Cape Girardeau & C. R. Co. v. Wingerter

• Decision Date: 16 April 1907
• Citation: 124 Mo. App. 426,101 S.W. 1113
• Court: Missouri Court of Appeals
• Parties: CAPE GIRARDEAU & C. R. CO. v. WINGERTER.

101 S.W. 1113

124 Mo. A. 426

CAPE GIRARDEAU & C. R. CO. v. WINGERTER.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. APPEAL — RULINGS ON DEMURRER — REVIEW — RECORD.

The ruling on a demurrer to the petition will be reviewed, though motions for a new trial or in arrest were not filed.

2. FRAUDS, STATUTE OF — PLEADINGS — PRESUMPTIONS.

Where one sues on a contract within the statute of frauds, without disclosing whether it is in writing and valid, or oral and void, the law presumes that it is in writing and valid.

3. SAME — CONTRACT TO CONVEY LAND — PERFORMANCE — EFFECT.

A parol contract to convey land to a railroad for a right of way is within the inhibition of the statute of frauds (Rev. St. 1899, § 3418 [Ann. St. 1906, p. 1951]), and is not enforceable, unless removed from the operation of the statute by performance thereof by one of the parties thereto.

4. SAME.

A railroad entering on the land of an owner under a parol contract to convey the same for a right of way, taking possession thereof, constructing its road thereon, and performing its part of the contract, is entitled, notwithstanding the statute of frauds, to sue at law for a breach of the contract.

5. VENDOR AND PURCHASER — CONTRACT TO CONVEY — DESCRIPTION OF PROPERTY.

A contract to convey to a railroad a right of way for its road between designated points, which describes the premises as "one hundred feet wide, the center line thereof to be the center line of the roadbed" of the road as the same may be finally located on a tract of land, sufficiently describes the land to be conveyed.

6. SAME — BREACH OF CONTRACT — ACTIONS — DAMAGES.

A railroad company, agreeing to relocate its road on an owner agreeing to convey a right of way, cannot, in an action for breach of contract, recover as damages the expenses incurred in relocating the road.

7. SAME.

The measure of damages, in an action by a railroad for breach of a parol contract "to grant, bargain, sell * * * and convey" to it land for a right of way, is the value of the land at the date of the completed performance of the contract by it, and does not include expenses incurred in condemning the land for a right of way.

Bland, P. J., dissenting.

Appeal from Circuit Court, Perry County; Chas. A. Killian, Judge.

Action by the Cape Girardeau & Chester Railroad Company against Theodore Wingerter. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded.

Giboney Houck, T. B. Whitledge, and Sam Bond, for appellant. Edward Robb, for appellee.

NORTONI, J.

A demurrer having been sustained to the plaintiff's petition, it appeals from the judgment. The plaintiff, a Missouri railroad corporation, was engaged in acquiring a right of way and building its railroad from the city of Cape Girardeau to Perryville. It is unnecessary to set out the petition in full. In the interest of brevity, only the material facts will be noticed: After proper formal averments and a recital of the facts stated, it, in substance, avers that it surveyed, located, and marked out its line across defendant's farm on the east side of his residence, and attempted to effect an agreement with him as to the amount of compensation he should receive for its right of way so located. No agreement was reached between the parties, however. The defendant, objecting to the location of the road on the east side of his residence, proposed to the plaintiff that if it would locate and build its road on the west side of his said residence, and pay to him the sum of $1 in cash, defendant "would grant, bargain, sell, relinquish and convey to Cape Girardeau & Chester Railroad Company the right of way for a railroad to be built by it from Cape Girardeau to Chester, one hundred (100) feet wide, the center line thereof to be the center line of the roadbed of said railway as the same may be finally located, with right to increase width for slopes, embankments and turnouts, and with a right of changing water courses, and with a right of felling any trees standing outside of the said one hundred (100) feet, which might injure said railway or its trains, and a right of taking a supply of water and of borrowing and wasting earth and stone for the purpose of constructing or operating a railroad as aforesaid, over, through and upon the tract of land belonging to him, in the county of Perry, in the state of Missouri." The lands proposed by the defendant for the location on the west side of his residence having been examined and found practicable, and defendant's said proposition having been considered, the plaintiff accepted the same in full, paid to the defendant the $1 cash in hand mentioned, resurveyed and marked out its route, and located and built its said railroad across defendant's lands on the west side of his residence in accordance with his request and proposal, and in all things fully performed the conditions of said contract on its part. A breach of the contract is averred on the part of the defendant, in that the defendant has wholly failed and refused to perform any of the conditions thereof on his part, as a result of which said breach the plaintiff has been compelled "to pay out large sums of money for a right of way, to wit, $611"; that the plaintiff was compelled to bring suit to condemn the right of way above described, and in which condemnation suit, coming on for hearing before commissioners, the said defendant was awarded $410, and costs were taxed against plaintiff; and that its total damage on account of the defendant's said breach of the contract is $3,000, for which it asks judgment. The court adjudged the facts stated, if true, constituted no cause of action.

1. It appears that no motion for new trial or in arrest of judgment was filed in the circuit court. Counsel for defendant therefore suggest that plaintiff waived his rights in respect to having a ruling of the court on the demurrer reviewed here. This assignment must be ruled against the defendant, for the reason the demurrer and the action of the court thereon is a matter of record, as distinguished from matter of exception. State v. Finn, 19 Mo. App. 560; Spear v. Bond, 79 Mo. 467; Hannah v. Hannah, 109 Mo. 236-240, 19 S. W. 87. It is well settled that, when error appears on the face of the record proper, the judgment will be reversed therefor. State, to Use Tapley, v. Matson, 38 Mo. 489; Bateson v. Clark, 37 Mo. 31; Finkelnberg, Appellate Practice (2d Ed.) 83. And under such circumstances the same will be reviewed, even though no motion for new trial or in arrest of judgment were filed. Ancell v. Cape Girardeau, 48 Mo. 80; Bagby v. Emberson, 79 Mo. 139; State ex rel. Pemiscot County v. Scott, 104 Mo. 26, 15 S. W. 987, 17 S. W. 11; Orchard v. Nat. Ex. Bk. (Mo. App.) 98 S. W. 824.

2. Counsel for defendant next suggests that it is apparent from the face of the petition the contract declared upon is one falling within the operation of the statute of frauds, for the reason that it pertains to the sale of lands, and is not averred to be in writing, and is therefore unenforceable, and for this reason the demurrer was properly sustained. This assignment must likewise be ruled against the defendant. We have carefully examined the petition, and it does not affirmatively appear therefrom the contract was in parol, or was not in writing. It is the established law that when one declares upon a contract without disclosing whether it is in writing, and therefore valid under the operation of the statute, or oral, and therefore invalid thereunder, the law will presume in favor of the pleader, until the contrary is made to appear, that the contract declared upon is in writing, and therefore valid. Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270; Browne on Statute of Frauds (5th Ed.) § 505.

3. We would be justified in resting the judgment of the court upon the proposition above stated, to the effect that the petition is sufficient on demurrer as against the statute, for the reason that it does not affirmatively appear therefrom that the contract was not in writing; but, from the disclosures of the briefs of counsel, it is apparent that the contract is not in writing, and, inasmuch as the case must be remanded, the sufficiency of the contract declared upon will then come directly before the court for judgment of the law as to its sufficiency. We will therefore examine the same, and give an opinion with respect to the matter as it appears from the facts disclosed in the petition. Now, it is quite certain that the contract, being parol, and one whereby the defendant agreed, as alleged, to "bargain, sell and convey" certain lands to the plaintiff, it was for the sale of lands, and falls directly within the inhibition of our statute of frauds and perjuries (section 3418, Rev. St. 1899 [Ann. St. 1906, p. 1951]), and is therefore unenforceable in law, except under circumstances hereafter referred to, and, being thus invalid and unenforceable, is insufficient to support an action for its breach, unless it is rendered valid or removed from the operation of the statute by the facts alleged with respect to its performance on the part of the plaintiff, for, notwithstanding such contracts are invalid, in the absence of the sufficient memorandum in writing mentioned in the statute, it has been the settled law with us, from a very early period in the history of the state, that when such contract is fully executed by one of the parties thereto, when it has been fully and completely performed on one side, and...