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

• Decision Date: 31 May 1909
• Citation: 121 S.W. 15,222 Mo. 126
• Court: Missouri Supreme Court
• Parties: HAYDON et al. v. ST. LOUIS & S. F. R. CO.

121 S.W. 15

222 Mo. 126

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

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

Rehearing Denied July 1, 1909.

1. COURTS (§ 231) — SUPREME COURT — JURISDICTION — DEED TO REAL ESTATE — CANCELLATION.

A decree dismissing a suit to cancel a contract and deed to certain real estate is appealable to the Supreme Court as involving title to land.

2. TRIAL (§ 150) — DEMURRER TO EVIDENCE — GROUNDS.

Where a bill to set aside a contract and a deed to real estate contained a general offer to do equity, its failure to offer to put defendant in statu quo ante was no ground for demurrer to the introduction of any evidence in support thereof.

3. EQUITY (§ 423) — CONDITIONS OF RELIEF.

Where relief in equity is invoked, the court may require as a condition of its decree that complainant shall submit to equitable terms.

4. DEEDS (§ 144) — CONSTRUCTION — COVENANTS.

The court will construe clauses in deeds as covenants rather than conditions if they can reasonably do so; the question whether a clause is a condition or a covenant being one of intent, to be gathered from the whole instrument by following out the object and spirit of the deed or contract.

5. CANCELLATION OF INSTRUMENTS (§ 3) — COVENANT — NONPERFORMANCE.

Rescission of a deed is an equitable remedy which will be applied only in exceptional cases, where there is a failure of the entire consideration of the contract, or where there is such radical nonperformance of a mutual dependent covenant as amounts to abandonment of the contract, and releases the other party from any duty to further recognize its obligations.

6. CANCELLATION OF INSTRUMENTS (§ 15) — ADEQUATE REMEDY AT LAW.

A bill for rescission of a deed cannot be maintained where the ground of relief is a mere breach of contract for which plaintiff can obtain adequate compensation in an action at law.

7. CANCELLATION OF INSTRUMENTS (§ 14) — GROUND — BREACH BY DEFENDANT.

Complainant conveyed certain property on which defendant railroad company was wrongfully maintaining a switch, and by contract released their right to damages in consideration of payment of a specific sum, the contract containing further provision that defendant should not use the switch to stand cars on, but should keep it open and free from cars except when in actual use. Held, that the railroad's breach of such latter requirement was not a failure to perform the whole consideration, and that complainant could not maintain a suit to cancel the contract and deed therefor, but was limited to a suit for damages.

Appeal from Circuit Court, Greene County.

Action by Margaret C. Haydon and another against the St. Louis & San Francisco Railroad Company to cancel a contract and deed. A decree of dismissal was appealed to the St. Louis Court of Appeals, where it was affirmed (117 Mo. App. 76, 93 S. W. 833), and the case was certified to the Supreme Court on division by the Justices. Affirmed.

W. A. Gardner and Guy D. Kirby, for appellants. W. F. Evans and Woodruff & Mann, for respondent.

LAMM, P. J.

In 1902 plaintiffs sued in the Greene circuit court in equity for the cancellation of a certain contract and a deed made pursuant. Such contract and deed evidenced a compromise arrangement between plaintiffs and defendant whereby damages in tort, past, present, and prospective, were released. Accordingly, in addition to rescission, plaintiffs sought to recover, not only the damages compromised, but damages for a continuance of the wrong (the maintenance of a switch track and switching and standing cars thereon) down to the date of suit, laid at $3,000 actual and $1,000 punitive. When plaintiffs offered their first witness, defendant objected to any evidence, putting its objection on the ground the petition did not state facts sufficient to constitute a cause of action in equity and making five specifications under such general head; the divisions being immaterial. That objection was sustained, plaintiffs excepting. Suffering a nonsuit, and failing to get it set aside, plaintiffs appealed to the St. Louis Court of Appeals. There Judge Goode did not sit. The two sitting judges disagreed — Bland, P. J., holding the ruling right, Nortoni J., contra. Eventually such steps were taken that the Honorable B. Schnurmacher sat as special judge and wrote the opinion on a motion for rehearing, concurring with Bland, P. J. 117 Mo. App. 76, 93 S. W. 833. Thereupon, on the dissent of Nortoni, J., the cause was transferred to this court on the theory that the majority opinion was in conflict with Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S. W. 1007.

1. It seems our jurisdiction need not stand alone on the reason given by the St. Louis Court of Appeals. This because the bill had for one of its objects the cancellation of a deed to real estate. This being so, title to real estate is involved. Hence the cause belongs here on appeal. Balz v. Nelson, 171 Mo. 682, 72 S. W. 527; Thomas v. Scott, 214 Mo. 430, 113 S. W. 1093.

2. The only question being whether the bill states a cause of action, a resumé of its averments should precede the determination of the point. Attending to the bill, it alleges a contract between plaintiffs and defendant dated September 1, 1898 — setting it forth in full. That contract narrates the pendency of two certain suits. In one the present plaintiffs sued the city of Springfield and John F. Myers & Sons. In the other they sued the present defendant and said Myers & Sons. In the first plaintiffs obtained judgment for $100 damages and costs, and defendants took steps to appeal to the St. Louis Court of Appeals. The second was pending in the Webster circuit court on change of venue. The contract further narrates that all said litigation had arisen because of the location by defendant railway company and Myers & Sons of a railway switch in front of plaintiffs' property in Springfield, Mo. (describing it), and the subject-matter was the damages accruing and injunctive relief. The contract continues as follows: "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. Myers & Sons, agree to pay the plaintiffs the sum of six hundred dollars ($600.00) 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 $600.00 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." After setting forth the compromise contract, plaintiffs' bill avers full performance of all its terms on their part, and that defendant railway company paid plaintiffs the compromise sum of $600 and the costs incurred in the two suits mentioned in the contract, and then charges as follows: "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 13th day of September, 1899, execute and deliver to defendant a quitclaim 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 $600 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 defendant were not to be stood in front of said premises. Your petitioners therefore ask that the said sum of $600 be regarded as part...