14 S.W. 763 (Mo. 1890), Cape Girardeau & Southwestern Railway Co. v. Hatten

Citation:14 S.W. 763, 102 Mo. 45
Opinion Judge:Black, J.
Party Name:Cape Girardeau Southwestern Railway Company, Appellant, v. Hatton et al
Attorney:William Carter and Wilson & Whitelaw for appellant. M. M. Sheets and Dinning & Byrns for respondents.
Judge Panel:Black, J. Barclay, J., dissents.
Case Date:December 01, 1890
Court:Supreme Court of Missouri
 
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Page 763

14 S.W. 763 (Mo. 1890)

102 Mo. 45

Cape Girardeau Southwestern Railway Company, Appellant,

v.

Hatton et al

Supreme Court of Missouri

December 1, 1890

Appeal from Mississippi Circuit Court. -- Hon. H. C. O'Bryan, Judge.

Affirmed.

William Carter and Wilson & Whitelaw for appellant.

(1) The court committed error in sustaining the motion of Wayne county to be made a party defendant. Revised Statutes, 1879, section 3465, means only that a plaintiff may make any person a defendant. Kortjohn v. Seimers, 29 Mo.App. 271; Boyes v. Hamilton, 21 Mo.App. 521. (2) The court erred in allowing defendants to introduce evidence in regard to the overflow after the levee was built and the flow of water through the trestles. (3) The court erred in admitting in the cross-examination of Penny the testimony that he was superintendent of the railway at the same time he was the commissioner of Wayne county. Said evidence was irrelevant and immaterial. "A party who voluntarily employs the agent of another, knowing the fact of such existing agency, and the same party is agent for both parties in their contracts, they are estopped from pleading the rule that the same person cannot be the agent of two principals having conflicting interests." Fitzsimmons v. Express Co., 2 Am. Rep. 577; DeSteiger v. Hollington, 17 Mo.App. 383; Alexander v. University, 57 Ind. 466; Rice v. Woods, 113 Mass. 133; Rowe v. Stevens, 53 N.Y. 621; Meyer v. Hauchete, 39 Wis. 419; Lynch v. Falton, 11 R. I. 311. (4) The court erred in trying the case and dismissing plaintiff's bill upon the theory that the county court had no authority to make the contract in question, or that plaintiff had no power to enter into the contract with the Wayne county court. State v. Wayne County, 98 Mo. 362. The question of ultra vires so far as the railroad is concerned can only be raised by the state. Chalmers v. City of St. Louis, 29 Mo. 543; Sheewalter v. Pirner, 55 Mo. 233; Martindale v. Railroad, 60 Mo. 508; Railroad v. St. Louis, 66 Mo. 251; Thornton v. Bank, 79 Mo. 638; St. Louis County v. Robinson, 81 Mo. 26; Land v. Coffman, 50 Mo. 252. This being an equity case the court will review the evidence adduced on the trial, and render such decree or give such order as the court shall deem equitable and just from the pleadings, proceedings and evidence. This is a rule of universal application. The appellate court will examine and decide the case without regard to the opinion of the circuit judge. Moore v. Davis, 51 Mo. 233; Morey v. Staley, 54 Mo. 419; Luce v. Barnum, 19 Mo.App. 359; Bevin v. Lowell, 83 Mo. 365; Russell v. Brown, 21 Mo.App. 51. And in an equity case the supreme court will set aside the finding of the circuit court if the finding is against the preponderance of evidence. Taylor v. Cayce, 97 Mo. 242; Cox v. Esteb, 68 Mo. 110. The supreme court will render the judgment that the court below ought to have rendered. Its powers are adequate to do full and complete justice. Ringo v. Richardson, 53 Mo. 385; Woodsworth v. Tanner, 94 Mo. 124.

M. M. Sheets and Dinning & Byrns for respondents.

(1) If the contract, the foundation of this suit, was not made for the purpose of reclaiming the lands therein referred to, then the same is void. Acts, 1850-1, pp. 232-238; Acts, 1852-3, pp. 107-108; Acts, 1854-5, p. 160; Acts, 1855-6, p. 349; Acts, 1857, p. 32; Acts, 1868, pp. 67-68; Laws, 1869, p. 66; R. S. 1879, secs. 6152, 6155; Sturgeon v. Hampton, 88 Mo. 203, and authorities cited; State ex rel. v. Harris, 96 Mo. 29. (2) If the contract is one requiring the defendant railroad corporation to drain and reclaim the swamp lands in question, then, the same being executory, a court of equity will not enforce it, because defendant had no power to make the same. Const. of Mo., sec. 7, art. 12; Land v. Coffman, 50 Mo. 252. Defendant is a railroad corporation under the laws of this state; its powers are defined by law. R. S. 1889, sec. 2543; R. S. 1879, sec. 765; Pearce v. Railroad, 21 Howard, 441; Bank v. Matthews, 98 U.S. 621; Hitchcock v. Galveston, 96 U.S. 341-351; Police Jury v. Britton, 15 Wall. 566; Mayor v. Ray, 19 Wall. 468; Angell & Ames on Corp., sec. 256; Thomas v. Railroad, 101 U.S. 71. (3) Said contract is void because it provides for the issuance of a patent to the swamp lands in dispute before anything had been paid therefor or was due under said pretended contract, and defendant Wayne county has done nothing to ratify this unlawful act, nor can said county be estopped from asserting the illegality of the acts of any of its agents. R. S. 1879, sec. 6154; Sturgeon v. Hampton, 88 Mo. 203; State v. Bank, 45 Mo. 528; Story on Agency, sec. 165; Dennings v. Smith, 2 Johns. Ch. 36; Baltimore v. Reynolds, 2 Md. 1; State v. Hastings, 10 Wis. 518; Hull v. Marshall County, 12...

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