Arkansas Val. Town & Land Co. v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 12 October 1915
• Docket Number: 3794.
• Parties: ARKANSAS VALLEY TOWN & LAND CO. v. ATCHISON, T. & S. F. RY. CO.
• Court: Oklahoma Supreme Court

151 P. 1028

49 Okla. 282, 1915 OK 797

ARKANSAS VALLEY TOWN & LAND CO. v. ATCHISON, T. & S. F. RY. CO.

No. 3794.

Supreme Court of Oklahoma

October 12, 1915

Rehearing Denied Oct, 12, 1915.

Syllabus by the Court.

Plaintiff sued defendant railway company, seeking a recovery of damages in the sum of $1,000,000, for the alleged breach of a purported contract, the material parts of which are as follows:

"That the party of the first part shall at his discretion subject to approval as hereinafter provided, obtain, by purchase or otherwise, sites for towns and depots along the lines of the railroads owned, leased, or controlled, or to be hereafter owned, leased, or controlled, by the party of the second part, and shall locate and lay out such town sites, and all lands so obtained not conveyed to the party of the second part as hereinafter provided shall be sold from time to time at the discretion of the party of the first part, his heirs and assigns, on the best possible terms. * * * No land shall be purchased by the party of the first part without the consent in writing of the president of the party of the second part. For each town site a separate account shall be opened, and when the original cost of land purchased in such town site shall have been received by the party of the first part from the proceeds of sales of lands or otherwise, the net proceeds of all subsequent sales are to be equally divided between the parties of the first and second part. In making up accounts, nothing shall be charged by the party of the first part for interest or general expenses of any kind."

Held, that said purported contract is too indefinite and uncertain, as applied to the subject-matter, to constitute an enforceable contract authorizing the recovery of damages for an alleged breach thereof.

Error from District Court, Logan County; A. H. Huston, Judge.

Action by the Arkansas Valley Town & Land Company against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Frank Doster, of Topeka, Kan., and Dale, Amidon, Madalene & Hegler of Wichita, Kan., for plaintiff in error.

Cottingham & Bledsoe and Samuel W. Hayes, all of Oklahoma City, for defendant in error.

HARDY J.

Plaintiff in error, Arkansas Valley Town & Land Company, brought suit in the trial court against defendant in error, Atchison, Topeka & Santa Fé Railway Company, for damages. The parties will be referred to as they were in the trial court. Defendant filed demurrer to the petition, which was sustained, and plaintiff brings error.

The amended petition alleged that on the 11th day of March, 1881, one Alden Speare entered into a written agreement with the Atchison, Topeka & Santa Fé Railroad Company relating to the purchase of lands along the lines of said railroad company for townsite purposes, and the location and laying out of said town sites, and the sale of lots therein for their mutual profit and advantage; that on the 1st day of July, 1895, said Alden Speare, in writing, assigned to plaintiff all his right and interest in said townsite contract, which assignment thereafter on the 5th day of August, 1895, was in writing ratified and approved by the said railroad company; that the contract referred to is as follows:

"This agreement made this 11th day of March, A. D. 1881, between Alden Speare, of Newton, in the commonwealth of Massachusetts, party of the first part, and the Atchison, Topeka & Santa Fé Railroad Company, party of the second part, witnesseth: That the said party of the first part does hereby, for himself, his heirs, executors, administrators, and assigns, covenant and agree with the party of the second part, its successors and assigns, as follows:

That the party of the first part shall at his discretion, subject to approval as hereinafter provided, obtain by purchase, or otherwise, sites for towns and depots along the lines of railroad owned, leased, or controlled, or to be hereafter owned, leased, or controlled, by the party of the second part, and shall locate and lay out out such town sites, and all lands so obtained not conveyed to the party of the second part as hereinafter provided shall be sold from time to time at the discretion of the party of the first part, his heirs and assigns, on the best possible terms. When the land to be purchased as aforesaid is owned by others than the party of the second part, the party of the first part shall purchase the same on the best possible terms, and whenever any such land is wholly or partially owned by the party of the second part, the party of the first part shall pay therefor the price at which the land shall be valued on the books of the land commissioner of said party of the second part at the time of said purchase: Provided that such valuation shall in all cases be made after a road owned, leased, or controlled by said party of the second part has been located through the land purchased. All payments for such land shall be made to the party of the second part in cash and without the discount allowed to others who buy land for cash.

The party of the first part shall from time to time, on request of the party of the second

part, convey to said party of the second part, free of charge, whatever land obtained by him by purchase, or otherwise, from the party of the second part, or any other person or persons, it may need for depots, machine shops, yards, or other purposes connected with its business, not exceeding in all thirty acres in any one town site, No land shall be purchased by the party of the first part without the consent in writing of the president of the party of the second part. For each town site a separate account shall be opened, and when the original cost of land purchased in such town site shall have been received by the party of the first part from the proceeds of sales of lands or otherwise, the net proceeds of all subsequent sales are to be equally divided between the parties of the first and second parts. In making up accounts nothing shall be charged by the party of the first part for interest or general expenses of any kind.

In witness whereof the said Alden Speare has hereunto set his hand and seal, and the said Atchison, Topeka & Santa Fé Railroad Company has hereunto affixed its corporate seal and caused these presents to be signed by T. J. Coolidge, its president, hereunto duly authorized the day and year first above written. [ [Signed] Alden Speare. [ Seal.] [Signed] Atchison, Topeka & Santa Fé Railroad Company, by T. J. Coolidge, President. [ Seal.] In the presence of [Signed] Geo. L. Goodwin."

Plaintiff then alleged the transfer of said contract by Alden Speare to plaintiff, and the assent and ratification by the defendant company, the mutual execution of the same according to its terms, and the plans agreed upon by the said Speare and his assignee, plaintiff, of purchasing lands for town-site purposes along the lines of defendant company, which purchases were approved by the president of said defendant company; that after conveying the required amount to defendant company for depots, yards, etc., the balance was laid out in blocks and lots and sold on the market, and the proceeds divided between plaintiff and defendant. Plaintiff alleged that defendant company, through its president and chairman of board of directors, acknowledged verbally and in writing that it had acquired said contract; that after the execution of said contract a course of business was adopted as follows:

"The general manager, civil engineer, or other chief officer of the defendant, or its assignor, notified the plaintiff, or its assignor, of the particular tracts of land which said defendant, or its assignor, desired as a location for town sites, depot grounds, etc., for said chief engineer, or other officer, to give notice of the particular localities along said line of railroad in which he desired said locations to be made, and for the said plaintiff, or its assignor, on receipt of said notice, to proceed to the performance on its part of the purchase of the desired lands, and to the platting of the same into town sites, depot grounds, etc., and such method or course of business continued to be the plan of performance of said contract, and was relied on by plaintiff as such until its violation by said defendant as herein alleged."

Plaintiff further alleged that during five years preceding the institution of this suit the defendant company constructed and caused to be constructed for itself, and since said last mentioned date has owned and controlled, lines of railroad in the territory of New Mexico, and had established thereon numerous towns (naming them); that said defendant at the time of the establishment of said towns, and at all times since, prevented plaintiff from buying the land and laying out such town sites by not notifying said plaintiff of its desire to have towns laid out along said lines of railroad, as had theretofore and hereafter alleged been the agreed and settled course of dealing between said two companies, and by concealing from plaintiff the fact that it (the said defendant) was ready to have and was causing such town sites to be located and laid out, and by procuring other corporations or individuals, without plaintiff's knowledge, to furnish lands and lay out said town sites, although plaintiff was ready at all times to so acquire land and lay out said town sites. It is alleged that after conveying to defendant sufficient lands for its use for depots, etc., the balance of said lands so used and to be used for town sites was and continues to be worth the sum of $1,000,000, and that plaintiff was entitled to one-half of said amount. The exhibits which are attached to the petition are herewith set out as follows:

...