, ORA'! V. HINTON.
81
GRAY
v.
HINTON
and others. February 25, 1881.) ""
(aircuit Oourt, D. Nebraska. 1. ENTIRE CONTRACT-WANT OF
The defendants agreed with iil consideration of one dollar, 'I ' '" '" ' and the advaniagesthereiitter to accrue by the construction of said railway th'rougl1" precincts, they would pay the a certain sum\vhen the had, been graded, and a'certain further, sum when' 'the', paityhad tied and its roadwa:y throPRhthe precincts; i.&a proposition.which p'rovided, ',other, things,thatthe should be c,onstructed before a certain 'date. Alter the time f&' con!. stl-uetion had suit WltS on. :the'c<rntract; alleging thlrt the company had graded its road, but there was no allegationtlili'i the road: had beencomplet,ed" and,\1pon; demurrer to held' , , , (1) being of entirety, and the plaintM could Jibt'rtJ!cover for the gradi'rl.g Witb'out alleging the completion of the road,or offering some sufficient' extluse for the failure to do so (2) That there being nothing in the contract tQbind t:pe cOIJlp/lon,'{ to complete the road, it did not originally bind the defendants, for want of mutuality, and wOilldbecCime binding on them only bya full performance of the agreement' of .the company; part perforIl1ance would not be sufficient.
Demurrer to Petition. The facts, as they appear by the allegations of the 'petition, are as follows: The Nebraska Railway Company was a corporatiop organized for the purpose of constructing a road from Brownsville to, Lake Vity. 'l'he cincts of Ohio and Falls City, in the couniy of RfCliardson, had to subscribe for a certAinamouIlt of the oapital stock of said railway company,'1'o,rthepurpose of aiding the construction of said The railway company for the construction road throngh the said precincts of Ohio and Falls City. Litigationbeip.g threatcmed by parties adverse to the policy of granting aid -by the prl!cincts aboVe men· tioned, the defendants in this suit, 150 'in,nuII\ber, signed'tbe.'CoI1tract upon which this suit is brought. . '
The contract, in'Bo far as it; is material, to be oonsidered, is as follows: for its execution on the part of thedefetldant stated to be "the sum of one dollar', to us in hand paid ':N'ebraskA RailWay
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Company, and the advantages thereafter to accrnc br the construction of said railway through the precincts of Ohio and Falls City." .. " ':','-: ., . 'j'
And the defendants agree as follows: To pay jointi; and" severally to or order, the sum ill money of the, 0.£ ;0 he pll-id in instlJ.lrn,ents as. follows, tp-",it:. $10,500 thereo( when rilllway pad!!d its r<;lad-bed and built its the p,r,e9,J;l,m,o,',f, Ohio,a,ccording to ,th,e, :t,eJ:,l}ls, of the fore, "l i ,$. 35,009\111lreof when.thesaid Nebril,*a Railway Company 'shan./have graded its ;l"oad-bed and built its culverts t,hrough the :PFllc!P.pt of Valls £ity ac"to the terms of the w:h.ensaid OOmpaXlY ,ha a,p.q ipmed i.ts roadof ralls City, to, foregR'!}g prop,0sitiollS,-each ilJ-stal,ment ?f which .shalt p,11
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: Tne "foregoing proposition" referred to I1dllis' agreemimt, ,that the be c'q,;,str).lcted petItiou,all!1ges thatthegtltding wasebmpleted in aooordanoe,with the Gontract, but there is no allegation that the has' eTer been T1W 'of tM'road:; i-ccording)o th.e tElrIDS of . the 60mmencemtmt pf this suit. The defendant, files, a general demurrer to the petition, under which he itisists-'Firstl ;that the contract is not binding on the defeJ;ldants. for of that ,the con,tracfiS'lib erith:eiy,arid'as tHe: has this'aetion' of the time within which the railroad company was to hafe tdeted ,the' 'railroad, he canuot withlYlit alleging and proving 90nttact On other wordll,·,that ifha,sfinished thexoll<d; tlH,j'd; thitt· theplaintiffeannot 'tecover withoutaHeging, perr i contract raIlroad. company.." . a.,pAY/ason, for plaintiff;" . E. W. Thomas, for defendants. .' , .. MoGijAi}ly"C·. J., the, questi9;tl,wllether suit can be maintained on the contract upon by tIle. petition. The plaintiff ilUt)i3after the expiration by.the the 1
after
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qRA;Y ,V. HINTON.
,It isltllegEjd I t4%t, the Qontract·. it. : the .. The question js whtlthet; tlIlder the cOIlf.!,ach plaintiff can rec<;lver for, t.h,e gr>adingwith.; ;Qe has finished the road, or, .SQme f.q;rhis failu,reJo 51.0 so; or, in, other we are to to do separateanq dispinct from and independentnotJ the agreement tQ'thl:ish the 'road, SO that the plaiJatiff upqu the JieCover fo.r the grad;ing ,with,.Qut;.allt3g,,; ing <loJPplia,ncE), t(MQ\uply, with ,P1tr6ofr the. SpealUngof ,"Emtirety<:>Jreontraetijj::.Mt. says: ' , , : ,:"1lhe qu'eStionifhether a'contract iSili1tire isofteiJ:J{ 'Any contract 'may consist of many parts; .and these' mar be parts of onewpole, eritere,<l, into' OJHl ti¢e., and in the, same thereby made'one contract. No preMse tule can he giVen by which this questi<ln biiafgitren: ca*may be lletu,tkl. Like upon· be in br ,CQnsidering the sUbject-matter of tile contract." 2'Pars. Con. 517., ...' i· ; !
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eontJ.'&ct we'&r'e! tQ, deierprine whether it was the, intention of ,the parties to one contract for the of ai;ailroad, or, twc:>: for the other fot the. bridging, tying, 'awl. r,oadway' through ,the:pre" 0' F.a;n",City.. lt seeUlS 811 _was: l >n ep tiretyj ,to-wit,:a. COIl1r. ,The case isJIlot Hkl3many we find cited it!! qooks, in separate and ,dis1iinct8.l·tioles of sqldand conveyed by a singlejnstr.t'1ment" fO.J;'.sep,araf.e 4istinct, at,qne .andthe sa-me time. In ,such casesdt often appearstha.t tbe,pm:chas.e of :ef,l,cl;J, :a,nd, be so regarded by the. partieil j j;o,the contract. There i!lI\Il nece,saa-rycpnnee.tion th.ese'VerlJ,l; articlea ,c.qI1-v'/3YEld;. , ,;Thi3rElis.ll:othiug it lilan w:,as,¥O,t"tha illltention,of I thepu;rchllser-:,t() 1
84 'vithbut, also securing 'the othel'l:l:' 1Jlhe case before us;' different. It cannot be'supposed' that the 'defendants would, haveemployedthe" railroad' :companY" to do thegrading'aJ6ne, without 'it had at the sania time agreed, togo on and complete thatoad.The 'COntract itself deblaresthafl the for thecohtract, oft the part of. the 'defendants, walS thethey/'weret6 receive; by of the roadthtbugh the two precinbts named: Suppose the railr.::ad compaa:y,'or its plemng:the; grading, had failed otrefUsedtogdorlatid COm" pletE! ,the road uponr the demand of the 'W6lildit inl)Jt the tl1a'iniiiff,Ltlnder "s'llell circdmstaJrices;; could maintain an action upon the contract ?This is 'ptobJ i 'Yr, (;r,et;n". ;8" Met",lS,lfi'Hifi ,it were laUaged,: in, ,the, petition" .thllfi;', iib.ellailroM1"()Omplitly;,< j;,
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"gritdHlg' because it is manifest that the defendants did not intend to
tb' ipaly at li}ij:ti!n to!'finish· '1:he' l'bard 1 pl¥ttiw iUl1atll1HlvlJ rtrtders'tbbdil\lt't the defeiiaarn'!ls"\vMiB lliHtW i'll(t tbl3tm8Jivssi tO'pay lsilttl '!:ledt16li flib' f tih.'o'tiiglil'tl1e i 'of j the' rai'lfulttl t iB fWHi6b,' '!'8sitWd' a.na: :beld· proiJerty.;,' 'If': 'proposit!oh 11.pbh' ,tHIs ac'tian 'lSi: ltd-wit,;: ih'at td puy' ,the : i for' 1Jliei gttidirtg was cO'r1ipleted!lit not; had beenHsttggestM'at"t'ne time bf the executionafthe ·contraiet,. no 'one of fthetTefendants', wbiild: have assented it. They 'fugarded the1contrwet IliS Etnentirety,8utJh ,,!is the intention; and the conBtructiotiof the, COlil't:tllict, as to its being several or entire,depends upon the intention of the parties to it. But, independently of' this consideration, there call',Ithink, be no doubt upon anotherqu:estioD.'which is' presented by this record. The contract itself' showano nlUtultlity;The de·
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fendants bound themselves to pay a certain sum of money, provided plaintiffs' assignor, "the rltilr.()ad 'company, would complete a rajlroad; is n?thing in the contract to bind the company to complete the road.' The performaniwof .the contract by: the' . railroad; company, would where' avoid thW objection. tOPll-Y SJl;rn pI ):q,c;mey,lf, Pltrty dq,;.certain acts, the latter iSD0t ,bound; but .the agreement i ofAhe formet" ,n1aybe'bonsidered';a'st it' to the lattet'tolIo"the acts named, and the doingorthe' isari' asserlt, pi utW 11 "'Da aoli' p JWlL case .Q part of 'iih .and r!Jrcfwilo.ra; to pa:t'forml:a;tWthbrl'fitl.rt, wUl'" that' is e'i.'; 1fPPRled; f.)P,l0fJ of fw ,will ;amountl.to-i&lI.!ltSse:u.t.d See 1'113TOhioHS4;sJ 94, thWt 'l'tllE! to 15e.'l:ta, iC ''i,fro,r:i. of
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an<lJshh>.WSI·r:UQ, tQ, ,theiJelllUi ,the ltiy eVliepal'ty' to-,,*OO!f tlw'offer tl\;lfhrrHal"ltcl(t'a1'tce,l),t ih ';i 1.)'''11.'1'.'[' "
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performanoe,. all' itc'OOpta'IlM'itl"'writtng of Ii, pa'rt 'Of regarded as an acceptance of the whole.
could! be 'I',,'."}'" In such a. case, J£:ltl!tllJP.on
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FEDE1U.D'.\REPORTER·
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BRAWNER.
(.lI£strict Court, W. D. Tennessee. May 4,1881.)
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1.
Olmmu,LLAw-REv. ST. §: 1014,:.-REMOVAL OF PRISQlJER TO ANOTHER "J)ltn'lUCT":"'PPWERS OF DIS'l:RICT CORPUs. ".
) "'1',lIe, judge of the district wnom application is made for a warrant of removal to another district for 'may, under section 1014 'of,theRevised Statutes, Tev;iew, withOut a writ (if habeas corpus; the,,! oqhe magilltr/lte, and reduce the bail required by: ·"him,If it shall appear to be exC ssl.ve. · I ( . : "." .
2: 'AiOIiNDMlbNT, CoNSTITUTION oJ'
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TlDl: UNITED STATES. , It itrllubstantiallyJadenialofball, arid'lI' vioJatiGD oftheconstitti. ,exceslliyebail,to require a larger sum flhan" " "IroJII." priS9ner can be" reasonably expected to "''give:'' i'requirement oft5,ooo'hi. this case was excessive, and the: : La\imwlls reduced iii f2t500." ", .
3. "SAJoii JBu:ll.l'Eb\r 2 'PaoCBlJUREIN ApPEARANCE ' iN' , "'DJIilTRlciT:.wro lWRAiT TERM !-TENN'ESIEE CODE,: U 5152, 5158, 5164!. "The an alleged arrested be. to. of law in the where' 'the a'rlestiti made; and where the Tennellsee Code requires in oourt':ghall to the next tetDi of · that ball' 1hav\D!g/oorn,i:7.IlPC/:l,!;thll diitrict juqge' allowed the prisonerl to:' the. <ijstricteourt:fQr,.theeastern district Qf Missouri,apddeclined tocpmpel an immediate appearanCe to the eurrimt term. But qUUne 'Whether, underspcclal "clrcumstances., this,might not be notwithstanding the require" , :the be. in accordance with ,the, state: statute.,
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for trial upon a charge '<l counterfeiting. The ,record presented to the district consists of the affiflwvit'l1pon "whil:lh 'the-'arrest was 'made, .the warrant of the commissioner for the arrest, and his commitment to the custody of the marshal to await the action of the district judge in the premises. It appears by this record that the commissioner fixed the bail at $5,000, and in default of it the prisoner was committed as stated. The arrest was made on the finit, and the commitment on the second, of the present month, in Weakley county, the prisoner waiving any exn,minntioll before the commissioner, whereupon he walt
:' &ppHc81tion
Mr Ii 'warrant 6f remotal 'ofthe defend'/mt to'