Atchison, Topeka & Santa Fé Railroad v. English

Opinion by Holt, C.: The plaintiff in error complains that the petition does not state facts sufficient to constitute .a cause of action. It alleges that the Wichita & Southwestern Company is a corporation, but omits the word “railroad,” although subsequently the petition alludes to it as the said Wichita & Southwestern Railroad Company. The omission was evidently not brought to the notice of the trial court; probably not noticed by the attorney for the defendant during the trial, as, in the first instruction he asked the court to give, the fact of the organization of both the defendant and the Wichita & Southwestern Railroad Company. If such omission ever rendered the petition materially defective, such defect has been waived. [116] ÍSri-conraiiroad of . lessee. [115] He makes the further objection, that the Wichita & Southwestern Railroad Company was not alleged to be a continuation and extension of the A.T. & S. F. Rid. Co. The petition states that the defendant did lease the road-bed, depot grounds, [116] side tracks, and rolling stock of the Wichita & Southwestern Railroad Company, and took possession of and operated the same. We cannot # r # presume, in the absence of any proof or allegation, after a trial and judgment for plaintiff, that the defendant had entered into an agreement that was not allowed or authorized by statute. (A. T. & S. F. Rld. Co. v. Davis, 34 Kas. 209.) „ 2. Authority of cíen tí aíiega1tion' Defendant further objects, that it is not shown that one T. J. Peter, a “ general manager ” of the defendant, had authority to give a pass to plaintiff. The allegation of the petition not only avers that he was the general manager of the defendant, but that he was an agent and general manager of the Wichita & Southwestern Railroad Company in the matters and things hereinafter set out: referring to the contract giving the pass to plaintiff; and that said pass was promised and made by said Peter for and in behalf of said deJ fendant. We believe this is a sufficient allegation of the authority of Peter, especially after a verdict and judgment thereon in favor of plaintiff, when no evidence is brought here for our consideration. The findings also sustain the theory that Peter had authority on behalf of the defendant to promise and give such pass to the plaintiff. It is objected further, that as the promise to give such pass was not in writing and not to be performed within one year, it was void under § 6, chapter 43, Compiled Laws of 1879, which provides: “No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” [117] 3. Railroad pass -promise, not [116] It is contended that because this pass was to be given to plaintiff during his lifetime, to be issued annually, it could not be performed within one year, and therefore that it was [117] void under the statute. Such is not the law. Where the contract is such that the whole may be performed .. i , i • ,, ,. within a year, and there is no express stipulation to the contrary, the statute does not apply. The contract was for the lifetime of the plaintiff; his death would terminate the contract, however soon after the making of such contract that might have happened. His death might have occurred within one year after making such contract, and in that event it would have been fully performed. The authorities are nearly uniform on this point. It has been held that a contract to support one during life; to work for a person as long as he lives; to maintain a child at the defendant’s request, to continue so long as the defendant shall think proper, are not within the statute, on the theory that life is an uncertain event which might be determined within the year. (Wood on Frauds, §270; Hill v. Jamieson, 16 Ind. 125; Hutchinson v. Hutchinson, 46 Me. 154; Doyle v. Dixon, 97 Mass. 208.) This contract was also performed within one year upon the part of plaintiff, and the defendant cannot claim protection under the statute of frauds; its protection extends to executory contracts, and does not apply to contracts that have been executed by one party. Mr. Wood, in his treatise on the Statute of Frauds, in §279, says: “In England and most of the states of this country it is held that the statute only applies to contracts which are not to be performed by either side within a year, and therefore where a contract has been completely performed on one side within the year the case will not come within the statute.” (McClellan v. Sanford, 26 Wis. 595; Curtis v. Sage, 35 Ill. 22; Berry v. Doremus, 30 N. J. L. 403; Haugh v. Blythe, Ex’r, 20 Ind. 24.) [118] 4. Promise, not in writing. [117] The defendant further says that plaintiff cannot recover upon a verbal contract for the sale of lands. This was not a contract within the statute of frauds. It was not a contract for the sale of lands — it was the sale itself. The contract was perfected by giving the deed. This action is for damages sustained by plaintiff because the defendant refused to give him his pass for life over its road. The pass was promised to be [118] given as the price of the land deeded. There is u0 provjsion 0f our statute which precludes a recovery for the price of lands actually conveyed, even though the agreement concerning the price be oral. (Reed on Frauds, § 658; Hodges v. Green, 28 Vt. 358; Bowen v. Bell, 20 Johns. 338; Wilkenson v. Scott, 17 Mass. 249; Holland v. Hoyt, 14 Mich. 238; Tripp v. Bishop, 56 Pa. St. 424; Tuthill v. Roberts, 22 Hun, 304.) Our statute is unlike the British statute, w'hich declares: “No action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” The omission in our statute of the provision concerning the sale of lands was no accident. It has its signification. It in effect exempts the sale of lands and retains only the contract for the sale of lands, not in writing, within the purview of the statute. In this respect our law is similar to the laws of most of the other states. The case of Becker v. Mason, 30 Kas. 697, does not support the theory of the defendant, nor is it in conflict with the views herein expressed. That action was brought to enforce a parol contract for the sale of land. In this action the sale had been made and the deed delivered. Mr. Justice Valentine, after citing § 6, says: “ It will be noticed that the statute above quoted includes all contracts ‘for the sale of lands;’ all contracts for ‘any interest therein,’ and all conti’acts ‘concerning’ lands, and it is the contract upon which the action is to be brought ‘ to charge a party,’ and not something else; and it is the contract, or some note or memorandum thereof, upon which ‘the party [is] to be charged,’ and not something else. It is not the sale, or the purchase, or the transfer, or a release, or some other special thing affecting or ‘concerning’ the real estate upon which the action is to be brought; nor is it any one of these special things upon which ‘the party [is] to be charged.’” [119] Objection is made to the instruction which authorized the jury to fix the damages for the refusal to give the pass over the defendant’s road at the time it was refused, rather than at the date of the making of the contract, it becoming important because the defendant had extended its lines in the meantime. In the absence of any evidence before us, and under the pleadings and findings, we cannot say that there was error in fixing the time at the date of refusing to give the pass. At the time the contract was made, the plaintiff was not living on the line of the defendant’s road. His home was beyond its line, although it afterward extended to and through the city in which he lived, and it would be a reasonable inference, warranted by the pleadings and findings, that he contracted for .a pass over the road which might be completed to the city in which he resided. The defendant claims that certain instructions given by the court are erroneous, among otheis the one numbered five: “5. If the said T. J. Peter, for and on behalf of the defendant, and at the time of making said contract, did not have authority to make the same, and the defendant, after said Peter ceased to act for it, issued to the plaintiff one or more .annual passes on account of said contract, the defendant would be bound by the original contract made by Peter, as such would be a ratification of the original contract by the defendant.” [120] 5. Judgment, not disturbed, [119] Its objection to it is, that it provides that a principal might be held to ratify the act of his agent without full knowledge •on his part of all the circumstances under which the contract was entered into. The principle contended for by the defendant is probably correct. It is admitted, however, by the pleadings, that the defendant had been issuing for several years an .annual pass to plaintiff over its road, with the indorsement ■on the back thereof, “ On account of depot grounds.” It had taken possession of the land in question under the agent who had made the contract, and had remained in-possession of the .same for years. It can therefore be presumed defendant had knowledge of all the circumstances of the contract between its .-agent, Peter, and plaintiff, or at least full knowledge of such [120] facts as would have led by a proper inquiry to a complete understanding of the conditions, consideration, and all the elements constituting the contract. . Under these averments and findings we cannot perceive how this instruction, even though it did not state the law correctly as an abstract proposition, could have prejudiced the defendant. Further, we think the-findings of the jury concerning the authority given Peter to act ^01’ them in the first place is sufficient to au^orizé a judgment, without any reference to any act that might be deemed to have been a ratification. Where the authority of an agent to make a contract originally is shown, the question of ratification is eliminated. It has no-place in determining the rights of the parties. We have been compelled to construe the pleadings and findings of fact to-sustain and uphold the judgment, rather than to overthrow it,, and we therefore recommend that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring. •