Bagnell Timber Co. v. Missouri, K. & T. R. Co.

• Decision Date: 17 March 1904
• Citation: 180 Mo. 420,79 S.W. 1130
• Court: Missouri Supreme Court
• Parties: BAGNELL TIMBER CO. v. MISSOURI, K. & T. R. CO.

79 S.W. 1130

180 Mo. 420

BAGNELL TIMBER CO. v. MISSOURI, K. & T. R. CO.

Supreme Court of Missouri, Division No. 1.

March 17, 1904.

RAILROADS — SUPPLIES — LIEN — MATERIAL USED OUTSIDE STATE — ACTION TO ENFORCE LIEN — INSTRUCTIONS — PERSONAL JUDGMENT — EVIDENCE — SUFFICIENCY.

1. While Rev. St. 1899, § 4241, providing for the filing of railroad liens, does not require the lien to be verified, yet, where such a lien has an affidavit attached, the signature to which is the only means of identifying the paper or connecting plaintiff with it, it must be regarded as an entire instrument, so that the plaintiff is not entitled to read the lien to the jury, omitting the affidavit.

2. A railroad lien cannot be obtained on a portion of the road, but must cover all.

3. Under Rev. St. 1899, § 4239, providing that persons doing work or furnishing ties, etc., for a railroad company shall have a lien on the property of the company, a person furnishing ties in another state, which were used outside Missouri, is not entitled to a lien on the property of the railroad in the state.

4. In an action against a railroad company to enforce a lien for ties, and also to recover a personal judgment, both the lien and petition predicated the right to recover on a joint contract with the railroad and its tie contractors. The court charged that plaintiff was entitled to a lien if the ties were furnished under a contract with the railroad company or its agents, or its tie contractors. Held that, as the right to a lien and the right to recover on the contract were made to rest on the same grounds, the erroneous instruction with reference to the lien required the reversal of the personal judgment.

5. In an action against a railroad company to enforce a lien for ties and recover a personal judgment under a contract alleged to have been entered into between plaintiffs and the railroad company and its tie contractors jointly, evidence considered, and held insufficient to support a finding that the contract was joint.

Valliant, J., dissenting in part.

Appeal from Circuit Court, Pettis County; Geo. F. Longan, Judge.

Action by the Bagnell Timber Company against the Missouri, Kansas & Texas Railroad Company and others. From a judgment for plaintiff, defendant company appeals. Reversed.

Montgomery & Montgomery and Geo. P. B. Jackson, for appellant. John Boyle and J. L. Secor, for respondent.

MARSHALL, J.

This is an action to recover a balance of $5,422.50 and interest for ties delivered to the defendant at Wagoner Station, Indian Territory, and to establish a lien therefor on the defendant's railroad in Missouri. The plaintiff recovered a general judgment against the defendant, and was also awarded a lien on the railroad in Missouri, in the circuit court, and the defendant appealed.

The amended petition, upon which the case was tried, alleges that the plaintiff is a Missouri corporation, and the defendant a Kansas corporation doing business in Missouri, and that the other defendants, L. G. Graham and J. T. Miller, were partners under the firm name of Graham & Miller, and were the tie contractors of the defendant; that about April 20, 1899, the plaintiff entered into an agreement with the defendants to deliver to defendants 50,000 oak railroad ties, at St. Louis, Sedalia, and Wagoner, as the defendants might direct, for the price of 43 cents for first-class ties and 33 cents for culls; that plaintiff performed all the conditions thereof on its part; that the defendants have failed to perform their part of the agreement, in that they have failed and refused to pay $5,422.50, being a balance due for ties delivered to defendant at Wagoner, under said agreement, between April and August, inclusive, 1899; "that defendant railroad company was at all of said times, and now is, the owner of and operating a line of railroad within the state of Missouri, to wit, the railroad of the Missouri, Kansas & Texas Railroad Company, against which the lien hereinafter mentioned is intended to apply, all in said state of Missouri, thence into and across the state of Kansas, and into and across the Indian Territory, through the town of Wagoner, in said territory, and into the state of Texas"; that within 90 days after the balance aforesaid became due the plaintiff filed a lien therefor in the office of the clerk of the circuit court of Pettis county, Mo., setting out the items of the account, the property sought to be charged, and alleging "that defendant railroad company was the owner of said railroad and property, and the defendants Graham & Miller were the tie contractors of said railroad company"; and that before filing said lien, to wit, on October 26th, the plaintiff gave defendant notice of intention to file the same. The prayer of the petition is for a general judgment and for a lien. Graham & Miller were made parties to the action, but were never served, and before the submission of the case the suit was dismissed as to them.

The answer of the railroad company admits its incorporation and the partnership of Graham & Miller, and that they were its tie contractors, and that between April and July the plaintiff delivered upon the line of its railroad at Wagoner 49,320 railroad ties; that it refused to pay plaintiff the balance of $5,422.50 claimed by it, and denies that it owes the same under any contract with the plaintiff; denies that the railway company either jointly or severally with Graham & Miller entered into any contract with the plaintiff for said ties; alleges that Graham & Miller were its general tie contractors, and that they entered into a contract with the plaintiff, the details, terms, and conditions of which it does not know, and with which it had no concern, to purchase ties; alleges that it agreed to pay Graham & Miller 43 cents apiece for first-class ties, and 17 cents apiece for culls, but denies any knowledge of what Graham & Miller agreed to pay the plaintiff; alleges that regular invoices of the ties delivered by Graham & Miller were rendered by them to the defendant each month, and that the defendant paid the same to Graham & Miller, or to their order, with the knowledge and acquiescence of the plaintiff; that the ties delivered each month were separate transactions, and were paid for each month; alleges that at the request of Graham & Miller the defendant paid $8,949, freight and switching charges to other railroads for the carriage of the ties delivered at Wagoner; admits that on May 24, 1899, there was paid plaintiff on account of said ties the sum of $4,500, and on September 19, 1899, there was paid plaintiff the sum of $2,400 on account thereof, but denies that defendant made such payments, and avers that they were made by Graham & Miller; alleges that plaintiff and Graham & Miller entered into some contract with reference to said ties, and avers that, whether plaintiff was a subcontractor under Graham & Miller, or a partner with them, the plaintiff does not know, but denies that in either event it became indebted to the plaintiff therefor; alleges the location and route of its railroad in Missouri to be as follows: "Commencing at the city of Hannibal, in the county of Marion, in the state of Missouri, thence extending in a southwesterly direction into and through the counties of Rails, Monroe, Randolph, and Howard to Franklin Junction, in said last-named county, and also commencing at Texas Junction, on the St. Louis, Keokuk & Northwestern Railway, in St. Charles county, Missouri, and extending westerly on the north side of the Missouri river into and through St. Charles, Warren, Montgomery, Callaway, Boone, and Howard counties, to said Franklin Junction; and thence from said Franklin Junction through the counties of Cooper, Pettis, Henry, St. Clair, Bates, and Vernon, to the line between the states of Missouri and Kansas; and thence in a southerly direction into and across the state of Kansas, and into and across the Indian Territory, to the line of the state of Texas, and also extending from a point in Pettis county known as `Kansas City Junction' westerly through Pettis county into and through Johnson and Cass counties to the line between the states of Missouri and Kansas; and thence westerly to the town of Paola, in the state of Kansas." This allegation of the answer was made in consequence of the allegations in the original petition and in the lien, which charged the location and route of the defendant's railroad to be as follows: "From the city of Hannibal, in the county of Marion, in said state; thence in a southwesterly direction into and through the counties of Marion, Ralls, Monroe, Randolph, Howard, Cooper, Pettis, Henry, St. Clair, Bates, Vernon, all in said state; thence into and across the state of Kansas and the Indian Territory, and into the state of Texas." The difference between the two descriptions being that the original petition and the lien do not include the portions of the railroad in St. Charles, Warren, Montgomery, Callaway, and Boone counties, and the Paola Branch, running through Pettis, Johnson, and Cass counties. The answer then admits the receipt of a notice on October 26, 1899, of intention to file a lien, but denies that it conforms to the law or has any legal effect; denies that the plaintiff served any notice or filed any lien or commenced a suit within the time required by law; and denies that it is entitled to any lien. The reply denied that the plaintiff knew or had any notice that the defendant paid Graham & Miller for the ties delivered each month, or that they had any arrangement so to do. The circuit court rendered a general judgment against the defendant, and adjudged it to be a prior lien "upon the property mentioned in the petition, and described in the agreed statement set forth in the written stipulation filed in the cause, to wit, the roadbed, station houses, depots, bridges, rolling stock, real estate, and improvements of the defendant Missouri, Kansas & Texas Railroad...