West Missouri Land Co. v. Kansas City Suburban Belt Railroad Company

• Decision Date: 29 March 1901
• Parties: WEST MISSOURI LAND COMPANY v. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

61 S.W. 847

161 Mo. 595

WEST MISSOURI LAND COMPANY v. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

March 29, 1901

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

Lathrop Morrow, Fox & Moore for appellant.

(1) Under all the evidence the plaintiff was not entitled to recover and the court should have directed a verdict for defendant. Bradley v. Reppell, 133 Mo. 545; State ex rel. v. Gravel Road Co., 138 Mo. 332; State ex rel. v. Payne, 129 Mo. 468; Thompson on Corporations, sec. 6719; Morawetz on Corporations (2 Ed.) 746; 9 Am. & Eng. Ency. of Law (2 Ed.), p. 569; White v Campbell, Humph. 38; Sturges v. Vanderbilt, 73 N.Y. 384; Marysville Investment Co. v. Munson, 44 Kan. 491; Douthitt v. Stinson, 63 Mo. 268; 9 Am. & Eng. Ency. of Law (2 Ed.), p. 603. (2) The defendant is not estopped to assert the invalidity of the alleged note sued upon. Reinhard v. Mining Co., 107 Mo. 616; Douthitt v. Stinson, 63 Mo. 268; Bigelow on Estoppel (2 Ed.), 253; 11 Am. & Eng. Ency. of Law (2 Ed.), p. 393; 8 Am. & Eng. Ency. of Law (2 Ed.), p. 747; Morawetz on Corp., sec. 778; Beach on Corporations, sec. 13; 8 Am. & Eng. Ency. of Law (2 Ed.), p. 748; Bradley v. Reppell, 143 Mo. 552; Thompson on Corporations, sec. 523; 2 Cook on Corporations, sec. 637; Loan & Trust Co. v. Railroad, 42 N.E. 153; Jones v. Hardware Co., 29 L. R. A. 143; Maryland Tube & Iron Works v. Improvement Co., 87 Md. 207; s. c. 39 L. R. A. 810; Krutz v. Town Co., 20 Kan. 397; Alvord v. Barber, 9 Am. & Eng. Corporation Cas. (N. S.) 774; Green v. Seymour, 3 Sand. Ch. 285; Carey v. Railroad, 5 Iowa 257; Collins v. Abenburry, 3 Ired. 277; Mason v. Mason, 3 N.E. 9; Caffrey v. Duggeon, 20 Ind. 512.

John L. Peak for respondent.

(1) Neither in the pleadings, nor in the evidence, nor in the instructions, was the validity of the note questioned, nor the right of estoppel claimed. It is well-settled law in this State that a party can not try his case upon one theory in the trial court and upon a different and distinct theory in the appellate court. He must adhere in the appellate court to the theory adopted by him in the trial court. Hall v. Goodnight, 138 Mo. 576; Triggs v. Taylor, 27 Mo. 245; Walker v. Owen, 79 Mo. 563; Nance v. Metcalf, 19 Mo.App. 186; Brooks v. Yocum, 42 Mo.App. 576; Tomlinson v. Ellison, 104 Mo. 105; Harper v. Morse, 114 Mo. 317; Jennings v. Dunham, 60 Mo.App. 635. (2) The validity of the note and its binding character were expressly admitted by defendant's pleadings. But even if the defendant had attempted to avail itself of this defense in the trial court, now pleaded here for the first time, and had set up in its answer the invalidity of the note sued on, and the want of corporate capacity in the West Kansas City Land Company, such defense would have been held invalid and insufficient. The defendant had accepted a deed from the West Kansas City Land Company, had gone into possession of the land under its deed, had executed its note to the West Kansas City Land Company in payment for the land, and by these solemn acts had admitted its corporate capacity. Such solemn acts would have estopped the defendant from denying the corporate capacity of the West Kansas City Land Company, even if it had been pleaded as a defense in the court below. Bradley v. Reppell, 133 Mo. 545; Railroad v. McPherson, 35 Mo. 13; Insurance Co. v. Needles, 53 Mo. 18; St. Louis v. Shields, 62 Mo. 247; Stoutimore v. Clark, 70 Mo. 471; Studebaker Bros. v. Montgomery, 74 Mo. 101; St. Louis Gas Co. v. St. Louis, 84 Mo. 202, affirming 11 Mo.App. 55; Broadwell v. Merritt, 87 Mo. 95; Granby Mining Co. v. Richard, 95 Mo. 106. Such estoppels extend as well to the privies as to the parties to such contracts. Hazenritter v. Kirchoffer, 79 Mo. 239; Ragan v. McElroy, 98 Mo. 349; Broadwell v. Merritt, 87 Mo. 95; Reinhart v. Lead Mining Co., 107 Mo. 616. (3) It is well-settled law in this State that a party is bound by his solemn admissions of record throughout the trial and can not be permitted to contradict them either in his evidence, his instructions, or his defense in the appellate court. Pike v. Martindale, 91 Mo. 286; Breckenridge v. Ins. Co., 87 Mo. 69; Weil v. Paston, 77 Mo. 284; Wilson v. Albert, 89 Mo. 537; Foley v. Alkire, 52 Mo. 317.

BRACE P. J. Marshall, J., absent.

OPINION

BRACE, P. J.

This is an appeal by the defendant from a judgment of the Jackson Circuit Court in favor of the plaintiff for the sum of $ 6,169.37.

On the twenty-fourth of December, 1891, the West Kansas City Land Company and the Consolidated Terminal Railway Company entered into a written contract as follows:

"This agreement made and entered into the twenty-fourth day of December, 1891, by and between the West Kansas City Land Company, a corporation, party of the first part, and the Consolidated Terminal Railway Company, a corporation, party of the second part, witnesseth:

"That the party of the first part has this day bargained and sold to the party of the second part and its assignees, the following described real estate, to-wit: A strip of land twenty-eight feet in width over and across the land hereinafter described, situate in Kansas City, Jackson county, Missouri (describing the land), the whole length of the above-mentioned strips, taken together, being about twelve hundred and eighty feet, at and for the consideration of ten thousand dollars, upon the following terms: four thousand dollars upon the delivery to the second party by the first party of a special warranty deed as to itself, and a good and sufficient bond with satisfactory security for the sum of six thousand dollars, payable in three years after its date, with interest thereon at the rate of eight per cent per annum, payable semiannually.

"The above strip of ground is bought for the purpose of being used as a right of way by the party of the second part, and the party of the second part is hereby given sixty days in which to locate its said right of way over and across the lands above described or a portion of said lands. And it is further understood that, as there are some claims to portions of said land to be used as a right of way, if the second party be defeated in any suit as to portions of said right of way, so as to reduce the said right of way so to be obtained from the party of the first part, to less than twelve hundred feet in length, then there is to be deducted from the consideration hereinbefore mentioned such proportion of the ten thousand dollars as the difference between the length of right of way hereafter found to be owned by the first party and twelve hundred feet, bears to the said twelve hundred feet; and if such proportion of the ten thousand dollars so to be deducted is more than six thousand dollars, the amount of said bond, the balance thereof to be deducted shall be refunded to the second party by the first party; but if such proportion of the said ten thousand dollars to be deducted be less than six thousand dollars, then the same shall be applied as part payment upon the said six thousand dollar bond; or should the party of the second part decide before constructing its line not to use portions of the land hereinbefore mentioned so that the right of way occupied should be less than twelve hundred feet in length, then the deduction is to be made from the consideration of ten thousand dollars or applied as part payment upon said bond in the same proportion and in the same manner as last above mentioned.

"The party of the second part is to contest at its own expense, so far as such expenses are concerned, all suits in reference to title to right of way procured under and by the terms of this contract; the said first party, however, through its attorney, giving such aid and information to second party in said contest for right of way as may be desired by the second party.

"In case no suits are brought concerning said right of way within three years, or in case those brought should not in any event reduce the length of the right of way conveyed to less than twelve hundred feet, then said bond is to be paid with interest on the day when it is due; but in case such suits have already been begun, then the second party may retain the sum proportioned as above mentioned so as to provide against any ultimate loss in case suits should be decided against the second party.

"The party of the first part hereby agrees to deliver to the party of the second part a good and sufficient special warranty deed as to itself to all of said right of way upon demand within thirty days, upon the payment to it of the said sum of four thousand dollars in cash and the said bond. And the right is hereby given to the first party to reserve in said deed all riparian rights of accretion. This contract is to be consummated and papers to be passed and exchanged within fifteen days from date hereof.

"In witness whereof the parties of the first and second part have caused these presents to be signed by their respective presidents and attested by their respective secretaries, and their corporate seals to be hereunto affixed the day and year first above mentioned.

"Executed in duplicate.

"West Kansas City Land Company.

(Seal.) "By Hunter M. Meriwether, President.

"Consolidated Terminal Railway Company,

"By E. L. Martin, President."

Soon thereafter the defendant, the Kansas City Suburban Belt Railroad Company, by consolidation with, became the successor of, the said Consolidated Terminal Railway Company in said contract, and in pursuance thereof executed and delivered to the said West Kansas City Land Company its promissory note for the balance of the purchase money as follows, to-wit:

"$ 5,600 Kansas City, Missouri, November 11, 1892.

"Three...