Owens v. Carthage & Western Railway Company

• Citation: 85 S.W. 987,110 Mo.App. 320
• Parties: DAVID D. OWENS, Respondent, v. CARTHAGE & WESTERN RAILWAY COMPANY, Appellant
• Decision Date: 06 March 1905
• Court: Court of Appeals of Kansas

85 S.W. 987

110 Mo.App. 320

DAVID D. OWENS, Respondent, v. CARTHAGE & WESTERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 6, 1905

Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.

AFFIRMED.

Judgment affirmed.

Martin L. Clardy, E. O. Brown and Geo. W. Crowder for appellant.

(1) The finding and decree is not warranted by the pleadings, and is not supported by the facts shown in evidence. In other words the court below was not authorized, under the pleadings and evidence, and it was error to reform the deed in question by inserting such a provision therein. Jewett v Railway, 45 Mo.App. 58; Blain v. Knapp, 140 Mo 251; Mastin v. Halley, 61 Mo. 196; Bank v. Farris, 77 Mo.App. 186; 2 Am. and Eng. Ency Law (2 Ed.), 304; Webster v. Paul, 10 O. St. 532; Crim v. Crim, 162 Mo. 553; Johnson v. Ins. Co., 93 Mo.App. 580; Miers v. Somerville, 85 Mo.App. 50; Parker v. Vanhoozer, 142 Mo. 621; Newman v. Bank, 70 Mo.App. 141; Kingman v. Schulenberger, 64 Mo.App. 557; Holliday v. Leasch, 85 Mo.App. 285; Squire v. Evans, 127 Mo. 518; Yeoman v. Hoshaw, 98 Mo. 360; Morgan v. Porter, 103 Mo. 135; Pearson v. Carson, 69 Mo. 550; Loan Co. v. Workman, 71 Mo.App. 275; Tuggles v. Collison, 143 Mo. 527; 20 Am. and Eng. Ency Law (2 Ed.), 809, 810, 832. For the same reason a court of equity will not reform an instrument merely because the parties may have been mistaken as to the legal interpretation and effect of such instrument. So if a person executes a deed without reservation he cannot afterwards have it set aside on the ground that he did not know the effect of the deed without this provision. 20 Am. and Eng. Ency. Law (2 Ed.), 810. (2) Moreover, to entitle plaintiff to a reformation of the deed on the ground of mistake the mistake must have been mutual and not merely a mistake on the part of the plantiff alone. Henderson v. Ins. Co., 49 Mo.App. 255. Besides, the evidence of mistake must be clear and convincing. Bartlett v. Brown, 121 Mo. 353. (3) Our contention is that the deed embodied the entire agreement of the parties touching the cattle pass or crossing in question, and the trial court clearly misconceived the law of the case and tried it throughout upon an erroneous theory in permitting plaintiff to introduce oral testimony varying the terms of the deed in reference to the crossing. The deed embraced the entire contract and in the absence of fraud parol evidence was not permissible to enlarge its terms. There is no ambiguity in the deed and, therefore, it was not the subject of oral explanation. Newman v. Bank, 70 Mo.App. 141; Kingman v. Schulenberger, 64 Mo.App. 557; Holliday & Co. v. Leasch, 85 Mo.App. 285; Squire v. Evans, 121 Mo. 518; Loan Co. v. Workman 71 Mo.App. 275; Morgan v. Porter, 103 Mo. 131; Tuggles v. Collison, 143 Mo. 527; Johnson v. Ins. Co., 93 Mo.App. 580; Mfg. Co. v. Hunter, 87 Mo.App. 50; Miers v. Somerville, 85 Mo.App. 183; Parker v. Vanhoozer, 142 Mo. 621; Crim v. Crim, 162 Mo. 554. (4) The action of the court in permitting plaintiff, over defendant's objection, to show that the defendant company had constructed undergrade crossings on the farms of Mevey, Clark and Weaver under deeds containing similar clauses with respect to crossings, in no wise enlarged plaintiff's rights, nor created any liability upon the defendant so far as the crossing in controversy is concerned. (5) An action will not lie for the specific performance of the deed in question where, as in this case, the consideration named is that the defendant company "agrees to construct a cattle or wagon pass at the place designated by the chief engineer on said premises," without any further description. Mastin v. Halley, 61 Mo. 196. The case at bar falls squarely within the line of cases where specific performance is denied. (6) The duties to be performed by the defendant in constructing and maintaining a passway for stock under its track are not only continuous, but would require judicial supervision as long as the right of way over plaintiff's land was used for railway purposes. Under such circumstances it is universally held that a court of equity will not decree specific performance for the reason that the court cannot turn itself into a mere supervisor of construction. 2 Story's Eq. Juris. (10 Ed.), sec. 726; Railroad v. Railroad, 13 Ohio St. 544; 3 Pomeroy's Eq. Juris., note to sec. 1405. Collins v. Plum, 16 Ves. 454; London v. Nash, 3 Atk. 512; Caswell v. Gibbs, 33 Mich. 331; Blanchard v. Railroad, 31 Mich. 43; Marble Co. v. Ripley, 10 Wall. 339; Strang v. Railroad, 93 F. 71; Railroad Co. v. Wythes, 5 Deg. McN. & Gord. 880; Railway v. Stone Co., 39 N.E. 703; McCarter v. Armstrong, 8 L. R. A. 625. (7) It was error to mingle a cause of action in the same count to reform a deed and specifically enforce the same as reformed with one for damages for failure to perform the contract and to proceed to try them together before the chancellor. Henderson v. Dickey, 50 Mo. 161; Kabrich v. Ins. Co., 48 Mo.App. 398; Peyton v. Rose, 41 Mo. 257; Meyers v. Field, 37 Mo. 434.

Shannon & Shannon for respondents.

(1) The cases of Jewett v. Railway Co., 45 Mo.App. 58, and Mastin v. Halley, 140 Mo. 251, cited by counsel for appellant following their first paragraph under the heading of points and authorities, are the only cases in the long list of authorities cited in the same connection, which seem to be in any sense parallel with the case at bar. (2) The Jewett case, supra, is in a measure parallel to the case at bar, but in that case it was admitted that, at the time of the execution of the contract involved in the suit, the railway agent disclamed any authority to contract for an "under crossing." In the case at bar it does not appear whether Purcell was authorized or not to obligate appellant to construct an undergrade crossing for respondent, but in other cases where he had assumed such authority, the railway company had ratified his contracts by constructing undergrade crossings. But the fact is that in this case he assumed such authority, and contracted with respondent to construct such a crossing. Even if he had no authority to do so, appellant cannot now avail itself of such want of authority, having failed to tender back to respondent the right of way in question. This proposition is certainly so elementary as to require no citation of authorities. (3) The Mastin case, supra, is cited on two theories; First, that specific performance of a building contract will not be enforced. Second, that the cattle or wagon pass, as described in the deed, even after reformation, though in their discussion counsel seem to ignore the terms of the deed as reformed, is not so described as to enable a court to direct its construction. The reason assigned in the Mastin case for the rule that a building contract will not be specially enforced is that, "If one will not build, another may." But in this case if the appellant will not construct the wagon or cattle pass, who could? (4) In the case at bar there was a definite agreement between the parties for a cattle or wagon pass twelve feet wide and not less than ten feet high, preceding the execution of the right of way deed, and in reducing the agreement to writing an "error of expression" was committed, both parties believing that the language used was commonly understood by railway builders to mean all that had been specified in the previous negotiations. Therefore, equity will administer relief by reforming the contract. 20 Am. and Eng. Enc. Law (2 Ed.), 821; 24 Am. and Eng. Enc. Law (2 Ed.), 648; Henderson v. Beasley, 137 Mo. 199; Ezell v. Peyton, 134 Mo. 484; Buggy Co. v. Woodson, 59 Mo.App. 550. (5) There was no error in admitting in evidence the deeds of Mevey, Clark and Weaver, and their testimony concerning their transactions with Purcell. Collateral facts for the purpose of proving intent or motive are received in evidence in both civil and criminal cases. State v. Williamson, 106 Mo. 162; State v. Williams, 136 Mo. 293; State v. Balch, 136 Mo. 103; Gunn v. Thurston, 130 Mo. 339. (6) Appellant's objection that there were two causes of action improperly joined comes too late. As the objection that two causes of action were united in the same count was not taken in the court below it will not be considered. Callaghan v. McMahan, 33 Mo. 111; Mead v. Brown, 65 Mo. 552; Jamison v. Copher, 35 Mo. 483; Sweet v. Maupin, 65 Mo. l. c. 72; Anderson v. McPike, 41 Mo.App. 328.

OPINION

ELLISON, J.

The plaintiff is the owner of land over which defendant constructed its railway. Plaintiff conveyed the right of way to defendant by deed, the consideration expressed being $ 400 in money and the following clause: "Said Carthage & Western Railway Company hereby agrees to construct cattle or wagon pass at place designated by the chief engineer on said premises." Plaintiff alleges that he and defendant understood that the contract and agreement was that defendant would construct a crossing under the tracks of sufficient width and height to admit of the passage of cattle and loaded wagons; that is to say, not less than twelve feet wide and ten feet high, at a point to be designated by the defendant's chief engineer. He further alleges that he and defendant by mutual mistake supposed the words in the deed above quoted meant what they each understood.

Defendant having refused to comply with the agreement alleged plaintiff brought this action to reform that portion of the deed referred to so as to correct the mistake of the parties and to set out the contract as it was understood, and to require defendant to perform it. The trial court found the issues for the plaintiff and directed that a passway be constructed under the railroad, sufficient for cattle and loaded wagons, which was found to be twelve feet...