60 Fla. 412 | Fla. | 1910
On September 25th, 1909, an
amended declaration was filed in the circuit court for Jackson county, Florida, by the defendants in error, in which it is in substance alleged that about October, 1906, the railroad company was constructing a line of railroad from Dothan, Alabama, passing through Jackson county, Florida, to Panama City, Florida; that the railroad company desired to secure a right of way over certain lands owned by plaintiffs and Julia L. Thomas; that G. M. Thomas resided on Section 12, Tp. 2 N. R. 12 W., at Compass Lake in Jackson county, Florida; that plaintiffs under the name of Thomas Bros. Company, owned and operated at Compass Lake, Florida, a saw mill and also engaged in the production of naval stores; that it was necessary and practically indispensable to the profitable conduct of each their said businesses, and the convenience of others thereabout residing, that a depot and station should be built and constructed at Compass Lake, Florida; that a portion of the lands over which the defendant wanted a right of way was the exclusive property of said Julia L. Thomas, and the defendant was not able to obtain from her the desired right of way over her lands; that said Julia L. Thomas is the mother of plaintiffs, and the defendant negotiated with plaintiffs as partners aforesaid to secure for defendant the right of way across the
The contract made a part of the declaration is as follows:
*418 “State .of Florida,
County of Jackson.
, Know all Men by These Presents, That the Atlanta & St. Andrews Bay Railway Company, and Mrs. J. L. Thomas, (widow) G. M. Thomas and his wife, and A. C. Thomas and his wife, have this day entered into a contract and the terms of the same are as follows:
1st. For and in consideration of the covenants, undertaking and conveyance hereinafter made in this contract on the part of Mrs. J. L. Thomas, a widow, G. M. Thomas and his wife, and A. C. Thomas and his wife, to the Atlanta & St. Andrews Bay Railway Company, the said Atlanta & St. Andrews Bay Railway Company does hereby promise and agree to build its line of railroad from Cotton-dale in Jackson county, Florida, to Pánama City, on St. Andrews Bay, in Washington county, Florida, over and’ across the lands of said Mrs. J. L. Thomas, G. M. Thomas and A. C. Thomas as the same is now located by survey over their said lands, to-wit: Northwest quarter of the southwest quarter of sec. 6, township 3, range 13; northeast quarter of the southwest quarter of section 1, town-' ship 2,- range 12; southeast quarter of the southwest quarter of section 1, township 2, range 12; northeast quarter of northwest quarter of section 12, township 2, range 12; southeast quarter of the northwest quarter of section 12, township 2, range 12; northeast quarter of the southwest quarter of section' 12, township 2, range 12; southeast-quarter of the southwest quarter of section 12;-township 2, -range 12; southwest quarter of the southwest-quarter of', section 12, township 2, range 12, in Jackson county, Florida. And to locate and establish at Compass Lake a full station on its line of railroad as now located, and build and erect at said station a commodious and convenient depot fully sufficient in size and extent to handle and he*419 commodate all the passengers and freight business offered said railway company at said station; and the said station and depot shall be located on Sec. 12, T. 2 N of R. 12 W., that the interest of all parties hereto may be best sub-served.
2nd. For and in consideration of the undertaking and covenants in paragraph one of this contract, and the further sum of one dollar on the part of the said Atlanta and Saint Andrews Bay Railway Company to the said Mrs. J. L. Thomas, a widow, G. M. Thomas and his wife, and A. C. Thomas and his wife, the said Mrs. J. L. Thomas, a widow, G. M. Thomas and his wife, A. C. Thomas and his wife, do hereby bargain, sell and convey, enfeoff and confirm unto the said Atlanta and Saint Andrews Bay Railway Company the following lands, to-wit: One tract or parcel of land 100 feet wide and extending in length over and across the following lands, to-wit: Northwest quarter of the southwest quarter of section 6, township 3, range 13; northeast quarter of the southwest quarter of section 1, township 2, range 12; southeast quarter of the southwest quarter of section 1, township 2, range 12; northeast quarter of the northwest quarter of section 12, township 2, range 12; southeast quarter of northwest quarter of section 12, township 2, range 12; northeast quarter of the southwest quarter of section 12, township 2, range 12, southeast quarter of the southwest quarter of section 12, township 2, range 12; southwest quarter of the southwest quarter of section 12, township 2, range 12, in Jackson county, Florida; said tract or parcel of land being a tract or parcel of land fifty feet wide over and across said lands on each side of the center line of survey locating the line of railroad of the said Atlanta and Saint Andrews Bay Railway Company over and across said lands. Also, one tract or parcel of land 100 feet wide*420 and 3000 feet long for terminal purposes, to be hereafter located immediately next to and adjoining said foregoing conveyed right of way at said station and depot at Compass Lake on either side of the foregoing right of way as said railwáy company may choose, 1500 feet of same shall be north and 1500 feet shall be south of the said depot at Compass Lake. All timbers reserved to parties - of first part.
To Have and To Hold the same to the said Atlanta and Saint Andrews Bay Railway Company, its successors, legal representatives and assigns forever.
Entered into in duplicate, and dated at Cottondale, Florida, on this the 15th day of October, A. D., 1906.
ATLANTA AND SAINT ANDREWS BAY RAILWAY COMPANY,
Per B.G. FARMER (L.S.)
Its Attorney.
Attest:
Hattie Robertsonj
as to B. G. Farmer.
Bryant Scott; L. B. Smith;
as to G. M. Thomas & his wife. G. M. THOMAS (L.S.)
W. T. Graves; J. W. Hinson; L. L. THOMAS (L.S.)
as to A. C. Thomas & his wife. A. C. THOMAS (L.S.)
W. T. Graves; J. W. Hinson;
as to J. L. Thomas.” B. L. THOMAS (L.S.)
her
J. L. X THOMAS (L.S.)
mark
A demurrer to the declaration was interposed.
The grounds of demurrer insisted on are in substance that the covenant sued on is joint and all the joint obligees
Actions ex contractu are provided by law for the enforcement or redress of valid contracts as they are made. Such actions may be maintained only in accordance with the lawful rights and interests of the parties as they appear by the contract. The province of the court is not to make or to change a contract for the parties, but to ascertain and give effect to the valid intent of the contracting parties. Where the parties make a contract that is joint and not several in its obligations, an action for its breach should be by all the joint obligees who are capable of being plaintiffs. If a joint obligee is dead the action should be brought by the survivors. Where for any valid reason a joint obligee is not a plaintiff in an action to enforce or redress the joint right or interest under the contract, the failure to make such party a plaintiff should be sufficiently accounted for in the proceedings or the action will fail on appropriate demurrer unless a valid statute provides otherwise. Where the rights and interests of the parties are definitely and clearly' stated the terms of the contract fairly interpreted should control, for it
The express covenant here considered is that, in consideration of the conveyance of the right of way over the lands alleged to have been owned in part by Julia L. Thomas severally.,, and in part by G. M. Thomas and A. O. Thomas severally and -as partners, the railroad company
It is alleged that the location of the station and depot as agreed was necessary to the profitable conduct of plaintiffs’ business and to the convenience of others thereabouts residing. The lands over which the right of way was secured were not owned jointly by the covenantees, though the conveyance of the right of way over the lands of all three of the obligees was expressly made a consideration for the covenant as to the station and depot, and the covenant is to all three of the grantors of the right- of way. The consideration for the covenant sued on is not in its nature joint and the interests accruing to the covenantees under the contract are apparently not joint. It appears that Julia L. Thomas conveyed the right of way over her separate lands only at the instance of her sons and apparently to secure the location of the station and depot at the agreed point. As it is alleged that Julia L. Thomas was not interested in or the owner of the lands at or near Compass Lake where the station and depot were to be located, her interest in the location of the station in view of the allegations, may be largely one of convenience as a nearby resident, and her interest may or may not be similar in kind or degree to that of the other covenantees; but her interest as a land owner and resident is manifestly separate and distinct from that of G. M. and A. O. Thomas as partners asserted in this action, since it is alleged she
The covenant to locate a station and depot at a stated point “that the interest of all parties may be best sub-served,” is not inconsistent with separate interests of the obligees, but it comports with the existence of distinct rights to maintain actions for the redress of injuries resulting proximately from a breach of the covenant as the interests of the obligees under the contract may appear. The interests and rights of action under a contract are not joint where definite and separate amounts are covenanted to be paid to the obligees severally, though the covenant is in form joint to all covenantees, for the reason that the real intent is disclosed by the interests of the parties as they are in fact given by the contract. Gray v. Johnson, 14 N. H., 414; 30 Cyc., 107. The same principle is applicable where the obligation is in form joint, but the obligees may as in this case suffer separate and distinct but unascertained pecuniary injuries from a breach of the covenant. While the covenant may be in form joint, yet by reason of the subject matter, the character of the consideration and the purpose of the contract, the' interests of the parties are not joint and the causes of action accruing to the obligees may be several; and an action by two of the obligees to redress injuries caused by a breach of the covenant in which injuries the other obligee has no interest may be maintained.
The defendant railroad company having accepted the benefits of the contract and entered upon the possession and use of the right of way, it cannot now raise the question of the authority of the one who executed the contract in its name. Louisville, N. A. & C. Ry. Co. v. Sumner, 106 Ind. 55, 5 N. E. Rep., 404; Taylor v. Florida East Coast R. Co., 54 Fla., 635, 45 South. Rep., 574, 16 L. R. A.
While the right of way for the railroad track and the necessary land for its station and depot might have been secured by condemnation proceedings under the statute, and the amount to be paid would be the just value of the lands taken, yet the parties had a right to contract for the right of way and station grounds, and they are entitled to all the legitimate benefits of a valid contract. Under the statute an agreement may be made for the location of a railroad depot at a particular point on the line of the road, in return for a right of way. Such a contract may be specifically enforced where superior rights of the public do not intervene. Taylor v. Florida East Coast R. Co., 54 Fla., 635, 45 South. Rep., 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep., 155, 14 Ann. Cas., 472, 50 Am. & Eng. R. R. Cas. (N. S.), 289. No question of the rights of the public is presented here. The damages recoverable for a mere breach of a contract are not such as are arbitrary or unreasonable, but such as are compensatory only for losses proximately resulting from the breach where the losses are capable of reasonably certain ascertainment and may fairly and reasonably be considered, either as arising naturally; i. e. according to the usual course of things from such breach of contract itself, or. such as may reasonably be supposed to have been in the contemplation of both parties at the same time they made the contract as the probable result of the breach of it. If uhusual results are contemplated they should be provided for in the contract. See Hadley v. Baxendale, 9 Exch., 341; 3 Page on Contracts, sections 1574-5.
To warrant a recovery of substantial damages the losses complained of must have actually and proximately re-
Losses that are the necessary result of a breach of contract or duty are presumed to have been contemplated by the parties and may be recovered under a general allegation of damages without being separately pleaded. Losses that naturally and probably, but not necessarily result may be recovered as special damages, but they should be specifically pleaded. Jacksonville Electric Co. v. Batchis, 54 Fla., 192, 44 South. Rep., 933.
The losses alleged to be the result of the failure to establish the station and depot at the agreed place are the expense of building a road to the station át a distant point, and the expense of hauling to and from the station at the distant point, and also a depreciation of the value of the lands where the station would have been located under the contract, and a failure of the plaintiffs’ lands at the ágréed point to appreciate in value because the station was ■not located as provided in the contract. The expense of building a road to the station as located and the expense of hauling to and from the station are losses that may have been actually and proximatelv caused by the failure to establish the station and depot on the plaintiffs’ lands as agreed. The expenses thus incurred are losses of such a character that they should reasonably have been contem
As the station was never located on the plaintiffs’ lands, there appears to be no reliable basis from- which to determine with any degree of accuracy or certainty the amount of the alleged injury to the plaintiffs in a depreciation of the value of the lands necessarily or naturally resulting proximately from the mere failure to locate the station on the lands as agreed. See Standard Supply Co. v. Carter, 81 S. C., 181, 62 S. E. Rep., 150, 19 L. R. A. (N. S.), 155 and note. Apparently a depreciation in the value of the lands does not necessarily follow a failure to locate the station on them, and no circumstances are alleged to show such a loss to be a natural and probable result of the breach of the contract that should have been contemplated by the parties. The fact that the plaintiffs were conducting their business on the lands does not necessarily indicate that the lands would depreciate in value because of a failure to locate' the station thereon. This element of damage is apparently an unusual one, it is not provided for in the contract and it appears to be contingent, conjectural and speculative. It should have been eliminated in the pleadings, in the evidence and in the charges.
It may be shown with some degree of certainty by reliable .evidence that the lands would have increased in value if the station had been located .as agreed, therefore it cannot be said as matter of law that a failure, of the land to appreciate in value was not a natural and probable result of the breach of the contract that should reasonably have been contemplated by the parties. It is
Under the allegations of the declaration reasonable and just compensatory damages for losses actually and proximátely caused by the breach of the contract in building a necessary road and in hauling to and from the distant depot, and in the failure of the plaintiffs’ lands to appreciate in value, may be recovered if the character of the losses is such that they fairly should have been contemplated by the parties as a natural and probable proximate result of the breach, and the amounts are capable of reasonably certain ascertainment. The allegations of the declaration do not warrant any other redress. Remote, speculative or excessive damages should not be allowed. The amount of the judgment exceeds the special damages alleged in the declaration.
A further discussion of the' many errors assigned does not appear to be necessary.