Stolle Stone Co. v. Missouri Pac. Ry. Co.
| Citation | 189 Mo. App. 683,175 S.W. 250 |
| Decision Date | 06 April 1915 |
| Docket Number | No. 13817.,13817. |
| Parties | STOLLE STONE CO. v. MISSOURI PAC. RY. CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.
Action by the Stolle Stone Company against the Missouri Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.
Glendy B. Arnold, of St. Louis, for appellant. James F. Green, of St. Louis, for respondent.
This is a suit for damages on account of an alleged breach of contract. At the conclusion of the evidence introduced on the part of plaintiff, the court directed a verdict for defendant. Plaintiff prosecutes the appeal, and the question for consideration relates to the propriety of the ruling mentioned.
It appears that plaintiff maintains a stone quarry near defendant's railroad in St. Louis county, and did so in 1901. A switch track owned by defendant connected with plaintiff's stone quarry, but it became dilapidated and out of repair. Plaintiff, desiring to transport stone from its quarry over the switch, approached defendant with a view of inducing the reconstruction of a portion of the track. As a result of the negotiations between the parties concerning this matter, they entered into a written contract on September 25, 1901, which was duly signed by both. By the terms of the contract, defendant undertook and agreed to put the spur track for a distance of 450 feet from the Carondelet branch of its railroad in safe operating condition, so as to accommodate the traffic of plaintiff quarry company, and plaintiff agreed to pay in advance to defendant the sum of $300 to be used is part payment for constructing the track. It is provided, further, in the contract, that, in event and after plaintiff had shipped sufficient freight from its quarry, over the spur track to yield defendant $1,000 in freight charges, defendant would then refund 10 per cent. of the amount thereafter collected by it on freight bills until said $300, without interest, should be repaid to plaintiff. This contract was entered into on September 25, 1901, and it is averred that defendant breached it in 1911 — ten years thereafter — through taking up the spur track and moving it away without the consent of plaintiff and without repaying $300 to it. Because of such alleged breach, damages are prayed in the first count of the petition in the sum of $300.
The evidence tends to prove, and indeed, is conclusive, that the parties entered into the written contract, as above stated, which will be hereafter set forth in full; that plaintiff paid to defendant the $300 cash in accordance with the terms of the contract, and defendant put the spur track in proper condition for use at the time. There is no complaint with respect of this, and the case concedes that both parties fully complied with the original undertaking therein; that is, that plaintiff paid the $300, and that defendant put the track in proper condition. It appears, too, that the track was permitted to remain for about ten years, or until 1911, when defendant removed it entirely. There is no evidence, however, in the record, tending to prove that plaintiff paid defendant as much as $1,000 in freight during the time or that it paid freight in any amount, so far as that matter is concerned. Indeed, the theory of the case presented to the trial court and pursued here in no wise proceeds upon the hypothesis that plaintiff had become entitled to $300 under the terms of the contract, because defendant had failed to comply with its bargain to reimburse it after having collected $1,000 freight charges from plaintiff on shipments originating from the quarry. The alleged breach of the contract relied upon for a recovery relates rather to what is assumed to be an implied obligation on the part of defendant to maintain the track for plaintiff's use indefinitely, for it is averred that defendant removed the, track without plaintiff's consent in 1911, to its damage, etc., in the sum of $300. There is certainly no express stipulation in the contract as to how long defendant should maintain the track or even permit it to remain situate there, and neither is it provided when it might be removed.
Omitting the signatures of the parties, the contract sued upon in full is as follows:
"This agreement, made and entered into this 25th day of September, 1901, by and between the Missouri Pacific Railway Company, a railway corporation owned and organized under the laws of the state of Missouri, party of the first part, and the Stolle Stone Company, a corporation organized under the laws of Missouri, party of the second part, witnesseth That whereas, what is known as the Glendale Quarry Spur on the Carondelet branch of the Missouri Pacific Railway is not in proper condition for the running and operating of cars over it; and whereas, the said party of the second part is desirous of making shipments of stone and other material upon said track for a distance of about four hundred and fifty (450) feet on said spur to its connection with said Carondelet...
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