Dearborn Canning Co. v. Kansas City, Clay County & St. Joseph Railway Co.

ELLISON, P. J. Plaintiff is a corporation engaged in canning fruits and vegetables in the town of Dearborn. Defendant is an electric, suburban railway corporation, operating its cars between the cities of Kansas City and St. Joseph, Missouri, and passing through said town over and along the street upon which plaintiff’s plant abuts. Defendant built its track elevated high enough above the surface of the street to prevent the passing of vehicles at and near the plant, thereby, as plaintiff claims, doing it serious damage. This action was brought to recover such damages and on trial in the circuit court, resulted in a judgment for eighteen hundred dollars. It is conceded that defendant built its track at an elevation above the surface of the street; but the defense set up in defendant’s answer, is that plaintiff and other property holders agreed that it should be built in that way by executing a written contract in these words: “Whereas, the Kansas City, Clay County & St. Joseph Railway Company is applying to the Board of Aldermen of the city of Dearborn, for consent that it may construct' an interurban railroad along Commercial street in said city, from the south end to the north end thereof, and whereas, in said application request is made for consent that an elevated structure may be built and maintained for the operation of said railroad during the whole of the length of said street [211] as aforesaid, and whereas we are desirous that said railroad shall be built, now therefore in consideration of one dollar to each of us in hand paid, and other good and valuable consideration received by us, we hereby consent that a franchise may be granted by the city of Dearborn in pursuance of the aforesaid request, and we hereby waive all right,-if any we may in anywise have, to damages because of the construction, maintenance and operation of said proposed railway on an elevated .structure along said Commercial street in front of our property.” This agreement was signed by plaintiff’s president and secretary and duly acknowledged. No fraud or mistake was shown. Furthermore it appeared in the evidence in plaintiff’s behalf that after the road was constructed, but before its construction was approved by the Board of Aldermen, plaintiff, through its secretary, made some objection to the effect that it was going to make access to the property more difficult than was thought. The Board delayed action until he could confer with the' construction company which had built- the road. He and an officer of that company met when he took the company’s contract to construct a crossing; whereupon he then withdrew objections and consented to the board making its approval. Plaintiff, in réply to defendant’s answer, admitted that the contract consenting-to the building of an elevated structure and releasing damages, was signed by certain persons pretending to act for it; “but that they were not authorized by the board of directors to execute or sign the instrument relied on. ’ ’ Then, in same connection, it was alleged in the reply, that at the time the paper was signed defendant’s agents made certain representations of facts to the persons signing plaintiff’s name to the effect that the tracks “would be on a level with the street in front of plaintiff’s property and that the said tracks would not interfere with the use of the street in connection with [212] plaintiff’s property, but in direct violation of said agreement” defendant bas so constructed its tracks tbat it is impossible for plaintiff to use tbe street. When defendant offered the written contract of consent and release in evidence, plaintiff objected on tbe ground tbat it was not signed by parties authorized and tbat it was not a defense “even though properly executed.” Tbe objection was overruled. Tbe persons so referred to as executing tbe contract of consent and release were tbe president and secretary of tbe plaintiff; and were two of its three directors. We cannot regard tbe plea of want of authority in tbe president and secretary to execute tbe contract from tbe fact tbat tbe replication containing tbe denial of its execution was not verified by affidavit as required by section 1985, Revised Statutes 1909, .and it must, therefore, in tbe language of tbat statute, ‘ ‘ be adjudged confessed:” Love v. Central Life Ins. Co., 92 Mo. App. 192; Thomas v. Life Assn., 73 Mo. App. 371; Parsons v. Levee Co., 73 Mo. App. 458. But, as just stated, plaintiff’s position is, tbat though tbe contract may have been executed by it, yet it was “not a defense to this case.” Tbe only specification to this claim at tbe trial was tbat tbe contract was not binding from tbe fact, as claimed by plaintiff, tbat defendant’s agents represented to it, just before its execution, tbat “tbe tracks would be on a level with tbe street and tbat they would not interfere with tbe use of tbe street in connection with plaintiff’s property.” Testimony tending to prove tbat allegation was admitted by tbe trial court. Defendant objected in vain, tbat such testimony was an attempt, where there was neither fraud nor mistake, to vary and alter tbe terms of a written contract in violation of a fundamental rule of evidence. The contract was consent, in.express terms, tbat tbe road was to be built “along Commercial street from tbe south end to tbe north end ’ ’ and tbat it was to be elevated “tbe whole length of said street” [213] and was to be “on an elevated structure along Commercial street in front of our property; ’ ’ and yet here was an attempt to prove it was to be built on a level with the street in front of plaintiff’s property. It was precisely in the teeth of the writing and undoubtedly should not have been admitted. [Crim v. Crim, 162 Mo. 544, 553; Och v. Ry. Co., 130 Mo. 27, 43; McGee v. Verity, 97 Mo. App. 486; Paris Mfg. Co. v. Carle, 116 Mo. App. 581; Johnson v. Covenant Mut. Life Ins. Co., 93 Mo. App. 580; Ely v. Sutton, 177 Mo. App. 546, 162 S. W. 755; Thorne McFarlane & Co. v. Warfflien, 100 Pa. St. 519, 527; Slaughter v. Smither, 97 Va. 202; Chamberlain v. Ins. Co., 109 Wisc. 4; Callanan v. Judd, 23 Wisc. 343, 353; McMaster v. Ins. Co., 99 Fed. 856, 863.] The record showing that the contract wás not procured by fraud, and plaintiff conceding that it was error to submit a question of fraud to the jury as an issue in the cause; the contract must stand as a complete bar to plaintiff’s action. Plaintiff assigns, in this court, as a ground of attack on the contract that its seal was not attacked by the officers signing. This was not one of the objections specified in the trial court and cannot be now considered. Besides, if it had been specified, it would have been unavailing, since, as we have seen, the execution of the paper stood confessed. Other and additional arguments against the judgment were submitted by defendant which, in view of the foregoing, we need not consider. The judgment will be reversed. All concur.