Morgan v. Chicago & Alton R.R. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 161
• Court: Missouri Supreme Court
• Parties: MORGAN v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

76 Mo. 161

MORGAN

v.THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Howard Circuit Court.--HON. G. H. BURCKHARTT, Judge.

JUDGMENT MODIFIED.

Smith & Krauthoff for appellant.

1. The statute does not prescribe the manner of service, and the rule is, that in such cases, there must be actual, personal service. Allen v. Manf'g Co., 72 Mo. 326; Carney v. Tulley, 74 Ill. 375; Railroad Co. v. Cauble, 85 Ill. 555; People v. R. R. Co., N. Y. Sup. Ct. 211. A corporation can only be notified in the way pointed out by statute. Cosgrove v. R. R. Co., 54 Mo. 499. There is no provision authorizing service on an agent. The notice must be given through the president or board of directors. No other notice will do. Lounsbury v. R. R. Co., 49 Iowa 255. Even if it were permissible to serve the notice on an agent, it must be an agent having authority in relation to the subject matter of the notice. Ang. & Ames on Corp., §§ 307, 308; Story on Agency, (8 Ed.) § 140; Hayward v. Ins. Co., 52 Mo. 191; Railroad Co. v. James, 22 Wis. 194; Congar v. R'y Co., 24 Wis. 157; Bank v. Payne, 25 Conn. 444; Blumenthal v. Bank, 60 N. Y. 278, 296; Platt v. Axle Co., 41 Conn. 255, 264. The service of notice was on the depot agent at Glasgow. It is not alleged that the scope of his authority embraced matters connected with the building of the road. The law does not recognize his authority in connection with such matters. A station agent's duties are to receive and deliver freight and to make contracts for the transportation of freight and passengers. 2 Redf. Railways, (5 Ed.) 136; Sewing Mach. Co. v. R'y Co., 70 Mo. 572. He cannot be presumed to have had any authority in relation to the construction of the road. McDermott v. R. R. Co., 73 Mo. 516; Tucker v. R. R. Co., 54 Mo. 177; Brown v. R. R. Co., 67 Mo. 122; Railroad Co. v. Green, 68 Mo. 169; Bank v. Hogan, 47 Mo. 472. Where the duties of a given agent are limited to a particular branch of the principal's business, notice to him does not affect his principal, in the absence of a statute which so provides. Brewster v. R. R. Co., 5 How. Pr. 183; Flynn v. R. R. Co., 6 How. Pr. 308; O'Brien v. Canal Co., 10 Cal. 343; Doty v. R. R. Co., 8 Abb. Pr. 427. That it would have been inconvenient to send the notice outside of Howard county, or even to the state of Illinois, is no answer to our position. If the statute is too harsh in its requirements, the legislature alone can modify its terms. It is a harsh provision and one of doubtful wisdom, under which it is possible that a railroad corporation may he held to pay twice and possibly three times for the construction of its road, and in no case should such payment be exacted unless the plaintiff brings himself fully and technically within the statute. Rafter v. Sullivan, 13 Abb. Pr. 263; Davis v. Schuler, 38 Mo. 26; City v. Brundage, 57 Ind. 265.

2. There is a defect of parties defendant. The petition discloses that the railroad sought so be charged with a lien, is an entirely different one from defendant's line. It would, indeed, be an anomaly if the railroad of the Kansas City, St. Louis & Chicago Railroad Company could be charged with a lien and sold under execution in a proceeding to which the Chicago & Alton Railroad Company alone was a party defendant. Philips Mech. Liens, § 399; Waldroff v. Scott, 46 Texas 1.

3. Again, under the act of March 22nd, 1873, (Acts 1873, p. 61,) before a sub-contractor can hold the owner liable for a debt due him by the principal contractor, he must serve notice of the fact of such indebtedness on such owner within twenty days after the performance of the work by him. No liability on the part of the owner to pay the claim of a sub-contractor arises in the absence of such notice, and it is hardly to be presumed that it was intended by the act of March 21st, 1873, to make the property of a corporation or person subject to the payment of a debt to pay which there is not first established a legal liability and duty. The two statutes should be construed as in pari materia. In order to constitute a personal liability, the owner is entitled to the twenty days' notice to enable him to protect himself by withholding from the principal contractor an amount sufficient to pay the sum named in the notice. After having thus created a liability on the part of the owner, the act of March 21st provides the sub-contractor with a means of enforcing his claim by charging it as a lien on the property of the owner, and protects him from loss by the insolvency of the owner.

4. It was erroneous to render a personal judgment Philips Mech. Liens, §§ 10, 212, 305, 307, 447, 449; Conkright v. Thomson, 1 E. D. Smith 661; Waldroff v. Scott, 46 Texas 1; Work v. Hall, 79 Ill. 196, 203.

Chas. A. Winslow for respondent

The statute is highly remedial and should receive a liberal construction. 63 Mo. 266; Putnam v. Ross, 46 Mo. 337; Oster v. Rabeneau, 46 Mo. 595. The defendant being a foreign corporation, without any chief office or agent in this State, service on its depot agent must be held sufficient; otherwise the execution of the statute meets with a serious obstacle at the outset. Plaintiff was reduced to the necessity of hunting up the chief officers in a foreign jurisdiction for the purpose of making the service, or of making it on such officers or agents as he could find within the jurisdiction. The whole policy of our legislation is against the idea that he was bound to make the service on the general officers in the foreign jurisdiction; and to so hold would render the execution of the law difficult and onerous. Notice given to the proper agent of a corporation is notice to the corporation. There is no other way to give it. Carr Spring Co. v. Rubber Co., 8 Blatch. 9. The statute designates no method of making the service. In such a case, as in all cases where a statute requires a thing to be done without pointing out the mode of doing it, any method which accomplishes the object with reasonable certainty should be held sufficient. The mode of service selected by the legislature for serving original processes, in cases like this, was followed in serving the copy of the account on the defendant in this case. The statute provides for obtaining personal service on a foreign corporation, “having an office or doing business in this State, by delivering a copy of the writ and petition to any officer or agent of such corporation or company, in charge of any office or place of business.” R. S., § 3486. In view of the above rule, and the similitude of this statute, it is submitted that the mode of service adopted was sufficient as personal service on the defendant, whether considered under the lien law alone, or in connection with section 3505. The station agent was a proper agent to receive the service, and, surely, no more practical or certain method of accomplishing the object of the statute could have been selected, because these agents usually owe their positions to the promptness and fidelity with which they discharge their duties and report the daily transactions of their offices to the proper headquarters. A writ served in the same way would have been promptly reported, and so, undoubtedly, was the copy of the account served on the agent in this case. The object of the notice is to enable the owner to keep back enough from the contractor to indemnify himself. De Witt v. Smith, 63 Mo. 263. The requirement of notice within twenty days is no part of the lien act, and was never intended to secure a lien, but to fix a personal liability. Groves v. R. R. Co., 57 Mo. 304.

RAY, J.

This was a proceeding to enforce the lien of a sub-contractor against a railroad company, under the act of March 21st, 1873, for work and labor performed in the construction of the road-bed mentioned in the petition. Laws 1873, p. 58. The suit was brought in the Howard circuit court in March, 1879. A demurrer was filed to the petition, which the court overruled, and the defendant declining to plead further, a personal judgment was rendered against the defendant for the amount of the lien claimed, as well as a judgment enforcing the statutory lien against the property of the railroad, in the hands of the defendant. The petition, demurrer and judgment thereon constitute the record in the cause. Of these it is sufficient to state such parts thereof as are material and necessary to present the points raised by the demurrer and the judgment, as urged and discussed in the briefs and arguments of counsel.

The petition charges that the defendant is a corporation, created under the laws of the state of Illinois, and is the owner and operating the Kansas City, St. Louis & Chicago Railroad, within the State of Missouri; that defendant, through its agents, employes and contractors, built and constructed the said Kansas City, St. Louis & Chicago Railroad through parts of Howard and Saline counties in this State; that plaintiff has a lien on said Kansas City, St. Louis & Chicago Railroad for work and labor performed, in the construction of its road-bed, by one J. Shanklin, under and in pursuance of a contract with said contractor of the defendant, for the construction of said road-bed aforesaid; that there was due and unpaid to said Shanklin on said work and labor, after deducting all just credits and payments, the sum of $213.97, and that said Shanklin, for value, sold and transferred to plaintiff said account for said work and labor, whereby plaintiff became sole owner of said demand; that within ninety days after the completion of said work and labor, plaintiff filed in the office of the circuit clerk of the county of Howard aforesaid, (a county through which said Kansas City, St. Louis & Chicago Railroad is located,) a just and true account of said claim and lien after allowing all just credits, etc.; and that within the said ninety days, plaintiff also served a copy of said account on the defendant, (the company owning, having...