Yazoo & M. V. R. Co. v. Jones

Citation114 Miss. 787,75 So. 550
Decision Date04 June 1917
Docket Number19250
PartiesYAZOO & M. V. R. CO. v. JONES
CourtUnited States State Supreme Court of Mississippi

APPEAL from the circuit court of Tallahatchie county, HON. E. D DINKINS, Judge.

Suit by S. M. Jones against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

James Stone & Son, C. N. Burch and H. D. Minor, for appellant.

Laws of Mississippi 1908, chapter 88, providing for the building of spur tracks by railroad companies so as to connect their main line with manufacturing or other industrial plants, and for the maintenance of same when constructed, is unconstitutional. McInnis v. Railroad, 68 So. 481.

A contract is a meeting of the minds of two or more persons based upon some valid consideration, to do or not to do some lawful act. The parties must be competent persons and must communicate one to another their common intention. Every agreement must necessarily result from an offer or proposal on one side and an acceptance on the other. An offer and an acceptance must be absolute and unconditional and the offer or proposal must be accepted exactly as it is made. If the offer made is rejected or modified in the least, the party making it is relieved from liability on that offer and the party who has rejected cannot afterwards at his option convert the same offer into an agreement by an acceptance. To do so he must have the renewed consent of the person who made the offer. Davis v. Parish, 12 Am. Dec. 287; Lawson on Contracts, 27; Insurance Co. v. McIntosh, 86 Miss. 236.

The paragraph objected to by appellee in the contract sent him by appellant was reasonable and the appellant had a right to insist upon the contract being signed just as it sent it, or else appellant was under no liability. Imperial Wheel Co. v. Railroad, 20 I. C. C. Rep. Mayfield v. Railroad, 85 S.Ct. 165; Missouri, etc., R. Co. v. Carter, 68 S.W. 159; Mann v. Railroad, 135 Mich. 210; Richmond v. Railroad, 26 R. I. 225; Railroad v. Saulsbury, 5 Ann. Cas. 74; Griswold v. Railroad, 24 L. R. A. 751; Porter v. Railroad, 205 Mass. 590; Hartford Ins. Co. v. Railroad, 175 U.S. 91; Russell v. Railroad, 55 L. R. A. 253; Quimby v. Railroad, 5 L. R. A. 846; Slocumb v. Railroad, 81 S.E. 335.

The legislature alone can impose upon railroads the duty to construct side tracks. In Mississippi, the statute imposing that duty has been held unconstitutional, therefore there is no law compelling appellant to put in a spur track and appellant had no right to construct or refuse to construct a particular spur track on such terms as appellant desired to impose. Railroad v. M. R. C., 150 N.W. 158; Mann v. Railroad, 97 N.W. 724, and numerous authorities there cited.

Other citations that fill various law books as to a contract being based upon a meeting of the minds as to all the terms and conditions and specifications contained therein, are here cited. Especially where "mutuality" is essential. L. P. Lumber Co. v. Hinton, 108 P. 528; Luckey v. Railroad, 113 S.W. 703; Miller v. Sharp, 100 N.E. 108; McNeill v. Railroad, 47 S.E. 765; Phelps v. Good, 96 P. 216; Embry v. Dry Goods Co., 105 S.W. 777; Am. Pencil Co. v. Railroad, 32 L. R. A. (N. S.) 32; Case Mac. Co. v. Meyers, 9 L. R. A. (N. S.) 970; W. J. O. Con. Co. v. Reeder, 66 S.E. 955; Am. Can Co. v. Agr. Ins. Co., 106 P. 720; H. C. C. O. & G. Co. v. Nichols, 89 S.W. 795; San Antonio v. Marx, 87 S.W. 1166; Baird Bros. v. W. P. & Co., 89 S.W. 648; H. & B. Car Co. v. A. F. Co., 91 N.E. 975, M. W. & Co. v. Johnson, 95 N.E. 290.

A. H. Stephens, Green & Green and A. A. Hearst, for appellee.

Under these undisputed facts, the appellant was bound by the contract as signed by appellee, and under which it received and retained the money, seven hundred and twelve dollars and thirty-one cents, even though it did not intend to agree to all of the conditions of the contract as signed by appellee.

When appellant tendered to appellee, for signature, the proposed contract between the parties in May, 1914, and appellee refused to sign it, as drafted, but altered it and signed it and acknowledged it, and with it paid appellant seven hundred and twelve dollars and thirty-one cents for the switch and track, according to its terms, and appellant cashed this check and retained the money, and also retained the signed contract, and never offered to return the contract signed, nor the money, there was a meeting of their minds on this contract by the acceptance by appellant of appellee's offer in the modified contract and the acceptance of the money paid in pursuance of its terms.

Assent to the terms of the contract is shown by acting upon the offer. Appellant could not keep the money paid in execution and performance of the contract, and which was paid as a consideration of the performance of the contract as signed by appellee. The acceptance of the money bound appellant to perform the contract for the consideration of which it was paid, and appellant could not keep the money and claim any terms or conditions other than those set forth in the contract upon which the money was paid. Burton v. Wells, 30 Miss. 688, is directly in point. Grinnan v. Platt, 31 Barb. 328; Springer v. Cooper, 11 Ill.App. 267; Orme v. Cooper, 1 Ind.App. 449; Seal v. Irwin, 2 Martin (N. S.) (La.) 245; Amory v. Black, 13 La. 264; Springfield v. Harris, 107 Mass. 330; Manger v. Crosby, 117 Mass. 330; New York and New Haven R. R. Co. v. Pixler, 19 Barb. 428; Walters v. Glendenning, 87 Wis. 250; Johnson v. Tally, 10 Lea 248; Aiken v. Albany R. R. Co., 26 Barb. 289; Baldwin v. Commonwealth, 74 Ky. 11, Bush, 417; Robertson v. Tapley, 47 Mo.App. 239.

Performing acts in accordance with a proposition as offered will complete the contract, and impose upon the party so doing the necessary obligation without calling for a signature from him. Both parties need not sign. And such performance will make the promise obligatory upon the promisor. Matthewson v. Fitch, 22 Cal. 86; Hoffman v. Railroad Co., 157 Pa. St. 174; Perkins v. Halsell, 50 Ill. 216; McMillan v. Railroad Co., 92 Am. Dec. 298; Moss v. Bellows, 28. Am. Dec. 372; Attix v. Pelan, 5 Ia. 336; Brandon Mfg. Co. v. Moss. 38 Vt. 322; Hooker v. Hyde, 61 Wis. 604.

These authorities abundantly support the proposition that appellant, after it received the altered contract signed by Jones, of May 25, 1914, and cashed the check with the endorsement: "For switch and track at S. M. Jones' saw mill" and received the money thereon, could not, while retaining that money from May 25, 1914, to September, 1915, one year and four months, and never offering to return it until sued, set up that there were any other terms to the contract than those stated in that signed by Jones, and if there were any other conditions or conjunctions incompatible with the terms of acceptance of this money, even though, as held in Burton v. Wells, supra, appellant dissented from such conditions, the money having been received upon such conditions, appellant would be bound.

Too much stress cannot be laid upon the fact that appellant received this check with this contract for the performance of the terms of that contract by it, and not only this, but actually endorsed the check "For switch and track at S. M. Jones' saw mill," showing that it was received and collected for this particular purpose and none other.

Thus having received the money for this purpose, and collected the money for this purpose, appellant could not say that it was not bound by the terms of the contract under which it had received this money.

SYKES, J. HOLDEN and ETHRIDGE, JJ., dissenting.

OPINION

SYKES, J.

S. M. Jones instituted suit in the circuit court of the second judicial district of Tallahatchie county against the Yazoo & Mississippi Valley Railroad Company, and recovered a judgment in said court for the sum of seven thousand, five hundred and sixty-seven dollars and seventy-one cents from which judgment this appeal is prosecuted.

The appellee, Jones, claims that he and the railroad company entered into a written agreement or contract some time after the 22d day of April, 1914, under which contract the railroad company obligated itself to build a switch or spur track for the use and benefit of the appellee on his plantation at a point called Black Bayou Junction; that on or about May 24, 1914, he paid to the railroad company the sum of seven hundred and twelve dollars and thirty-one cents, the amount demanded by the company to be advanced to defray the estimated expense for building the spur track. The appellee claims that the railroad company breached or declined to execute this contract by building the spur track, thereby causing his damages. The railroad company contends that it never entered into any such contract with the appellee, and that under the testimony appellee was entitled only to a verdict and judgment for the amount he advanced as a partial payment for the work of building the spur track.

The facts material to the controversy are not controverted and are set out in the correspondence which passed between the railroad company and Mr. Jones, supplemented by some testimony relating to the returning of the alleged contract by Mr. Jones and the sending of his check to the railroad company.

The material facts, as shown by this correspondence and this testimony, are as follows: In January, 1914, Mr. Jones began the correspondence by writing to the superintendent of the railroad company at Memphis, Tenn., a letter asking him to put in a switch track at his sawmill. In this letter he asks that the superintendent take up this matter right away, as he desires to get this spur in as soon as possible. The superintendent acknowledged receipt of this...

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