Page:Federal Reporter, 1st Series, Volume 7.djvu/93

 GBAY V. HINTON. 81 �Gbay V. HiNTON and others. (Ovreuit Court, D. Nebraika. February 25, 1881.) �1. EnTIBB CoNTBACT — WaNT OF MbTUAI/ITY^PABT PEEFOBMiKeK. ' �The dejfendants agreed with theX.IlailWay Compatiy that '' m con- sideration bf one dollar, * * * and the advantdges thereittter to accrue by th& construction of said ra.ilway tlirough'* certiiii pre- cincts, they would pay the company a certain suni' When the railroad had been graded, and a certain further sum when' the company had tied and ii'oned its roadway tiitough the precinctsi accordin;^ i6 a proposition wtiich providei, amcing othei- thinge, that the l'allroad should be donstructed before a certain date. Aiter the time fdr cen- struction had elapaed, suit Avas brbught on the'cbntrlict, alleging thUt the company had graded its road, but there was no allegation tliW the road had been.completed,, and .uppn demurrer to thc-petition, hdd — �(1) That such being the intention of the parties t]tie contract was an entirety, and the plaintifl could nbt'riliover for tiie gradilig Without alleging the completion of the road, or offlering some sufficienf excuse f or the failure to do 80 �(2) That there being nothing in the contract tp bind t^ie cornppny to complete the road, it did not originally bind the defendants, for want of mutuality, and would ibcome binding on them only by a f ull performance of the agreement' of the company ; part performance would not be sufflcient. �Demurrer to Petition. �The facts, as they appear by the allegations of the petition, are as follows : �The Nebraska Rajlway Company was a corporatiop organized for the purpose of constructing a road from Brownsville to Lake City. The pre- cincts of Ohio and Palis City, in the county of Ri'chardson, had voted to subscribe for a certain amount of the capital stock of said railway com- pany, 4o.r the purpose of aidlng the construction of said railfoaid. The railway company contracte^ for the construction of the road throngh the said precincts of Ohio and Falls City. Litigation beijig threatened by parties adverse to the policy ot granting aid b^ the prdcincts abote men- tioned, the defendants in this suit, 150 in, nunjber, signed the eoctract upon which this suit is brought. v. \ ' �The coutract, in so far as it is material to be donsidered, is as follows: �The consideration for its execution on the part of the defendant fsstated to be " the sum of one dollar, to us in hand paid by^the Nebraska Railway v.7,no.l— 6 ��� �