Oth v. Wabash Railroad Company
| Decision Date | 09 January 1912 |
| Citation | 142 S.W. 754,162 Mo.App. 607 |
| Parties | JOHN OTH, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted November 7, 1911.
Appeal from St. Charles Circuit Court.--Hon. James D. Barnett Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
J. L Minnis and N. S. Brown for appellant.
(1) The demurrer of defendant to plaintiff's petition should have been sustained, because: (a) The transactions pleaded between plaintiff and defendant's station agent Steed, on January 17, 1906, do not, in law, create a contract. Versteeg v Fruit Co., 138 S.W. 901; Clemens v. Bloomfield, 19 Mo. 118; Batavia v. Railroad, 126 Mo.App. 13; Service Co. v. Drug Co., 148 Mo.App. 327. (b) Any purported contract arising out of said transactions is within the Statute of Frauds. Chambers v. Le Compte, 9 Mo. 575; Lydick v. Holland, 83 Mo. 703; Sharp v. Rhiel, 55 Mo. 97; Biest v. Shoe Co., 97 Mo.App. 137; Reigart v. Coal Co., 217 Mo. 142; Johnson v. Reading, 36 Mo.App. 306; Nally v. Reading, 107 Mo. 350; R. S. 1909, sec. 7884. (2) Instruction No. 1 given by the court of its own motion is erroneous, for the following reasons: (a) The mere existence of the facts detailed in the instruction does not, as a matter of law, create a tenancy at will. (b) Because the instruction attempts to instruct the jury on the measure of damages, but fails to limit the recovery to such damages as were suffered by the plaintiff through a period of thirty days from April 24, 1906, on which date plaintiff admits having received the written notice of termination. R. S. 1909, sec. 7884; Jones, Landlord & Tenant, sec. 221; 18 Am. & Eng. Ency. Law, 177; 18 Am. & Eng. Ency. Law, 185; Jefferson v. Ummelmann, 56 Mo.App. 440; Rays v. Blackman, 120 Mo.App. 497; Railroad v. Ferry Co., 82 Ill. 230.
Geo. S. Grover and T. C. Bruere for respondent.
(1) The demurrer to the petition was properly overruled by the learned judge below. (a) Because the transaction between respondent and appellant's station agent, Steed, as alleged in the petition, on January 17, 1906, does in law, create a contract. (b) Because said alleged contract is not within the statute of frauds, and is valid at common law. R. S. 1909, sec. 2783; Finney v. St. Louis, 39 Mo. 177; Grant v. White, 42 Mo. 289; Hammon v. Douglas, 50 Mo. 437; Railroad v. Ludwig, 6 Mo.App. 584; Ray v. Blackman, 120 Mo.App. 497; McQuinn v. Logue, 143 Mo.App. 235; Hoover Rhodes & Co. v. Oil Co., 41 Mo.App. 317; Withnell v. Petzold, 17 Mo.App. 673; Lohman v. Nolting, 56 Mo.App. 549. (2) Even if the contract of January 17, 1906, here sued on, was not authorized by appellant, it is expressly alleged and proved here, that it was fully ratified by it, by the acceptance and appropriation to its own use of the rental paid by respondent, to appellant, after full knowledge of the nature of said payment. Such agreement is therefore binding upon appellant, and it is estopped here from either attacking it or denying its validity. Kirkpatrick v. Pease, 202 Mo. 471; Hoover Rhodes & Co. v. Oil Co., 4 Mo.App. 317; Welsh v. Brewing Co., 47 Mo.App. 613; Adv. Co. v. Wanamaker, 115 Mo.App. 279; Parsons v. Ins. Co., 64 Mo.App. 35; Ferguson v. Transfer Co., 79 Mo.App. 360.
This is an action by plaintiff for damages claimed to have arisen in his favor and against defendant by reason of the latter, without due and lawful notice to plaintiff, and long prior to the termination of a lease which he claimed he had, wrongfully and unlawfully ousting plaintiff from the possession of the demised premises, those premises consisting of a switch or side track at Elm Point on defendant's railroad. Plaintiff placed his damages at $ 12,000. It is averred in the petition that for a number of years plaintiff had been operating a quarry at Elm Point in St. Charles county and engaged in the quarrying and crushing of limestone and shipping the product out from there over this side track to various points of distribution. It is also averred that for many years prior to the institution of this action defendant had leased this side track to plaintiff for an entrance and exit to and from his quarry and that it was the sole connection of the quarry with defendant's line of railroad at that point; that the leasing was made through one Steed, alleged to be defendant's agent and who collected rents for the use of the track from time to time for defendant; that the first lease was made on or about the 12th of February, 1896, for a term of five years ending February 12, 1901, and that about February 12, 1901, it was renewed for another period of five years ending on February 11, 1906; that on January 17, 1906, defendant, through its agent Steed, presented to plaintiff a new lease for the quarry track for a period of three years beginning in 1906, at an annual rental of twenty dollars and sixty cents; that the lease was then and there signed by plaintiff and returned by him to Steed to be executed by defendant; that Steed never returned the lease executed by defendant to plaintiff; that on that date, namely, January 17, 1906, plaintiff paid to Steed the annual rental for the track for the year 1906, amounting to twenty dollars and sixty cents, and received from Steed, as agent of defendant, a receipt in the following form: "Received of John Oth twenty dollars and sixty cents rent for quarry track at Elm Point, for 1906. H. H. Steed, Agent." It is further averred that defendant through its said agent had for the sum above stated leased the quarry track at Elm Point to plaintiff for the year 1906; that this rental had never been refunded or returned to plaintiff by defendant or by its agent, and that on the faith of this payment by him to defendant, "and of said lease by defendant, of said premises, for said year 1906, as aforesaid," plaintiff had expended large sums in the construction and repairing of his buildings on the quarry track and had quarried large quantities of stone of various sizes for sale and shipment and expended large sums of money for necessary tools and machinery for the purpose of operating the quarry and had entered into various profitable contracts with sundry persons for sale and shipment of stone from the quarry and had duly performed all the conditions of the lease but that without due and lawful notice to plaintiff, defendant, long prior to the termination of the lease, wholly failed to perform its part of the lease and in the month of April, 1906, wrongfully and unlawfully removed and destroyed its quarry track at Elm Point and thereby destroyed the value of plaintiff's buildings and his quarry plant and ruined his business at that place to his damage in the sum of $ 12,000, for which he prays judgment.
A demurrer was filed to this petition, the demurrer overruled. Whereupon defendant filed its answer which, after admitting its incorporation and ownership of the line of railroad, pleads the Statute of Frauds, averring that the agreement of lease alleged to have been entered into between plaintiff and defendant on January 17, 1906, was not put in writing and signed by defendant or any agent of defendant authorized by writing so to do. A release is also pleaded which it is not necessary to notice at length.
The reply was a general denial.
A trial before the court and jury resulted in a verdict and judgment for plaintiff in the sum of $ 4500. Interposing a motion for a new trial and in arrest and excepting to the overruling of them, defendant duly perfected its appeal to this court, assigning various grounds of error.
In the view we take of the case it will not be necessary to set out the evidence in detail. It is sufficient to say of it that the evidence tended to show plaintiff had a lease from defendant, not only of the side track but also of a section house and adjacent ground at Elm Point, the latter at a monthly rental of ten dollars. He commenced operations in the quarry and the use of the switch along in 1896, under a five-year term for the track. That lease expiring was renewed for a like term which ended February 11 1906. On January 17, 1906, plaintiff, desiring to lease the track for another five-year period, applied to defendant through its agent Steed for the lease for another term of five years, not three years as stated in the petition. It appears that the prior leases, while negotiated through Steed, as agent of defendant, were all subject to the approval of the chief officers, ultimately of the vice-president and general manager of the defendant company. When defendant applied for a renewal of his lease in January, 1906, for another term of five years, Steed sent to the headquarters of the company and was furnished with a blank lease for a term of five years, commencing on the 12th day of February, 1906. Thereupon plaintiff signed the lease, delivered it to Steed and paid Steed the twenty dollars and sixty cents before referred to. Whereupon Steed signed and delivered to plaintiff the receipt before referred to and returned the lease signed by plaintiff to the headquarters of the defendant company, along with the annual rental for the year 1906. Nothing was heard from the headquarters of defendant concerning this lease, so far as plaintiff was concerned, until April 24, 1906, when by letter of that date Steed informed plaintiff that he had been advised by defendant's superintendent that it had been decided not to renew the...
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