Burlington & Missouri River Railroad v. Boestler

Dillon, J.

-The promise of the defendant to pay the subscription was dependant upon the performance of a prior act to be done by the plaintiff, viz.: “ to put the said road under contract in one year from the 1st day of September, 1853,” * * * “with condition to be built (from Burlington to Fairfield) .within twenty months from the time of letting such contract.” The performance of this prior act on the part of the plaintiff, was a condition precedent to his right of recovery, for until performed the contract was not obligatory upon the defendant The petition avers, indeed, that the “road from Burlington to Fairfield was built and in running order, by the 1st day of September, 1858,” but it nowhere avers that the contract was let wiLhin the time limited, or let with the stipulated condition concerning completion within twenty months thereafter. As the contract was to be thus let before the defendant’s liability was to accrue, the Court correctly held that the plaintiff must show performance of the condition precedent, or something which discharged him from such performance. The general correctness of this doctrine, we do not understand the appellant’s counsel to controvert, nor is it controvertible, for the principle is laid up among the fundamentals of the law, that when a time for the performance of an act, or of a condition precedent is fixed by the contract, the act or condition must, at least in a court of law, be performed within or at the time. No averments were made showing that the defendant had either waived, rejected or prevented performance on the plaintiff’s part. We understand the appellant to maintain that the road being in fact built, and in running order by the first day of September, 1858, and before any installment on the stock was called for, amounts in law to a substantial though not a literal performance.

The cases where an exact and precise performance will be dispensed with in a court of law, and a substantial per *559 formance will be held to suffice, are in their nature exceptional, and can never apply to a case where, by a fair construction of the contract, time was, as in the present instance, made material by two distinct and separate clauses. But, without further dwelling upon this point, we fail to see how the bare fact that the road was completed by September, 1858, shows even a substantial compliance, admitting that to be sufficient.

If the road had been put under contract within .the year, with a condition in the contract that it should be completed in twenty months thereafter, the time for the completion to Fairfield would have expired in May, 1856. “ Non con-stat,” says the appellant, “that the road would have been any sooner built if this had been done.” To this it is sufficient to reply, non constat but that it would have been sooner built if the contract had been thus Iona fide let. The presumption is that men will keep, not that they will violate, their engagements. The presumption then is that if the contract for the road had been let as contemplated when the defendant subscribed for stock, the road would have been completed to Fairfield by May, 1856. Instead of that it was not completed to that place until September, 1858. In view of the probable difference in the value of the stock during this long interval and the delay to receive dividends, to give no other reasons, we do not see that the plaintiff has either substantially or literally performed the condition which is precedent to his right of recovery.

The appellant furthermore contends “that unless the defendant had notified the Company not to proceed on the credit or faith of bis subscription, he is bound, although the terms of the contract under which the road was built, were not precisely such as the 'subscription paper contemplated.” Not so. Mere silence on the part of a defendant does not amount to a waiver of the performance of a condition, unless indeed in cases where such silence is incon *560 sistent. with, any other explanation. Gray v. Blanchard, 8 Pick., 292 ; Jackson v. Crysler, 1 John. Cas., 125; Lawrence v. Gifford, 17 Pick., 866 .

Under any aspect of the case as presented by the pleadings, we do not see how the District Court could have holden differently without subverting established first principles. The judgment below is, therefore,

Affirmed.