Haydon v. St. Louis & S. F. R. Co.

• Decision Date: 14 November 1905
• Citation: 117 Mo. App. 76,93 S.W. 833
• Court: Missouri Court of Appeals
• Parties: HAYDON et al. v. ST. LOUIS & S. F. R. CO.

93 S.W. 833

117 Mo. App. 76

HAYDON et al. v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

November 14, 1905.

On Rehearing, February 27, 1906.

1. EQUITY—PETITION—REMEDY AT LAW.

A petition asking for equitable relief must affirmatively show by a statement of facts that plaintiff is entitled to the equitable relief prayed for, and that he has no adequate remedy at law, or that he has a choice of remedies.

2. SAME—DEFECTS — WAIVER — OBJECTION TO EVIDENCE.

Where a petition asks equitable relief and fails to state that plaintiff has no adequate remedy at law, or that he has a choice of remedies, advantage may be taken of the omission by the adverse party during the trial by objecting to the evidence.

3. CANCELLATION OF INSTRUMENTS — CONDITIONS PRECEDENT — RESTORING CONSIDERATION.

Restoration of the consideration received is not prerequisite to an action to cancel an agreement and for damages, if the petition offers to do equity by asking that all sums paid out by defendant under the contract be credited to defendant in the judgment.

4. SAME—PETITION.

Where certain actions were compromised, and, under the contract of compromise, defendant paid plaintiffs a certain sum and also the costs of the action, the petition of plaintiffs, in an action to set aside the contract of compromise, should have offered to do complete equity by asking that the costs paid, as well as the amount received by plaintiffs, be regarded as a part payment of plaintiffs' damages, or it should at least have put the chancellor in possession of all the facts within the knowledge of plaintiffs, so that the chancellor might do complete equity between the parties.

5. SAME.

In an action to cancel a contract, the failure of the petition to offer to do complete equity by praying that the amounts paid by defendant be regarded as part payment of plaintiffs' damages does not go to the sufficiency of the petition to state a cause of action.

6. COMPROMISE AND SETTLEMENT — SETTING ASIDE.

Equity will uphold compromise settlements when fairly entered into.

7. CONTRACTS — RESCISSION — GROUNDS — BREACH BY DEFENDANT.

Defendant agreed to pay, and did pay a certain sum of money to plaintiffs, in consideration of which plaintiffs released defendant from all claim for damages for the maintenance and operation of a switch in front of their property. There was no prior condition to fulfill, but there was a further provision that defendant should not be permitted to use said switch to stand cars thereon, but that the switch should be kept open and free from cars except when in actual use as aforesaid. Held, that the breach of the latter provision by defendant did not entitle plaintiffs to a cancellation of the contract.

Nortoni, J., dissenting.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Margaret C. Haydon and others against the St. Louis & San Francisco Railroad Company to cancel a contract and deed. From a judgment for defendant, plaintiffs appeal. Affirmed.

W. A. Gardner and Guy D. Kirby, for appellants. L. F. Parker and J. T. Woodruff, for respondent.

BLAND, C. J.

Omitting caption, the petition is as follows: "Your petitioners, for their third amended petition, respectfully represent unto this honorable court that on the first day of September, 1899, they entered into a contract with the St. Louis & San Francisco Railroad Company, a corporation organized under the laws of Missouri, in words and figures as follows: `Margaret C. Haydon and W. J. Haydon, Her Husband, Plaintiffs, v. The City of Springfield and John F. Meyer & Sons, Defendants. Margaret C. Haydon and W. J. Haydon, Her Husband, Plaintiffs, v. The St. Louis & San Francisco Railroad Company and John F. Meyer & Sons, Defendants. Whereas, in the first above-entitled cause plaintiffs, on December 3, 1898, obtained judgment against said defendants, the city and Meyer & Sons, in the circuit court of Greene county, Missouri, for the sum of $100 and costs, for damages as set forth in said judgment, and from said decision defendants therein took their appeal to the St. Louis Court of Appeals on or about December 23, 1898, the transcript not having yet been sent to said appellate court; and whereas, in said second entitled cause, plaintiffs instituted their suit against said St. Louis & San Francisco Railroad Company and said John F. Meyer & Sons' Milling Company in said circuit court of Greene county, Missouri, at the May term thereof, 1899, and said cause coming up for hearing on June 1, 1899, of said term, defendants filed application for change of venue therein and same granted to Webster county, Missouri, the transcript still in the office of circuit clerk of Greene county; and whereas, depositions have since been taken by plaintiffs in said cause pending upon change of venue to Webster county; and whereas, all the litigation in said cause has arisen on account of the location by defendant railroad company and Meyer & Sons of a railroad switch in front of plaintiffs' property in Springfield, Missouri, described as follows: Beginning on the north side of Phelps avenue and east side of Peach alley at a point where said alley and street intersect, thence north on east side of Peach alley sixty-eight (68) feet, thence east one hundred and eight (108) feet, thence south sixty-eight (68) feet, thence west on the north side of Phelps avenue to beginning; and also commencing twenty-three (23) feet east of east line of above-described real estate on north side of Phelps avenue, thence north sixty-eight (68) feet, east twenty-three (23) feet, south sixty-eight (68) feet, west twenty-three (23) feet to beginning—for damages accruing to said property and for injunction relief on account thereof: Now, as a fair and complete settlement of all questions connected therewith, and full payment for all damages, past, present, and prospective for the location and operation of said switch in front of plaintiffs' property, defendants, the railroad company and John F. Meyer & Sons, agree to pay the plaintiffs the sum of six hundred dollars ($600) as satisfaction in full for all damages aforesaid, and also to pay all costs and expenses attending said litigations and save said plaintiffs harmless on account thereof and free from all costs necessary to be incurred for the final dismissal and settlement of said suits, and on account of said $600 paid to plaintiffs, receipt of which is hereby acknowledged and payment of costs as aforesaid, said plaintiffs grant and convey to defendants full power and authority to use said switch freely in front of their said property for railroad and milling purposes, but with the distinct understanding that neither the milling company nor railroad company shall be permitted to use said switch in front of plaintiffs' property to stand cars thereon, but that the switch in front of their said property shall be kept open and free from cars except when in actual use as aforesaid. This stipulation, executed in duplicate, shall be a complete and full settlement of all questions connected and growing out of the establishment and operation of said switch as aforesaid. Given under our hands this first day of September, 1899. St. Louis & San Francisco Railroad Company, by J. T. Woodruff, Attorney. M. C. and W. J. Haydon, plaintiffs, by G. W. S. Rathbun, Attorney.' Your petitioners allege that they have performed all on their part required by the terms of the above contract. Your petitioners further represent that in pursuance of said agreement defendant paid to the plaintiffs the sum of six hundred dollars and the costs incurred in the above-mentioned litigation. Your petitioners further allege that by the agreement above mentioned the plaintiffs granted to the defendant railroad company the power and authority to use said switch in front of said property upon the express condition (without which said agreement would not have been made) that it would not use said switch to stand or store cars thereon, and that said switch was to be kept free and open from cars. But the plaintiffs allege that the defendant railroad company, wholly disregarding its obligations in this behalf, continued to stand and store its cars on said track in front of plaintiffs' said property. Your petitioners further allege that in pursuance of said agreement and as a part thereof, they did, about the time said above-mentioned agreement was made, to wit, on the thirteenth day of September, 1899, execute and deliver to defendant a quit-claim deed, granting them the right to maintain and use said switch track in front of said premises, but not granting the right to store or stand cars thereon in front of said premises. But the plaintiffs say that no other consideration was given to or received by the plaintiffs for said deed than that given for the above-mentioned agreement, and the plaintiffs say that no other rights were intended to be granted by said deed than those expressed by said above-mentioned contract, but that the rights and privileges granted by said deed were upon the same conditions as stated by said agreement; that is to say, that said company was not to stand its cars in front of said property. Your petitioners further state, to wit: About two years prior to the making of said agreement said railroad company had wrongfully and unlawfully built a switch and had been unlawfully standing its cars thereon, in front of said premises, and had thereby caused a depreciation of the rental of said property, and your petitioners had been damaged by the wrongful acts of defendant at the time of the making of the said agreement, to wit, in the sum of fifteen hundred dollars ($1,500), and that the payment by said railroad company of the said sum of six hundred dollars was on account of the damages your petitioners had suffered by the wrongful acts of said company prior to the making of said agreement, and was made with the distinct understanding that said cars of said...