Sawyer v. Wabash Railroad Company

• Decision Date: 21 May 1900
• Citation: 57 S.W. 108,156 Mo. 468
• Parties: SAWYER, Trustee, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

57 S.W. 108

156 Mo. 468

SAWYER, Trustee, v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 21, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed.

Geo. S Grover for appellant.

The petition is fatally defective. Stephen on Pl., p. 325; Richards v. Black, 6 C. B. 437; Edwards on Bailments, sec. 664; p. 534; 1 Greenleaf on Ev., sec. 66, p 78; Rainey v. Smizer, 28 Mo. 310; Thieman v. Goodnight, 17 Mo.App. 435; Spooner v. Ross, 24 Mo.App. 599; Deyerle v. Hunt, 50 Mo.App. 546; Ryan v. Riddle, 78 Mo. 521; Slaughter v. Davenport, 151 Mo. 26. (2) There was no breach of the contract shown. Authorities cited, supra.

Robt. L. McLaran for respondent.

(1) The trustee alone was a proper party plaintiff. R. S. 1899, sec. 541; Stillwell v. Glasscock, 47 Mo.App. 554; Ellis v. Harrison, 104 Mo. 270. Defendant by answering to the merits, has waived the defect of parties, if any. State ex rel. v. Sappington, 68 Mo. 454; Bulkley v. Big Muddy Iron Co., 77 Mo. 105; Trust Co. v. Brown, 59 Mo.App. 461. (2) The defect in the petition was cured by the evidence and the verdict. R. S. 1899, secs, 659, 865; McDermott v. Glass, 104 Mo. 14; State, etc., v. Scott, 104 Mo. 34.

Geo. S. Grover for appellant in reply.

Our position is not that there is a non-joinder or misjoinder of parties plaintiff, but that the petition fails to state facts sufficient to constitute a cause of action, in that the only averment to be found in the petition is the following: "That plaintiff thereupon demanded of defendant the return to him of said three thousand dollars, previously paid to it in accordance with the terms of said contract, but defendant, though often requested, has failed and refused, and still refuses, to return said sum or any part thereof." To this petition the defendant filed a demurrer and the third ground therein assigned was that the petition did not "state facts sufficient to constitute a cause of action." This demurrer was overruled. An answer -- a general denial -- was then filed, and at the trial the defendant's counsel objected to the introduction of any evidence, for the reason that the petition "failed to state facts sufficient to constitute a cause of action." If the petition is fatally defective, and that is our first point here, this objection is not one of form, but goes to the substance of the action, and is good on motion in arrest of judgment; and such objection may be made at any stage of the proceedings, and even in this court, for the first time. The rule is that wherever a general demurrer would be well taken, a motion in arrest of judgment is clearly available; and if the petition is bad on general demurrer thereto, the judgment for the same reason is equally bad on motion in arrest. Hart v. Harrison Wire Company, 91 Mo. 420. Applying this rule to the facts stated in this petition, we again say, in reply to the respondent, that the contract here sued on is not a contract to pay Sawyer absolutely three thousand dollars, either to himself or as a trustee in a certain event, but is an undertaking to do one of two things -- first, to either pay the money to Sawyer; or, second, to pay it direct to the various subscribers to the fund. Therefore, the petition, to constitute a cause of action, must aver in this case, not that we have failed to pay the money to Sawyer upon demand, but that we have failed to pay the money when demanded, not only to Sawyer, but to the various subscribers to the fund. Without that allegation this pleading is fatally defective, and is insufficient to support a cause of action. That being so, the point is not only well saved in this record by every possible means which the defendant could use to save it, but is good in this court, if made by the defendant here for the first time.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

This is an action to recover three thousand dollars for breach of contract.

The case was tried to Judge Spencer in the circuit court of the city of St. Louis, without the intervention of a jury. The petition is in these words (omitting caption):

"Plaintiff states that defendant is and was at all the times hereinafter mentioned a corporation organized and existing under the laws relating to the incorporation of railroads and engaged in the business of a common carrier. That plaintiff and others having property interests and residing along the line of said railroad procured, by voluntary contributions, the sum of $ 3,000, which was deposited with plaintiff as trustee, to the end that plaintiff should procure additional passenger train service between the city of St. Louis and Ferguson station, St. Louis county, Missouri. That thereafter plaintiff, in his capacity as trustee, entered into an agreement, to-wit, on or about the 8th day of March, 1890, with defendant, which is in words and figures as follows, to-wit:

"St. Louis, March 8, 1890.

"'Received of Charles H. Sawyer, trustee for all subscribers to a fund raised by the residents and others along the line of the Wabash railway between Vine street, St. Louis, and Ferguson, St. Louis county, Missouri, the sum of three thousand dollars; in consideration of the payment of which sum the Wabash Railway Company (a corporation of Missouri), for itself, its successors and assigns, hereby agree to put on and run permanently after the first day of April, 1890, an additional passenger train service between Vine street, St. Louis, and Ferguson, St. Louis county, Missouri, as per the following schedule:

Leave St. Louis (Vine St.)

Arrive at Vine St.

6:50 a. m.

6:45 a. m.

8:45 a. m.

8:00 a. m.

11:10 a. m.

8:40 a. m.

3:55 p. m.

10:35 a. m.

5:30 p. m.

3:45 p. m.

6:20 p. m.

6:15 p. m.

11:15 p. m. (Wed. and Fri.)

7:50 p. m.

Leave St. Louis (Vine St.)

Arrive at Vine St.

8:45 a. m. (Sundays)

8:40 a. m.

1:30 p. m.

10:35 a. m.

2:45 p. m.

2:30 p. m.

5:45 p. m.

5:35 p. m.

"'The above schedule may from time to time be modified by the Wabash Railway Company, as to the arrival or departure of trains so as to not conflict with the schedule time of its through passenger trains; but these modifications shall not in any event work an abandonment or discontinuance of any of the trains mentioned or called for in the above schedule.

"'It is expressly understood and agreed between the parties hereto that said Wabash Railway Company may terminate this contract and relieve itself of all liability on account hereof, by refunding or offering to refund to said Charles H. Sawyer, or the parties for whom he is trustee, the said sum of three thousand dollars.

"'Wabash R. R. Co.,

"'By Chas. M. Hays, General Manager.'

"That by the terms of said agreement, which is herewith filed and marked exhibit 'A,' and in consideration of the sum of $ 3,000 paid to said defendant, said defendant agreed and undertook to run trains between the city of St. Louis and said Ferguson station on the time schedule mentioned in said agreement. That thereafter defendant began and continued to operate the trains in conformity with the schedule above mentioned until about the 1st day of April, 1896, at which date the defendant ceased to run the 11:15 p. m. Wednesday and Friday train, known as the "theatre train," and though often requested by plaintiff, has failed and refused to run or operate any passenger train on said schedule time of 11:15 p. m., or at any hour or time that could be used as a night theatre train, between said Vine street and said Ferguson station. That defendant has declared that it will not longer operate and run a train on the schedule time of 11:15 p. m., and will not run or operate any other night train that could be used as a substitute therefor. That by reason of said acts and declarations on the part of defendant it has elected to terminate the contract above mentioned and has terminated said contract. That plaintiff thereupon demanded of defendant the return to him of the said three thousand dollars previously paid to it in accordance with the terms of said contract, but defendant though often requested has failed and refused and still fails and refuses to return said sum or any part thereof. Wherefore plaintiff prays judgment against said defendant for the sum of three thousand dollars with interest since April 1, 1896, and his costs herein."

The answer admitted the incorporation of defendant as a railroad company, and denied each and every other allegation of the petition. Defendant afterwards by leave of the court withdrew its answer and demurred to the petition. The demurrer was overruled, and thereupon the defendant by leave refiled its original answer.

The cause came on for hearing on December 27, 1897. Neither party desiring a jury, the cause was tried before Judge Spencer.

The plaintiff offered evidence that Mr. Charles M. Hays was the general manager of the defendant railroad on March 8, 1890 and executed the written contract copied at length in the petition; that the three thousand dollars was paid over to defendant and receipt executed therefor; that in pursuance thereof the railroad company ran its trains according to the schedule set forth in the written instrument until December, 1895, but about said last mentioned date it discontinued the 11:15 p. m. train, known as "the theatre train." Thereupon the subscribers who had contributed the three thousand dollars complained and notified Mr. De Forest, who was one of the contributors and the brother-in-law of Mr. Sawyer, the trustee of said fund, of the discontinuance of the train, and at their request he wrote Mr. Ramsay who had succeeded Mr. Hays as general manager of the railroad company, and complained of the withdrawal of the theatre trains, and notified him of the agreement...