124 Mo. App. 426 | Mo. Ct. App. | 1907
A demurrer having been sustained to the plaintiff’s petition, it appeals from the judgment. The plaintiff, a Missouri railroad corporation, was engaged in acquiring a right of way and building its railroad from the city of Cape Girardeau to Perryville. It is unnecessary to set out the petition in full. In the interest of brevity, only the material facts will be noticed. After proper formal averments and a recital of tbe facts stated, it in substance avers that it surveyed, located and marked out its lines across defendant’s farm on the east side of his residence and attempted to effect an agreement with him as to the amount of compensation he should receive for its right of way so located. No agreement was reached between the parties, however. The defendant objecting to the location of the road on the east side of his residence, proposed to the plaintiff that if it would locate and build its road on the west side of his said residence, and pay to him the sum-of one dollar in cash, defendant “would grant, bargain, sell relinquish and convey to Cape Girardeau & Chester Railroad Company the right of way for a railroad to be built by it from Cape Girardeau to Chester, one hundred (100) feet wide, the center line thereof to be the center line of the roadbed of said railway as the same may be finally loca
The court adjudged the facts stated, if true, constitute no cause of action.
1. It appears that no motion for a new trial or in arrest of judgment Avas filed in the circuit court. Counsel for defendant therefore suggests that plaintiff
2. The counsel for the defendant next suggests that it is apparent from the face of the petition the contract declared upon is one falling within the operation of the Statute of Frauds for the reason that it pertains to the sale of lands and is not averred to be in writing and is therefore unenforceable, and for this reason the demurrer was properly sustained. This assignment must likewise be ruled against the defendant. We have carefully examined the petition and it does not affirmatively appear therefrom the contract was in parol or was not in writing. It is the established law that when one declares upon a contract without disclosing whether it is in writing and therefore valid under the operation of the statute, or oral, and therefore invalid thereunder, the law will presume in favor of the pleader until the contrary is made to appear, that the contract declared upon is in writing and therefore valid. [Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107; Brown on Statute of Frauds (5 Ed.), sec. 505.]
4. It is suggested that the description of the lands
5. Plaintiff alleged that it contracted expenses, etc., in surveying and relocating the railroad on the west side of the house and expended $611 for right of way on account of the changed route. These facts constitute no elements of recovery against, defendant, for such was incumbent upon the plaintiff in the performance on. its part of the contract. Before it was entitled to a conveyance of the lands, it was the duty of the plaintiff to do and perform all these items and certainly no recovery can he had therefor in this suit on the breach for expenditures made in that behalf, for such expenditures constitute elements of performance on its part, and it is not suing on quantum meruit therefor. It is further al
Judge Bland is of the opinion and desires to be quoted to the effect that “inasmuch as the petition shows this plaintiff instituted a condemnation suit against the defendant and proceeded to acquire a right to occupy the lands with its railroad thereunder, in which proceeding the plaintiff was bound to allege and, if the allegation was put at issue, show upon the hearing, that it and defendant had failed to agree ‘on proper compensation’ (R. S. 1899, sec. 1264; Ellis v. Railway, 51 Mo. 200; United States of America v. Reed, 56 Mo. 565; Railroad v. Campbell, etc., 62 Mo. 585), it cannot be permitted to say that it and defendant did agree on proper compensation for the purpose of recovering on an alleged breach of the agreement. In the language of Lord Kenton, “A man shall not be permitted to ‘blow hot and cold’ with reference to the same transaction, or insist at different times on the truth of each of two conflicting allegations, according to the promptings of his private interests that it appears to him the plaintiff is estopped by the condemnation proceeding to allege in another suit that it and plaintiff did agree upon “proper compensation” for a right of way over defendant’s lands and that the demurrer was for this reason properly sustained.” Judge Goode and I do not accept the suggestion of Judge Bland, that because the plaintiff was required to allege and prove in the condemnation suit, mentioned in the petition, that it and the defendant had failed to agree on “proper compensation,” shows plaintiff is estopped and therfore has no cause of action on the contract set forth in the petition for the reason, if