Cape Girardeau & Chester Railroad Company v. Wingerter

• Decision Date: 16 April 1907
• Citation: Cape Girardeau & Chester Railroad Company v. Wingerter, 101 S.W. 1113, 124 Mo.App. 426 (Mo. App. 1907)
• Parties: CAPE GIRARDEAU & CHESTER RAILROAD COMPANY, Appellant, v. WINGERTER, Respondent
• Court: Missouri Court of Appeals

101 S.W. 1113

124 Mo.App. 426

CAPE GIRARDEAU & CHESTER RAILROAD COMPANY, Appellant, v. WINGERTER, Respondent

Court of Appeals of Missouri, St. Louis

April 16, 1907

Appeal from Perry Circuit Court.--Hon. Charles A. Killian, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Giboney Houck, F. B. Whitledge and Sam Bond for appellant.

Edward Robb for respondent.

NORTONIJ. Bland, P. J., dissents; Goode, J., concurs.

OPINION

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 lines 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 one dollar 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 the right of changing water-courses, and with the 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 one dollar 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 the right of way, to-wit, $ 611;" and 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 plaintiffs; 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, constitute no cause of action.

1.It appears that no motion for a new trial or in arrest of judgment was filed in the circuit court.Counsel for defendant therefore suggests 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;Speer v. Brown,79 Mo. 467;Hannah v. Hannah,109 Mo. 236 at 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; Finkelberg, Appellate Practice (2 Ed.), 83.]And under such circumstances, the same will be reviewed even though no motion for a new trial or in arrest of judgment was filed.[Ancell v. Cape Girardeau,48 Mo. 80;Bagby v. Emberson,79 Mo. 139;State ex rel. Pemiscot Co. v. Scott,104 Mo. 26, 15 S.W. 987, 17 S.W. 11;Orchard v. Ex. Nat. Bank,121 Mo.App. 338, 98 S.W. 824.]

2.The counsel for the 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;Brown on Statute of Frauds(5 Ed.), sec. 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 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 the lands and falls directly within the inhibition of our Statute of Frauds and Perjuries (R. S. 1899, sec. 4818), 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 valid, 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 the other party has had the benefit of such performance, it is thereby removed from the operation of the statute entirely and recovery may be had on the contract in an action at law, as at common law prior to the adoption of the statute, and the meritorious party who has thus performed, is not compelled to sue in equity for specific performance, nor is he required to abandon the contract and sue upon a quantum meruit.[Blanton v. Knox, 3 Mo. 342;Farrar v. Patton,20 Mo. 81;Suggett's Admr. v. Cason's Admr.,26 Mo. 221;Self v. Cordell,45 Mo. 345;Tatum v. Brooker,51 Mo. 148;Winters v. Cherry,78 Mo. 344;Johnson v. Reading,36 Mo.App. 306 at 307; affirmed in the same case, Nally v. Reading,107 Mo. 350, 17 S.W. 978;Marks v. Davis,72 Mo.App. 557 at 557-563;Smock v. Smock,37 Mo.App. 56;Bless v. Jenkins,129 Mo. 647, 31 S.W. 938;Chenoweth v. Pacific Express Co.,93 Mo.App. 185;29 Am. and Eng. Ency.Law. (2 Ed.), 582.]This doctrine applies alike to contracts falling within the operation of each and all of the various sections of the statute.[Reading v. Johnson and Marks v. Davis, supra.]That it is frequently applied to contracts respecting lands and otherwise within the statute.[See Tatum v. Brooker, Johnson v. Reading, Nally v. Reading and Bless v. Jenkins, supra;Hoyle v. Bush,14 Mo.App. 408;Rich v. Donovan,81 Mo.App. 184;McConnell v. Brayner,63 Mo. 461;Bank v. Read,131 Mo. 553, 33 S.W. 176.]Now, under this long-established rule, the facts disclosed in the petition are sufficient to and do remove the contract, even though it be in parol, from the operation of such statute and render it a valid undertaking, enforceable at law against defendant in an action for its breach, for it appears from the petition that the plaintiff entered upon the lands thereunder, took possession and constructed its railroad as required by the defendant and did and performed any and all of the conditions on its part imposed by the defendant's contract.The plaintiff having entered into possession of the lands thereunder, and fully performed the contract on its part, the matter is removed from the operation of the statute, and an obligation thereby imposed upon the defendant to perform on his part or respond for its breach.

4.It...