58 Kan. 6 | Kan. | 1897
The Missouri Pacific Railway Company was at one time involved in the proceedings in this cause as a defendant thereto, but as it is not so now its connection therewith need not be noticed in a statement of the facts.
January 13, 1890, the plaintiff in error, as plaintiff below, filed his petition against the Council Grove, Osage City & Ottawa Railway Company, which, Jan
On the same day, the plaintiff caused to be issued and served upon the defendant, the consolidated company, a summons in the same form as one for the commencement of a new action.
September 19, 1891, the defendant filed to this amended petition a demurrer alleging all the statutory grounds of objection; which demurrer, November 19, 1891, was sustained. Upon the sustaining of the demurrer, the plaintiff took leave to file a second amended petition, which be filed December 19, 1891. This petition contained no reference to the one first filed nor to the abatement of the action caused by the consolidation aforesaid, but, except in being designated a “second amended petition,” was, like the last preceding one, in form and allegations, appropriate to the commencement of a new action. Upon the filing of this second amended petition, a summons was again issued and served upon the defendant, the consolidated company, in the form of original process appropriate to the commencement of a new action.
On March 14, 1892, the defendant filed to the second amended petition a demurrer alleging all the statutory grounds of objection ; which demurrer, June 22,1892, was overruled; and thereafter, July 9, 1892, the defendant filed its answer to the second amended petition. Among other things, this answer alleged the consolidation of the original defendant, the Council Grove, Osage City & Ottawa Railway Company, with the other companies, the consequent abatement of the original action, and the lack of any formal order of revivor against the consolidated company, the present defendant; and this was the first specific objection upon that score thus far made in the proceedings. To this answer a reply was filed, July 22, 1892 ; and, upon the issues thus raised by the second amended petition, the answer and the reply, the cause was tried. At the conclusion of the plaintiff's evidence a demurrer thereto was sustained.
The plaintiff’s cause of action is for the breach of a contract by the original Council Grove, Osage City & Ottawa Railway Company to issue to him or procure for him annual passes over the Missouri Pacific Railway system, of which it was, or expected to be, a part. The agreement is evidenced by the following document and letters :
“ Quenemo, Kan., August 30, 1886.
“In consideration of one dollar in hand paid, receipt of which is hereby acknowledged, and for other valuable consideration hereinafter set forth, we, the undersigned, hereby agree and bind ourselves unto the Council Grove, Osage City & Ottawa Railway Company, that we shall on the thirtieth day of September ,'1885, sell, transfer and convey by proper warranty deed a fee-simple title to the following described pieces and parcels of land, to wit: First, a strip and tract of land two hundred feet in width, of which the center line of the Council Grove, Osage City & Ottawa Railway Company’s right of way, as the same is now surveyed and definitely located, is the center; commencing on the south line of N.W. quarter of section number 3, township 17, range 18, in Osage County, Kansas, and running thence in a northeasterly direction over and across said quarter-section to the east line of the same, thence in a continuous line in said northeasterly direction to the east line of the west half of the northeast quarter of section 3, township 17, range 17, county and state aforesaid — this conveyance to be made to said above-named Railway Company. Second, an undivided one-fourth interest in the southeast quarter of the northeast quarter, and southwest quarter of the northeast quarter, of section 3, township 17, range 17, county and state aforesaid. This last-mentioned conveyance to be made to H. M. Hoxie, president of aforesaid Railway Company. A*12 part of consideration of these last above mentioned conveyances being, that said Railway Company shall locate on said land, so above described, one of its stations, with depot, stock yards, side-track and necessary appurtenances to a railway station. We, the undersigned, further agree, that in addition to the above-mentioned conveyances we will, upon request of said Railway Company, and upon being furnished by said Company with a reasonable written assurance that the Kansas, Nebraska & Dakota Railroad, which crosses said Council Grove, Osage City & Ottawa Railroad line on the land above mentioned, shall be, when constructed, operated by, and in connection with, the Missouri Pacific Railway system, and that a water station shall be located and maintained by one of said railway companies on said land, sell, transfer and by proper warranty deeds, convey an additional one-fourth interest in the tracts of land above described to the said H. M. Hoxie.
“Witness our hands this thirtieth day of August, A. D. 1886. C. F. Curry.
J. C. Curry.
Benj. Curry.”
“Quenemo, Kan., August 80, 1886.
“Col. A. S. Everest: Dear Sir — I hereby request of you three annual passes over the Missouri Pacific system, to be renewed at the expiration of the year and so on from year to year until we cry enough; the passes to be made to C. F. Curry, J. C. Curry and Benj. Curry. This request is made in pursuance of an agreement made this day with Mr. Macauley^ the major part of which is in writing and includes a transfer to Mr. Hoxie of an interest in — ;—acres of land at your crossing of the Kansas, Nebraska & Dakota railroad. Yours truly, J. C. Curry.”
“The Missouri Pacific Railway Company,
Legal Department.
Everest & Waggener, Aaron S. Everest.
General Attorneys. B. P. Waggener.
Prank Everest.
Atchison, Kan., September 6, 1886.
“J. C. Curry, Esq., Quenemo, Kansas: Dear Sir — I am in receipt of your letter of the thirtieth ult., and note contents. I will give the matter of passes atten*13 tion and forward them to you whenever the title to the property is straightened up. I shall not fail to reciprocate in any way that I can.
Yours respectfully, Aaron S. Everest.”
Whatever obligation was imposed upon the Council Grove, Osage City & Ottawa Railway Company by the above-quoted documents and letters, now rests upon the present defendant by virtue of the statute and the agreement of consolidation.
It is clearly shown by the evidence that the Council Grove, Osage City & Ottawa Railway Company was procuring a right of way and other property rights in Osage County, and that, in such matter, the law firm of Everest & Waggener was employed in its behalf by a resolution of its board of directors, reading as follows :
“ It is moved and carried that Everest & Waggener, of Atchison, Kan., be, and the same are, hereby employed, appointed and Renominated as the general attorneys for this company. It is moved and carried that the general attorneys of this company proceed at once to acquire, and purchase for this company, all necessary grounds, lands, or property necessary for the right of way, tracks, side-tracks, depots, workshops, water stations, elevators, coal house, cattle yards, and all other lands for terminal facilities, or for the purposes of construction and operation of said railroad, and to take the necessary proceedings to acquire all said lands by condemnation or otherwise.”
It is likewise shown that H. G. Macauley was a clerk in the employ of Mr. Everest, and that, August 28,1886, two days before the execution of the contract for conveyance by the Currys, Mr. Everest wrote Mr. C. F. Curry as follows :
“Atchison, Kan., August 28, 1886.
“(7. F. Gurry, Esq., Quenemo, Kan.: Dear Sir — I am in receipt of yours of the twenty-eighth inst., and*15 note contents. Mr. Macauley I suppose is now at your place, and hope you will take up the town-site matter and adjust it with him. The quicker it is done the better. He has full authority to settle the matter, and it is impossible to tell when I will be along the line. I have to go to Salina on Monday and may be gone a considerable portion of next week. I will see you at the earliest time possible.
Yours respectfully,
Aaron S. Everest. S.”
Then followed the contract of August 30, 1886, the letter of the plaintiff to Mr. Everest, of the same date, and Mr. Everest’s reply of September 6. In addition to all this, Mr. Macauley wrote to Mr. Everest, August 30, 1886, as follows :
Quenemo, Kan., August 30, 1886.
“Col. A. $. Everest, Atchison, Kan.: Dear Colonel — Please understand that the statement about passes in letter of Mr. J. C. Curry of this date is a part of our arrangement about town site at their place. It was made separate from the contract to guard against being brought before parties who should not know of the possibilities of such arrangements.
Yours respectfully, H. G. Macauley.”
This letter, however, on the ground that Mr. Everest, for some reason unexplained by any one, had never seen it, was rejected by the court. No question is raised, nor, indeed, can any question be raised, as to this agreement being a private one between Mr. Everest and the Currys, about a “town site,” to which the Company was not or could not be made a party. The term used was a usual and proper one to designate the land outside the right of way, which the Company desired, and which, as shown by the fact that it afterward sent a corps of engineers to survey the land into town lots, it really designed for town-site purposes. It might be admitted that no authority existed in Mr. Everest to bind the Company, by an agreement for the
It is claimed that the plaintiff has not complied with the terms of the contract of conveyance so as to entitle him to sue for damages for its breach. This claim is rested upon the following grounds : First, the contract for conveyance calls for a deed from the Currys, instead of which it was executed by one Aggie Oakley and husband; second, a condition to the issuance of passes, stated in Mr. Everest’s letter of September 6, was, that the title to the land should be “ straightened up ; ” instead of which there were two mortgages, one for eight hundred dollars and one for eighty dollars, the first of which was not released until after the commencement of the suit, and the second of which still remains uncanceled ; third, that all the lands agreed to be conveyed have not been so conveyed.
A sufficient answer to the first objection is, that the Company accepted a conveyance from the Oakleys in lieu of the one promised by the Currys, and cannot, therefore, be heard to complain. A like answer to the second objection is, that the larger mortgage, the one for eight hundred dollars, was satisfied before the present defendant was made a party to the suit — in
“ While the mere fact of taking possession does not in itself amount to a waiver of objections to title, and while other circumstances are usually required to raise the presumption of waiver, if the purchaser does enter into possession under the contract with knowledge of a slight defect in the vendor’s title or a slight incumbrance upon it, he will be held in many cases to have waived his objections, and will be deemed to have accepted the title as he knew it existed, intending to rely, in case of failure, upon the covenants of warranty for redress.” Warvelle on Vendors, vol. 1, 330.
As to the third objection, it is sufficient to say that the agreement to convey the additional land was upon condition that the Railroad Company would furnish plaintiff with a “reasonable written assurance ” that a certain other railroad should be operated by the Missouri Pacific Railway Company, and that a water station should be located and maintained upon the
“ Where, in a contract, two of the three contracting parties agree to perform certain services for the third, and each of the two is to receive therefor a separate and distinct compensation, it is not necessary that both of them join in a suit for such compensation; but either may maintain a separate action for the amount due him.” Richey v. Branson, 33 Mo. App. 418.
The plaintiff proved a valid contract, a compliance with its terms upon his part, and a breach of the same by defendant; and he should have been allowed to submit his claim of damages to the jury. The case is therefore reversed and a new trial ordered.