Stockton v. Jacksonville & Atlantic Railway Co.

Citations

• 44 Fla. 728

Syllabus

<p>1. An agreement between two railway companies provided' that the “J. M. & P. Ry. & N. Co. be allowed to cross the J. &A. Ry. Co.’s track under such conditions as required by law, for the sum of $500, or interest on that amount annually at the rate of eight per cent, at the option of”' the J. M. & P. Ry. & N. Co. S. executed his written agreement as follows: “This.is to ceitify—an agreement between J. M. & P. Ry. & N. Co. and the J. & A. R. R. Co. entered into this day—that in consideration of the J. & A Ry. Co. allowing the J. M. & P. Ry. Co. to cross their track between S. -iaeksonville & St.. Nicholas for the sum of $500, or forty dollars interest payable annually, that I agree to pay the same—it being understood that I have the option at any time of paying the $500 and thereby relieving myself of this guarantee”, Held, that the agreement of S. hinds him to pay $500, or $40 interest upon that sum annually, at the same time securing to him the option of paying the $500 at any time in .order to relieve himself from his agreement; that the agreement is in the alterna- • tive, i. e. to pay $500, or to pay interest annually on that. ' sum; that performance of either would discharge the agreement without performance of the other, and he is-.bound to perform only the one or the other, not both.</p> <p>2. Under a declaration alleging that three annual payments provided for by the written contract sued on were-due, and claiming to recover those three only, it is error for the clerk after a default for failure to plead, to enter final judgment for four annual payments, even though the-fourth matured during the pendency of the suit.</p>