St. Louis, Memphis & Southeastern Railroad Co. v. Houck
| Decision Date | 13 November 1906 |
| Citation | 97 S.W. 963,120 Mo.App. 634 |
| Parties | ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Respondent, v. HOUCK, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.
REVERSED AND REMANDED.
STATEMENT.--This action arose on the following contract:
George Houck
Amounts Agreed to be Paid.
$ 1,000.00."
Other names and amounts follow.
The defendant refused to pay his subscription on the ground that the condition on which it was made had not been performed by either the original obligee, the St. Louis & Gulf Railway Company, or plaintiff, which succeeded to all property and contract rights of said obligee by an indenture dated June 1 1904. The default in performance relied on as defense is that the contemplated line of railroad was never constructed into or through the town of Bloomfield, nor its operation through or into said town begun. Bloomfield is the county seat of Stoddard county. We have found no statement in the record of its population, but its dimensions are testified to have been about three-quarters of a mile either way at the date of the subscription contract, which was in October, 1902. At that date and prior thereto, the St. Louis & Gulf Railway Company owned a railroad running from Zeta into the corporate limits of Bloomfield. It extended inside the limits about half a mile. On June 2, 1903, the municipal council of Bloomfield enacted an ordinance calling for an election to pass on the question of extending the corporate limits of the city, so as to take in new territory described in the ordinance. Said territory extended northward 1,980 feet or three-eighths of a mile from the original northern boundary of the city. There is evidence in the record going to show that this territory was of a rural character, but slightly settled and consisted of fields and meadows. One witness testified that farms with fields of wheat and corn were in it and that it was outlying land. On June 30th, the proposition to extend the city limits was voted on by the eligible voters of Bloomfield and carried. On the same day the mayor of the city issued his proclamation declaring the result of the election. Meanwhile a line of railroad was in process of construction from Bloomfield northwest to Campbell in Dunklin county, and on June 28, 1903, this new line was connected with the old line which ran from Zeta to Bloobfield thereby completing the through line of road from Zeta to Campbell. The point of junction was near the north boundary of the extended city limits of Bloomfield; perhaps a trifle outside the new northern boundary. From the junction, the railroad curved slightly to the south and west so as to run through the northwest corner of the extended territory, to be taken into Bloomfield by the election called for June 30th, two days after the railroad was completed. This diagram will assist in understanding the location of the new and the old lines of railroad with respect to the city of Bloomfield, as it was both before and after its enlargement:
[SEE DIAGRAM IN ORIGINAL]
The record is somewhat uncertain regarding the exact date when the railroad was put into operation from Zeta to Campbell but the civil engineer in charge of the line testified that the first day of its operation was, as stated, June 28, 1903. A few months after the completion of the new line, the old depot within the original limits of Bloomfield was abandoned, a new depot having been built near the northwest corner of the new territory. The new depot was a trifle less than a half a mile from the old one and about 1,500 feet, or more than a quarter of a mile, from the original north boundary of the city. The evidence goes to show that after the new depot was built, no trains ran down the old track into the original city of Bloomfield, except one train which went to Brownwood. This train ran into Bloomfield so that the men who operated it might get their dinner at their own homes at noon and go to their homes at night. It seems that it is left on the track during the night. There was testimony that freight in carloads was sent into Bloomfield over the old track, but other testimony inclines to show that this was only done to accommodate a sawmill situated on the old track; that cars of logs to be sawed in the mill are taken down on that track and placed on an adjacent sidetrack. The witnesses agree that all local freight and all passengers were handled at the new station and that the old track is not operated except to deliver carload freight. Testimony was given for the plaintiff that the original line was operated to the old depot just as it had been from the first, for several months, or longer, after the completion of the new line. On the contrary it was given in the evidence for defendant that, though the trains were operated to the old depot for a short time after the construction of the new line, this was with no intention to continue the operation to that point, but merely because the new depot had not been completed; that as soon as it was completed, the old line was discontinued, and no longer used for passengers, freight and express, except as said, for carload freight to the sawmill. There was a conflict of testimony on the issue.
During the trial this admission was made:
"The defendant admits that the St. Louis & Gulf Railway Company constructed a standard gauge line of railroad from Zeta in Stoddard county through Dudley to Campbell, and put it into operation prior to the time that they drew the draft mentioned in evidence on the defendant for the amount of his alleged subscription, but we deny that it was constructed or operated into or through the town of Bloomfield; and it is conceded that Campbell is in Dunklin county, Missouri, and Dudley is in Stoddard county, Missouri."
The court directed a verdict in plaintiff's favor and this having been returned and judgment entered on it, defendant appealed.
Judgment reversed and cause remanded.
Bond, Marshall & Bond, Geo. L. Corliss and N. A. Mosley for appellant.
(1) (a) Words used in a contract must be given their plain, ordinary, and popular meaning, unless from the context or by usage they have acquired a different meaning. R. S. 1899, sec. 4160; Ruby v. Coal & Mining Co., 21 Mo.App. 159; Fruin v. Railroad, 89 Mo. 397; Stettauer v. Hamlin, 97 Ill. 312; Steyer v. Dwyer, 31 Iowa 20; 17 Am. & Eng. Ency. of Law (2 Ed.), p. 11. (b) The most conspicuous and wide-reaching of all rules of interpretation is the one requiring that a written contract be so construed as to give effect to the intent of the parties. Bishop on Contracts, p. 148, sec. 380. (c) If it is asserted that the words used in a contract have a meaning other than the popular one, the burden is upon the party making the assertion to establish it by competent proof. (2) Subscription contracts to aid in the construction of railroads are construed strictly against the promisee. Garrison v. Cook, 72 S.W. 56. (3) (a) The words "through or into Bloomfield" when used in a contract for the construction of a railroad, mean through or into the town or city of Bloomfield as popularly understood, and not through or into the municipal corporation. Wichita v. Burleigh, 12 P. 332, 36 Kan. 34; Denver v. Coulehan, 39 P. 425, 20 Col. 471, 27 L. R. A. 751; Wilder v. McConnell, 45 S.W. 145; 91 Tex. 600; The Society of the Cincinnati's Appeal, 154 Penn. St. 621; Enterprise v. State, 10 So. 740, 29 Fla. 128; Fitz v. Boston, 58 Mass. (4 Cush.) 365; Rogers v. Female College, 39 L. R. A. 640; Smith v. Sherry, 50 Wis. 217. (b) The ordinary and popular conception of a town or city is a collection of houses, habitations, and citizens gathered together in one mass and occupying a compact and contiguous territory, and has no relation whatever to the limits of the municipal corporation. 28 Am. and Eng. Ency. of Law (2 Ed.), p. 282. (4) Even if the word "Bloomfield" in the contract be held to refer to the municipal corporation and not to the town, still for the purpose of determining what is a performance of the contract, the corporate limits will be considered as they existed at the time the contract was made. Crow v. Clay County, 95 S.W. 379; Rothenberger v. Clark, 22 Ind.App. 288; Tobey v. Moore, 130 Mass. 448; The Society of the Cincinnati's Appeal, 154 Penn. St. 630.
L. F. Parker and J. G. Egan for respondent.
(1) When a term has a fixed legal meaning and that term is used in a contract, it is presumed that is the meaning that is referred to. 9 Cyc. of Law and Prac., 583; 17 Am. and Eng Ency. of...
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