Temple Street Cable Railway v. Hellman

Citations

• 103 Cal. 634
• 37 P. 530
• 1894 Cal. LEXIS 837

Syllabus

<p>Corporations—Street Railway Company—Power to Execute Note—. Baseball Park—Increase of Business.—A street railway corporation has power to execute a note to the conductor of a baseball park in consideration that he will discontinue his former place of business, and establish a first-class baseball park on a tract of land adjacent to the land of the street railway, with a view to increase its business.</p> <p>Id.—Breach of Contract—Indemnity Por Note—Election of Remedy— Where the conductor of a baseball park gave a bond of indemnity with sureties for the amount of the note and interest upon his failure to comply with his contract, and, after partially complying with it, abandoned the enterprise and forfeited his lease, the street railway company may elect either to sue him for the profit it would have made by performance of the agreement, or to sue him and his sureties upon the contract of indemnity for the amount of the note and interest.</p> <p>Id.—Action Por Indemnity—Part Performance—Setoff.—In an action upon the bond of indemnity, whatever sums the street railway company received as the result of the part performance of the contract by the conductor of the baseball park, he. and his sureties have a right to set off or deduct from the amount of the note and interest.</p> <p>Id.—Execution of Corporate Note—Admissions in Contract—Burden OF Proof—Want of Authority.—The admissions of the defendants, in the contract of indemnity given to the street railway company, of the execution of the note by it, are sufficient evidence, prima facie, to sustain a finding that the note of the corporation was duly executed, and to throw the burden upon the defendants to show want of authority on the part of the officers of the corporation to execute it.</p> <p>Id.—Contract Giving Right of Action—Payment of Note Before Suit Por Indemnity.—Where the defendants expressly agreed that an action might be immediately commenced upon the failure of the conductor of the baseball park to per