¶0 1. PLEADING--Judgment on the Pleadings. A motion for a judgment on the pleadings is a common and permissible practice, but, in a case where filed by the plaintiff to a defendant's answer, it should be granted only when such answer, allowing every reasonable intendment in its favor, does not deny or state a defense to the material allegations of the petition.
2. CONTRACTS--Legality of Object--Breach of Trust--Railroad Bonus. In an action by a railroad construction company to recover on a note given it as a bonus to induce it to build the line of road it was engaged in constructing for a railroad company to a certain town, it is error to render judgment on the pleadings, where the answer alleges that the construction company was the agent of the railroad company for the construction of the road, and was employed to construct the same on a certain survey, but for the consideration of the bonus sued on moving to it it agreed to and did construct the same off said survey and to said town.
Charles G. Watts and DeRoos Bailey, for appellant, cited and discussed: Woodstock Iron Co. v. Richmond & D. Extension Co., 129 U.S. 643; Fuller v. Dane, 18 Pick. 472; Enid Right of Way & T. Co. v. Lile (Okla.) 82 P. 810; McGuffin v. Coyle & Guss, 16 Okla. 648; Elkhart County Lodge et al v. Crary, 98 Ind. 238.
Error from the United States Court for the Western District of the Indian Territory, at Muskogee.
Action by the William Kenefick Company against S. S. Cobb and others. Judgment for plaintiff against defendant Cobb, and be appeals. Reversed.
DUNN, J.
¶1 This action was begun in the United States Court for the Western District of the Indian Territory, at Muskogee, by the Wm. Kenefick Company, defendant in error, against S. S. Cobb, City National Bank of Wagoner, Ind. T., First National Bank of Wagoner, Ind. T., W. B. Kane, and J. W. Wallace, to enforce payment of two notes given by S. S. Cobb to the said company to cover a subscription made by him to secure the construction of a railroad to the city of Wagoner under the terms and conditions as shown by the pleadings. A demurrer to the liability charged against the other parties named who signed the notes was sustained by the court, from which no appeal was prosecuted. Hence they are eliminated from the case, and we have but to deal with the controversy existing between the appellant Cobb and the appellee. On the filing of the amended answer, plaintiff filed a motion for judgment on the pleadings, which was sustained by the court, from which appeal was prosecuted to the United States Court of Appeals of the Indian Territory, and the case now comes to us for review by virtue of our succession to that court.
¶2 In view of the fact that the determination requires a consideration of the pleadings, and they alone, we set out the material parts thereof at length. Plaintiff averred in its complaint: That it was a corporation organized under the laws of the United States in force in the Indian Territory for the purpose of and with the authority to engage in the construction and operation of railroads in the Indian Territory and elsewhere.
"That prior to the 5th day of May, A. D. 1904, it commenced the construction of a standard gauge railroad extending from a connection with the line of the Muskogee Union Railway in the northwesterly portion of the city of Muskogee, Creek Nation, Ind. T., and running thence in a general southwesterly direction to where the main line of said railway crosses the Red river in the state of Texas, an estimated distance of 181 miles, more or less.
"Plaintiff further says: That prior to the 5th day of May, A. D. 1904, the Muskogee Union Railway Company, a corporation, had constructed a standard gauge single-track railroad from the city of Muskogee to Correta Station, a station on the St. Louis & Iron Mountain Railroad, about 9 miles north from said city of Muskogee, intersecting and crossing said St. Louis & Iron Mountain Railroad at said Correta Station. That after the construction of said railroad from said Correta Station to Muskogee, the name of said Muskogee Union Railway was changed to the Missouri, Oklahoma & Gulf Railway, and that said portion of said railway from Muskogee to Correta Station aforesaid was fully constructed and trains operated thereon prior to the 1st day of February, A. D. 1905. That prior to the 1st day of February, A. D. 1905, the plaintiff had contracted for the construction of said Missouri, Oklahoma & Gulf Railway from the northwesterly part of the city of Muskogee in a southwesterly direction to the town of Dustin, a station on the Ft. Smith & Western Railroad in the Creek Nation, Ind. T. Plaintiff further says: That it was not its intention nor was it the intention of the said Missouri, Oklahoma & Gulf Railway Company to construct a railway northerly from said Correta Station in and through the town of Wagoner in the Western district of the Indian Territory, but that only for the purpose of ascertaining whether or not a straight line low-grade railway could be constructed from said Correta Station to the town of Afton, a town located on the St. Louis & San Francisco Railroad in the Cherokee Nation, Ind. T., and for that purpose had made a preliminary survey from said Correta Station to said town of Afton, which survey was made on as straight a line and on as low a grade as was possible and practicable, and that said survey ran some distance east of the town of Wagoner. That on and before the 1st day of February, A. D. 1905, there was fully constructed and in operation through the city of Muskogee and the town or city of Wagoner the Missouri, Kansas & Texas Railway, which was crossed at Muskogee by the Missouri, Oklahoma & Gulf Railway, and there was fully constructed and in operation at the town or city of Wagoner, in addition to the Missouri, Kansas & Texas Railway, the St. Louis & Iron Mountain Railway, which last-named railway is crossed by the Missouri, Oklahoma & Gulf Railway at Correta Station. Plaintiff further says that some time after the preliminary survey was made from said Correta Station to Afton, and prior to the 1st day of February, A. D. 1905, the citizens and property owners of the town or city of Wagoner in the Creek Nation, Ind. T., including the defendants herein and each and all of them, by and through a committee appointed by said citizens and property owners of Wagoner, including the defendants herein and each and all of them, said committee being composed of defendant W. B. Kane, W. I. Nicholson, and A. F. Parkinson, on or about the 2d day of February, A. D. 1905, called at the office of the plaintiff in room No. 618, Bryant building, in Kansas City, Mo., and then and there made to the plaintiff, for the purpose of inducing the plaintiff to construct a steam railroad from said Correta Station to said town or city of Wagoner, a written proposition which is in words and figures as follows, to wit: 'Wagoner, I. T., Feb. 2, 1905. Mr. Wm. Kenefick, Pres., 618 Bryant Bldg., Kansas City, Mo.--My Dear Sir: The undersigned, a committee appointed by the citizens of Wagoner, I. T., to submit to you a proposition for the construction of a railroad from Wagoner to Correta, and northeast from Wagoner, make the following offer: The citizens of Wagoner will pay to your company a cash bonus of $ 25,000.00, a real estate bonus of $ 25,000.00 and a right of way bonus from Correta to the north city limits of Wagoner. One-half (1/2) of cash bonus to be paid to you, or your representative, thirty (30) days after passenger and freight trains are being run into the city of Wagoner. One-half (1/2) four months after said trains are being run into the city of Wagoner. One-half (1/2) real estate bonus to be conveyed to you thirty (30) days after passenger and freight trains are being run into the city of Wagoner, and one-half (1/2) four months after said trains are being run into the city of Wagoner. The deed of right of way in Wagoner to be obtained and furnished to you in time to permit of the construction of the road. The right of way outside of the city limits to be obtained by your company and paid for by the citizens of Wagoner. The terms of this proposition to be carried out and all papers placed in escrow fifteen (15) days after acceptance of this offer by you. Yours respectfully, [Signed] W. B. Kane, W. I. Nicholson, A. F. Parkinson, Committee.'
"Plaintiff further says: That, up to the time the said committee made the proposition hereinabove set forth to this plaintiff, the plaintiff had not intended to build a railroad of any kind to said town or city of Wagoner, and had done nothing toward the construction of a railroad northerly from said Correta Station, except to make a preliminary survey aforesaid. That after the visit of the said committee aforesaid and the making of the proposition by said committee as aforesaid, the plaintiff immediately investigated the feasibility or otherwise of constructing a standard gauge steam railway from said Correta Station to the town or city of Wagoner, and thence northerly to the town of Afton, and the plaintiff after being advised by its engineers and officials that a line of railway could be constructed to Afton by way of Wagoner, but that the cost of constructing such a line to Afton by way of Wagoner would be greater than the cost of constructing the same kind of a line of railway from said Correta Station to Afton on the route surveyed by the plaintiff, which ran some distance east of the town or city of Wagoner aforesaid, but that taking into consideration the benefits to be derived by plaintiff from the carrying out and fulfillment of the proposition made by the citizens of Wagoner as aforesaid, the railroad could be built by way of Wagoner to
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