O'Neal v. King, 48 N.C. 517, 3 Jones 517 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 517, 3 Jones 517

JOHN B. O’NEAL vs. JOHN KING.

A condition precedent in a bond for the payment of a subscription to rail-road stock, that the road is to be completed to a certain village, is substantially-complied with, when it is made to the suburbs of that village in such a manner as to bear daily trains on it, carrying all the freight and travellers that offer, although some portion of tire work is intended to be replaced with other and better materials.

This was an action of debt, brought upon a penal bond, and tried before Ellis, Judge, at the special Term, June, 1856, of Henderson Superior Court.

It appeared in the case that the bond declared on was given to the plaintiff, as President, for the defendant’s subscription of stock to the Columbia and Greenville Bail Eoad Company, under a provision in the charter of the company, which gave the subscribers the option to pay the installments as the same were called for, or to give a bond to pay the whole when the roacl was finished to Greenville Court House, with interest from the date of each installment’s falling due. The subscription of the defendant was $200, and the penalty was $400, and that part of the condition which relates to this case is as follows : “ To pay the whole amount of stock so subscribed, with interest thereon at seven per cent from the respective days on which the said installments may have been required to be paid, on or before the day on which the construction of the said road shall be completed to Greenville Court House, South Carolina.” It apjieared further, that the road in question had, before the bringing of this suit, been constructed so that locomotives drawing trains of cars could, and did pass, daily, over the same, to within half a mile of Greenville Court House, measured bj a straight line, and between one half and three-quarters of a mile, by the usually travelled road, carrying all the freight and passengers that offered ; that the entire village at that place is called “ Greenville Court House that some of the buildings were out as far as the terminus of tire road ; built there since the road was made; that a part of the road had been laid with T iron, and part with an inferior iron which was to be replaced with T iron; that some of the fills on the road had not yet been made, but trestle-work had been constructed at such places, upon which the rails were laid; that this was done with the intention of filling in with earth, conveyed upon the cars, at such times as might be convenient; that this was thought the cheapest; that such trestle-work answered the purpose of working the road, but the speed of the trains was lessened in passing over it.

The defendant contended that the plaintiff could not recover, because the road had not been completed to Greenville Court House, and asked his Honor so to instruct the jury.

But the Court was of opinion that the condition precedent had been complied with, and so charged the jury. Defendant excepted.

Yerdict for plaintiff. Judgment and appeal.

Baxter, for plaintiff.

-jY IF. Woodjm, and J. IF. Woodjm, for defendant.

Nash, O. J.

¥e see no reason to disturb tbe judgment rendered below in this ease. The conditions of the bond on which the action is brought, have been complied with by the plaintiff. The defendant contends that the road has not been completed to Greenville, and until that is done he is not bound to pay the money secured by the bond. Hie completion of the road to Greenville Court House is a condition precedent, and it must be averred by the plaintiff in his declaration, and proved. The only question is, was the road so completed before the action was brought ? It appears from the case that the village of Greenville is called the Court House, and the road has been built so as to carry freight and passengers, since 1851, up to the suburbs; but that on different parts of the road, fills are not made, the road being carried over trestle-work. If this be a sufficient reason why the road is not completed, there is scarcely a road in the southern country, which is, or probably ever will be, completed. The line of roads in the eastern part of- the southern States, I believe, •without exception, encounter or run through swamps and other low places, where the only practicable mode of construction must be on trestle-work. "What did the parties mean when they used the word “ completed ” in the bond ? Did they mean that, in every particular, however minute, the road should be perfect, before the defendant’s liability to pay should arise ? Did they use the word in its full and critical sense, thatno piece of iron or unsound sill should be found in the whole line of road ? Or did they use it in its plain, common-sense meaning ? Qtd bceret m litera, hceret m cortice, is an ancient maxim of the common law, and hence the rule, that the law in such a case as this, is satisfied with a substantial performance of the condition. 'When, therefore, it is said in the contract, that the road shall be completed to> Greenville Court House, and it is shown that the whole village is called by that name, and that the road is brought to the suburbs of the village, that part of the condition is complied with; and where it is shown that the whole of the road is finished so as to authorise the company to carry freight and passengers, and to demand and receive pay therefor, we'hold that the condition of the bond is complied with, and that in the language used, the road is completed to Greenville Court House.

We concur with his Honor in the view he took of the case, and the judgment is affirmed.

Per Curiam.

Judgment affirmed.