Ogden v. Kirby

Citations

• 79 Ill. 555

Syllabus

<p>1. Contract—court must construe. If a contract is ambiguous it is the duty of the court to determine what it means, from the evidence, and instruct the jury as'to its meaning.</p> <p>2. Subscription—construed in reference to condition. Where a contract of subscription to aid in the construction of a railroad was made payable when the road should be completed and in operation from a certain place to “Menominee, Mich.,” by a certain time, and it appeared that there was a large township by that name, containing about forty ordinary townships, and also a village of the same name, containing a population of 3000, a post office, etc., which had a well known existence, though not incorporated: Held,, that the village of that name was what was meant in the condition.</p> <p>3. Same — condition to complete and operate a railroad. If a subscription is subject to a condition that a railroad shall be completed and in operation between two certain points by a day named, it will be sufficient to show performance of those conditions, and it is not necessary that the road should on that day furnish such facilities for receiving and discharging freight and passengers as could be expected of an established railroad, to make the party liable on his subscription.</p> <p>4. Same—building of depot, etc. A condition in a subscription to complete and have in operation a railroad to a certain point by a certain day, is not necessarily not performed, as a matter of law, from the fact that a depot was not built, and a station agent appointed for such place by the day named, and proof of such facts will not necessarily defeat a recovery on the contract of subscription.</p> <p>5. Law and fact. When a railroad is to be regarded as completed and in operation to a given point, is not a question of law, but purely one of fact, to be determined by the jury from the evidence.</p> <p>6. Instructions—singling out part of facts bearing on issue. Upon a question of fact, it is erroneous, in instructin