Bagnell Timber Co. v. Missouri, Kansas & Texas R. Co.

• Decision Date: 17 March 1904
• Parties: BAGNELL TIMBER COMPANY v. MISSOURI, KANSAS & TEXAS RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 1130

180 Mo. 420

BAGNELL TIMBER COMPANY v. MISSOURI, KANSAS & TEXAS RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

March 17, 1904

Appeal from Pettis Circuit Court. -- Hon. Geo. F. Longan, Judge.

Reversed and remanded.

Montgomery & Montgomery and Geo. P. B. Jackson for appellant.

(1) The petition does not state facts sufficient to constitute cause of action. The "Exhibit" is no part of the petition. Kearney v. Woodson, 4 Mo. 114; Hadwen v. Ins. Co., 13 Mo. 473; Hall v. Harrison, 21 Mo. 227; Chambers v. Carthel, 35 Mo. 374; Deitz v. Corwin, 35 Mo. 376; Curry v. Lackey, 35 Mo 389; Baker v. Berry, 37 Mo. 306; Dyer v Krayer, 37 Mo. 603; Bowling v. McFarland, 38 Mo. 465; Kerr v. Ins. Co., 40 Mo. 19; Hickory Co. v. Fugate, 143 Mo. 71. The petition itself does not state either directly, nor by necessary implication, the facts showing a performance of the contract by plaintiff. It is not sufficient for the pleader to state mere conclusions. Lankford v. Sanger, 40 Mo. 160; Pier v Heinrichoffen, 52 Mo. 333; Cook v. Putnam County, 70 Mo. 668; Brown v. Cape Girardeau, 90 Mo. 377; Mitchell v. City of Clinton, 99 Mo. 153; Bank v. Tiger Tail Mill & Land Co., 152 Mo. 145. For this reason the court erred in overruling the objection to the admission of any evidence and again in overruling the motion in arrest. (2) The paper filed in the circuit clerk's office as the "lien paper" was an entirety, and plaintiff had no right to select a portion of it and offer that only as evidence. Starkie on Evidence (8 Am. Ed.), 528; Spangler v. Dellinger, 38 Cal. 278; English v. Johnson, 17 Cal. 108; Grumsey v. Ins. Co., 17 Minn. 104; Barbour v. Watts, 9 Ky. 290; Phillips v. Green, 21 Ky. 344; Bond v. Bond, 73 N.C. 67; University v. Harrison, 93 N.C. 84; Colman v. Creditors, 39 La. An. 1089; Bompart's Admr. v. Lucas, 32 Mo. 123; Haddaway v. Post, 35 Mo.App. 278; McCartney v. Ins. Co., 45 Mo.App. 373; Lee's Admx. v. Lee, 21 Mo. 531; Crone v. Dawson, 19 Mo.App. 214; Seymour v. Newman, 77 Mo.App. 578. (3) The plaintiff was not entitled to recover because the petition alleged a contract made jointly with the "M., K. & T. R. R. Co." and Graham & Miller, while no such contract was proven. The sole effort of plaintiff through its evidence was to prove a contract with the railroad company alone. Hudson v. Emmons, 107 Mich. 549; Gamble v. Kellum, 97 Ala. 677; Garrison v. Lumber Co., 111 Ala. 308; Peck v. Staudart, 1 Ill.App. 288; Faulkner v. Faulkner, 73 Mo. 327; Railroad v. Sullivan, 25 Ga. 228; College v. Hendley, 49 Cal. 347; Mace v. Page, 33 Mich. 38; Thompson v. Stetson, 15 Neb. 112; Wycoff v. Loan & Trust Co., 11 N.Y.S. 423; Snell v. DeLand, 43 Ill. 323; O'Neal v. Boone, 82 Ill. 589; Proctor v. Reif, 52 Iowa 592; Stricklan v. Burns, 14 Ala. 511; York v. Fortenbury, 15 Colo. 129; Bunnell v. Taintor's Admr., 5 Conn. 273; Erwin v. Devine, 24 Ky. (1 J. J. Marsh) 204; Davis v. Caswell, 50 Me. 294; Detroit v. Houghton, 42 Mich. 549; Jones v. Louderman, 39 Mo. 287; Leslie v. Railroad, 88 Mo. 50; Clements v. Yeates, 69 Mo. 623; Merle v. Hascall, 10 Mo. 406; Beck v. Ferrara, 19 Mo. 30; Reed v. Bott, 100 Mo. 62; Johnson-Brinkmann Co. v. Bank, 116 Mo. 558. (4) The proceeding for a lien was based on an alleged contract by plaintiff with the "M., K. & T. R. R. Co." and Graham and Miller jointly, while the proof related to a contract with the railroad company alone. This was fatal to the lien. R. S. 1899, sec. 4241; Mackler v. Railroad, 52 Mo.App. 516; Palmer v. Lavigne, 37 P. 775; Krah v. Weidlich, 55 Mo.App. 536. (5) The petition and the "lien paper" only sought to establish and enforce a lien on part of a railroad in the State of Missouri, and omitted considerable and important parts of the same railroad in this State, which is not permitted under out statute. Dunn v. Railroad, 24 Mo. 493; McPheeters v. Bridge Co., 28 Mo. 467; Schulenberg v. Railroad, 67 Mo. 442; Cranston v. Railroad, 75 Mo. 29; Knapp v. Railroad, 74 Mo. 374; Ireland v. Railroad, 79 Mo. 572; Bethune v. Railroad, 149 Mo. 587. (6) The evidence shows that all of the ties in question were used on the railroad in Kansas and the Indian Territory, and none of them used on the railroad in Missouri. Under such circumstances the law does not give a lien. R. S. 1899, sec. 4239; O'Connor v. Railroad, 111 Mo. 185. (7) Instruction 2 was erroneous because it ignored the allegations of the petition, and authorized a recovery upon a contract made in the alternative with one or another of several different parties, and because the evidence did not warrant the instruction.

John Boyle and J. L. Secor for respondent; J. H. Bothwell and C. E. Yeater of counsel.

(1) The petition is sufficient. It sets forth definitely the facts showing the cause of action, and describes defendant's railroad and property as required by law. Giving the name of the railroad is sufficient. Granby, M. & S. Co. v. Davis, 156 Mo. 422; R. S. 1899, sec. 4241; Knapp v. Railroad, 74 Mo. 374; Bethune v. Railroad, 149 Mo. 604. But if facts were not as clearly set forth in the petition as they might have been, the cause is amply and definitely stated, and it is too late to raise objection now. The verdict cures it. R. S. 1899, sec. 722; Bank v. Leyser, 116 Mo. 51; Knox County v. Brown, 103 Mo. 223; McDermott v. Cleas, 104 Mo. 14; Lynch v. Railroad, 111 Mo. 601. (2) The "lien paper" met all the requirements of the statute, and, with the petition, properly seeks to enforce a lien on that part of the defendant's railroad which is in the State of Missouri. R. S. 1899, sec. 4241; Thompson v. Chappell, 91 Mo.App. 297; Railroad v. Ordelheide, 172 Mo. 436. (3) A lien may be enforced against a railroad company, on its property lying within this State, for material furnished the company, and used by it, on its property, out of this State. R. S. 1899, sec. 4239; Bridge Co. v. Railroad, 72 Mo. 664; Ireland v. Railroad, 79 Mo. 572. (4) This is an action at law, and the verdict of the jury is supported by substantial evidence. The finding of the jury, and judgment of the court thereon, is not subject to review in this court on questions of fact. Temple v. Railroad, 83 Mo.App. 64; Kuenzell v. Stevens, 155 Mo. 280; Carter v. Railroad, 156 Mo. 635; Steam S. C. C. v. Scott, 157 Mo. 520; Wolfe v. Supreme Lodge, 160 Mo. 675.

MARSHALL, J. Brace, P. J., and Robinson, J., concur in toto; Valliant, J., concurs as to the first paragraph and as to the result, but dissents in a separate opinion as to a part of the second paragraph.

OPINION

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 fifty thousand oak railroad ties, at St. Louis, Sedalia and Wagoner, as the defendants might direct, for the price of forty-three cents for first class ties and thirty-three 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 five thousand, four hundred and twenty-two dollars and fifty cents, 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 and 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 ninety 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, Missouri, 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...