Workman v. Campbell

• Citation: 46 Mo. 305
• Parties: SAMUEL WORKMAN, Plaintiff in Error, v. C. C. CAMPBELL, Defendant in Error.
• Decision Date: 31 July 1870
• Court: Missouri Supreme Court

46 Mo. 305

SAMUEL WORKMAN, Plaintiff in Error,

v.C. C. CAMPBELL, Defendant in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court

Crittenden & Cockerell, and Ewing & Smith, for plaintiff in error.

I. The Circuit Court erred in sustaining the demurrer, because the writing sued upon has the force and effect of a promissory note and imports a consideration. (Caples v. Branham, 20 Mo. 244; 18 Mo. 513; 2 Am. Lead. Cas. 162; 4 N. H. 534; 20 Johns. 89; 1 Metc. 570; 2 Denio, 403.)

II. This contract is not, upon its face, against public policy, and therefore void. If the money subscribed was not used, or to be used, to improperly influence the company or its officers to locate a depot, then the consideration is good, and the subscription was not against public policy. (Pierce on Railw. 70, 71; 9 Watts, 458; 12 Wis. 512; 6 Ohio St. 225; 15 Ohio St. 225, 320; 16 B. Monr. 358, 364; 15 B. Monr. 218.)

Phillips, for defendant in error.

I. The supposed agreement is without consideration, so far as the defendant is concerned. He was to receive no benefit whatever from the location of the depot. There was no mutuality of obligation, for neither the plaintiff nor Pigg were bound to do anything at the time of making the subscription. It was therefore nudum pactum. (Chit. on Cont. 15.) There was no privity between the plaintiff and the defendant. Workman was a mere volunteer. It is not denied that a promise originally bad for want of a consideration may afterward become binding on the promisor by the promisee advancing money or incurring labor and expense, in good faith, on the strength of such promise. There is no sufficient averment in the petition to indicate that plaintiff did what he alleges on the faith of the subscription. (Warren v. Stearns, 14 Mass. 80.) And even did the petition contain such averment it would not support an action founded on the subscription or original promise, but the action should be founded on the implied promise growing out of such subsequent performance of work or expenditure of money. (14 Mass. 175; 19 Pick. 78-9.)

II. The directors chosen by the stockholders were clothed with a public trust and charged with the duty of locating the road and establishing depots, solely as by law required, and with regard to the public convenience and general good. The offer of means, therefore, to the directors to influence their decision, or bias or coerce their judgment, in favor of a private enterprise, was corrupting in its tendency, and contrary to open, upright, and fair dealing. The petition bears upon its face the unmistakable impress of corruption, and the courts have seldom failed to so pronounce. (Fuller v. Dame, 18 Pick. 472, 479-81; Armstrong v. Toler, 11 Wheat. 258; McGhee v. Lindsay, 6 Ala. 16; Davidson v. Seymour, 1 Bosw. 89; Bank of United States v. Owens, 2 Pet. 540, 541; 21 Barb. 361, 374; Pacific R.R. v. Seely et al., 45 Mo. 212.)

III. The subscription paper which is the predicate of the action is not filed with the action, nor is its absence accounted for. (R. C. 1855, p. 1240, §§ 59, 60; Rothwell v. Morgan, 37 Mo. 107-8.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his action in the Johnson County Circuit Court to recover the sum of $200, together with interest, on a subscription made by the defendant. The petition, in substance, sets out that by the subscription paper the defendant, with others, bound himself to pay the amount subscribed to John A. Pigg, Jr., or whoever might present a petition or proposition to the board of directors of the Pacific railroad, to be used in securing the location of a depot on the land then owned by Samuel Workman or James McKehan; the money to be paid whenever it was ascertained that the location was made and the road finished to the depot; that the land mentioned in the agreement, upon which the depot was to be located, was adjoining the town of Knobnoster; and that, in consideration of the subscription, plaintiff did present to the board of directors a petition and proposition for the location of the depot upon the lands mentioned in the subscription paper, and that he expended a large amount of labor and money, to-wit: one thousand dollars, in order to secure the location of the depot, and did secure thereby the location; that the railroad was, on the 2d day of May, 1864, completed to the said depot, and has ever since been in use to and from the same, of which the defendant was duly notified, and that Pigg assigned the subscription to plaintiff.

To this petition a demurrer was filed, for the reasons: first, that there was no sufficient consideration stated to support the promise alleged to have been made by the defendant; second, because it was a promise to pay money for influencing public officers, whose duty it was to select a depot with reference to the public convenience and accommodation; third, because the agreement was against public policy; and fourth, because it was an agreement for the exertion of a secret influence and power over the affairs of the corporation, not generally known to the public.

The Circuit Court gave judgment sustaining the demurrer, and this judgment was affirmed by the District Court. The decision in the District Court was based upon a ground not raised by the demurrer, and was placed solely on the fact that the suit was brought upon a written agreement charged to have been executed by the defendant, and that the petition did not show that the written instrument was filed in the suit. In this ruling I think the court committed error.

It is indeed true that the statute provides that when any petition or other pleading shall be founded upon any instrument of writing, charged to have been executed by the other party, or his testator or intestate, or other person represented by such party, and not therein alleged to be lost or destroyed, the same shall be filed with such petition or other pleading. (2 Wagn. Stat. 1022, § 51.) If the plaintiff fails to make proffert of the instrument of writing mentioned in his declaration, and which is the foundation of his action, it is a substantial defect and may be reached by demurrer. (McCormick v. Kenyon, 13 Mo. 131; Campbell v. Wolf, 33 Mo. 459; Dyer v. Murdock, 38 Mo. 224; Carr v. Waldron, 44 Mo. 393.) But the provision of the statute must have a reasonable construction, and not be perverted so as to produce injustice, or be made to apply to cases which were never intended to be...