The St. Louis Nat'l Stock Yards v. the Wiggins Ferry Co..

• Decision Date: 31 May 1882
• Parties: THE ST. LOUIS NATIONAL STOCK YARDSv.THE WIGGINS FERRY COMPANY.
• Court: Illinois Supreme Court

102 Ill. 514

1882 WL 10258 (Ill.)

THE ST. LOUIS NATIONAL STOCK YARDS

v.THE WIGGINS FERRY COMPANY.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.Rehearing denied May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. JOHN B. BOWMAN, for the appellant:

A plaintiff, to recover in forcible detainer, is no longer limited, as at common law, to cases where the relation of landlord and tenant exists, but the statute brings within this action other causes. Rev. Stat. ch. 57, sec. 2.

This action, if it lies at all, is given in either the second or fifth class of section 2 of the act.

That the agreement under which appellant entered was not a mere license, revocable at pleasure, as contended for by appellee, counsel examined and commented upon the authorities relied on, and distinguished them from this case. Among them are the following: Dunstedter v. Dunstedter, 77 Ill. 580; Woodward v. Seeley, 11 Id. 157; Kimball v. Yates, 14 Id. 464; Walker v. Wilson, 52 Id. 352.

To maintain the action under the fifth class named in the statute, it must appear that appellant obtained possession under an agreement to purchase, and has failed to comply with its terms. This is not shown.

Counsel also contended that possession was taken under a verbal agreement of sale, and that appellant had complied with its terms by making valuable improvements beneficial to the appellee. That a moneyed consideration was not necessary to sustain the contract, he cited 3 Washburn on Real Property, 370; Violent v. Patton, 5 Cranch, 150.

If a principal reaps the fruits of an act of his agent within the apparent scope of his authority, he is liable for the misconduct by which those fruits were produced. Rock ford v. Railroad Co. 65 Ill. 224; Wharton on Agency, sec. 468; Wharton on Evidence, sec. 1170.

A corporation, like an individual, may be estopped and bound by the appearance of authority it gives its agents. Potter on Corporations, sec. 508, note; Wharton on Evidence, sec. 1175.

Mr. R. A. HALBERT, for the appellee, first contended that there is no question of law in the case,--that it was a controverted question of fact whether the permission given by Clubb was to occupy the premises temporarily or permanently, and that this fact was found against the appellant, and such finding was affirmed by the Appellate Court.

That appellant's entry was under a mere license, revocable at pleasure, counsel cited Dunne v. Trustees, 30 Ill. 578; Walker v. Wilson, 52 Id. 352; Kamphouse v. Gaffner, 73 Id. 460; Desloge et al. v. Pearce, 38 Mo. 588; Hatfield v. Central Railroad Co. 5 Dutch. 571; Fryer v. Warne, 29 Wis. 511; Fentiman v. Smith, 4 East, 109; Rex v. Inhabitants, etc. 4 M. & Sel. 562; Bryan v. Whistler, 8 B. & Cress. 288; Clute v. Carr, 20 Wis. 559; French v. Owen, 2 Id. 184.

That an easement can not be created by parol, or by a writing not under seal, see Goddard on Easements, p. 88; Dainneen v. Rich, 22 Wis. 550; Huff v. McCauley, 53 Pa. St. 206; Fahr v. Dean, 26 Mo. 116; Dark v. Johnson, 55 Pa. St. 164; Mumford v. Whitney, 15 Wend. 380; Pitkin v. Long Island Ry. Co. 2 Barb. Ch. 221.

If the defendant has any equities, which we deny, they can not be set up in defence in an action at law. Such defence is available in equity only. Wheeler v. Frankenthal, 78 Ill. 124; Fleming v. Carter, 70 Id. 286; Warner v. Hale, 65 Id. 396; Kamphouse v. Gaffner, supra.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was an action of forcible detainer, brought by the Wiggins Ferry Company, in the St. Clair circuit court, against the St. Louis National Stock Yards, to recover a strip of land near East St. Louis, occupied by an embankment and railroad track, known as the “stock yard connecting track.” The complaint is in the usual form, charging that appellee is entitled to the possession of the premises, and that appellant, after demand made, unlawfully withholds the same from appellee. To this complaint appellant filed a plea formally traversing the charge “of unlawfully withholding possession of the premises,” and upon this issue the cause, by agreement of parties, was tried by the court without the intervention of a jury, resulting in a finding and judgment in favor of appellee, and this judgment was affirmed on appeal to the Appellate Court, and the case comes here on further appeal.

It is a conceded fact that the premises in controversy, subject to the easement claimed by appellant, belong to appellee, and that in the summer of 1875, appellant, under a verbal agreement of some character with S. C. Clubb, the general manager of appellee, entered upon the same, and constructed thereon, at a considerable cost, the embankment and railway track in question. The agreement being verbal, and no one pretending to give the language or the exact terms used by the parties, its real character, and the purport of the terms finally agreed upon, together with its legal effect, presented a mixed question of law and fact, which was necessarily determined by the trial court from all the evidence before it, and the judgment of that court having been affirmed by the Appellate Court, its decision must be accepted as final upon that question.

It was contended, upon the one hand, that the evidence established a mere license, and on the other hand, that it showed a contract of sale of the right of way. Whether it established the one or the other, depended upon what inferences might fairly be drawn from the various statements of witnesses, and the facts and circumstances attending the transaction, and the question in either case is as clearly a conclusion of fact, susceptible of proof, as the alleged promise of the defendant in an ordinary action of indebitatus assumpsit, where the promise alleged in the declaration is only inferred from proof of such facts and circumstances as show a legal liability. It is true, where the terms of a contract are specifically determined, then the meaning or legal effect of such contract presents a pure question of law, and the court alone is permitted to construe it. But where, as in the present case, not only the legal effect of the agreement upon the controversy in hand is to be determined, but also the terms of the agreement itself are to be ascertained from extrinsic proofs, then the whole matter, as a mixed question of law and fact, should be submitted to the jury, under proper instructions from the court. The jury having been waived in this case, its functions were performed by the court, under the agreement of the parties.

It is not to be understood, from anything we have said, the jury is, in any civil case, to determine what the law is, except as it receives it from the court. Yet many issues are necessarily so made up as to involve matters of law as well as fact, and the whole matter is then properly submitted to the jury as a mixed question of law and fact; but in disposing of the issue, the jury is bound to act upon the law as given to it by the court, and apply it to the facts, as found, under the guidance of the court. In short, the jury in all civil cases ascertains the facts, and affords or denies relief through its verdict, according to law as the same is given to it by the court.

By reference to the Forcible Entry and Detainer act it will be perceived there are but six classes of cases in which the action will lie, and it is clear the present case can not be maintained unless it is brought within the second or fifth class. The second class includes all cases where the entry was peaceable and the possession is unlawfully withheld, and the fifth class extends only to cases where a vendee “having obtained possession under a verbal or written agreement to purchase lands or tenements, and having failed to comply with his agreement, withholds possession thereof after demand in writing by the person entitled to such possession.”

The present action is brought upon the hypothesis that the verbal agreement under which appellant entered was a mere license, revocable, on notice, at the pleasure of appellee. If, as claimed by appellant, the evidence establishes a contract of sale of the right of way, the action clearly could not be sustained without showing a failure on the part of appellant to perform its part of the agreement, as contemplated by the fifth clause of the second section of the act above mentioned, and we find nothing in the record to warrant such a claim. It follows, therefore, the only theory upon which the action can be maintained, if at all, is, as claimed by appellee, that the agreement or understanding in question was a mere license, and we are warranted in concluding the...