Hanna v. South St. Joseph Land Company
| Decision Date | 22 December 1894 |
| Citation | 28 S.W. 652,126 Mo. 1 |
| Parties | Hanna, Appellant, v. South St. Joseph Land Company |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- S. P. Huston, Esq., Special Judge.
Affirmed.
""Spencer & Mosman, B. R. Vineyard and ""Jas. F. Pitt for appellants.
(1) The words "to transfer its works" used in the contract of purchase have been defined by this court, and held to mean that the land company was bound by them to cause the buildings and machinery of the Omaha plant to be removed from Omaha and to be set up in place in St. Joseph. This meaning is quite apparent when we reflect that distance does not affect it. ""South St. Joseph Land Co. v. Pitt, 114 Mo. 135. (2) It will hardly be contended that the works in St. Joseph are the Omaha works in any sense. The mill there was an iron nail mill, and that in St. Joseph a steel nail mill, one that required in its equipment essentially different machinery and appliances, and which was built to produce an entirely different product. This being true there can be no claim of substantial performance. Where there is a "willful or intentional departure" from the contract, as in this case, an avowed substitution of one thing for another, there can be no such thing as substantial performance. ""Philip v. Gallant, 62 N.Y. 264. (3) The departures from the Omaha works being shown, the court erred in excluding the circular, the contract of the land company with the nail company, and the admissions of Mr Walker to the effect that they could have "opened up on the small scale first proposed but wanted something bigger," and had enlarged their plans so as to increase their expenditures more than $ 60,000. (4) From the course of their cross-examinations as well also as from the testimony introduced by defendant's counsel, it is manifest that the theory of the defense is that they gave to the plaintiffs not what they wanted or contracted for, but something which in their judgment, is vastly superior in every respect. But this they can not do. ""Halpin v. Manny, 33 Mo.App 388; ""Bixby v. Wilkinson, 25 Minn. 481; ""Fauble v. Davis, 48 Iowa 466. (5) Sustantial performance, it is true, is all that is required to satisfy any such agreement, and it may also be conceded that in the adjudication of controversies growing out of building contracts slight differences in the dimensions between the buildings constructed and the terms of the contract may, under many circumstances, be overcome by a reasonable application of that rule, but the differences in the case before the court are far too great to fall within that principle, as the effect would be to make a new contract and substitute it in the place of the stipulation executed by the parties. ""Swain v. Seamens, 9 Wall. 262.
""Hall & Woodson, T. J. Porter and ""M. A. Reed for respondents.
(1) The land company was not required to cause the removal of the exact buildings. ""South St. Joseph Land Co. v. Pitt, 114 Mo. 139. (2) The court did not err in excluding the circular, the contract of the land company with the nail mill company and certain admissions of Mr. Walker. (2) It is a familiar principle of law that all prior and contemporaneous conversations between parties are merged in a subsequently executed written contract, which shows on its face that it is a contract complete in itself. The land contract, therefore, which was afterward entered into between these parties, is the only evidence of that contract. This, where no fraud is alleged (and none is here alleged) is the well established rule of this court. ""James v. Clough, 25 Mo. 151; ""Morgan v. Potter, 103 Mo. 135; ""State ex rel. v. Hoshaw, 98 Mo. 358; ""Woodson ex rel. v. Ritchie, 36 Mo.App. 506; ""Tracy v. Iron Works, 104 Mo. 193; ""Christman v. Hodges, 75 Mo. 413; ""Pearson v. Carson, 69 Mo. 55; ""Reed v. Golden, 26 Kan. 502; ""Miller v. Howell, 1 Scam. 498. (3) The offer was to show that the agent made the representations contained in the circular, and yet every one of those representations as set out in the petition was promissory in character, about something ""in futuro, something that would be done. Such representations afford no ground in equity for the rescission of a contract. ""Voorhis v. Iron Works, 11 Mo.App. 112; ""Sawyer v. Pickett, 19 Wall. 146; ""Banque v. Brown, 34 F. 192. (4) The whole evidence in the case shows that the St. Joseph nail mill plant, as erected by the nail mill company, complied substantially and even fully with their contract stipulations. In number of buildings, in size, in capacity, in equipment and efficiency, no fault has been shown in the plant. No deficiencies in these respects are now charged in counsels' brief. They only complain of merits. We can justly claim, not only a substantial compliance with our contract, but a full compliance. ""Mfg. Co. v. Mitchell, 38 Mo.App. 322; ""Weintz v. Hafner, 78 Ill. 22.
Plaintiffs brought the present suit to cancel certain notes executed by them to the land company, as well as a deed of trust given to secure the notes.
The land company, defendant, answered; and by way of counterclaim, set up facts upon which foreclosure of the deed of trust was asked, as also a judgment against plaintiffs for the amount of the debt and interest represented by the notes, etc.
The reply denied the new matter.
It will not be needful to go into the pleadings more fully. They are quite elaborate; but, as will soon be seen, the real controversy lies within narrow limits.
The litigation grows out of a transaction similar to that considered in South St. Joseph Land Co. v. Pitt (1893), 114 Mo. 135, 21 S.W. 449. In that case, a purchaser of a lot was defendant at the suit of the company for the purchase money; in this, the plaintiffs are seeking to be reimbursed what they paid on a like contract of sale, and to obtain cancellation of the notes and deed of trust, which formed important parts of the transaction.
In the case at bar the trial court dismissed the plaintiffs' petition, and then proceeded to render judgment on the notes, and for a foreclosure of the deed of trust, as prayed in the answer.
The plaintiffs then appealed in proper form.
The contracts of purchase in this, and in the former appeal (reported in the 114th Missouri Reports) are substantially the same.
The following is a sufficient sketch of the material features of the controversy:
In the summer of 1888, the South St. Joseph Land Company owned a body of real estate in the southern portion of the city of St. Joseph. The Union Steel Nail Company owned a plant in Omaha, Nebraska, for making iron nails. It was then idle, having been closed for about a year. It was intact, however, and substantially in the same condition as when operation ceased. This plant occupied a block, between Sixteenth and Seventeenth streets in Omaha, next north of the Union Pacific Railway tracks. The main building on the south side of the ground (including sheds, and attachments of that character, all practically under one roof) covered a space of about one hundred by one hundred and seventy feet. Apart from this building were five separate buildings -- an office, coopershop, blacksmithshop, patternshop and barn. These were frame buildings, with shingle roofs. The main building was a wooden affair, covered with sheet iron.
All of these structures were one story in height.
The machinery of the plant was in the main building, and the heavy portion of it (nail machines, roll-trains, engines and boilers) rested upon massive foundations of stone masonry, six to eight feet in depth.
A battery of four boilers stood south of the center of the building.
In the east end were the trains of rolls, with their engines and two pairs of "alligator shears."
To the northwest of the boilers, were the nail machines, thirty-two in number, their engines, and a complement of grindstones.
In the south part of the main building were the three heating furnaces, and, in the northwest corner, what was called a machineshop, with a small engine. In the west part was a packing and wareroom.
The plant as it stood at Omaha was outwardly represented by six buildings. It was equipped for making iron nails, and had a capacity of three hundred kegs a day.
Mr. Haven and Mr. Walker appear to have been the real owners of the property at the time mentioned.
They desired to abandon that location, and addressed the South St. Joseph Land Company, or at all events, the two came together, and the land company was induced to offer its lands to the citizens of St. Joseph at such prices per lot as would enable it to donate four blocks of the ground as a site, and pay to Messrs. Haven and Walker (under the name of the "Union Steel Nail Company, of Omaha, Nebraska,") $ 50,000 in cash, if the latter would transfer their works from Omaha to St. Joseph.
This proposition to remove was formulated by the land company; and its agents were furnished with blank contracts, such as the one signed by the plaintiffs in this case. These agents pressed the sale of the lots with the Omaha works attached (that is to say, the sales were not to be good unless those works were on the site proposed) during July and August, 1888; and by the latter part of August succeeded in inducing enough citizens to sign contracts to make it profitable for the land company to take the next step, which was to enter into contract, September 4, 1888, with the nail company to convey four blocks of land and pay it $ 50,000 to locate its works thereon.
This contract was carried out.
The nail company entirely discontinued operations at Omaha. It removed everything, considered worth transportation, to the new mill...
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