Muehlbach v. The Missouri and Kansas Interurban Railway Company
| Decision Date | 19 June 1912 |
| Citation | 148 S.W. 453,166 Mo.App. 305 |
| Parties | MARGARET M. MUEHLBACH et al., Respondents, v. THE MISSOURI AND KANSAS INTERURBAN RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Bowersock Hook & Hall for appellant.
The instrument on which the suit is based never became a contract binding on the defendant, for the reason that it was never signed by both parties of the second part or delivered as a contract. Brown v. Rice, 29 Mo. 322; Gann v Railroad, 65 Mo.App. 670; Green v. Cole, 103 Mo. 70; McCauley v. Schatzley, 88 N.E. 972; Barber v. Burrows, 51 Cal. 404; 51 Cal. 473; Fish v. Johnson, 16 La. Ann. 29; Wilcox v Saunders, 4 Neb. 569; Crittenden v. Armour, 45 N.W. (Iowa); 888; McDaniel v. Anderson, 19 S.C. 211; Arnold v. Scharbauer, 116 F. 492; National Bank v. Hall, 101 U.S. 43; Gay v. Murphy, 134 Mo. 98; Page on Contracts, secs. 577-579; 9 Cyc. 302. The monthly payments provided for in said instrument were a penalty. Menger v. Piano Co., 96 Mo.App. 283; Railroad v. Stone, Co., 90 Mo.App. 171; Tinkhorn v. Satori, 44 Mo.App. 659. Evidence of the rental value of the land was admissible to show that such payments were so intended. It is improper to enter two final judgments in a case. R. S. 1909, secs. 2090, 2097; Russell v. Railroad, 154 Mo. 428; Cramer v. Barmon, 193 Mo. 327; Boothe v. Loy, 83 Mo.App. 601; Mann v. Doerr, 222 Mo. 1; Beshears v. Banking Assn., 73 Mo.App. 293. The case should have been disposed of as a suit in equity and not at law.
Seebree, Conrad & Wendorff for respondents.
(1) The instrument on which this suit is based is binding on the defendant. (a) Strang was a nominal party. Hall v. Hall, 107 Mo. 110; Hillman v. Allen, 145 Mo. 638; Condit v. Maxwell, 142 Mo. 266; Crawley v. Crafton, 193 Mo. 421; Brandon v. Carter, 119 Mo. 573. (b) The contract became binding on the appellant because it was signed by the Muehlebachs and the appellant, delivered and acted on by them. State v. Moore, 46 Mo. 377; Mfg. Co. v. Repass, 75 Mo.App. 420; Gay v. Murphy, 134 Mo. 98; Mattoon v. Barnes, 112 Mass. 463; Dillon v. Anderson, 43 N.Y. 231; Naylor v. Stene, 104 N.W. 685; Edwards v. Gildemeister, 61 Kan. 141; Dairy Co. v. Dairy Co., 70 S.W. 390; Pub. Co. v. Walker, 87 Mo.App. 503. (2) If the contract is valid upon the parties having signed it, is the defendant entitled to any relief on the ground that the rent therein provided for is a penalty? Page on Contracts, sec. 1167; 30 Cyc. 1135; State ex rel. v. Walbridge, 119 Mo. 383; Walker v. Engler, 30 Mo. 130; Hoster v. Lange, 80 Mo.App. 238; Pinson v. Campbell, 124 Mo.App. 263; Jones v. Anderson, 82 Ala. 302; Commissioners v. South Bend, 118 Ind. 68; Dewey v. School District, 43 Mich. 480; Trustees v. Bennett, 27 N. J. L. 513; Stonam v. Waldo, 17 Mo. 489; Brayan v. Spurgin, 5 Snead (Tenn.) 681; Jennings v. Lyons, 39 Wis. 553; Roseberry v. Association, 142 Mo.App. 552. (3) The court did not err in entering two final judgments. Mills v. Paul, 30 S.W. 242. (4) The court did not treat the trial of these cases as a suit at law.
This suit, commenced in the circuit court of Jackson county, November 27, 1909, is for the recovery of the agreed compensation plaintiffs claim defendant was to pay them for the use of their land for a right of way of a railroad owned and operated by defendant. On December 7, 1909, plaintiffs instituted another suit against defendant in the same court on a promissory note of $ 1460 dated January 9, 1908, due eighteen months after date and bearing interest at six per cent per annum from January 1, 1909. It appears from the petition in both cases as well as from the answers filed by defendant that both actions grew out of and depend upon the validity of a certain contract the parties entered into January 9, 1908. Defendant claims this contract is void and prays for the cancellation of both note and contract. On motion of defendant the two actions were consolidated and tried together in the circuit court without a jury. After hearing the evidence the court rendered judgment for plaintiffs in each case in accordance with the prayers of the respective petitions and defendant appealed from each judgment. This opinion deals with the first mentioned action which for convenience we shall call the action for rent, but as the two cases are so closely related what we shall say will dispose of the questions at issue in the suit on the note.
Defendant is a Kansas corporation operating an electric railroad in that state from a point on the line between Missouri and Kansas known as Thirty-ninth street and State Line to Olathe, Kansas. This point at the times of the events in controversy was the western terminus of the "Roanoke line" of the street railway system of Kansas City operated by the Metropolitan Street Railway Company. Defendant has a traffic agreement with the Metropolitan Company that enables it to operate its cars over the tracks of that company to the central portion of Kansas City. Defendant's road was constructed in 1905, and beginning at its junction with the road of the Metropolitan Company at Thirty-ninth street and State Line took a southwesterly course over a tract of land owned by George Muehlebach which contains about twenty-eight acres, is in Kansas immediately west of the State line, and lies between a prolongation of Thirty-ninth street on the north and Forty-first street on the south. We shall refer to this land hereafter as "tract A." Crossing Forty-first street the road continues on a tangent over a smaller tract owned by Muehlebach which we shall call "tract B." Muehlebach died December 22, 1905, and plaintiffs, with the exception of William Buchholz are his heirs and as such are the owners of the land described. All are of legal age except Carl who is a minor and plaintiff Margaret M. Muehlebach who is his guardian and curator. In 1905, defendant brought a condemnation suit in the District Court of Wyandotte county, Kansas, the object of which was to secure a right of way over "tract A" and at the same time brought two other suits for the right of way over "tract B." Commissioners were appointed who appraised the damages in the first suit at $ 2540 and in the others at $ 742. Defendant paid these assessments to the clerk of the court and constructed the road over both tracts doing grading, cutting and filling that damaged the whole of both tracts. Plaintiffs appealed from these awards and these appeals were pending in the district court until January 10, 1908, when they were dismissed by plaintiffs under circumstances to be recounted hereafter.
In 1907, the Metropolitan Street Railway Company contemplated extending its Roanoke line south on Bell street to and beyond Forty-first street and negotiations were begun between defendant and that company for a junction between the two roads at Forty-first and Bell streets in place of the connection at Thirty-ninth street and State Line. Bell street runs north and south, is in Kansas City, Missouri, and is the first street east of State Line. Plaintiffs own the land on both sides of Forty-first street in the blocks between State Line and Bell, and it was the idea of defendant to abandon the road over "tract A" and to run west on Forty-first street from a new junction at Bell street to a connection with its road over "tract B." Accordingly on April 19, 1907, W. B. Strang, who was not an officer of defendant but was a heavy stockholder, acting on behalf of defendant, addressed a letter to plaintiffs in which, referring to a proposal he had received from plaintiffs for a settlement of the pending litigation, he offered a settlement, the prominent features of which were that defendant would abandon the right of way over "tract A" by January 1, 1908, would continue to use the right of way over "tract B," would establish a terminal at Forty-first and Bell streets on the land of plaintiffs, for all of which it would allow plaintiffs the sum of $ 742, paid into court for their benefit in the condemnation suits affecting "tract B" and in addition would pay plaintiffs $ 4000 for the use of "tract A" to January 1, 1908, and for the land required for the new terminal.
This proposal was acceptable to plaintiffs but for some reason was not reduced to a formal contract. Shortly after January 1, 1908, the attorney of plaintiffs and Albert F. Hunt, defendant's president, resumed negotiations for a settlement which resulted in the execution of the contract now in dispute. This contract which stated on its face that the contracting parties were plaintiffs, spoken of as parties of the first part, and defendant and W. B. Strang, parties of the second part was signed by plaintiffs and defendant but not by Strang who, at the time, was in New York. After the contract was signed it was forwarded by Hunt to Strang for his signature. He refused to sign but plaintiffs were not advised of his refusal until about March 1st when Hunt informed them that Strang had rejected the contract and that he did not consider defendant was bound by it. Hunt admits that, as president, he had authority to execute the contract on behalf of defendant but based his repudiation of the contract on the ground that the refusal of one of the parties to sign absolved the others.
The material provisions of the contract thus may be stated Plaintiffs were to dismiss their appeals in the condemnation suits, give the right of way over "tract B," give defendant the use of land for the new terminal at Forty-first and Bell streets and pay most of the costs of the condemnation suits. Defendant was to remove the road from "tract A" and level off the cuts and fills on that tract, was to allow p...
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