Bethune v. The Cleveland, St. Louis & Kansas City Railway Co.
| Decision Date | 08 June 1897 |
| Citation | 41 S.W. 213,139 Mo. 574 |
| Parties | Bethune et al. v. The Cleveland, St. Louis & Kansas City Railway Company; Hayward et al., Interpleaders, Plaintiffs in Error |
| Court | Missouri Supreme Court |
Error to St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.
Affirmed.
H. M Pollard for plaintiffs in error.
(1) The important question in this case is whether plaintiffs have shown such facts as would create an estoppel in pais as against Hollins, and as against his assignees, plaintiffs in error. In order to constitute an estoppel, there must be shown at least the following things: First, that the party to be charged with the estoppel did make the statements charged to have been made; second, that the party to whom the statements were made was ignorant of the truth; third, that the party to whom they were made actually relied upon the statements made and was thereby induced to alter his position, to his injury. Blodgett v. Perry, 97 Mo 263; Spurlock v. Sproule, 72 Mo. 509; Andrews v Lyons, 11 Allen, 349; Bales v. Perry, 51 Mo. 449. (2) Plaintiffs claim that the Haywards are estopped by joining in the contract attached to, and made a part of, the amended answer. I am utterly unable to see how any question of estoppel can be raised against the assignees of Hollins, by reason of the fact that they join in that agreement. Now it seems clear that a person has no status to set aside a fraudulent conveyance or to enforce a trust, unless he has a judgment against the fraudulent grantor or the person in whose favor the trust results. Merry v. Fremon, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319; Crim v. Walther, 79 Mo. 335; Dodd v. Levy, 10 Mo.App. 121; Humphreys v. A. Milling Co., 98 Mo. 542. (3) Although the answer alleges that Hayward had no right or authority to make the claim for Hollins, the plaintiffs are not in position to show it, even if it were a fact, for by the recitals in their bond to the sheriff they acknowledge that Hollins made this claim, and they are now estopped to deny it. This court has repeatedly so determined. Railroad v. Green, 68 Mo. 169; Hundley v. Filbert, 73 Mo. 34; State v. Williams, 77 Mo. 468; Lionberger v. Krieger, 88 Mo. 160. (4) Hollins, in his testimony, was asked to state the contents of not only one written contract but of several. While he stated that he had the papers somewhere, and had not looked for them, the court, against objection, permitted him to give their contents, and his construction of them. (5) Court, against objection, permitted plaintiffs' counsel to shamefully lead his witnesses and suggest their answers, all against objection.
H. J. Cantwell for defendants in error.
(1) The finding and verdict will not be disturbed by the appellate court when there is substantial evidence to support it. Bray v. Kremp, 113 Mo. 552; Schnare v. Austin, 106 Mo. 610. (2) The admission of the testimony of Hollins as to contents of certain written instruments did not prejudice plaintiffs in error, as he afterward introduced the instruments themselves, and the judgment being manifestly for the right party should be affirmed even though incompetent evidence may have crept into the case. No objection to the pleadings was made at the trial. (3) As to the first assignment claimant specifies that Hollins was permitted to testify as to the contents of certain written instruments. As these instruments were all afterward introduced by Hayward himself, defendants in error can not conceive how plaintiffs in error were injured, particularly as Hollins' testimony as to the contents is more favorable to plaintiffs in error than the instruments are. (4) Defendants in error believe that this court will say upon an examination of this record that it was impossible for any trial court to have found a verdict for the claimant. A mere statement of the evidence is convincing and convicting.
In 1888 and 1889 the plaintiffs, Bethune et al., as contractors, were engaged in the construction of the Cleveland, St. Louis & Kansas City Railroad under a contract at fixed prices for the labor and material, with William Baird & Company. Baird & Company had a contract with the railroad company by which they (Baird & Company) were to receive, practically, all the stock and bonds of the railroad company for constructing the road.
Baird & Company failing to pay, Bethune et al. filed their lien under the statute, and on March 22, 1890, a judgment was rendered in their favor for $ 88,535.76, which was decreed to be a lien upon the roadbed, depot, bridges, station houses, rolling stock, real estate, and improvements of the Cleveland, St. Louis & Kansas City Railroad. A special execution was issued in conformity with the judgment, and the property in issue here, to wit, one caboose car, one box car, and eleven flat cars, with other property, was seized. These cars were then in use on said railroad, and were marked, "Cleveland, St. Louis & Kansas City Railroad."
J. T. K. Hayward was then chief engineer and in charge of the railroad. Assuming to act as the personal agent for Frank C. Hollins, of New York, who was then president of the railroad company, he filed an interplea in Hollins' name, setting up that the cars were the property of Hollins.
Bethune gave bond, the sheriff retained the cars, and on the tenth day of May, 1890, these cars, with the other property described in the decree, were sold to Bethune et al., trustees for all the lienholders of the railroad, the present plaintiffs in error, the Haywards, being among the number of the lienholders, having obtained lien judgment against the railroad for their arrears of salaries, and receiving their distributive share of the proceeds of such sale.
In the interval between the filing of the claim in Hollins' name (by Hayward, assuming to act as his agent) and the date of the sale, Hollins came to Missouri, and, upon being informed that this claim had been made by Hayward in his name, he (Hollins) expressly disclaimed to Bethune and to Cantwell any authority in Hayward for the action, and disclaimed title to the cars. After the sale and the distribution of the proceeds as aforesaid, the claim meanwhile remaining on file without any action having been taken thereon, the Haywards bought from Hollins whatever interest he might have in the claim and procured themselves to be substituted as parties to the interplea, as his assignees.
On the trial the interpleaders read in evidence a communication from one Frank J. Matthews, then president of the Cleveland, St Louis & Kansas City Railroad, to Frank C. Hollins & Company, giving to them "the sole control of all the stock and bonds of the company issued under its first mortgages to dispose of same as you see fit," provided he secured the building of this railroad; an agreement between Hollins & Company and "Baird and associates," by which the...
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