Johnson v. St. Louis I M S Railway Company

ST. LOUIS, I. M. & S. RY. CO.

v.

JOHNSON.

No. 71.

November 16, 1891.

On the 23d of April, 1879, A. H. Johnson, of Helena, Ark., and the Iron Mountain & Helena Railroad Company, an Arkansas corporation, entered into a written agreement, whereby Johnson, in consideration of $29,000 to be paid to him as thereinafter stipulated, agreed to complete the grading, tieing, culverting, clearing, and grubbing on the company's railroad between its junction with the Arkansas Midland Railroad, 8 miles west from Helena, and the town of Marianna, in Lee county, Ark., a distance of about 18 miles, to furnish certain cross-ties and square timber, to lay the iron rails, and to place the road between those points in good running order, the rails, fastenings, spikes, and switches to be furnished by the railroad company, and the road to be completed on or before September 1, 1879; $1,000 to be paid as each mile of the road was completed and ready for the running of locomotives and cars thereon, and the balance when the track should be laid and the superstructure completed to Marianna, and ready for the running of locomotives and cars. It was further agreed that all moneys which might be collected by a committee of citizens appointed on behalf of certain citizens of Helena, who had subscribed money to aid in building the railroad, should be paid by said committee to Johnson in discharge, pro tanto, of the contract; that until the $29,000 should be fully paid, Johnson should have the possession of the road, and the right to run, use, and control the same, but such right of possession should cease and determine, and Johnson should deliver up possession of the road to the company, as soon as the $29,000 should be fully paid to him; that the company might at any time terminate the contract by paying to Johnson the value of the work then done by him; and that, in estimating the value of the work, the whole value, to the town of Marianna, should be fixed at $29,000, and the proportion then performed by Johnson was to be paid for at the rate of $29,000 for the whole. There was a provision for arbitration in case the parties should not agree as to the value of the work, and the company agreed to furnish to Johnson the iron rails, fastenings, and spikes, from time to time, as rapidly as he might be ready to lay the same.

Having completed the road, and not having been fully paid according to the contract, Johnson, in September, 1880, was forcibly dispossessed by the president of the company. He brought his action against the company for forcible entry and detainer in the district court of the United States for the eastern district of Arkansas, and while it was pending, and on the 26th of October, 1882, the St. Louis, Iron Mountain & Southern Railway Company, an Arkansas corporation, became the purchaser of the road from the Iron Mountain & Helena Company, and on the 15th of December, 1882, took possession of the entire line of the latter company, extending from Forest City to Helena, and including the 18 miles of track in question, and was afterwards made a party to said action. In that action a judgment was rendered in favor of Johnson on March 14, 1883, and on a writ of error from this court by the company it was affirmed (119 U.S. 608, 7 Sup. Ct. Rep. 339) on January 10, 1887. Johnson took no immediate steps to get possession of the 18 miles of road under his judgment. Before the purchase of the property by the St. Louis, Iron Mountain & Southern Railway Company, and on October 6, 1881, and while the forcible entry and detainer suit was pending, Johnson and the Iron Mountain & Helena Company entered into the following agreement: 'It is agreed between A. H. Johnson and the Iron Mountain and Helena Railroad Company as follows, viz.: That the amount due said Johnson for constructing that part of said Iron Mountain and Helena Railroad between the former junction with the Arkansas Midland Railroad and the town of Marianna, under a contract executed in April, 1879, is the sum of $25,000 at this date; and it is further agreed that the suit now pending in the United States district court for the eastern district of Arkansas, at Helena, is to be continued at the October term. A. D. 1881. [Signed] IRON M'T'N AND HELENA R. R. CO., Per WM. BAILEY, Pres't. A. H. JOHNSON.' The suit referred to in that agreement was the suit for forcible entry and detainer brought by Johnson. Before any judgment was entered on the mandate of this court, and on August 24, 1887, the St. Louis, Iron Mountain & Southern Company tendered to Johnson $33,825, being the $25,000 mentioned in the agreement of October 6, 1881, and interest on the amount at the rate of 6 per cent. per annum from that date to the date of the tender, which tender Johnson refused.

On this state of facts the St. Louis, Iron Mountain & Southern Company filed a bill in equity against Johnson, as a citizen of Ohio, in the district court of the United States for the eastern district of Arkansas, setting forth the contract of April 23, 1879, and the other facts hereinbefore stated, the fact that the plaintiff had been made a party defendant to the forcible entry and detainer suit, the affirmance of the judgment in that suit by this court, the agreement of October 6, 1881, the fact of the tender of the $33,825, and that Johnson was preparing to take actual possession of the 18 miles of track, so as to cut off the plaintiff from all use of its line of railway from Marianna to Helena. The bill prayed for an injunction to restrain Johnson from any interference with the 18 miles of track, and for a perpetual injunction against him from attempting to take possession of it or interfere with it.

On the filing of the bill an order was made by the court that on the payment by the plaintiff into the German National Bank of Little Rock, Ark., the depository of the court, to the credit of the court, of the $33,825, and the payment to the clerk of all costs in the forcible entry and detainer suit, a temporary injunction should issue, enjoining Johnson from issuing any process to put the plaintiff out of the possession of the 18 miles of track, or disturbing its possession thereof, until the further order of the court in the premises; and that Johnson might receive said sum from the depository at his pleasure, without prejudice to any of his rights, and particularly his right to receive any further sum that might be due him, and for which he had a lien on the 18 miles of track, or a right to the possession of the same, as security therefor.

Johnson appeared in the suit and put in an answer to the bill, setting up that the agreement of October 6, 1881, was not in the nature of an account stated, but was, and was intended to be, conditional and temporary, and that the condition had not been fulfilled. To this answer there was a replication, and proofs were taken.

On Final hearing, the court made a decree that, on the plaintiff paying into the registry of the court the costs of the suit, and $1,000 for the amount expended by Johnson in necessary preparations to take possession of the 18 miles of track and operate the same as required by law, Johnson should be perpetually enjoined from executing the judgment at law in his favor for the possession of the 18 miles; and that, if the plaintiff should fail to pay those sums into the registry of the court, for the use of Johnson, within 90 days from the date of the decree, the temporary injunction should be dissolved, and Johnson might sue out proper process and execute the judgment at law in his favor for the possession of the 18 miles of road. Both parties took appeals to this court.

J. J. Hornor, A. H. Garland, and H. J. May, for Johnson.

[Argument of Counsel from pages 606-608 intentionally omitted]

John F. Dillon and Winslow S. Pierce, for the Railway Co.

Mr. Justice BLATCHFORD delivered the opinion of the court.