Missouri Pac. Ry. Co. v. Levy

• Decision Date: 04 May 1885
• Parties: THE MISSOURI PACIFIC RAILWAY CO., Respondent, v. SAMUEL LEVY, Appellant.
• Court: Kansas Court of Appeals

17 Mo.App. 501

THE MISSOURI PACIFIC RAILWAY CO., Respondent, v. SAMUEL LEVY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 4, 1885

APPEAL from the Cass Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed.

E. J SMITH, for appellant.

I. Indorsed upon the contract in this case there is a stipulation for all steel rails. This was not complied with. There were one and one-half miles of iron rails until long after January 1, 1881, the time limited in the note. If the company need not complete the railroad with steel rails in the time limited, then it need not at all. It was not bound to do so at any other time. If it might omit one mile of steel rails it might omit ten miles. Defendant had a right to insist on a strict compliance with the conditions. Such compliance has not been had.

II. Upon the other points here involved reference is had to brief for appellant in the " Atkison case," presented at the same time with this case and the same plaintiff.

RAILEY & BURNEY, for respondent.

I. All the questions involved herein have been fully discussed in the " Atkison case," except the point raised by defendant in regard to the steel rails. The indorsement as to steel rails was on the back of the contract, and was not signed, dated, nor referred to in the note and contract which were signed. No evidence was produced at the trial below to show when the indorsement was made, who made it, and the purpose for which it was made.

II. As the note and contract signed by defendant and Brown were plain, clear and unambiguous, and no evidence was introduced to show why the indorsement was made, the court declined to construe it as a part of the contract.

III. If construed to be a part of the contract, we think the failure to build one and one-half miles (out of 40) for 4 months should not operate to discharge defendant from liability. De minimis non curat lex. The plaintiff did not consider the indorsement a part of the contract and neither did the court below.

OPINION

PHILIPS P. J.

The only difference in the facts of this case and that of this plaintiff against R. A. & John Atkison, just decided by this court, consists in the following indorsement on the back of the contract signed by the defendant Levy:

" This note is only payable when the Lexington &amp Southern Railroad Company completes and puts in operation its railroad of standard gauge and steel rails from the town of Pleasant Hill, in Cass county, Mo., to the city of Butler, Bates county, Mo., on or before January 1, 1881."

On the trial " it was admitted, for the purpose of this case, that on January 1, 1881, one and one-half miles of the said Lexington and Southern Railroad company between Pleasant Hill and Butler was not of steel rails, but the same was replaced with steel rails May 1, 1881."

On this state of the proof, inter alia, the defendant asked and the court refused the following instructions:

" The court declares the law to be, that the matter embraced in the printed conditions attached to the note in suit, and that written on the back of said note are all conditions of said note, and which must be complied with before plaintiff can recover, and unless plaintiff has shown by the evidence, in addition to the matters required to be shown in the other instruction, that plaintiff also constructed its said railroad before January 1, 1881, of steel rails, the finding will be for defendant, and if one and one-half miles of said road was not constructed of steel rails until May, 1881, the same is not a compliance with said conditions and the finding will be for defendant."

The court thereupon found the issues for the plaintiff and entered judgment accordingly; from which judgment the plaintiff duly prosecuted his appeal.

The legal effect of the indorsement on said contract, in respect of the character of the rails to be used in the construction of said railroad, is the only question not already passed upon by this court in the Atkison case. In justification of the ruling of the court on said instruction counsel for plaintiff contends first, that the indorsement on the back of the contract was neither signed nor dated, nor was any evidence produced by plaintiff to show when the indorsement was made, nor by whom the same was so written; second, that the note and contract, signed by the parties were plain and unambiguous, and, therefore, they could not be contradicted, enlarged or limited by the extraneous matter appearing on the back of the contract; and third, that the language used in the indorsement is general and does not provide that the entire road from Pleasant Hill to Butler--a distance of forty miles--should be constructed exclusively of steel rails, and that the failure on only one and one-half miles was immaterial.

I. The first inquiry arising in the consideration of this question is, can this indorsement be regarded as a part of the contract between the parties? We have already held in the Atkison case (supra ) that the note and principal contract constituted in law one instrument, and as such are to be considered and construed together. Lord Campbell, C. J., in Warrington v. Early (2 Ellis and Bl. 703); (75 E. C. L. R.), held that a memorandum written in the corner of a note is as much a part of the contract as if it had been written in the body of the note, " because the contract must be collected from the four corners of the document, and no part of what appears there is to be excluded."

This is the generally accepted doctrine of this country. Memoranda written at the bottom of notes specifying the manner of payment, stating conditions on which the note will become payable, declaring that the note shall be void if certain things be not done in a certain manner and at a given time, have been held to constitute part of the contract, and to limit and control its operation.--1 Danl. Neg. Inst., sect. 150 and cit.

Equally well settled seems to be the doctrine, that the terms and effect of the instrument may also be collected from " the eight corners." So a memorandum indorsed on the back thereof, affecting its operation, is as effectual as if incorporated in the face of the note or other contract.--1 Danl. Neg. Inst. 151; Henry v. Colvin, 5 Vermont 402; Wait v. Pomeroy, 20 Mich. 425; Franklin Sav. Inst., 125 Mass. 365-6-7; Barnard v. Cush, 4 Metc. 231; Hartly v. Wilkinson, 4 Camp. 227.

Nor does it make any difference that the memorandum is not signed by the parties.-- Farmer's Bk. of Ky. v. Ewing, 78 Ky. 204.

The rule, it may be conceded, should be limited to memoranda made at the time of the exe c ution of the instrument, and parol evidence is competent to show when the memorandum was made and by whom. Parsons on B. and N. 544 intimates that words written on the back of a note are presumed to have been written after the execution and delivery of the note, citing Emerson v. Murray (4 N.H. 171) in which it is said that before the indorsement can be considered as a part of a deed it must be shown affirmatively to have been upon the instrument when executed. This declaration, it is to be observed, was made in respect of such indorsement on a deed--a sealed instrument. We think the current of authority maintains the presumption, in the case of an indorsement found on the back of a contract, that it was placed there contemporaneously with the execution of the note or contract.--1 Danl. Neg. Inst., sect. 154, note 3; 1 Greenl. Ev., sect. 121.

Be this as it may, there is little ground for controversy in the case at bar as to when this indorsement should be deemed to have been made. The note and contract were placed by these parties in the hands of Tygard in escrow. The presumption must be that the instrument was so indorsed when they delivered it. It was introduced in evidence without any suggestion of improper alteration or emendation. The only question raised by the plaintiff at the trial, as gathered from its abstract of the record and statement of the case, was as to the legal effect of the indorsement.

The suggestion of counsel for plaintiff that the language of the memorandum, concerning the character of the rails, is general, and, therefore, is not necessarily to be construed as applying to the whole length of the road, is palpably a non sequiter. If one and one-half miles may be excepted from such a contract, it is difficult to draw the line where the plaintiff might have stopped placing the steel rails and yet preserved its understanding. The contract was an entirety. It could not be severed or apportioned. " When parties enter into a contract by which the amount to be performed by the one, and the consideration to be paid by the other, are made certain and fixed, such a contract cannot be apportioned. When parties make a contract which is not apportionable, no part of the consideration can be recovered in an action on the contract, until the whole of that for which the consideration was to be paid is...