St. Louis, Iron Mountain & Southern Railway Company v. Sanders

• Citation: 121 S.W. 337,91 Ark. 153
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SANDERS
• Decision Date: 07 June 1909
• Court: Supreme Court of Arkansas

121 S.W. 337

91 Ark. 153

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SANDERS

Supreme Court of Arkansas

June 7, 1909

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; reversed in part.

Judgment affirmed and reversed.

E. B Kinsworthy, Lewis Rhoton and Horton & South, for appellant.

When one declares for a breach of special contract, it is incumbent on him to prove substantially the material allegations of the declaration. 21 Ark. 301; 11 Id 733; 2 Id. 397; 41 Id. 399; 76 Id 333. Exhibit A should have been stricken out. It is void for uncertainty of parties and subject-matter. 5 A. & E. Enc. Law (1 Ed.) 432-9; 9 lb. (2 Ed.) 132, (2); 2 Parsons, Cont. (2 Ed.) 515; 60 Ark. 489; 22 Id. 64; 41 Id. 501; 7 A. & E. Enc. Law (2 ed.) 289. There is no proof that the right-of-way agent did or could delegate his authority. 70 Ark. 354. The initials are meaningless. A patent ambiguity cannot be supplied by parol. 41 Ark. 501; 35 Id. 164; 81 Ark. 1-3; Parsons, Cont. (6 Ed.) Vol. 2, 560, 575, 576; 2 A. & E. Enc. Law (2 ed.) 289. Where a contract is reduced to writing, it is the only evidence. 30 Ark. 186. It cannot be varied by parol. 67 Ark. 62; 65 Id. 333; 73 Id. 431. A covenant running with the land inures to the benefit of the legal representatives and assignees of the grantee only. 49 Ark. 418. The estate of A. F. Hampton was not an estate of inheritance and descended to no one. 3 Words and Phr. Jud. Defined, tit. Estate by Entirety, pp. 24, 90; 66 Ark. 308; 44 Am. St. 97. Hampton had only a life estate.

2. A contract cannot rest partly in writing and partly in parol. 9 Ark. 506; 29 Id. 547; 35 Id. 164. The evidence of Mrs. Sanders was incompetent, as were the letters. Lee Estes was the husband of one of the plaintiffs and incompetent to testify. 34 Ark. 673. He could not prove his own agency for the wife. 56 Ark. 206; 44 Id. 213; 43 Id. 293. Mech. on Ag. 63, note 3. Wilber's testimony was also incompetent. Mech. on Ag. 100-1-2.

3. This was an action on a contract, and cannot be treated as one for negligence in costruction. 76 Ark. 333. It was a proper case to take from the jury and instruct for defendant. 69 Ark. 568; 75 Id. 408; 57 Id. 461.

4. Only privies of estate can sue on a covenant running with the land. 2 Min. Inst. 715, 716-17-18. The remedy was by action for each separate overflow. 49 Ark. 423; 63 Id. 253; 52 Id. 250; 44 Id. 439.

5. Instructions must be consistent. 72 Ark. 31; 59 Id. 104; 55 Id. 397. Here two different rules for the measure of damages were given. 72 Ark. 32-41; 59 Id. 104; 35 Id. 397.

6. The measure of the damages was the value of the right-of-way. 75 Ark. 89.

Jones & Seawel and Hamlin & Seawel, for appellees.

1. The contract is sufficiently explicit and definite; but if it were uncertain as to parties, subject-matter and interest, extrinsic evidence was admissible to make certain. 2 Pars. on Cont. (8 Ed.) 665; 17 Cyc. 710; 68 Ark. 326; 65 Id. 51; 75 Id. 55. A party may sue on a promise made to another if made for his benefit. 85 Ark. 59; 46 Id. 132; 31 Id. 155; 33 Id. 107; Mechem on Agency, § 769. The contract was made for the benefit of the land, and was a covenant running with the land. 49 Ark. 418, 423. The contract was a proper exhibit. Kirby's Dig., § 6129; Bliss on Code Pl., § 306; 4 Sandf. 696; 33 Ark. 593. The contract, having been made by Hampton for himself and as agent of his wife and being a covenant running with the land, vested in plaintiff a right of action on the death of her husband. 49 Ark. 418; 86 Ark. 251; 11 Cyc. 1099 (11). Such right would pass by conveyance. 49 Ark. supra.

2. Even if ambiguous and uncertain, the contract was admissible, as it could be aided by extrinsic evidence, and thereby be rendered definite and certain. 33 Ark. 107; 37 Ala. 619; 11 Cyc. 363-4. The genuineness of the contract was not denied under oath. Kirby's Dig., § 3108; 82 Ark. 105; 85 Id. 269. Taken in connection with all the other evidence, the contract in connection with the deed was admissible. 17 Cyc. 708-11, 739 (II); 63 Ala. 284.

3. As a party for whose benefit a contract is made may sue on it, certainly evidence to show that fact is admissible. 17 Cyc. 708 (23 a and b.) The letters were admissible to show that appellant had notice of the contract and failure to perform; also ratification. 73 Conn. 341; 17 Cyc. 410-11; 109 Ill.App. 520; 135 Iowa 181; 71 Kans. 441; 105 Md. 211; 37 Tex. Civ. App. 512; 59 W.Va. 46; 56 Ark. 37; 145 U.S. 285; 78 Ark. 318; 80 Id. 15; 83 Ark. 403; 86 Ark. 309.

4. The evidence of Estes was admissible to show that he was acting for his wife as agent for her and Hampton. 90 Ark. 104; 80 Ark. 231; 29 Minn. 322; Mechem on Agency, § 721. A general objection to the competency of a witness is not sufficient if any of his testimony is admissible. 65 Ark. 106-110; 67 Id. 112; 86 Ark. 130; 77 Ark. 431; 58 Id. 446; 56 Id. 37, 22 Id. 80.

5. Wilber's testimony was admissible as a circumstance to show a written admission by the company that DeGraw was its agent. 43 Ark. 275; 16 Cyc. 943 (b).

6. The weight to be given evidence is for the jury, and their verdict is final. 82 Ark. 372.

7. Appellees were the proper parties, one an original covenantee, the other a grantee of the land. 78 Ark. 68; 49 Id. 418; 86 Ark. 251.

8. The measure of damages was what it would cost to perform the specific work. 13 Cyc. 162 (6); 39 Ark. 344; 72 Id. 3; 220 Ill. 256; 99 S.W. 341; 86 N.Y.S. 112; 204 Pa. 488; 75 Ark. 89.

OPINION

BATTLE, J.

During the year 1904 A. F. Hampton and his wife, Nancy, owned the east half of the northeast quarter and southwest quarter of the northeast quarter of section five, in township eighteen north, and in range seventeen west, in Marion County, in this State, as an estate in entirety, and on the 15th day of April, 1904, R. X. DeGraw and W. P. Smith procured from them a deed conveying to the railway company a right of way over these lands, and executed to them an instrument of writing as follows:

"April 15th, 1904.

"It is hereby agreed by the St. Louis, Iron Mountain & Southern Railway Company that it will construct a good sufficient levee at the crossing of Crooked Creek in the S.W. 1/4 N.E. 1/4 of sec. 5-18-17 to fully protect the field owned by A. F. Hampton; said levee to be constructed within 30 days from date hereof.

"R. X. DeGraw, Asst. R. of Way Agt.

"W. P. Smith. D. E."

The sole consideration expressed in the deed for right of way was one dollar. Crooked Creek flowed along by the lands of Hampton and his wife, and the levee mentioned in the contract was to protect the lands against overflow. The railway company constructed its roadbed on the right of way conveyed to it by Hampton and his wife, and at the same time built a small levee at the place stipulated in the contract, but it proved insufficient, and in the year 1906 Crooked Creek overflowed the field of the Hamptons and washed away the soil, growing crops and fences thereon. Hampton then notified A. W. Jones, assistant engineer of the railway company, of the condition and deficiency of the levee, and he (Jones) promised to build a new, or repair the old, levee, but before the work was completed Hampton died in December, 1906, intestate, leaving Nancy, his widow, and his daughter, Harriet, his only heir. The last work undertaken after it was completed also proved insufficient. In 1908 Crooked Creek again overflowed the lands and washed away the soil, crops and fences. No other levee was constructed or rebuilt. The widow of Hampton married Robert Sanders, and his daughter, Harriet, married Lee Estes. Nancy Sanders conveyed one undivided half of these lands to her daughter, Harriet, and they brought an action against the railway company to recover damages caused by the failure to construct a levee according to its contract, including the damages from overflows.

The defendant answered, and admitted that, on or before the 15th day of April, 1904, the plaintiff, Nancy Hampton Sanders, then Nancy Hampton, and A. F. Hampton, her then husband, owned the land mentioned in the plaintiff's complaint as joint tenants with the right of survivorship, having an estate therein by entireties, and that on said day they conveyed to the defendant by a proper deed therefor a right of way on which to build its railroad across the lands; and that A. F. Hampton departed this life on the 19th day of December, 1906. It denied that it executed the foregoing instrument of writing, or authorized any one to execute it; that it had notice of its existence at the time the railway company accepted the deed for right of way over the lands mentioned; and, if it was made with A. F. Hampton, denied that he was acting for himself and plaintiff, Nancy.

It alleged that, if the foregoing instrument of writing was a valid contract, "it was personal to A. F. Hampton, and binding the defendant only to protect his field, and did not require it to build a levee to protect the property of the plaintiffs, and, the said A. F. Hampton having since departed this life, and his estate in said field having ceased, and plaintiffs not holding title to said lands under him, denied that it is liable to plaintiffs in any sum whatever for any breach of said contract, if the same has been broken."

The defendant moved to strike out the instrument in writing sued on, and said that it is void as evidence of a contract because: "1. Said contract is void for uncertainty in the description of the persons between whom and for whose benefit it was made, for uncertainty as to the subject-matter, and does not show the plaintiffs had any interest therein. (2.) Said pretended written contract does not show with whom the defendant contracted. (3) Said complaint shows on its face that the plaintiffs do not hold under A. F....