Chouteau v. Union Ry. & Transit Co.

• Decision Date: 11 May 1886
• Citation: 22 Mo.App. 286
• Parties: J. G. CHOUTEAU, ADMINISTRATOR, ET AL., Appellants, v. THE UNION RAILWAY AND TRANSIT COMPANY ET AL., Respondents.
• Court: Missouri Court of Appeals

22 Mo.App. 286

J. G. CHOUTEAU, ADMINISTRATOR, ET AL., Appellants,

v.THE UNION RAILWAY AND TRANSIT COMPANY ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

May 11, 1886.

APPEAL from the St. Louis Circuit Court, ELMER B. ADAMS, Judge.

Affirmed.

DYER, LEE & ELLIS, for the appellants: If it be true that this is a case where the affirmative specific performance of the contract is beyond the power of the court, its performance will be negatively enforced by enjoining its breach. Western Union Telegraph Co. v Railroad, 3 Fed. Rep. 429; S. C., 1 McCrary's Rep. 564. The Supreme Court of the United States has expressly held in favor of compelling specific performance of the contract of a railroad company to give railway service. Express Company v. Railroad, 99 U. S. 191. “Judge Story, after an elaborate examination of the subject, thus lays down the general rule: ‘The just conclusion in all such cases would seem to be that courts of equity ought not to decline the jurisdiction for a specific performance of contracts whenever the remedy at law is doubtful in its nature, extent, operation, or adequacy.”DDD’ McPike v. West, 71 Mo. 199; see, also, Vincent v. Railroad, 49 Ill. 34; Lathrop v. Railroad, 4 Fed. Rep. 47; Dinsmore v. Railroad, 3 Fed. Rep. 603; 2 Redfield on Railroads (4 Ed.) 355-356; Singer Co. v. Union Co., 1 Holmes R. 256, opinion by Lowell, C. J.; Jones v. North L. R., 19 E. Q. 426; DeMattos v. Gibson, 4 DeG. and S. 276, 299; Frank v. Bruneman, 8 W. Va. 462; Rankin v. Husinkson, 4 Sim. 13; Mining Co. v. Water Co., 1 Sawyer 470-585 (see remarks of Justice Field); Pomeroy on Specific Performance, sects. 24, 25, 310, 311, 312; 15 Fed. Rep., No. 9, May 8, 1883; Railroad v. Railroad, 24 Fed. Rep. 520; Wells, Fargo Co. v. Railroad, 16 Am. and Eng. Railroad Cases 71; Wells, Fargo Co. v. Railroad, 18 Am. and Eng. Railroad Cases 441.

S. M. BRECKINRIDGE, M. F. WATTS, and D. C. BRECKINRIDGE, for the respondents: Specific performance will not be decreed unless the terms of the contract are clear, definite, and positive, and a greater degree of certainty is required in an agreement which is to be specifically enforced in equity than is required in a contract which is to be the basis of an action at law for damages. Nor will specific performance be decreed where the duties sought to be enforced are of a continuous character. The following authorities support the foregoing propositions, in their application to facts similar to those in the case at bar: Pomeroy on Contracts, sects. 157, 159, 160, 308, 312; Fry on Specific Performance, 154; Blanchara v. Railroad, 31 Mich. 43; Railroad v. Speer, 82 Ga. 550; Wilson v. Railroad, 9 Ch. Ap. 279; Richmond v. Railroad, 33 Iowa, 422; Powell Coal Co. v. Railroad, 9 Ch. Ap. 331; Danforth v. Railroad, 30 N. J. Eq. 12; 2 Tenn. Ch. R. 773. In determining whether specific performance should be decreed, regard must be had to the rights of the public. Marsh v. Railroad, 64 Ill. 415; Raphael v. Railroad, 2 Law Rep., 2 Eq. Cases, 37. The right granted by the public to construct and operate this railroad, involves the reciprocal duty to keep it unencumbered by private rights or easements of a permanent nature, which would materially impair its usefulness to the public. Jackson & Sharp Co. v. Railroad, 11 Am. Law Reg. (N. L.) 377-8; Heyl v. Railroad, 51 Pa. 469; Pitkin v. Railroad, 2 Barb. Ch. Rep. 221. This duty to the public can not be divested by contract or otherwise. Railroad v. Coal Co., 68 Ill. 489; Railroad v. People, 56 Ill. 366; Railroad v. Seely, 45 Mo. 212; Express Co. v. Railroad, 57 Me. 188; The State v. Railroad, 29 Conn. 538.

ROMBAUER, J., delivered the opinion of the court.

The plaintiffs filed their petition in the trial court, by which they sought to reform the contract hereinafter set out, and to obtain a mandatory injunction compelling the defendants to perform the contract thus reformed, and also restraining them from discriminating as common carriers against the plaintiffs.

A temporary injunction was applied for by the plaintiffs, which the court refused to grant. The parties thereupon went to trial upon the petition, answers, and replies hereinafter referred to, and the court, after a protracted hearing, made its decree, reforming the contract as prayed for in the plaintiffs' petition, but declined to grant any further relief. From this decree the plaintiffs appeal.

In order to convey a correct understanding of the issues tried and determined, it is essential to set out the plaintiffs' petition in full, as well as the substance of the various answers filed by the defendants.

The petition avers that all the defendant companies were railroad companies organized under the general laws of this state, and that, on the twenty-fifth day of July, 1874, The Union Railway and Transit Company was operating a line of railroad from the Union depot in St. Louis through the tunnel and across the bridge which here spans the Mississippi river.

That, on the date last aforesaid, the plaintiffs N. Sylvester Chouteau and J. Gilman Chouteau were the owners of a portion of block four hundred and thirty-seven in said city, which is situated between Eleventh and Twelfth streets, and near to Poplar street, in said city; that they were, also, the owners of a warehouse, located on said block, near the Union depot grounds, and near the freight depot of the defendants; that the chief value of the plaintiffs' property consisted in its convenience for the construction of warehouses for the receipt and handling of freight to be transported over the defendant's lines of railroad; that, at the last named date, the terminal point of the defendant's line was distant from said block belonging to said Chouteaus, just the space across Eleventh street; that, on said date, the other plaintiffs were engaged in business in St. Louis as warehousemen and commission merchants, under the name of Evans Brothers, and their place of business was at the warehouse aforesaid, on block four hundred and thirty-seven, which was then occupied by them as lessees of the Chouteaus, their co-plaintiffs.

That all the plaintiffs, except James W. Evans, were at said date and up to the suspension of the cotton business in the petition afterwards mentioned, also engaged in business at said city as warehousemen and commission merchants, under the name of Evans Brothers Cotton Compress Company, in storing, handling, buying, and selling cotton, and using in connection with such business a cotton compress of the value of $25,000, said compress being located on said block four hundred and thirty-seven, convenient to said warehouse and to defendant's line of railway; that for the purpose of increasing the facilities and conveniences of the plaintiffs in the different kinds of business in which they were engaged, as aforesaid, at said block, as well as for the purpose of increasing the traffic over the defendant's line of road, the following agreement was on said last date, to-wit: the twenty-fifth day of July, 1874, entered into by the defendant, The Union Railway and Transit Company of St. Louis:

“Articles of agreement entered into this twenty-fifth day of July, A. D. 1874, by and between The Union Railway & Transit Company of St. Louis, a corporation, and J. Gilman Chouteau and N. Sylvester Chouteau, of the same place. Whereas the said J. Gilman Chouteau and N. Sylvester Chouteau have, by a certain agreement of even date herewith, granted to the said The Union Railway & Transit Company of St. Louis certain rights and privileges, among others, the right to lay and use railway tracks on and across Eleventh street in said city, in front of their property; now, therefore, in consideration thereof, the said The Union Railway & Transit Company of St. Louis, does hereby agree to and with said J. Gilman Chouteau and said N. Sylvester Chouteau that they shall have the right to connect with the tracks of the said The Union Railway & Transit Company of St. Louis, the tracks of The Evans Tobacco, & Cotton Compress Company, of which J. Gilman Chouteau and N. Sylvester Chouteau are members, and which purposes to locate its warehouse in city block four hundred and thirty-eight, of said city of St. Louis, by laying and maintaining not more than two (2) tracks and connecting the same with said tracks of The Union Railway & Transit Company of St. Louis, on said Eleventh street, not more than two hundred (200) feet north of the north line of Poplar street, and the said The Union Railway & Transit Company of St. Louis does hereby agree to and with said J. Gilman Chouteau and said N. Sylvester Chouteau that it will carry freight and cars on and over said tracks, and generally do the freightingon the same of the said The Evans Tobacco and Cotton Compress Company on the same terms and at the same rates on and at which similar service is performed for other parties by it.

In testimony whereof, the said The Union Railway & Transit Company of St. Louis has caused these presents to be executed in due form by its president and attested by its secrerary, the day and year first above mentioned.

THE UNION RAILWAY & TRANSIT

COMPANY OF ST. LOUIS,

By W. H. CLEMENTS,

President.”

Copy of Seal:

[THE UNION RAILWAY & TRANSIT COMPANY.]

Which said contract was by the defendant company duly acknowledged and recorded in the city of St. Louis; that it was then agreed and understood, for the consideration expressed in said contract and for other good considerations, that such contract should continue for the term of fifty years; that all of the plaintiffs, except James W. Evans, who afterwards became a member of the firm of Evans Brothers, were intended and meant and were included in the name “Evans Tobacco & Cotton Compress Company,” mentioned in said contract, and that the tobacco and the cotton, and other commission and warehouse business, in which the plaintiffs were differently interested, as thereinbefore set out, were intended to be expressed by, and included in, the...