Sawyer v. Wabash Ry. Co.

• Decision Date: 21 May 1900
• Citation: 156 Mo. 468,57 S.W. 108
• Parties: SAWYER v. WABASH RY. CO.
• Court: Missouri Supreme Court

57 S.W. 108

156 Mo. 468

SAWYER v. WABASH RY. CO.

Supreme Court of Missouri, Division No. 2.

May 21, 1900.

PLEADING — TRUSTEE — CAPACITY TO SUE — PETITION — DEFECT CURED BY VERDICT — CONTRACT — ABSOLUTE — DEFEASIBLE CLAUSE — NEW MATTER.

1. Under Rev. St. 1889, §§ 1990, 1991, authorizing the trustee of an express trust to sue in his own name, and defining such trustee to include a person with whom or in whose name a contract is made for the benefit of another, where plaintiff made a contract on behalf of himself and other subscribers of defendant company, by which defendant undertook to run a certain number of trains per day from a certain station to a city, in consideration of $3,000 paid by such subscribers, plaintiff was entitled to sue in his own name to recover for a breach of the contract.

2. Under Rev. St. 1889, § 2113, par. 9, forbidding the reversal of a judgment for the omission of any allegation or averment without proof of which the triors of the issue ought not to have given such a verdict, where defendant had an option, on the discontinuance of a contract, to refund a sum of money contributed by numerous parties, either to their trustee or to all the contributors, and a petition in an action for a breach of the contract alleged that the money had been demanded by the trustee, and payment refused, but was defective in not averring a refusal to refund it to the contributors, and defendant made no objection to proof of the trustee's authority to represent all the contributors, such defect was cured by a verdict for plaintiff.

3. A contract that a railway company was to run so many trains per day to a certain station, on the payment by contributors residing thereon of a certain sum of money, and on the discontinuance of the contract the defendant was to refund the money either to the contributors or their trustee, it was not necessary for plaintiff to allege defendant's right to terminate the contract, in an action for its breach, since the contract was absolute, and not alternative, and the defeasance clause, giving defendant the right to terminate it, constituted new matter, to be pleaded by way of defense.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by Charles H. Sawyer, trustee, against the Wabash Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial and overruling a motion in arrest, defendant appeals. Affirmed.

This is an action to recover $3,000 for breach of contract. The case was tried to Judge Selden P. Spencer, in the circuit court of the city of St. Louis, without the intervention of a jury. The petition is in these words (omitting caption):

"Plaintiff states: That defendant is, and was at all the times hereinafter mentioned, a corporation organized and existing under the laws relating to the incorporation of railroads, and engaged in the business of a common carrier. That plaintiff and others having property interests and residing along the line of said railroad procured, by voluntary contributions, the sum of $3,000, which was deposited with plaintiff as trustee, to the end that plaintiff should procure additional passenger train service between the city of St. Louis and Ferguson station, St. Louis county, Missouri. That thereafter plaintiff, in his capacity as trustee, entered into an agreement, to wit, on or about the 8th day of March, 1890, with defendant, which is in words and figures as follows, to wit:

"`St. Louis, March 8, 1890. Received of Charles H. Sawyer, trustee for all subscribers to a fund raised by the residents and others along the line of the Wabash Railway, between Vine street, St. Louis, and Ferguson, St. Louis county, Missouri, the sum of three thousand dollars, in consideration of the payment of which sum the Wabash Railway Company, a corporation of Missouri, for itself, its successors and assigns, hereby agrees to put on and run permanently after the first day of April, 1890, an additional passenger train service between Vine street, St. Louis, and Ferguson, St. Louis county, Missouri, as per the following schedule:

                Leave St. Louis (Vine St.)     Arrive at Vine St
                    6:50 a. m.                      6:45 a. m
                    8:45 a. m.                      8:00 a. m
                   11:10 a. m.                      8:40 a. m
                    3:55 p. m.                     10:35 a. m
                    5:30 p. m.                      3:45 p. m.
                    6:20 p. m.                      6:15 p. m.
                   11:15 p. m. (Wed. and Fri.)      7:50 p. m.
                Leave St. Louis (Vine St.)      Arrive at Vine St.
                    8:45 a. m. (Sundays)            8:40 a. m.
                    1:30 p. m.                     10:35 a. m.
                    2:45 p. m.                      2:30 p. m.
                    5:45 p. m.                      5:35 p. m.
                

"`The above schedule may from time to time be modified by the Wabash Railway Company, as to the arrival or departure of trains, so as not to conflict with the schedule time of its through passenger trains; but these modifications shall not, in any event, work an abandonment or discontinuance of any of the trains mentioned or called for in the above schedule. It is expressly understood and agreed between the parties hereto that said Wabash Railway Company may terminate this contract, and relieve itself of all liability on account hereof, by refunding or offering to refund to said Charles H. Sawyer, or the parties for whom he is trustee, the said sum of three thousand dollars.

"`[Signed] Wabash R. R. Co.,

"`By Chas. M. Hays, General Manager.'" — That by the terms of said agreement which is herewith filed, and marked `Exhibit A,' and in consideration of the sum of $3,000 paid to said defendant, said defendant agreed and undertook to run trains between the city of St. Louis and said Ferguson station on the time schedule mentioned in said agreement. That thereafter defendant began and continued to operate the trains in conformity with the schedule above mentioned until about the 1st day of April, 1896, at which date the defendant ceased to run the 11.15 p. m. Wednesday and Friday train, known as the `Theater Train,' and, though often requested by plaintiff, has failed and refused to run or operate any passenger train on said schedule time of 11:15 p. m., or at any other hour or time that could be used as a night theater train, between said Vine street and said Ferguson station. That defendant has declared that it will not longer operate and run a train on the schedule time of 11:15 p. m., and will not run or operate any other night train that could be used as a substitute therefor. That, by reason of said acts and declarations on the part of defendant, it has elected to terminate the contract above mentioned, and has terminated said contract. That plaintiff thereupon demanded of defendant the return to him of the said three thousand dollars previously paid to it, in accordance with the terms of said contract, but defendant, though often requested, has failed and refused, and still fails and refuses, to return said sum, or any part thereof, wherefore plaintiff prays judgment against said defendant for the sum of three thousand dollars, with interest since April 1, 1896, and his costs herein."

The answer admitted the incorporation of defendant as a railroad company, and denied each and every other allegation of the petition. Defendant afterwards, by leave of the court, withdrew its answer and demurrer to the...