Cape Girardeau-Jackson Interurban Railway Company of St. Louis

• Citation: 210 S.W. 361,277 Mo. 579
• Parties: CAPE GIRARDEAU-JACKSON INTERURBAN RAILWAY COMPANY et al. v. LIGHT & DEVELOPMENT COMPANY OF ST. LOUIS, Appellant
• Decision Date: 28 March 1919
• Court: United States State Supreme Court of Missouri

210 S.W. 361

277 Mo. 579

CAPE GIRARDEAU-JACKSON INTERURBAN RAILWAY COMPANY et al. v. LIGHT & DEVELOPMENT COMPANY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

March 28, 1919

Appeal from Cape Girardeau Circuit Court. -- Hon. Frank Kelly Judge.

Affirmed.

Chas W. Bates, Nathan Frank, Oscar A. Knehans and I. R. Kelso for appellant.

(1) At the time of the passage of the Lapsley Ordinance (Ordinance 637), as well as at the time of the passage of the ordinance (Ordinance No. 1046) attempting to grant a franchise to the Cape Girardeau-Jackson Interurban Railway Company, the law provided that "the party to which said franchise may be granted shall be an incorporated company, organized under the laws of the State, to construct, maintain and operate a street railroad in the town or city by which such franchises is granted." Sec. 9494, R. S. 1909. (2) Sec. 9250, R. S 1909, which is a part of the charter of cities of the third class, provides that no railroad or street railroad shall be constructed or operated until all damages to abutting lands shall have been first ascertained and paid to the owners thereof, by the person or corporation constructing said railroad or street 'railroad, and that the city council shall pass suitable ordinances providing the manner and way of ascertaining any damages contemplated by this section. Sec. 9250, R. S. 1909. The record shows that no steps were ever taken by the city council or by the Street Railway Company to comply with any of the provisions of the statutes relative to the ascertaining and payment of damages to abutting property owners. The above law, passed in 1887, applies to surface roads, as well as railroads operated above or under the street. Sec. 9494, R. S. 1909; Ruckert v. Grand Ave. Ry. Co., 163 Mo. 261; Goddard v. Chicago & N.W. Ry., 66 N.E. 1066; Wilder v. Electric Traction Co., 75 N.E. 194; Allen v. Clausen, 90 N.W. 181. A court will not hesitate to declare franchises void, which have been granted in violation of legislative limitations or restrictions. (3) A court will not decree specific performance of a contract when the agreement is for a good title and all reasonable doubt as to the title is not removed; and though the court may entertain a favorable opinion of the title, yet, if that opinion may be fairly questioned by competent persons, it will not decree specific performance. Hymers v. Branch, 6 Mo.App. 511; Isaacs v. Skrainka, 95 Mo. 524; Dunn v. White, 63 Mo. 182; Veth v. Gierth, 92 Mo. 97; Isaacs v. Skrainka, 95 Mo. 517.

Jeffries & Corum and Oliver & Oliver for respondents.

(1) The City of Cape Girardeau, being a city of the third class, had the right, power and authority to grant to Lapsley the franchise it gave him and his associates by Ordinance No. 696, in 1902; and it had the right, power and authority to grant to the Cape Girardeau-Jackson Interurban Railway Company the new franchise it gave to it by Ordinance No. 1046, in December, 1913, Laws 1887, p. 84, secs. 107-110; Sec. 1576, R. S. 1889, p. 443; Laws 1893, p. 89, sec. 105; Sec. 5855, R. S. 1899; Sec. 9250, R. S. 1909. (2) There is no conflict between the act relating to cities of the third class, approved March 30, 1887, and the act of the General Assembly relating to franchises granted to elevated and underground railroads, approved March 26, 1887. Laws 1887, p. 40; Secs. 9493 and 9494, R. S. 1909; Musick v. Railroad, 144 Mo. 309; Dart v. Bagley, 110 Mo. 54; Roth v. Gabhert, 123 Mo. 32; Rosenblatt v. Heman, 70 Mo. 451; Tomb v. Jackson, 69 Mo. 153-4; St. Louis & Meramec River Railroad Co. v. City of Kirkwood, 159 Mo. 239. (3) Specific performance of a contract is based upon the maxim which holds: "Equity regards that as done which ought to have been done," or, phrased in another way: "Equity regards that as already done which was agreed to be done." Burgess v. Wheate, 1 W. B. L. 121; Ensign v. Kellogg, 4 Pick. 5; 22 A. M. & Eng. Ency. Law, pp. 1917-1922. (4) The plaintiff may show that he has performed in part the contract, and that he is ready and willing to perform the balance at the time of trial; or, as in the case at bar, that the defendant, by its conduct, made it useless to tender compliance within the time stated in the contract. If the undertaking on plaintiff's part is a joint and contemporaneous undertaking the failure of the plaintiff to perform after it had been notified that performance was useless will not prevent the court from decreeing specific performance in his favor. 22 A. M. & Eng. Ency. Law, p. 929; Minneapolis R. R. Co. v. Cox, 76 Iowa 306; Mitchell v. Long, 5 Litt. (Ky.) 71, (5) The respondents, within proper time, have performed the contract on their part as fully as appellants' conduct would permit and at all times have been and still are ready to perform the balance of their contract when permitted to do so by appellants, and equity should compel appellant to specificially carry out its obligation, as damages are wholly inadequate to determine the loss that respondents have and will suffer if appellants are not forced to specifically perform. Price v. Mirgon, 10 A. 663; Parris v. Haly, 61 Mo. 453.

OPINION

WOODSON, J.

This suit was instituted by the plaintiffs in the Circuit Court of Cape Girardeau County against the defendants for the specific performance of a written contract made by the defendants for the purchase of the stocks, bonds and properties of the Cape Girardeau-Jackson Interurban Railway Company from plaintiffs. The contract will be presently set out in full.

The trial resulted in a decree in favor of the plaintiffs and the defendants duly appealed the cause to this court.

The record is unusually long, covering about 760 pages of printed matter; since, however, the facts are practically undisputed, we will be saved the labor of wading through this great volume of evidence, except regarding some few details.

The facts were substantially as follows:

The plaintiffs, on and prior to February 17, 1913, were the owners of all of the stocks, bonds and properties of the Cape Girardeau-Jackson Interurban Railway Company, and on and prior to the same date, the defendant, the Light & Development Company (the defendant, Gibony Houck having no interest in the matter), was the owner of a majority, if not all, of the stocks and bonds of the Cape Girardeau Water Works and Electric Light Company of Cape Girardeau, Missouri. At that time the corporate franchise of the latter company was about to expire, and it was then asking for a new charter in the name of the Missouri Public Utilities Company, instead of the Cape Girardeau Water Works & Electric Light Company.

The defendant was and is a holding corporation, owning and operating water works, electric light and power plants throughout Southeast Missouri, with its principle place of business in the City of St. Louis, Missouri.

The articles of association of the Cape Girardeau-Jackson Interurban Railway Company were signed and acknowledged on the 4th day of October, 1902, filed in the office of the Secretary of State, and a certificate of incorporation issued October 16, 1902. The said articles of association of the said Railway Company recited: That the said Railway Company was organized under the provisions of Article "2," Chapter "12," of the Revised Statutes of 1899. That the said company was "formed for the purpose of constructing, maintaining and operating a standard gauge railroad in the City of Cape Girardeau, County of Cape Girardeau and State of Missouri, and from the City of Cape Girardeau to the City of Jackson, in the said county, and in said City of Jackson; and the said articles of association further recited that "the approximate length of said railroad is eighteen miles, situated wholly in the County of Cape Girardeau, in the State of Missouri."

The plaintiff, Cape Girardeau-Jackson Interurban Railway Company, had the right, under its franchise, also had the power, to furnish heat, power and light to the public.

That on January 4, 1913, the buildings and machinery of the Street Railway Company had been damaged or destroyed by fire, which prevented the company from prosecuting its business. This, in fact, as I understand the record, was one of the inducing causes which lead to the execution of the contract of purchase before mentioned.

On the 7th day of September, 1892, the City of Cape Girardeau -- a city of the third class -- by ordinance numbered 484, granted to William Penny and L. S. Joseph and their associates and assigns a franchise to build and operate a street railroad on certain streets, naming them, in that city. On October 14, 1892, Penny and Joseph accepted the franchise. Under this ordinance 484 a street railroad was constructed and operated by horse power on the streets named in Cape Girardeau.

On September 30, 1902, the City of Cape Girardeau, by ordinance, No. 637, granted to James S. Lapsley and his associates and assigns a franchise "to construct, maintain and operate a street railway and an electric light, heat and power plant within the corporate limits of the City of Cape Girardeau." The preamble to this ordinance recites:

"Whereas, it is proposed by James S. Lapsley, his associates or successors or assigns, or a corporation to be formed for the purpose, to construct, operate and maintain in the City of Cape Girardeau, a street railway, and speedily thereafter to extend same to the City of Jackson . . . and operate and maintain a line of electric cars thereon and also to construct, operate and maintain an electric lighting plant in the City of Cape Girardeau," etc.

Section 1 of the ordinance names the streets and the distances on the streets the street railroad was to be operated.

Section 11 of the franchise authorizes the grantee to construct,...