Cape Girardeau & Southwestern Railway Co. v. Hatten

• Citation: 14 S.W. 763,102 Mo. 45
• Parties: Cape Girardeau Southwestern Railway Company, Appellant, v. Hatton et al
• Decision Date: 01 December 1890
• Court: United States State Supreme Court of Missouri

14 S.W. 763

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 Iowa 142; Delafield v. State, 26 Wind. 192; Brady v. City, 20 N.Y. 312; People v. Bank, 24 Wind. 431; The Floyd Acceptances, 7 Wall. 166; Hiedelberg v. St. Francois County, 100 Mo. 69. (4) The deed, when executed and placed in the hands of Mr. Hatton as an escrow, was void; and no act of the parties since has imparted to it any life. Washburn on Real Prop. [5 Ed.] secs. 44, 45; Ruggles v. Lawson, 13 Johns. 284. (5) The contract shows on its face that it was not intended to drain Mingo Swamp, nor to reclaim the swamp lands in said contract referred to. (6) Specific performance is, in all cases, discretionary with the court. Fish v. Lightener, 44 Mo. 268; Burke v. Seely, 46 Mo. 334; Hutchison v. Cassidy, 46 Mo. 431. (7) The testimony shows that the plaintiff did not comply with the terms and stipulations required of it by said contract. The testimony further conclusively shows that plaintiff built a railroad through Wayne county and called the roadbed a dump or dam, and the barrowpits, ditches. (8) If it be true that the county court can sell swamp lands, and spend the proceeds of the sale in reclaiming the land sold, surely it cannot use these proceeds in the reclamation of other and different lands. The work done by plaintiff did not drain or reclaim any lands, and there is not a scintilla of evidence in this record that the lands in controversy have been drained or reclaimed.

Black J. Barclay, J., dissents.

OPINION

Black, J.

-- The plaintiff railroad corporation commenced this action in the Wayne circuit court against the judges and clerk of the county court of that county to enjoin James F. Hatton, who is one of said judges, from surrendering to the county court a deed held by him in escrow, conveying to the company some nine thousand acres of swamp lands; and to enjoin the judges from making any order changing the records of the court under which the deed was executed, until it should be determined whether the plaintiff was entitled to the possession of the same, and for other relief.

The county of Wayne was made a defendant on its own motion. The Mississippi circuit court, to which the cause was transferred by change of venue, dissolved the temporary injunction and dismissed the bill, after a full hearing of the case on the pleadings and evidence.

The undisputed facts are these: On the fourteenth of March, 1882, the railway company and the county of Wayne, acting by and through the county court, entered into a contract for the purchase and sale of all the swamp lands of that county. It is stated in the lengthy preamble to the contract by way of recitals, that the county sold to the company its swamp lands aggregating ninety-five hundred acres at the price of $ 1.25 per acre, making the sum of $ 11,875; that a deed, conveying the land to the company, had been placed in the hands of James F. Hatton; that the company "proposes to do certain work to drain, reclaim and protect said land from the overflows of the St. Francois and Castor rivers for the price and sum of $ 11,875, and which is a low charge for said work; and, whereas said proposed work will open to settlement and cultivation a large portion of the southern part of this county, now particularly of no value, and also promote the health of the country by a drainage of said lands." The contract then goes on to provide that, "in consideration of the premises and other valuable considerations," the county agrees "to pay said railway company the sum of $ 11,875, said sum being the price of ninety-five hundred acres of swamp land sold to said railway company at $ 1.25 per acre, and a deed to said lands has been made and executed by said county of Wayne this day and delivered to James F. Hatton, as an escrow, and to be by him delivered to said railway company when said railway company shall have fully performed and done the work hereinafter to be specified."

The subsequent material stipulations on the part of the company are as follows:

"First. To erect, build and maintain a levee from some point on the boundary line on the east side of said Wayne county, in township 27, across that part of Wayne county known as Mingo Swamp to the highlands on the west side of said swamp, to such a point on the said opposite side as said railway company deems best suited in that behalf, said levee so erected to have a top or crown of not less than twelve feet and a base to be in proportion; and, further, said railway company agrees to open continuous ditches along said levy on both sides, if necessary, to drain said land. It is, however distinctly understood that the said railway company, if it shall deem it advisable, may build trestles or drive piling or build bridges at any point or points along said levee when it shall be deemed advisable by it to do so, and that said county of Wayne will not object or except to the fact that the said levee is not complete earth embankment; but on the other hand the said railway company expressly agrees to drain the surface water, when necessary, into said...