Adler v. Kansas City, Springfield & Memphis Railroad Co.
| Decision Date | 06 June 1887 |
| Citation | 4 S.W. 917,92 Mo. 242 |
| Parties | Adler et al. v. Kansas City, Springfield & Memphis Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. F. M. Black, Judge.
Affirmed.
Wallace Pratt and C. O. Tichenor for appellant.
(1) It was not competent to show by parol evidence that the claim assigned was one against the Arkansas corporation. This is not a case of latent ambiguity. Jackson v. Sill, 11 Johns. 215; Means v. La Vergne, 50 Mo. 343; King v. Fink, 51 Mo. 209. (2) Defendant's declaration number three, should not have been given. (3) The contract with the company by its terms cannot be assigned. Beardslee v. Morgner, 73 Mo. 22; Railroad v Traube, 59 Mo. 363; Buck v. Wilson, 4 Cent. L J. 643; Flaherty, v. Taylor, 35 Mo. 451.
J. E. McKeighan and S. B. Jones for respondents.
(1) In answer to the first point made by appellant railroad company for a reversal, the respondents rely upon two rules of the law of evidence, which are everywhere conceded to be sound. These rules are: (a) Where, upon applying a written instrument to its subject matter, whether person or thing, the description contained in the instrument is true in part, but not true in every particular, so much of the description as is false may be rejected, if sufficient remains to ascertain its application. 1 Greenl. Evid., sec. 301; 2 Whart. Evid., sec. 945; Winkley v. Kaime, 32 N.H. 268, 274; Trustees v. Peaslee, 15 N.H. 317, 329; Loomis v. Jackson, 19 Johns. 448, 451; Worthington v. Hylyer, 4 Mass. 196, 205; Lush v. Druce, 4 Wend. 313, 319; Button v. Tract Society, 23 Vt. 336, 349; Fitzpatrick v. Fitzpatrick, 36 Iowa 674, 682; Lessee v. Lyons, 2 Wash. C. C. 475; Redfield's note to Kurtz v. Hibner, 10 Am. L. Reg. [N. S.] 93; J. D. Caton's note on same case, 10 Am. L. Reg. [N. S.] 353. (b) When there is a latent ambiguity in a written instrument parol evidence is competent to remove it. 1 Greenl. Evid., sec. 297; 2 Whart. Evid., secs. 956-57. See generally: King v. Fink, 51 Mo. 209; Edwards v. Smith, 63 Mo. 119; Amonette v. Montague, 63 Mo. 201; Charles v. Patch, 87 Mo. 450; Coe v. Ritter, 86 Mo. 277; Williams v. Bank, 72 Mo. 292; Campbell v. Johnson, 44 Mo. 247; Hardy v. Mathews, 38 Mo. 121; Scott v. Bailey, 23 Mo. 140. (2) Money due, or to become due on contract, may be assigned; and there are no cases holding that the fact that a contract is a building or construction contract, or pertains to a public work, prevents the contractor from assigning what is due, or may become due, to him thereunder. Leahy v. Dugdale, 27 Mo. 437; S. C., 34 Mo. 99. (3) The doctrine that, where a creditor has an entire demand he cannot assign part of it without the consent of the debtor, has no application to this case. Where several claims arise out of the same contract, payable at different times, separate actions may be brought on each liability as it accrues. Railroad v. Traube, 59 Mo. 355; Reformed Church v. Brown, 54 Barb. 191; Beach v. Crain, 2 N.Y. 86, 96; Kansas City Hotel Co. v. Sigemont, 53 Mo. 176.
Plaintiffs for cause of action substantially allege in their petition that the Kansas City, Springfield & Memphis Railroad Company is a corporation created under the laws of Missouri, to build and operate a road from Springfield to a point on the state line in the direction of Memphis, Tennessee; that the Springfield & Memphis Railroad Company was created under the laws of Arkansas, to build and operate from the last-named point to a point opposite the city of Memphis; that both of said corporations were organized as a part of the same enterprise, and for the purpose of constructing a continuous line of road between Springfield and Memphis, to be under the same management, and while nominally two corporations, they were under the same management, the same persons holding the chief offices in both corporations, keeping the general offices of both together at Kansas City; that both corporations were organized in 1881, and on the thirty-first of March, 1883, said corporations under the laws of Missouri were consolidated into one corporation under the name of the Kansas City, Springfield & Memphis Railroad Company. It is further alleged that on the fourth of May, 1882, one Henry Boas and the Springfield & Memphis Railroad entered into a written contract, under which said Boas was to do certain work for the construction of several miles of its road, for which monthly payments were to be made to him for work done the preceding month on the certificate of the chief engineer, deducting from each monthly estimate fifteen per cent. to be held by the company as an indemnity for any loss or damage by reason of any failure of said Boas to do the work as provided in the contract; that said fifteen per cent. so retained was to be paid said Boas within ninety days after he had completely performed his contract. It is further alleged that, while said contract was in the name of the Arkansas corporation, it was in fact executed by and in the name of the Missouri corporation; that all the estimates of work done under it, and payments and vouchers therefor were made in the name of the Missouri corporation; that, on the thirteenth of March, 1883, said Boas for value, assigned and transferred to the plaintiffs all of his right, title, and interest in and to the percentage retained by said company, which had then, or might thereafter, accrue; that both of said companies were notified of the said assignment.
It is for the recovery of this retained percentage for which plaintiffs sue, and having obtained judgment in the trial court, defendants have appealed and in order to a proper disposition of the questions arising thereon, reference will be made to the facts disclosed by the evidence bearing upon them. There is no dispute as to the contract or its terms, nor as to the organization of the respective corporations, nor their consolidation, nor as to the fact that the chief officers were the same in both corporations, nor as to the object of both to construct and operate a continuous line of road from Springfield to Memphis, nor as to the fact that the accounts of the Arkansas corporation were kept in the name of the Missouri road for account of the Arkansas road, nor as to the fact that the engineer's monthly estimates of work done by Boas were not only made out on blanks of the Kansas City, Springfield & Memphis Railroad, but were signed by him as the engineer of that company; nor can any question be fairly raised from the evidence as to the fact that the Springfield & Memphis Railroad Company was known by the name of the Kansas City, Springfield & Memphis Railroad Company as well as by its own, not only among the officers and employes, but by others not directly connected with either road. The disputed questions grow out of the evidence offered by plaintiffs to establish the transfer to them of Boas' interest in the retained payments, and notice of such transfer. To establish said transfer and notice plaintiffs put the following in evidence:
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