The St. Louis & San Francisco Railroad Company v. Gorman

• Decision Date: 06 March 1909
• Docket Number: 15,881
• Citation: 79 Kan. 643,100 P. 647
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. THOMAS GORMAN

100 P. 647

79 Kan. 643

THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. THOMAS GORMAN

No. 15,881

Supreme Court of Kansas

March 6, 1909

Decided January, 1909.

Error from Bourbon district court; WALTER L. SIMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Definiteness--Agreement to Make a Contract. An agreement to make a contract in the future is not binding unless all the terms and conditions are agreed upon and nothing is left to future negotiations.

2. CONTRACTS--Agreement to Sign Special Contract Limiting Carrier's Common-law Liability. Under the facts of this case it can not be said as a matter of law that a shipper of cattle bound himself by preliminary negotiations relating to the shipment to sign a special written contract limiting the carrier's common-law liability.

3. CONTRACTS--Same. If preliminary negotiations relating to a shipment of cattle have not resulted in a valid agreement that it shall be made under a special written contract the shipper may rightfully refuse to sign such a contract, although he knows the custom of the carrier to require written contracts, in the course of a long experience as a shipper has always signed written contracts, and following the negotiations intended to sign a contract of the kind he had been using for the shipment in question.

4. CONTRACTS--Duress. A special written contract limiting a carrier's common-law liability which has been extorted from a shipper who rightfully declined to sign it by means of a refusal to transport cattle already in the carrier's possession unless such a contract was signed, is voidable at the shipper's election.

5. CONTRACTS--Affirmance of Voidable Contract--Duress. A party may not voluntarily act upon a contract which he has been wrongfully constrained to sign and voluntarily take the benefit of it and then avoid it for duress. But conduct exhibited in apparent recognition of the contract while the pressure of the hardship which overcomes the mind continues will not amount to an affirmance; and to constitute an affirmance the conduct of the injured party must be such as to indicate an intention to condone the wrong and a purpose to abide by its consequences.

6. CONTRACTS--Same. Under the facts of this case it can not be said as a matter of law that the acceptance and use of a return pass by a shipper of stock after the stock had been transported and delivered confirmed a voidable contract with the carrier under which the shipment was made, and which provided for such pass.

W. F. Evans, and R. R. Vermilion, for plaintiff in error.

A. M. Keene, and E. C. Gates, for defendant in error.

OPINION

BURCH, J.:

The defendant is a common carrier operating a line of railroad running northward through Godfrey, Fort Scott and Fulton to Kansas City, Mo. The plaintiff is a stockman who resides at Fulton, north of Fort Scott, and who keeps cattle at Godfrey, south of Fort Scott. The defendant has no office or agent at Godfrey. Desiring to ship several car-loads of cattle from Godfrey to Kansas City, the plaintiff made a verbal arrangement to do so with the defendant's agent at Fulton. The arrangement was that cars would be placed at Godfrey which the plaintiff would load in time to be taken by a certain train, the plaintiff would go with the cattle to Fort Scott, the defendant would have a shipping contract prepared and ready for signature when the train arrived there, and the plaintiff and his cattle would go through to Kansas City on the train taking them from Godfrey. The plaintiff had been a regular shipper of cattle for years, knew it was the custom to require shippers to sign written contracts, and had always signed written contracts, but he had never scrutinized and was not familiar with their provisions. He did not discuss rates or terms with the agent at Fulton, or the conditions of the contract which would be in waiting for him. He did not know what the terms would be, but he expected when he reached Fort Scott to be presented with, and intended to sign, just such a written contract as he had been in the habit of shipping under.

The cattle were loaded and transported to Fort Scott as contemplated. At Fort Scott the defendant had no contract in readiness for signature, no agent at the station, and after diligent effort the plaintiff could find nobody with authority to bill his cattle. The train conductor could not take the cattle without proper papers, and the cars containing them were cut out of the train over the plaintiff's objection and protest, were placed on a side-track, and the train proceeded to Kansas City without them. The day was hot and sultry, and for several hours the cattle were switched and bumped about the yards, frequently with much violence, or were left standing between lines of other cars so that they suffered greatly from heat, with the result that they were seriously injured. The plaintiff followed them about, getting up those which were knocked down, and otherwise doing what he could to protect them.

The plaintiff finally found an agent, who made out a contract and presented it for signature. The plaintiff was not apprised of its terms, was offered no choice of rates, and was given no option as to conditions of liability on the part of the defendant. He might have read the instrument but did not. He recognized it as a railroad live-stock contract like the kind he had been using, but he was not familiar with what it contained. He told the agent the condition the cattle were then in and refused to sign. The agent refused to allow the cattle to be shipped unless the plaintiff signed the paper tendered. Having no alternative, the plaintiff affixed his signature, so that he could get his cattle to market. A few hours afterward the cattle were placed in a train which took them to Kansas City. When put upon the market one animal could not be sold, and five others were weighed back after sale because of broken ribs and bruises.

The contract which the plaintiff signed required him to attend and unload his cattle at his own risk and expense. It contained provisions, with which he did not comply, which were conditions precedent to the recovery of damages for the injuries sustained. It also provided for his transportation. He went to Kansas City on the train with the cattle, and at Kansas City surrendered the contract to the defendant and received a pass to his home, which he used.

The plaintiff sued the defendant for damages, counting upon the common-law liability which attached to the delivery of the cattle to the defendant under the verbal arrangement with the agent at Fulton. The defendant answered setting up the written contract and pleading non-compliance with its conditions. The plaintiff replied that the writing was signed under duress. The case was submitted on testimony showing the foregoing among other facts. The court instructed the jury respecting the common-law liability of the defendant in the absence of special contract and respecting its limited liability under the written contract, and submitted to the jury the question whether the written contract was signed under such freedom from constraint that it governed the rights of the parties. The defendant excepted, but made no request for other instructions. The jury found for the plaintiff, and the defendant prosecutes error.

The defendant argues that when the written contract was signed it superseded all oral negotiations and fixed the rights of the parties. It is said that when the plaintiff signed the contract he did only what he intended to do from the beginning and what he agreed to do at the beginning, and hence that the coercion of the agent at Fort Scott can be given no legal effect.

It is not necessary to cite authorities upon the proposition that if the plaintiff freely and voluntarily signed the contract--assuming it to be one which the law will permit--it measures the rights of the parties. The oral arrangement would be at an end, and the plaintiff would be in no position to avoid the force of the limitations placed upon the carrier's liability by the writing. It may be assumed that if the plaintiff legally bound himself at Fulton to execute the precise contract which was presented to him at Fort Scott the claimed coercion was without legal influence. But if the plaintiff rested under no legal obligation to sign that contract he could abandon his original intention and refuse to do so; and if the original intention to sign was rightfully abandoned any subsequent assent to the terms of the contract would have to be obtained without coercion or it would not bind.

In calling upon this court to declare that the plaintiff irrevocably bound himself to sign the very instrument he did sign the defendant raises a question of fact which he should have asked to have submitted to the jury under proper instructions. There is no evidence that the defendant had a standard form of contract which it invariably used, and which therefore was in the plaintiff's mind. The contract upon which the defendant relies had the following heading:

"St. Louis & San Francisco Railroad Company. Read this contract carefully, as numerous changes have been made."

How long this form had been in use does not appear, and it can not be said the plaintiff had any of its provisions in mind. True, the plaintiff recognized the contract as a railroad live-stock contract like the ones he had been using and such as he expected to sign, but taking all of his evidence into consideration a jury would have the right to find that his identification extended no further than to the genus. A man may recognize a trust deed or coupon bond as such and know nothing of its contents, and he may agree to execute such a bond and to secure it by such a deed...