further sum of $2,500; and in two years the further sum of $2,500.” The principal issue was as to whether the said railroad was completed, within the meaning of the contract, one year prior to the commencement of the suit. The action was commenced in February, 1871. The court below found that prior to February 9th, 1869, trains of cars for construction purposes, carrying freight, run over the road, through the town of Hew Lebanon; on and after the 16th of June, 1869, trains of cars for the transportation of freight and passengers run over the road; time-cards were used and notice of the running of trains given. But it appeared that the rails were laid upon unballasted ties, over temporary structures of wood, for considerable distances, through perpendicular cuts, where the earth frequently slid down upon the track, interfering with the running of trains ; signs were not put up at crossings, and fences along the track not built; that the cars frequently run off the track, and trains did not run regularly in consequence of delays. The complaint was dismissed on the ground that the action was prematurely brought. Held, no error; that the contract contemplated a road so far completed that all work thereon needful for the original construction could have ceased, and the road be kept in operation for a reasonable length of time, without great discomfort, uncertainty and hazard to those using. In other words, that the road should at least be so far completed as to furnish a safe, speedy, certain, easy and continuing means of travel and of transportation of goods ; and that this was not proved. George W. Miller for the appellant. R. E. Andrews for the respondents. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance; all concur, Ohuroh, Oh. J., and Rapallo, J., in result.