Owens v. Carthage & Western Railway Co.

ELLISON, J. — The plaintiff is the owner of land over which defendant constructed its railway. Plaintiff conveyed the right of way to defendant by deed, the consideration expressed'being $400 in money and the following clause: “Said Carthage & Western Railway Company hereby agrees to construct cattle or wagon pass at place designated by the chief engineer on said premises.” Plaintiff alleges that he and defendant understood that the contract and agreement was that defendant would construct a crossing under the tracks of sufficient width and height to admit of the passage of cattle and loaded wagons; that is to say, hot less than twelve feet wide and ten feet high, [326] at a point to "be designated by tbe defendant’s chief engineer. He further alleges that he and defendant by mutual mistake supposed the words in the deed above quoted meant what they each understood. Defendant having refused to- comply with the agreement alleged, plaintiff brought this action to reform that portion of the deed referred to so as to correct the mistake of the parties and to set out the contract as it was understood, and to require defendant to perform it. The trial court found the issues for the plaintiff and directed that a passway be constructed under the railroad, sufficient for cattle and loaded wagons, which was found to be twelve feet wide and ten feet high. The contract in the deed as to the cattle and wagon pass is ambiguous in that it is not clear whether the ' pass was to be overhead, on the surface, or underneath the railway track. The circumstances and conditions surrounding the parties show definitely enough that an overhead crossing was not contemplated; but such conditions and circumstances do not demonstrate whether a surface or under passway was intended. The proof preserved in the record is ample that the parties understood that the word “pass” signified under the track, as distinguished from “crossing” over the surface. And it is likewise ample that the contract expressly provided for a pass under the railway for cattle and wagons of twelve feet in width and ten feet in height. And so it appears clearly enough that the parties understood the deed to so express the contract. The deed reads that, a “cattle or wagon pass” is to be constructed. This would mean a pass sufficient for cattle and farm wagons whether loaded or unloaded. Now, it is common knowledge that some farm, productions which are taken by wagon through a farm, 'or from one field to another, will need a space of twelve feet in width and ten feet in height to pass through. So, therefore, we may well believe the plain [327] tiff’s theory that, after so agreeing, the parties assumed that the expression in the deed, “wagon pass,” meant one of at least, the size just stated. It being clear that the mistake in the deed was mutual, it was proper to reform it, so that it might express the contract between the parties. [Henderson v. Beasley, 137 Mo. 199; Ezell v. Peyton, 134 Mo. 484; 20 Am. and Eng. Ency. of Law, 821; 24 Ib. 648 (2 Ed.).] We are cited to several cases as authority against the decree. We do not think they are applicable to the case made by plaintiff. In Jewett v. Railroad, 45 Mo. App. 58, it was shown and practically admitted that the agent did not have authority to make the contract sought to be enforced. In Mastin v. Halley, 61 Mo. 196, it was held that specific performance of a contract to build “a certain building” without more description could not be decreed, as 'there was nothing upon which to base a direction as to what description of building was to be built. It was likewise said in that case that a court of equity will not direct specific performance of building contracts, because: “if one will not build another may.” That case finds no application to the facts of the one at bar. Prom what we have already said, it is apparent that there was sufficiency of description here to-justify the court’s decree in that respect. As to the objection that courts of equity will not enter upon the enforcement of building contracts: it is manifest that this is not such case. When the complaining party wants a building contract performed it is something which he may get any third party to do without the aid of a court of equity. But the contract in this ease is something which defendant was to perform for plaintiff’s benefit on its own premises (so to speak) and which this plaintiff, in the nature of the case, could not have anyone, other than defendant, perform. It seems that defendant embodied in .the deeds [328] similar agreements -with other landowners from whom it secured right of way. Plaintiff was permitted to show, against defendant’s objection, that under such deeds defendant had constructed under passways of the nature he is now demanding. We regard the evidence as admissible as tending to show what the contract with plaintiff was understood by the defendant to be. The final point for reversal is 'that there was an improper joinder of causes of action, in that a reformation of the deed and specific performance and damages for nonperformance are joined in one count in the petition. Such objection comes too late when made for the first time in this court, and we need not pass upon it. It should have been raised by demurrer or answer. [Mead v. Brown, 65 Mo. 552; Sweet v. Maupin, 65 Mo; 72; Jamison v. Copher, 35 Mo. 483; Anderson v. McPike, 41 Mo. App. 328.] After a full consideration of the- points made against the judgment we do not feel authorized to interfere with it and it is accordingly affirmed. All concur.