Lane v. Pacific & Idaho Northern Co.

• Decision Date: 22 January 1902
• Citation: 67 P. 656,8 Idaho 230
• Parties: LANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY
• Court: Idaho Supreme Court

67 P. 656

8 Idaho 230

LANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY

Supreme Court of Idaho

January 22, 1902

CONTRACT-SPECIFIC PERFORMANCE-RAILWAY COMPANY-BUILDING SWITCH.-Where a contract under which a railway company enters and obtains a right of way provides that it shall place its fences at the edge of the pit ground, on both sides of its track, and that it shall construct a switch or sidetrack on the land granted for the right of way, specific performance will be decreed, and cannot be defeated on the ground that it is impracticable to compel specific performance.

CONTRACT-IMPLIED PROMISE-ACCEPTANCE-ESTOPPEL.-Where a party to contract accepts it, acts under it, and obtains all of the benefits that were intended to be granted by it, he is estopped from objecting to the same on the ground that he did not sign it, as the law implies a promise on his part to perform the conditions of such contract from his act of accepting it.

IMPLICATION FROM PROMISE TO DO A THING.-Where a party agrees to do a certain thing, and does not specify how it shall be done, the law implies a promise on his part to do it in the usual manner, and that it shall be complete and effectual for the use to which the same kind of thing is generally applied.

ALTERATION OF CONTRACT-EFFECT ON INNOCENT PARTY.-The alteration of a contract by adding words thereto without the knowledge or consent of the obligor, after its delivery, while ground for rescission at the option of the obligor, does not affect its rights, and he may have the contract enforced as originally made by him.

(Syllabus by the court.)

APPEAL from District Court, Washington County.

Reversed and remanded, with instructions. Costs of appeal awarded to the appellants.

Frank Harris and Lot L. Feltham, for Appellants.

This is an action to compel specific performance of a contract for right of way for a railroad. The defendant could not challenge the validity of the instrument upon which this suit was brought as it had received in full all the benefits specified thereunder. "A party is estopped from denying the validity of an instrument by virtue of which alone he has obtained possession of property, which he still holds." (Biglow on Estoppel, 684, 685; Denison v. Willcut (Idaho), 35 P. 699.) A railway must make compensation for right of way across possessory claims. (Spokane Falls etc. Ry. Co. v. Zeigler, 167 U.S. 65, 17 S.Ct 728.) A complaint is not demurrable on the score of want of facts, if upon the facts stated the plaintiff is entitled to any relief, either at law or in equity. (Grain v Aldrich, 38 Cal. 514, 99 Am. Dec. 423; White v Lyons, 42 Cal. 279; Hulsman v. Todd, 96 Cal. 228, 31 P. 40.) To take a contract for the sale of lands out of the statute of frauds a mere note or memorandum in writing, subscribed by the vendor or his agent, containing the names of the parties and a summary statement of the terms of the sale, either expressly or by reference to something else, is all that is required. (Idaho Rev. Stats., sec. 6009; Joseph v. Holt, 37 Cal. 254; Ide v. Leister, 10 Mont. 5, 24 Am. St. Rep. 17, 24 P. 695.) "An executory contract for the sale of real estate is valid and binding, and can be enforced by the vendee if signed by the vendor alone." (Cavanaugh v. Casselman, 88 Cal. 543, 26 P. 517.) And the rule is not changed even though the vendor be a married woman, for she may enforce a contract for the sale of real estate. (Banbury v. Arnold, 91 Cal. 606, 27 P. 936.)

J. H. Richards, for Respondent.

To entitle appellants to a specific performance of said contract, there must be such certainty in the allegations as to time when the contract is to be performed, the manner in which the same is to be performed, the extent to which the contract is to be performed, and the certainty as to what is to be done under the contract, as to enable a court to render a decree possible to be performed without making a new contract for the parties. (Agard v. Valencia, 39 Cal. 292, 302; Gates v. Gamble, 53 Mich. 181, 18 N.W. 631; South Wales Ry. Co. v. Wythes, 5 De Gex, M. & G. 880; Minturn v. Baylis, 33 Cal. 129; Magee v. McManus, 70 Cal. 553, 12 P. 451.) Respondent contends that a contract may be declared in haec verba or according to its legal effect. When declared in haec verba the instrument incorporated in the complaint must show, upon its face, in direct terms and not by implication, all the facts which the pleader would have to allege had he elected to set it forth by averment. (More v. Elmore Co. Irr. Co., 3 Idaho 729, 35 P. 171; New Orleans v. New Orleans etc. R. Co., 44 La. Ann. 64, 10 So. 401; Shenandoah Valley R. Co. v. Lewis, 76 Va. 833; Colson v. Thompson, 2 Wheat. 336; 1 Story's Equity Jurisprudence, secs. 764, 767; Fry on Specific Performance, sec. 229.) Equity will not ordinarily enforce specific performance of a covenant by a grantee to build on the premises conveyed, since damages at law for breach of the covenant are generally an adequate remedy, and the court has no power to compel performance of such condition. ( Madison v. Brittin, 60 N. J. Eq. 160, 46 A. 652; Haisten v. Savannah etc. R. Co., 51 Ga. 199; Eaton v. Lexington etc. R. Co. , 22 Ky. App. 1133, 59 S.W. 864; Goding v. Bangor, 94 Me. 542, 48 A. 114.) The rule is almost universal that a covenant to build may not be enforced specifically, for the execution of such contract would be impracticable, if not impossible, for a court to supervise, whereas the remedy of damages would afford full redress, and this is especially true of covenants to construct or repair railways. (Oregonian R. Co. v. Oregon R. etc. Co., 11 Saw. 33, 28 F. 346; Port Clinton R. Co. v. Cleveland etc. R. Co., 13 Ohio St. 544; Fallon v. Railroad Co., 1 Dill. (U. S.) 121, F. Cas. No. 4629; Ross v. Union P. R. Co., 1 Woolw. 26, F. Cas. No. 12,080; Railway Co. v. Rust, 17 F. 275, 282; Center v. Davis, 48 Cal. 453; Sumers v. Bean, 13 Gratt. (Va.) 404; Angus v. Robinson, 32 Vt. 60; 20 Ency. of Pl. & Pr. 438; Jacobs v. Peterborough etc. R. Co., 8 Cush. 223.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

This action was commenced in the court below to obtain a decree for the specific performance of those covenants in the contract hereinafter set forth, relating to the construction of a siding, and the place where the fence of the defendant corporation shall be erected upon its line of way. Said contract is set forth, in effect, in the complaint, and attached to said complaint as a part thereof, and is in words and figures as follows, to wit:

"May 11, 1899.

"This agreement, made and entered into by and between J. W. Lane and Victoria Lane, his wife, of Weiser river, Washington county, Idaho the parties of the first part, and the Pacific and Idaho Northern Railway Company, a corporation of Idaho the party of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of three hundred and seventy-five dollars, the receipt whereof is hereby acknowledged, do hereby agree to sell and quitclaim, and do hereby sell and quitclaim, forever, all our right, title, and interest to second party herein in a strip or piece of land one hundred feet wide, and being fifty feet wide on each side of the center line of the survey now made and staked through all of our land (being unsurveyed government land) lying and being on the Weiser river, and being part of the premises on which we now live, and upon which we have lived for the last eight years, and hereby give said second party, its agents and employees the right to enter upon said land at any time for the purpose of building, constructing, and operating its said railway upon, through, and across said premises where said survey is now made. Said second party further agrees to make for first parties an underground crossing fourteen feet wide, and as high as the grade of said road will permit. Said culvert or crossing is to be made where first parties desire, at or near where first parties cross the Weiser river with wagons buggies, etc., and near their present dwelling-house, and on bank of said river. Said second party further agrees to put up, build, and construct for first parties another underground crossing eight feet wide, and as high as the grade of the road will permit, at another place upon said ranch where first parties may desire. Also to put in a wooden culvert or box at least three feet square at any place where the first parties may desire, under and across the berm of said road, for first parties' hogs to cross under and through to the river and back to the pasture. Also, second party agrees to build a switch or sidetrack on said ranch at or near the dwelling of said first parties, and agree to build sufficient sized wooden flumes under their said track to carry the water used for irrigation purposes at and where all laterals cross second party's right of way on said ranch. First party is to have the right to farm and use any and all of said second party's right of way not fenced and actually in use by second party, and second party is to build its fence on the edge of the pit ground through said ranch, and, in fencing, to fence no more of said right of way than is absolutely necessary to protect its road and the banks and fills made in constructing same; and first parties are to have the use of all of the lands of second party not so fenced, for his crops, etc., free of charge, until such times as it is necessary for second party to fence and use same. The agreements and stipulations herein are to be no way construed as to give second party any rights, claims, or possession of any irrigation ditches or ditches northerly or outside of any inclosure; and if any ditch or ditches, flumes or laterals, are crossed or in...