North Missouri R.R. Co. v. Stephens

• Decision Date: 31 August 1865
• Citation: 36 Mo. 150
• Parties: NORTH MISSOURI RAILROAD COMPANY, Appellant, v. GEORGE W. STEPHENS Respondent.
• Court: Missouri Supreme Court

36 Mo. 150

NORTH MISSOURI RAILROAD COMPANY, Appellant,

v.GEORGE W. STEPHENS Respondent.

Supreme Court of Missouri.

August Term, 1865.

Appeal from Macon Circuit Court.

Carr, for appellant.

I. The law upon which the defence in the “Winkler case” was based having since been repealed, it can no longer be pleaded by the respondent as a defence to the cause of action alleged in the petition.

1. The agreement pleaded by the respondent, as a defence to the cause of action alleged in the appellant's petition, is not an agreement between the appellant and respondent to abide the final judgment that would be rendered in the “Winkler case,” or that the same kind of a judgment should be rendered in this case as was in that. It does not purport to be such an agreement: it only purports to be an agreement between James Carr, R. S. Bevier, and A. L. Gilstrap, who style themselves “counsel for the respective parties plaintiff and defendant,” and simply stipulates that “we will abide the final judgment which shall be rendered in said case.” i. e. the “Winkler case.” Now, there is no stipulation here that the North Missouri Railroad Company, party on the one side, and George W. Stephens, party on the other side, would abide the final judgment which would be rendered in the “Winkler case;” or that said parties agreed, or even were willing, that the same kind of a judgment should be rendered in this case as in that case. Note the language used: “We will abide the final judgment.” The personal pronoun “ we” is used, and in the first person plural. If the appellant and the respondent had been the contracting parties intending to bind themselves, the third person would have undoubtedly been used. The third person is the only proper person to be used in speaking of railroad corporations; it is the person that is always used. It follows, then, that this is only an agreement between counsel for their own private convenience, to save the trouble of trying the other cases. It is altogether voluntary; it creates no legal rights or obligations, either as to the appellant and respondent, or even as to their counsel, which a court, sitting to enforce legal rights and obligations, can enforce. (Hunt v. Johnson, 23 Mo. 432; Marguard v. Reiter, 30 Mo. 248.)

2. There is no consideration to support said agreement; it is a mere nudum pactum, and not binding on the appellant.

3. It is not within the scope of an attorney's employment or authority to make an agreement of this kind; and it is not pretended that the attorneys for the appellant had any positive authority to do so. (Graham v. Gale. 7 Cow. 739; id. 453; 7 Mass. 19; 10 Wend. 89; Wells v. Evans. 20 Wend. 250; Stackhouse et al. v. O'Hara's Exec'rs. 14 Pa. 88.)

II. The law upon which the defence in the “Winkler case” was based having been repealed, it can no longer be pleaded by the respondent as a defence to the cause of action alleged in the petition.

The defence as pleaded is ipso facto rendered null and void. If the “Winkler case” were now pending, that defence would be altogether nugatory; and if nugatory in the “Winkler case,” is it not so in this case? It is based altogether upon a law which has no existence. There is nothing to bottom this defence upon now.

So far is this doctrine carried, that where a penalty is imposed by act of Congress and the law expires, the forfeiture cannot be enforced, although there was a judgment below. The repeal of the law imposing the penalty is of itself a remission. (U. States v. Schr. Peggy, 1 Cranch, 103; Yeaton et al. v. U. States, 5 Cranch, 281; U. S. v. Ship Helen, 6 id. 203; U. S. v. Morris, 10 Whea. 246; Butter v. Pennsylvania, 10 How. 402; State of Md. v. Balt. & Oh. R. R. Co., 3 How, 534; Connor v. Bent, 1 Mo. 169; Hartwig v. People, 22 N. Y. 95.)

Taylor & Gilstrap, for respondent.

The agreement, as made by the attorneys of the parties, was written out, signed, and filed in the court below, and was made within the scope of their authority, and is binding upon the parties. (Gattend & Gravillen v. Smart, 6 Cow. 385; Quarles & Thompson v. Porter, 12 Mo. 84; Hunt v. Johnson, 23 Mo. 432; Houston v. Mitchell, 4 S. & R. 309; Marguard v. Reiter, 30 Mo. 248; Doods v. Doods, 9 Barr. 315; Holder v. Parker, 7 Cranch, 452; and cases therein cited.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought suit against the defendant, in the Circuit Court of Macon county, on subscription to stock. Several other suits precisely similar were brought at the same time, in the same court, against different defendants, and among them one by the name of Winkler. The same defence was made in each case. The attorneys for the respective parties entered into a written agreement, stating that, as the same facts and the same questions arose in all the causes mentioned they would therefore abde the final judgment that should be rendered in the case of the plaintiff against Winkler; and that a like judgment should be rendered in each of the several cases. Upon a trial of the cause in the Circuit Court, judgment was given in favor of Winkler; from which the plaintiff appealed to the Supreme Court, in which court the judgment was affirmed.

As preliminary to the main question, it may be necessary to state that the defense relied on, and which prevailed, was the violation by the North Missouri Railroad Company of the act of 1855 to prevent illegal banking. (R. C. 1855, p. 286, § 9.) After the decision in the Supreme Court, so much of that act as refers to this controversy was repealed. (Sess. Acts 1863, p. 5.) The court below rendered judgment for defendant in accordance with the above agreement, and, after an ineffectual attempt on behalf of plaintiff to obtain a new trial and arrest the judgment, the cause is appealed to this court.

The position assumed by the appellant's counsel is, that, the Legislature having repealed the penalty contained in the act of 1855, a valid and subsisting obligation exists against the respondent, and...