Lattin v. Hazard

Gibson, C. This is an appeal from a judgment entered upon plaintiffs’ failure to amend their complaint after a general demurrer thereto had been sustained.

It is alleged in the complaint that plaintiffs are husband and wife; that on March 9,'1887, at Los Angeles, the defendant and sundry other persons, as parties of the first part, and James McLaughlin, as the party of the second part, made and entered into a written agreement whereby the defendant, Hazard, and others, as parties of the first part, in consideration of the benefits to accrue to them, and desiring to have a steam-dummy railroad extended westerly beyond the city limits of Los Angeles into and through the section of country in which their lands were located, and to secure such an extension of said road, agreed to pay, transfer, and set over unto the party of the second part the sums of money and land aligning the roadway of said road by each subscribed; that H. T. Hazard, on his part, agreed to convey five acres of land, the same “ to be in a compact, nearly square form, .... situated anywhere in the east half of the northeast quarter of section 24, township 1 south, range 14 west, San Bernardino meridian ” ; that the several amounts of money subscribed were to be evidenced by'the several promissory notes of the parties who subscribed money, the notes to bear even date with the contract, and to be payable to the said McLaughlin or order, at Los Angeles, six months after date, and bear interest at the rate of ten per cent per annum from maturity, and the subscriptions of t.he defendant and others of land were to be by their several grants of land contiguous to the line of said roadway, conveying a clear title in every case to said McLaughlin of the date of the contract, or twenty days thereafter; provided that the notes and deeds should remain in trust and escrow with the Farmers’ and Merchants’ Bank of the city of Los Angeles, as trustee, and should not be delivered to the said McLaughlin until the completion and operation of [60]the said extension of the said railway, but upon the completion of said work they were to be delivered to the said second party absolutely; that the parties of the first part severally agreed that McLaughlin should have the right to locate the route of his road westerly from the intersection of Diamond Street with the city boundary over certain described lands of the said first parties; that they and each of them over whose land the route extended would by deed convey to McLaughlin a right of way not exceeding thirty feet in width, allowing any necessary additional space for curves, they reserving the fight to dedicate the land along which the railway should be located for the purpose of a public street; that McLaughlin, on his part, agreed to extend and construct the road as desired, and commence such construction within thirty days from the date of the contract, and have the same ready for operation within six months from said date, and that in the event of his failure to do so, then the notes and deeds in escrow should be returned to the respective makers and grantors absolutely; provided, however, that in case insuperable obstacles should intervene during said six months, of which the bank holding the notes and deeds should be notified, said McLaughlin was to have the additional period of sixty days within which to complete the road, and that the said McLaughlin further agreed that the road should be well and substantially built, and operated by a steam -dummy for a period of not less than ten years, and should have a carrying capacity and speed equal to the requirements of the section traversed and the business thereof, and that the rates of fare for a certain specified distance should not exceed fifteen cents, and should not be raised for ten years.