Kitchen v. Cape Girardeau & State Line R.R. Co.

• Decision Date: 31 March 1875
• Citation: 59 Mo. 514
• Parties: SOLOMON G. KITCHEN, Respondent, v. THE CAPE GIRARDEAU AND STATE LINE RAILROAD CO., Appellant.
• Court: Missouri Supreme Court

59 Mo. 514

SOLOMON G. KITCHEN, Respondent,

v.THE CAPE GIRARDEAU AND STATE LINE RAILROAD CO., Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from Mississippi Circuit Court.

Fletcher & Reynolds, for Appellant.

I. The answer converted this case into an equitable proceeding, and it was error to give the case to a jury. (Weil vs. Kume, 49 Mo., 158; Freeman vs. Wilkerson, 50 Mo. 554.)

II. The burden was on the plaintiff to show the authority of the company to make the contract sued on. (Hesse vs. Mo. State Mut. Fire Ins. Co., 21 Mo., 91; Hardesty vs. Newby, 28 Mo., 567; Sone vs. Palmer, 28 Mo., 539; Angel Corp., 223, 234.)

Kitchen, Pope & McGinnis, with Louis Houck, for Respondent.

I. Where fraud is pleaded as a defense to an action at law for the recovery of money, and the answer does not show a state of facts entitling the defendant to equitable relief, then the question of fraud can be passed upon by a jury. (Swayze vs. Burke, 12 Pet. 11, 21; Sto. Eq. Jur., § 60.)

LEWIS, Judge, delivered the opinion on the court.

The petition stated in substance, that defendant, by a resolution of its board of directors, adopted May 23, 1870, employed plaintiff as its general agent, with an extensive range of powers and duties for the management of its external affairs; that his salary was to be $10,000 per annum, and the engagement was to continue at least six months, or until a contract made on the same day by defendant with the Cairo and Fulton Railroad Company, should be rescinded; that plaintiff entered immediately upon the discharge of his duties, and thenceforth was at all times willing, and held himself in readiness, to perform any services which might be required of him, as such agent, by defendant, for the said term of six months; that defendant had failed and refused to pay, etc., wherefore plaintiff demanded judgment for $5.000.

The answer, after general denials, set up for defense that the adoption of the resolution employing plaintiff, was without authority, and was procured by false and fraudulent representations; that plaintiff represented himself as an officer and large stock-holder in the Cairo and Fulton Railroad Co.; that he had great personal influence with capitalists in this country and in Europe, and with County Courts of certain counties; that as agent for defendant, he would procure a transfer from the Cairo and Fulton R. R. Co. of valuable franchises and property, including from 200,000 to 400,000 acres of land, and would obtain large county subscriptions to the capital stock of defendant, besides other great aids and advantages to defendant in building its railroad; that these representations were relied upon by defendant, and were the whole inducement to the adoption of the resolutions; but that they all proved to be false and fraudulent, so that defendant realized none of the promised benefits; that defendant, before ascertaining the falsity of said representations, paid to plaintiff, on account of said agency, the sum of $1,943.16, which defendant claimed a right to recover back with interest.

It was also alleged that plaintiff rendered no services under his pretended contract of agency, but abandoned the same wholly, and that defendant had rescinded the contract soon after its date, and discharged the plaintiff upon discovery of said frauds.

A reply was filed by plaintiff, putting in issue all the new matter contained in the answer. The verdict and judgment were in favor of the plaintiff, for the amount claimed less the payment proved by defendant.

When the case was called for trial the plaintiff demanded a jury, to which defendant objected, on the ground that its answer introducing an equitable defense, made it a chancery case which must be tried by the court. His objections were overruled, and a jury was sworn. There was no error in this ruling. The answer was not in the nature of a cross-bill, demanding equitable relief. The defense of fraud against a legal demand, raises an issue which is properly triable by a jury. (Swayze vs. Burke, 12 Pet., 11.) In the case of Freeman vs. Wilkerson, (50 Mo., 554) relied on by defendant, the answer set up a distinct claim to equitable relief.

The plaintiff's testimony tended to prove the allegations in the petition. At its close the defendant asked the court to instruct the jury that the plaintiff could not recover because he had omitted to prove that defendant was authorized by its charter to make the alleged contract. The refusal so to instruct is assigned for error.

In the absence of charter restrictions, the power of a corporation to make contracts is usually measured by the general objects and purposes of the incorporation. It is always presumed that a corporate body may make any proper contract whose scope and tendency are manifestly to forward the design of its legislative creation. It is often necessary, however, to prove the charter power, where the contract in issue is of a character foreign to such general design. In this case the answer sets out at length the purposes of defendant's incorporation, from which it appears that the agency under consideration was created, if at all, expressly to carry out or advance those purposes. It was therefore, right to refuse the instruction.

In the course of the trial many exceptions were saved by defendant, touching the admission or exclusion of testimony. We do not find any of them available for a showing of error. While the plaintiff was under cross-examination as a witness, defendant proposed to read to him his deposition previously taken; and to ask him whether all the statements contained therein were true at the same time disclaiming any intention thereby to impeach the credibility of the witness. The plaintiff's objections to this was properly sustained. The witness was present for examination upon all the facts within his knowledge. His previous narration of them could not modify their effect, and was wholly immaterial, unless upon a proper foundation it was employed to show some inconsistency, or otherwise to impeach the testimony in its credibility. Whether the deposition might have been used to...