Jasper County Electric Railway Co. v. Curtis
| Decision Date | 05 February 1900 |
| Parties | JASPER COUNTY ELECTRIC RAILWAY COMPANY v. CURTIS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Reversed and remanded (with directions.)
Thomas & Hackney for appellants.
(1) The agreement made by Fitch, on behalf of the company, with the defendants, to give the defendants a five cent rate to Carthage, was the inducement and consideration for the defendant's agreement to convey the right of way and the six-acre tract. It is competent for the defendants to show this agreement by parol. Aull Sav. Bank v. Aull, 80 Mo. 199; Hines v. Wilcox, 33 S.W. 914; Chambers v. Livermore, 15 Mich. 381; 2 Pomeroy's Eq. Jur sec. 860; 22 Am. and Eng. Ency. of Law, 939; Stoutenburgh v. Tompkins, 9 N.J.Eq. 332; Veth v. Gierth, 92 Mo. 104; Hill v. Rich Hill Ming. Co., 119 Mo. 28; Quinn v. Roath, 37 Conn. 16. (2) The refusal of the Electric Railroad Company to give the defendants a five cent rate, rendered the representation made by Fitch untrue, and it would be inequitable to compel the defendants to part with their property, under contracts made on the faith of this representation. Isaacs v. Skrainke, 95 Mo. 517; 2 Pomeroy's Eq. Jur., sec. 860. (3) The provision in the contract for the right of way, requiring the right of way to be at least twenty-five feet north of the old house, was undoubtedly put in for the purpose of leaving room for passage between the right of way and the house. This was a provision that the defendants had the right to make, and ought to be respected by the courts.
McReynolds & Halliburton for respondent.
(1) The contracts are binding on defendants. The plaintiff having performed the conditions of the contracts they will be enforced against the defendants. Ivory v. Murphy, 36 Mo. 534; Luckett v. Williamson, 34 Mo. 395; Andrews v. Scott, 94 Mo. 637; Dougherty v Hard, 91 Mo. 161; Sifton v. Hargar, 71 Mo. 610; West v. Bundy, 78 Mo. 407; Mastin v Grimes, 88 Mo. 478; Johnston v. Tripp, 33 F. 530; Butler v. Thompson, 92 U.S. 412. (2) The distance of the road from the houses is in compliance with the contract, the language being: "That the said line will be constructed so as to pass not less than 25 feet to the north of the old house and not less than 50 feet north of the new house." It is the road bed that is constructed and not the right of way, and the language should be construed in its natural and ordinary sense. Goode v. St. Louis, 113 Mo. 257; Ellis v. Harrison, 104 Mo. 270; Johnson Co. v. Wood, 84 Mo. 489; Ellerbe v. Barney, 119 Mo. 632. (a) And if there was any doubt about it, the acts of defendants would fix it in favor of plaintiff. The line was changed at the request of Curtis and he and his wife were there during the time of the construction, he helping in the work and also as agent for his wife and neither raised an objection to the present location. Dentman v. Kilpatrick, 46 Mo.App. 624; Moser v. Lawrence, 38 Mo.App. 85; Ridge v. Transfer Co., 56 Mo.App. 133. (b) And defendants having stood by and seen the plaintiff construct the road on its present location are estopped from saying that it is not located as agreed. Leete v. Hart, 115 Mo. 203; Spurlock v. Sproute, 72 Mo. 503; Deberry v. Wheeler, 128 Mo. 84. (3) This being a suit upon written contracts and it appearing that defendants fully understood their contents and no fraud or deceit practiced in obtaining them, they contain the whole contract, and defendants will not be permitted to show that there were other considerations for the signing than expressed in the contracts, and can not rely on an oral promise. Wood Mc'h Co. v. Bobbst, 56 Mo.App. 427; State ex rel. v. Hoshaw, 98 Mo. 358; Robinson v. Jarvis, 25 Mo.App. 421; Tracey v. Union Iron Works, 29 Mo.App. 342; Jas. T. Hair Co. v. Walmsey, 32 Mo.App. 115; Reed v. Nicholson, 37 Mo.App. 646; Conrad v. Fisher, 37 Mo.App. 352; Blakely v. Benecke, 59 Mo. 195.
This is a proceeding in equity to compel the defendants to specifically perform a contract to convey to plaintiff a right of way over the property of the defendants.
Prior to December 14th, 1894, the plaintiff was projecting an electric railroad from Carthage to Carterville or Webb City, and was seeking a right-of-way over private property therefor. The defendants, H. C. Curtis and Eva E. Curtis his wife, owned as tenants in common, each an undivided half of certain land in section number twelve, township twenty-eight, range thirty-two, in Jasper county. On said date they executed an agreement, in writing, binding themselves, in consideration of the sum of one dollar and the construction by plaintiff of an electric railroad over their lands, to convey to plaintiff a right-of-way fifty feet wide, "being twenty-five feet wide on either side of center line of said electric railroad," over the defendants' land; "provided, however, that the said line will be constructed not less than twenty-five feet to the north of what is termed the old house, and not less than fifty nor more than two hundred feet north of the new house, located near the south line of the northwest quarter of the northeast quarter of said section," and also provided that the plaintiff should construct necessary crossings and cattle guards.
The petition alleges, The prayer is for specific performance.
The answer is a general denial, and two principal specific defenses, to-wit, first, that contrary to the agreement the road was built less than twenty-five feet north of the old house and less than fifty feet north of the new house, and, second, that the contract was procured by plaintiff from them by fraudulent representations, in this, "that if defendants would execute said contract, said railroad company would make and give defendants a rate of five cents from their dwelling house to the city of Carthage and a rate of five cents to return;" and that the plaintiff agreed to give defendants said rate as an inducement and consideration for making the agreement; and, further, that the plaintiff represented to defendants at and before the signing of the agreement that by the terms of its franchise it could not, and would not if it could, charge them a rate to exceed five cents from their house to Carthage and the same amount to return, and that defendants were induced by such representations not to insist upon such rate being embodied in the agreement. The answer then alleges a breach of the agreement, and that the plaintiff has persisted in charging a fare of ten cents each way. There is also an allegation that the plaintiff has not constructed the necessary crossings and cattle guards. The prayer of the answer is that the contract be declared void and that it be canceled.
The reply is a general denial and a special plea that the road was constructed as it is by the consent and agreement and at the request of the defendants; that the south line of the track is thirty-five feet north of the old house and the south line of the right-of-way is fifteen feet north of the old house.
On the 31st of December, 1894, defendants executed to plaintiff an agreement to give plaintiff a bonus of six acres of their said land in consideration of plaintiff constructing the electric railroad aforesaid as specified in the right-of-way contract of December 14th above referred to. The plaintiff assigned the bonus contract to Isaac Perkins, one of its directors, and he instituted a proceeding in equity to compel defendants to specifically perform that contract. The issues in that case are substantially the same as in this case. The facts will sufficiently appear in the opinion. The circuit court entered a decree for plaintiff in each case, divesting the title out of defendants and vesting it in plaintiff for a right-of-way, and in Perkins absolutely as to the six acres, and defendants appealed.
It is contended, first, that the centre of the track as laid is thirty-nine feet and four inches north of the old house, and that this is a compliance with the terms of the agreement; that the agreement refers to the location of the track and not to the location of the right-of-way because the contract provides "that the said line shall be constructed," meaning the track which was to be constructed and not the right-of-way which was not constructed; that if this is not so, then, second, the right of way was to be fifty feet wide, that is twenty-five feet wide on each side of the centre of the track, and that deducting the twenty-five feet from the thirty-nine feet and four inches it leaves the south line of the right-of-way fourteen feet and four inches north of the old house, and that it was so constructed at the request and by the consent and agreement of the defendants.
It is perfectly plain that the first contention is untenable. The contract is to convey a right-of-way fifty feet wide "being twenty-five feet wide on either side of centre line of said electric railroad .... provided, however, that the said line will be constructed so as to pass not less than twenty-five feet north of what is termed the old house and not less than fifty nor more than two hundred feet north of the new house." The line to be constructed...
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