Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1866-08-08
decision Of the Supreme Court.

NASHVILLE AND NORTHWESTERN RAIL ROAD COM
PANY vs.. JOHN JONES AND ANDREW J. BAKER, Ad-
The Nashville and Northwestern Railroad Company the
m day Of s sS IN ne sd%n
JONES' deceased to recover the amount Of Two
and the other due April 1856 thirty shares Of the
capital stock said company alleged to have eeen
agreements LIST day Of July ls4 and
the second the LIST day of January 1855 The
each conditioned agreements, and
each count With me Condition % sns D.
R and failure of both Of them in short They
ting cut change the location Of the rsroad To these
special pleas hsre repcaious by company adj
the new route and shortest These rspcsons
dsmgTred to- and the demurrer Oyerruled III. is
under the charge of the Court found verdict plain
tytwo cents upon which defendants motion trial
having been overrud Judgment given to the plaintiff
charge court and appealed this court
On the 10Th day Of April 1855 proven before the jury
resolution That the Nashville Northwestern Railroad
Harpeh Jones' and thence up Turnbu and
Beaver DAM and thence by Contrary along the
and fact before either Isaac 1a oas. 81 %
ton we're made this route had been
Turnbu route and Beaver Dam valley within hun
aehurst route or the arpe;h and Turnbu route Isaac
Jones owned tract of land Of yone hundred acres
this through the forge yard The
OF the faroad upon would enable Jones to load and unload
operation for years but had always successful
time There were valuable banks upon this tract of
owned by Jones' from which the could be brought
this route would have added thousands
value Of the tract owned by Jones The company
the railroad this route indeed except
board Of directors though considerable work done
other portions of the line Sometime in the early part
the 1885, and certainly before the month Of April
died. which time considerable period pre-
Vouy the would to have suspended work al
The tract of land owned By Jones the 10Th day
the It wou
1t had been supposed the road would have been
much been surveyed formally To-
The calls made Jones' subscriptions paid
his death paid his administrator
they the sums so paid must have been small since the
brought for the calls due in March and April
leaving only the months of January and February
which calls made after his death could have been paid by them
if he died in 1856
The other route the sullivan Branch route"
always considered the cheapest railroad
company could got the subscription
On this latter route the road located In September 1882
about that time This route leaves the Hsilehurst
miles this side eas of Jones FORGE and
Jones' dwelling house, different tract of land and does
The entirely different At places I'VE
six miles apart The new route runs up north Of Beaver Dam
gneer three miles shorter than the HaZehurst route
fifteen thousand dollars cheaper build and the
the upon ty thousand dollar,
in the of running trains the road
ted by the engineer some twenty-five hundred feet spsr
with bluff between Them and by another Witness
The road from the forge to the road at least mile and
half In length and very bad one Some two hundred
balance of it is their land but all of well wooded The
materially damaged this land The new route is the
shortest cheapest and best for the construction Of
abandoned and at the m Of Of t this ca the
road was being constructed the route Upon this
state of facts the court charged the jury:
LIST That the contract Of subscription conditional one
and to ente the plaintiff TO il show the per-
Torrance of the condition.
That contract to be understood
that they have acquired artificial echnic. sense
3rd If the word locate were used in the contract in Its
the proof shows the word locats" had when
used in reference to the locality of the road acquired sr
hc or technical sense then the parties would be presumed
5th If when used in that sense survey
route of railroad and the adoption of that line
of the road by resolution of the Board of Directors and
the company did caused these things be good
faith they we're compliance with the condition, and the
subscription of Isaac Jones became absolute.
9Th If the TOute Of the road located in good faith
and afterwards the company in good faith changed such
on such change would not release Jones from his subscp
ton.
road the stipulated route according the condition. and
IT, while ondes7Oring accomplish tina. object.
Jones died. and his heirs sold the parted
road such change though il would be depar
from the letter. would not be departure from the spirit
| lease Jones from his subscription
The business of the court consrus the
the parties But the did told the jury
that the word locate to be understood its
acquired artificial technical then it
the agreements build and upon
qued artificial technical sense When sed in
sRsp S s $ h'i And Tsan
used In that signifies the and marking Of line
the line of the road then If the plaintiff good faith
of b ipuas eons. G0ns hsy sToa be
But the court wholly omitted the jury in which Of
one they understand this word locate to
have been used by the parties
far as the record dscoss the slightest proof that the word
locate had when used in reference to the location of rail-
roads acquired artificial technical sense indeed
shade of sgn fcation different from its obvious
popular Specification build and
effect of this of the change Jury grope
along their pathway Of duty in the application of the law
the delivered from the bench, it,
any clear definite light what this rule.
Of law were But the courts province aid them in the
directly if such its opinion, that the
such were not its opinion but its opinion that the word
used in artificial and technical acquired by
directly emphacay instructed them that the
word would be have by these parties
these in that technical artificial sense It did
neither the the other leaving the jury guess
the word used these contracts and hen to apply
the sense in which they might conjecture used the
facts they should find them.
The rule Of law well settled, Court will not re-
for theoretical charge of an infer Tor
Court which has application TO the facts case
could not in any way have msed the jury But the charge
in this case can derive no support from that rule What
stated therein as to these two propositions with what Is omit
ted therefro could anord jury no aid, light to the
aw Of the and could only have the effect misleading
them The statements in the second of these
not the law Of the in of its aspects. they
delivered to the jury the law
decided in this Court in the McNafry Thomp
all sneed 14that the object Of the rules and
principles laid down for the exposition contracts to do
the parties by enforcing performance of their
agreement according to the in which they mutually
derood tho time it made governing principle
the intention of the parties That intention
be ascersined by looking to the situation Of the parties
the motives which induced the object and
purpose designed to be effected by it.
In the of William Chapen Peter Outlet and others
Sneed 2t laid down that though paro evidence
not be admitted to vary alter or explain the intention Of the
that application b given the contract by the
surrounding circumstances sneed 22 The Court decided
reenIea CO. Sec 27sha every species Of contract nav
be subject conditions which or interest
or be enlarged or be defeated No technical words
necessary create the condition nature
and that conditions be either precedent subsequent
according the fair intention of the parties
from the instrument THAT technical il there
any such intention should
tention In the present it's the Court argued
that the words Gse bdrgQiHed AMI so the
give character to the evidently that
title present. intended to pass Certainly the words
technical and appropriate to the idea
tract but when consider the entire instrument
ectly clear that such not the intention pares-
page 49, necessary to constitute condition precedent
condition subsequent and if there be question this
manifested by Of the particular For not
only may the exact terms of condition be modified
harmonic therein with tho evident intention of the parties
but where 10 has been expressed it be implied
from the facts in the case "a conditional contract
fined by this author. stoyis all exocutory contracts
performance Of which depends upon condition IL is not
simply executory contract, since the may
soute to DO or not to do somehing but IL is
a contingency and condition"
"A condition subsequent which follows the perform
Of the contract and operates defeat and snnu
the subsequent failure Of party with
dton Thus devise OF land for the purpose of building
to be present grant Of the land subject forfeiture