Missouri Pacific Ry. Co. v. Atkison

• Decision Date: 04 May 1885
• Parties: THE MISSOURI PACIFIC RAILWAY CO., Respondent, v. R. A. & J. ATKISON, Appellants.
• Court: Missouri Court of Appeals

17 Mo.App. 484

THE MISSOURI PACIFIC RAILWAY CO., Respondent,

v.R. A. & J. ATKISON, Appellants.

Kansas City Court of Appeals, Missouri.

May 4, 1885.

APPEAL from Cass Circuit Court, HON. NOAH M. GIVAN, JUDGE.

Affirmed.

The facts sufficiently appear in the opinion of the court.

A. HENRY, T. J. GALLOWAY, P. C. FULKERSON, E. J. SMITH and W. P. JOHNSON, for the appellant.

I. This being a pure bonus, not a subscription to stock, the contract must be complied with in every particular, or plaintiff cannot recover. The contract was not complied with by plaintiff, and defendants are not required to give reasons but may insist on the contract and nothing else.-- Fenton v. Perkins, 3 Mo. 106; Chouteau v. Russell, 4 Mo. 553; State v. Daviess County Court, 64 Mo. 30.

II. These notes are void as against public policy. It is the duty of the railroad company, which it owes to the public and the state from which it gets its charter, to locate its road where the best interests of the public and the good of the business on the railroad demand, not that they may put it up at auction and locate the road where they can get the most money for so doing. In the case of subscription to the stock it may then be allowed, for then the subscriber becomes a part of the company and has influence in the choice of location, but not where the payment is a pure bonus, as here. This distinction is recognized by almost all the courts, but is not so by the Iowa court in Bank v. Hendrie (49 Iowa 402). On this question of public policy we refer to Fuller v. Dame (18 Pick. 472); Pacific Road v. Suley (45 Mo. 212); Adams Express Co. v. Reno (48 Mo. 264); Fort Edward Pl'k Road Co. v. Payne (15 N. Y. 583); R. R. Co. v. Ryan (11 Kansas 602); Williamson v. R. R. Co. (53 Iowa 126), overruling Bank v. Hendrie; Woodworth v. Bennett, 43 N. Y. 273.

III. As to the action on the notes in this case, plaintiff cannot maintain the action while the appeal in the replevin case against Tygard is pending in the Supreme Court. Tygard ought not to have given the notes to the sheriff when he came with the writ of replevin; and if he had not, the sheriff or plaintiff could not have gotten them. Defendants should not be compelled to appeal to this court to get their rights, nor should be they harassed with costs and attorneys' fees.-- City of Racine v. Burnes, 6 Wis. 472.

RAILEY & BURNEY, for the respondent.

I. The note and contract were not contrary to public

policy. The statute expressly authorizes railroads to “take and hold such voluntary grants of real estate and other property as shall be made to them, to aid in their construction, maintenance and accommodation.”--Rev. Stat., 1879, sect. 765. The statute and the charter of plaintiff authorize the purchase or acquisition of any railroad or railroad franchises with their rights, powers, privileges and immunities.--Article 4 of Lexington & Southern charter; Article 4 of Mo. Pacific charter; Sect. 789, Rev. Stat., 1879. The laws and decisions of this state have uniformly recognized heretofore the right of even townships, cities and counties to issue bonds in aid of railroads.--Rev. Stat. Mo., 1879, sect. 765; Berryman v. Cin. & S. R. R. Co., 14 Bush (Ky.) 755; First National Bank Cedar Rapids v. Hendrie, 49 Iowa 402; Cum. Valley R. R. Co. v. Baab, 9 Watts (Pa.) 458; McClure v. Fort Scott & Gulf Railway Co., 9 Kan. 373; Pierce on Railroads, page 60 and cases cited; Racine Co. Bank v. Ayers, 12 Wisconsin 512; Workman v. Campbell, 46 Mo. 305; Pacific Railroad v. Seeley, 45 Mo. 212; leading article, Albany Law Journal, vol. 23, page 85 et seq. The authorities cited by defendants are not in conflict with the plaintiff's right of recovery in this action.

II. Plaintiff has substantially complied with all the conditions and requirements of the contract.

1. That as to distance was complied with. In all cases where the contract does not otherwise provide, distance shall be determined by a straight or air line.--Pierce on Railroads, page 63; Redfield, Railways, sect. 106; Rorer on Railroads, vol. 1, page 482 and cases cited; R. R. Co. v. Riel, 33 Iowa 113; Butler v. Barr, 18 Mo. 357; Allen v. Kingsbury, 16 Pick. 235; Hershaw v. Mullins, 121 Mass. 143; Kingsland v. Chittenden, 61 N. Y. 618; Slade v. Etheridge, 13 Ired. (N. C.) Law 353; Lake v. Butler, 85 Eng. Com. Law R. 91; Jewett v. Stead, 88 Eng. Com. Law R. 349; Burnett v. Thompson, 6 Jones (N. C.) Law 211. When the contract was entered into, the distance from the court house to where the depot is located, by the ordinarily traveled route was less than that agreed upon--three-quarters of a mile.

2. That condition as to route from Pleasant Hill to Butler was also complied with, and so the evidence fairly shows, and the following authorities support this claim: People v. Holden, 82 Ill. 93; Courtwright v. Deedy, 37 Iowa 503; State of Minn. ex rel. R. R. Construction Co. v. City of Hastings, 24 Minn. 78; Hodgman v. R. R. Co., 23 Minn. 153; Van Hotrut v. City of Madison, 1 Wall. (U. S.) 291; Stockton R. R. Co. v. Stockton, 51 Cal. 334.

3. The road and depot are not required to be built within corporate limits of Butler.--Webst. Dict., p. 1389; R. R. Co. v. O'Conner, 40 Iowa 479; Burnham v. Burke, 45 Mo. 349; Marshall v. R. R. Co., 51 Mo. 138.

III. The conditions having been complied with, the plaintiff ipso facto became entitled to the possession of said notes and contracts, and could sue thereon without any actual delivery of the same.--1 Parsons on Notes, 51; Taylor v. Thomas, 13 Kas. 218; Regan v. Howe, 121 Mass. 424; Bishop on Cont., sect. 764, et seq.; Bowling v. Hax, 55 Mo. 448; 1 Daniel, Neg. Inst. 54.

IV. The pendency of appeal in the replevin suit did not prevent suit on note. 1. Because plaintiff could have sued on note and contract, without replevying or recovering possession of them. 2. Because Tygard held possession of them, and replevin was brought against him and judgment recovered and no appeal was ever taken by him from said judgment, the matter is therefore left the same as though Tygard had delivered the notes to plaintiff without any suit for their possession. The appeal bond given by defendants was only for costs, and if Tygard had joined with them, in such a bond as that given, it would be unavailing as a defence in this proceeding. The statute only provides for a stay of execution and super sedeas when a bond is given in double the amount of the debt, damages and costs.--Sect. 3713, Rev. stat., Mo., 1879. The only effect of the filing of appeal bond in replevin suit, was to stay execution upon judgment for costs of suit until appeal was determined.--Freeman on Judgments, sect. 328; Bank v. Wheeler, 28 Conn. 433; Randles v. Randles, 67 Ind. 434; Cole v. Connelly, 16 Ala. 271; Rodgers v. Hatch, 8 Nevada 39.

Opinion by PHILIPS, P. J.

This is an action to recover on a promissory note executed by defendants to a railroad corporation, designated as “The Lexington and Southern Railway Company.” Said note is in words as follows:

“$360.00.

BUTLER, MO., January 1st, 1880.

On or before the 1st day of January, A. D. 1881, we or either of us promise to pay to the order of the Lexington & Southern Railway Company, the sum of three hundred and sixty dollars, for value received.

R. A. & JOHN ATKISON.”

To this was attached the following stipulation or contract as expressive of the consideration of the note:

“The above note for $360, dated January 1st, 1880, and payable on or before the 1st day of January, A. D. 1881, to the order of the Lexington & Southern Railway Company, executed by R. A. & John Atkison, is to be placed in the hands of F. J. Tygard, cashier of the Bates County National Bank, at Butler Mo., in escrow, to be held by him until the said railway company shall complete and put into operation its railroad of standard guage from the town of Pleasant Hill, Cass county, to the city of Butler in said Bates county, and shall also establish and construct a depot within three-fourths of a mile of the court house in said city of Butler. If the same is all done and completed, as aforesaid, by or before the 1st day of January, 1881, then said note is to become absolutely the property of and to belong to, and is to be by the said Tygard delivered to the said Lexington & Southern Railway Company, and the said makers of said notes are to pay the amount thereof according to its tenor and effect. But if said Lexington & Southern Railway Company fail to complete and put in operation its said railway and construct its said depot as herein provided, then the said Tygard is to return said note to the makers thereof, to be disposed of as they may see proper.

In witness whereof, all the said parties have hereunto signed their names and affixed their respective seals this 1st day of January, 1880.

R. A. & JOHN ATKISON.

By E. H. BROWN, Pres. L. & S. Ry.”

The said note being in custody of said Tygard, as expressed in said stipulation, together with other similar notes, after the first day of January, 1881, the plaintiff, having succeeded to the rights of the said payee in said note by consolidation and claiming to have complied with the conditions which entitled it to the possession of said notes, made demand on said Tygard therefor. On his refusal to surrender to plaintiff said notes, it brought action against him therefor in the circuit court of Bates county. He answered setting up how he held this and the other notes, executed with like conditions, alleging that the makers claimed that the plaintiff had not complied with the conditions which entitled it to the possession thereof, and asking that the makers be brought in as parties defendant. They were accordingly permitted to come in and answer, pleading substantially the same facts touching the non-compliance of plaintiff with said contract. The issues thus joined were found for the plaintiff, and judgment was rendered accordingly. The notes having been turned over by defendant Tygard to the sheriff in said action, and by the sheriff to...