Coffman v. Saline Valley Railroad Company

• Citation: 167 S.W. 1053,183 Mo.App. 622
• Parties: PATRICK H. COFFMAN et al., Respondents, v. SALINE VALLEY RAILROAD COMPANY, Appellant
• Decision Date: 02 June 1914
• Court: Missouri Court of Appeals

167 S.W. 1053

183 Mo.App. 622

PATRICK H. COFFMAN et al., Respondents, v. SALINE VALLEY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 2, 1914

Appeal from Cape Girardeau Circuit Court.--Hon. Charles B. Faris Judge.

AFFIRMED.

Judgment affirmed.

Giboney Houck, Lane & Alexander and Davis & Hardesty for appellant.

(1) The court erred in assuming that plaintiffs were conclusively shown to be either the real parties in interest or the trustees of an express trust, and also erred in excluding evidence to the contrary. Sec. 1729, R. S. Mo. 1909; Dickey v. Porter, 203 Mo. 1; Chrismann-Sawyer Banking Co. v. Independence Mfg. Co., 168 Mo. 650; Steward v. Price, 64 L.R.A. 581; Sinker v Floyd, 104 Ind. 291 (see note 64 L.R.A. 621); Bank v. Crump, 116 Mo.App. 376. (2) The court erred in permitting any recovery for damage to fences. There was no evidence that Pratte ever obtained any interest in the fence by contract. Nor did he acquire any interest in the fence under the fencing statute. Sec. 3145, R. S. Mo. 1909; Barnett v. Railroad, 68 Mo. 62; Cooley's Con. Lim. 578; Spealman v. Railroad, 71 Mo. 434; Humes v. Railroad, 82 Mo. 221; Phillips v. Railroad, 86 Mo. 540; Hines v. Railroad, 86 Mo. 629; Perkins v. Railroad, 103 Mo. 57; Briggs v. Railroad, 111 Mo. 172. Pratte could invoke the fencing statute only in the manner therein provided. Mangold v. Railroad, 116 Mo.App. 606. Pratte could not divest defendant of and invest himself with defendant's title while acting as defendant's agent. 31 Cyc. 1432-1433; 31 Cyc. 1444-1445; Witte v. Stone, 236 Mo. 470, 139 S.W. 384; Mechanic's Bank v. Schaumburg, 38 Mo. 228; Atlantic Cotton Mills v. Indian Orchard Mills, 17 N.E. 496; Mechem on Agency, sec. 721, 722; Story on Agency, sec. 210. The location, purpose and use of the fence showed clearly that it was a railroad right of way fence and therefore belonged to defendant even though on Pratte's land, it being there with his knowledge and consent. Laclede Gas Light Co. v. Gas Con. Ass'n, 127 Mo.App. 442; Sec. 3145, R. S. of Mo. 1909; 19 Cyc. 1046; Philbrick v. Ewing, 97 Mass. 133; Berliner v. Piqua C. Club, 32 Misc. 470, 66 N.Y.S. 791; McGarrick v. Dwyer, 78 Iowa 279; 5 L.R.A. 594; Thompson v. Smith, 111 Iowa 7181; 50 L.R.A. 780; Joplin Supply Co. v. West, 149 Mo.App. 78; Matson v. Calhoon, 44 Mo. 368; Gregg v. Railroad, 48 Mo.App. 498; Lowenberg v. Bernd, 47 Mo. 298; Hines v. Ament, 43 Mo. 298; Machin v. Calhoon, 44 Mo. 368. (3) The court applied an improper measure of damages as to the crops. The measure should have been the decrease of the rentals of the fields. It was Pratte's duty to use proper diligence to avert the effect of the injury. 8 Am. & Eng. Ency. of Law, 605-606; Haysler v. Owen, 61 Mo. 270; State ex rel. v. Powell, 44 Mo. 440; 8 Am. & Eng. Ency. of Law, 607. (4) Applying the settled legal meaning of the term "high-water mark," no breach of the contract by defendant was established. 4 Words and Phrases, p. 3290. (5) The court erred in admitting parol evidence to vary the written contract. Drug Co. v. Saunders, 70 Mo.App. 221; 1 Greenlief on Evidence (16 Ed.), p. 409; 17 Cyc. 684-688. (6) The court erred in permitting witness Scivally to fix the high-water mark on hearsay information. Greenlief on Evidence (16 Ed.), p. 182. (7) The court erred in excluding evidence as to the extraordinary character of the flood of 1910 being the proximate cause of the damage. 8 Am. & Eng. Ency. of Law, 571; 13 Cyc. 25-27. (8) The court erred in modifying defendant's instruction number 11. 13 Cyc. 25-27; 8 Am. & Eng. Ency. of Law, 571. (9) Failure to make or tender conveyance of the right of way precludes recovery by plaintiffs. Kreitz v. Eglehoff, 132 S.W. 1127; 231 Mo. 694; Iola Portland Cement Co. v. Ullman, 140 S.W. 626, 159 Mo.App. 235. (10) The agreement of the Saline Valley Railroad Co. to build its railroad above high-water mark was an executory contract between the company and B. S. Pratte; by the contract Pratte agreed to convey the right of way to the company; this was never done; the contract created only a personal covenant between the railroad company and Pratte, and did not create a covenant running with the land. Railroad v. Smith et al., 9 S.W. 865; Ascher Lumber Co. v. Cornett et al., 63 S.W. 974; Railroad v. Webster, 61 S.W. 1018; Buen v. Hubbell, 54 Mo.App. 624; Dickey v. Railroad, 122 Mo. 230, 231; Sutherland on Damages (3 Ed.), sec. 621; Langenberg v. Dry Goods Co., 74 Mo.App. 19. (11) If the railroad company, as alleged in plaintiffs' petition, breached the contract, by failure to build its track above high-water mark such breach extinguished the covenant between the railroad company and Pratte, and the covenant to build the track as agreed, was turned into a mere right of action, which could only be taken advantage of by the covenantee or his personal representative; and such right of action neither passes to the heir, devisee or subsequent purchaser. Buren v. Hubbell, 54 Mo.App. 625; Langenberg v. Dry Goods Co., 74 Mo.App. 19.

Thomas B. Whitledge and John V. Noell for respondents.

(1) There is but one cause of action against it now, as there was prior to the assignment, and the judgment in this case is a complete bar to any further suit by Pratte or his assignees involving the same subject-matter. Gordon v. Jefferson City, 111 Mo.App. 23, 28; Morrison v. De Donato, 76 Mo.App. 643; Petit v. Ins. Co., 69 Mo.App. 320; Savings Bank v. Tracey, 141 Mo. 252. (2) An assignment of a claim for collection is valid under the law. R. S. 1909, Secs. 1729 and 1730; West Plains Bk v. Edwards, 84 Mo.App. 462; Springfield v. Weaver, 137 Mo. 670; Young v. Hudson, 99 Mo. 102. (3) There is nothing in the contention of defendant's counsel that a cause of action for damages for a breach of contract, such as the contract offered in evidence in this case, is not assignable. Love v. Van Every, 18 Mo.App. 196; Smith v. Kennett, 18 Mo. 154; Snyder v. Railroad, 86 Mo. 613; Doering v. Kenemore, 86 Mo. 589; The Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261; Melton v. Smith, 65 Mo. 315; Goodyear v. Finn, 10 Mo. 226. (4) It is now generally held by the courts of this and other States that even a cause of action for damages for injury to or destruction of property, either real or personal, and which does not arise out of contract, is assignable. The distinction made by the courts is between those causes of action which survive and those which die with the person; the courts holding that the former are assignable, while the latter are not. Smith v. Kennett, 18 Mo. 154; Snyder v. Railroad, 86 Mo. 613; Doering v. Kennemore, 86 Mo. 589; Life Ins. Co. v. Smith, 117 Mo. 261, 290-291; Goodyear v. Finn, 10 Mo.App. 226. (5) Where damages are the natural but not the necessary consequence of a breach of contract it is necessary to set them forth in itemized form, in order to advise defendant of the subjects constituting plaintiff's claim of damages. Such damages are designated as special damages. Phillips on Code Pleading, secs. 425 and 427; Vanbuskirk v. Railroad, 131 Mo.App. 357; Mason v. Railroad, 75 Mo.App. 1; Brown v. Railroad, 99 Mo. 310. (6) The jury were correctly instructed in relation to injury or destruction of growing crops belonging to B. S. Pratte in instruction number 3 given for plaintiffs. The trial court in this instruction followed the rulings of this court in relation to damage and destruction of growing crops. Carter v. Railroad, 128 Mo.App. 57; Anderson v. Railroad, 129 Mo.App. 384; Buttles v. Railroad, 43 Mo.App. 280; Hunt v. Railroad, 126 Mo.App. 261. (7) The controlling rule as to damages resulting from a breach of contract is that one injured by such breach must be fully compensated for all losses sustained by him in consequence of such breach. Hammond v. Beeson, 112 Mo. 197; Railroad v. Wingerter, 124 Mo.App. 434; Carter v. Railroad, 128 Mo.App. 57; Rogan v. Railroad, 51 Mo.App. 675. (8) The cardinal rule in the interpretation of a contract is to arrive at and carry out the true meaning and intention of the parties. The Huse, etc., Ice & Trans. Co., 102 Mo. 245; Carter v. Arnold, 134 Mo. 195; Ellis v. Hamison, 104 Mo. 270; Davis & Rankin v. Hendrix et al., 59 Mo.App. 444; Donovan v. Boeck. 217 Mo. 70. (9) In case of uncertainty or ambiguity in the terms of a contract the court should take into consideration the circumstances surrounding the execution of the contract, the objects and purposes of the contract, and the acts and declarations of the parties made contemporaneously with the execution of the contract. Hence, the acts and declarations of Louis Houck representing the defendant and those of B. S. Pratte made and done immediately preceding the execution of the contract were admissible in evidence to explain the meaning of the term, "high-water mark" as used in the contract. Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25; Nordyke & Marmon Co. v. Kehlor, 155 Mo. 644; Inlow v. Bybee, 122 Mo.App. 475; Pietri v. Seguenot, 96 Mo.App. 259; Ellis v. Harrison, 104 Mo. 270; Davis & Rankin v. Hendrix et al., 59 Mo.App. 444. (10) The right to recover damages for breaches of the contract occurring while B. S. Pratte owned the land did not pass by his deed to plaintiffs, but remained his personal property until his assignment to plaintiffs of August 10, 1910. Turner v. Railroad, 130 Mo.App. 535; Lucas v. Railroad, 116 Mo. 114; Whitecotton v. Railroad, 104 Mo.App. 65. (11) The plaintiffs had a right to recover damages for injury to the land as well as for injury and damage to crops and fences, and instructions number 4 and number 5 given for plaintiff stated the correct rule of estimating such damages, namely, the difference in the market value of the injured land before and after the injury. Carter v. Railroad, 128 Mo.App. 61; Wiggins v....