Kansas City, St. Joseph & Council Bluffs Railroad v. Alderman

Wagner, Judge,

delivered the opinion of the court.

The motion is to strike out part of the respondent’s return as constituting no defense to the relator’s demand. It seems to me that that part of the return which sets up that there was no legal election is immaterial. Express power was given to the County Courts to take stock in the corporation, by law approved February 18,1865, without taking the sense of the voters (Sess. Acts 1865, pp. 102-8, §§ 10, 11), and this law Ayas passed before the adoption of the present constitution, and therefore does not come Avithin its prohibitions. That the court did order an election can make no difference. It was competent and proper for the court to consult the people, if it saAV proper, before making the subscription, but it was not bound to do so. In this case the court derived its power to subscribe from the law,"and not from the voters.

It further seems to me that the allegation that the road' was not completed within a certain time constitutes no valid defense. There is nothing to show that time was of the essence of the contract. It is admitted that the road has been built, and that the benefits sought to be derived from it, and which were the *351 inducements that led to the subscription, have accrued; and when such is the case a party will not be allowed to shirk a just responsibility on such a pretext. If injury has resulted in consequence of non-performance at the time, there may be an abatement in the shape of damages, but not an entire release from payment.

It further seems to me that the other matters moved to be stricken out are purely technical points, and present no substantial defense to the real merits of the case.

I am, therefore, in favor of sustaining the motion, and-with the concurrence of the other judges it will be sustained.