Scott v. Alton Banking & Trust Co.

• Decision Date: 01 April 1915
• Docket Number: No. 17242.,17242.
• Citation: 175 S.W. 920
• Parties: SCOTT et al. v. ALTON BANKING & TRUST CO.
• Court: Missouri Supreme Court

175 S.W. 920

SCOTT et al. v. ALTON BANKING & TRUST CO.

No. 17242.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by Edward J. Scott and another, copartners as John Scott & Sons and others against the Alton Banking & Trust Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

This is an appeal from a final judgment in favor of the defendant on demurrer to plaintiffs' petition. The case was commenced on January 20, 1912, in the circuit court of the city of St. Louis, and state of Missouri. The petition of plaintiffs, containing two counts, without caption and signature, reads as follows:

"Plaintiffs state that at all the times hereinafter mentioned, the plaintiffs Edward J. Scott and John R. Scott were copartners under the firm name and style of John Scott & Sons and engaged in business as railroad contractors and builders, and that plaintiffs George J. Grommet and W. J. Grommet were copartners under the firm name and style of Grommet Bros., and engaged in the same line of business as said firm of John Scott & Sons; that the defendant Alton Banking & Trust Company was and is a trust company organized and existing under and by virtue of the laws of the state of Illinois, and doing business as a trust company at the city of Alton and county of Madison and state of Illinois; that the Alton, Jacksonville & Peoria Railway Company was a railroad corporation organized under and by virtue of the laws of the state of Illinois for the purpose of owning and operating a line of electric railroad from the city of Alton, Madison county, Ill., northwardly through the cities of Godfrey and Jerseyville "to Jacksonville, all in the state of Illinois; that the portion of its road from Alton to Godfrey was constructed and in operation as an electric railroad, and said railway company, being desirous of constructing the portion of its road between Godfrey and Jerseylithe, requested plaintiffs to enter into a contract with said railway company to do all the earth and rock work for the complete building of the roadbed of said railroad from Godfrey to Jerseyville in conformity wtih certain specifications, general construction rules, and proposal prepared by said railway company and attached to and to be made part of said contract; that in and by said proposed contract, constituted as aforesaid, it was provided that in consideration of plaintiffs doing said work, said railway company should pay to plaintiffs certain prices for such work as set forth in the said proposal, and to make payments in the manner and at the times set forth in the said general construction rules; that it was further therein provided that 60 per cent. of the work performed should be paid in cash and 40 per cent. of the work performed should be paid in first mortgage bonds of the defendant railway company, which should be taken by plaintiffs as of the agreed value of 90 cents on the dollar of their face value.

"Plaintiffs further state that for the purpose of inducing them to enter into said contract with said railway company, the defendant, Alton Banking & Trust Company, on or about the 3d day of September, 1910, executed and delivered to plaintiffs John Scott & Sons, for the benefit of and as representing all of the plaintiffs herein, a writing in words and figures as follows, and which is herewith filed and marked `Exhibit A':

                                        "`September 3, 1910
                

"`John Scott & Sons, Times Building, St. Louis, Mo.—Gentlemen: The Alton, Jacksonville & Peoria Ry. Co. have made arrangements with this bank for the payment of the work to be done by you under your contract with them for the grading of roadbed, etc.

"`As we understand it payments are to be made on the 10th of each month, upon estimates to be furnished by the chief engineer of the company, for the work done under your contract. Very truly yours.

                        "`[Signed] C. H. Seger, Cashier.'
                

"Plaintiffs further state that said C. H. Seger was cashier of defendant, and signed said writing by authority and for and on behalf of and as the agent and representative of the defendant and in and by said writing the defendant intended to and did contract and agree with plaintiffs that the defendant would pay to plaintiffs the amount that would become due under said proposed contract with the said railway company upon plaintiffs performing the work therein provided for; that thereupon and in part consideration of said agreement of the defendant the plaintiffs executed on said 3d day of September, 1910, said contract with said railway company for the building of the said portion of its road; that thereupon plaintiffs entered upon said work and fully performed said contract with said railway company, and constructed said portion of its railway, and under said contract and supplementary contracts connected therewith, and as extra work in the performance of said contract plaintiffs did work of the total value at the prices set forth in said contract of $69,274.58; that of said sum there has been paid to plaintiffs, under the terms of said contract, the whole amount thereof, excepting $10,200.78; that said latter sum is the balance due plaintiffs for the work done by them under said contract as aforesaid, and it has never been paid to plaintiffs.

"Plaintiffs further state that after the completion of said work and the failure of plaintiffs to receive said balance due them as aforesaid, they made demand on defendant for the payment thereof by it to plaintiffs in compliance with defendant's said contract and agreement as aforesaid, but that defendant has refused to pay said sum to plaintiffs.

"Plaintiffs therefore pray judgment against defendant for the sum of $10,200.78, together with interest and costs."

For a second cause of action plaintiffs state:

That at all times hereinafter mentioned the plaintiffs Edward J. Scott and John It. Scott were copartners under the firm name and style John Scott & Sons and engaged in business as railroad contractors and builders, and that plaintiffs George J. Grommet and W. J. Grommet were copartners under the firm name and style of Grommet Bros., and engaged in the same line of business as said firm of John Scott & Sons; that the defendant Alton Banking & Trust Company was and is a trust company organized, and existing under and by virtue of the laws of the state of Illinois and doing business as a trust company at the city of Alton and county of Madison and state of Illinois; that the Alton, Jacksonville & Peoria Railway Company was a railroad corporation organized under and by virtue of the laws of the state of Illinois for the purpose of owning and operating a line of electric railroad from the city of Alton, Madison county, Ill., northwardly through the cities of Godfrey and Jerseyville to Jacksonville, all in the state of Illinois; that the portion of its road from Alton to Godfrey was constructed and in operation as an electric railroad, and said railway company, being desirous of constructing the portions of its road between Godfrey and Jerseyville, requested plaintiffs to enter into a contract with said railway company to do all the earth and rock work for the complete building of the roadbed of said railroad from Godfrey to Jerseyville in conformity with certain specifications, general construction rules, and proposal prepared by said railway company and attached to and to be made part of said contract; "that in and by said proposed contract, constituted as aforesaid, it was provided that in consideration of plaintiffs doing said work, said railway company should pay to plaintiffs certain prices for such work as set forth in the said proposal, and to make payments in the manner and at the times set forth in the said general construction rules; that it was further therein provided that 60 per cent. of the work performed should be paid in cash and 40 per cent. of the work performed should be paid in first mortgage bonds of the defendant railway company, which should be taken by plaintiffs as of the agreed value of 90 cents on the dollar of their face value.

"Plaintiffs further state that for the purpose of inducing them to enter into said contract with said railway company the defendant, Alton Banking & Trust Company, on or about the 3d day of September, 1910, executed and delivered to plaintiffs John Scott & Sons, for the benefit of and as representing all of the plaintiffs herein, a writing in words and figures as follows, which is herewith filed and marked `Exhibit A':

                                      "`September 3, 1910
                

"`John Scott & Sons, Times Building, St. Louis, Mo.—Gentlemen: The Alton, Jacksonville it; Peoria Ry. Co. have made arrangements with this bank for the payment of the work to be done by you under your contract with them for the grading of roadbed, etc.

"`As we understand it payments are to be made on the 10th of each month, upon estimates to be furnished by the chief engineer of the company, for the work done under your contract.

                    "`Very truly yours
                          "`[Signed] C. H. Seger, Cashier.'
                

"Plaintiffs further state that said C. H. Seger was cashier of defendant, and signed said writing by authority and for and on behalf of and as the agent and representative of the defendant and in and by said writing the defendant intended to and did state and represent to plaintiff's that said railway company had made contracts with said trust company whereby there would be placed on deposit with it to the credit of said railway company money in amount sufficient to pay for all the work to cc done by plaintiffs in the construction of said (maim), of said railroad under plaintiffs' said contract as aforesaid; that said statement and representation of defendant was false and untrue, as defendant then and there well knew; that plaintiffs, believing in the truth of said representations and relying thereon, executed and entered into said contract with...