
    The St. Louis & San Francisco Railway Company v. C. H. Shoemaker.
    1. Contract; Penalty; Liquidated Damages. Where the contract is such that it can be separated as to the performance, and the breach of each stipulation is capable of accurate valuation, and the parties have agreed on a sum to be paid on default, the sum in the contract is to be construed as a penalty, and not as liquidated damages.
    2. Agreement; Measure of Recovery. Where in consideration of a right of way for a railroad company, such company covenanted that it would construct a lawful fence on each side of the railroad track, and a crossing with cattle-guards on each of the eighty acres of the land described in the agreement at such places as the owner of the land should desig- ■ nate, or in default thereof would forfeit and pay to the owner of the premises the sum of one thousand dollars, held, the sum of one thousand dollars must be construed as a penalty, and on default that the owner is entitled to recover his actual damages only.
    
      M'ror from Greenwood District Court.
    
    Action brought by C. TI. Shoemaker against the St. Louis & San Francisco Railway Company. The following is the petition (omitting court and title):
    “The plaintiff, C. H. Shoemaker, complains of the defendant, the St. Louis & San Francisco railway cpmpany, and alleges that the defendant is a corporation duly incorporated under and by virtue of the laws of the state of Kansas, and doing business in the state of Kansas. Plaintiff further alleges that he was, on the 22d day of December, 1879, the owner in fee simple and in possession of the following described tracts of land, situate in the county of Greenwood, and state of Kansas, to wit, the north half of the southeast quarter of section twelve (12), township tw.enty-eight (28), of range ten (10), east, and the north half of the southwest quarter of section twelve (12), township twenty-eight (28), of range ten (10), east, and that he is now the owner and in possession of said described premises.
    “ Plaintiff further alleges, that on said 22d day of December, 1879, the said defendant, the St. Louis & San Francisco railway company, under and by the name of the St. Louis, Wichita & Western railway company, was constructing its said railway through Twin Grove township, in Greenwood county, Kansas, and the line of route for said railway extended through and over said described premises, the property of the plaintiff. Plaintiff says that the defendant, by A. J. Allen, its accredited agent, and who represented himself as the agent for defendant, did, on the 22d day of December, 1879, purchase of and from this plaintiff one hundred feet in width through and across the above-described lands, the property of plaintiff, as and for a right of way for said defendant to construct its road-bed and track, and to operate its locomotives and trains thereon, and paid plaintiff therefor the sum of $200; and a further consideration thereof the said A. J. Allen, agent for the plaintiff aforesaid, entered into an agreement for defendant, under the name of the St. Louis, Wichita & Western railway company, with plaintiff, whereby it agreed and obligated itself to build a good, substantial and lawful fence of five boards high on each side of the railroad the distance the same extends through the north half of 'the southeast quarter of section twelve (12), township twenty-eight (28), range ten (10), east, and the north half of the southwest quarter of section twelve (12), township twenty-eight (28), range ten (10), of the lands of said C. H. Shoemaker; the plaintiff herein, and also agreed and obligated itself to make and construct a crossing with cattle-guards on each of the eighty acres described herein, at such places as C. H. Shoemaker, the owner of said premises, shall designate; said fence and crossings to be kept up and maintained in good repair by said railway company; said fence and crossings with cattle-guards to be completed at and by the time said railway company begins to run regular trains on said track through said premises. Upon failure on the part of said railway company to build said fence and construct said crossings with cattle-guards in the manner and at the time specified in said agreement, the said railway company agrees to forfeit and pay to the said C. H. Shoemaker the sum of one thousand dollars, a copy of which agreement is hereto attached, marked ‘ Exhibit A/ and made a part thereof.
    “Plaintiff further alleges, that said defendant (the said railway company) has not, nor has anyone for it, built and constructed said fence and crossings in said premises, although the time in which it was to have done so has long since elapsed; that said railway company has been operating its regular trains through said premises for a Jong space of time, to wit, for six weeks or more.
    
      “Plaintiff says that by reason of the failure of said defendant to build and construct said fence and crossings with cattle-_:guards oh said premises, that he has been deprived of the use of his said premises for cultivation and other farm purposes, and by reason thereof has been greatly damaged, to wit, in the sum of five hundred dollars.
    “ Plaintiff further says, that by reason of the premises the said agreement has become forfeited and absolute, and that ■.there is due thereon from defendant to this plaintiff the sum of one thousand dollars, yet said defendant, though often re- ■ quested, has not paid said sum or any part thereof to plaintiff, or anyone for him.
    “Wherefore, plaintiff prays a judgment against said defendant for the sum of one thousand dollars, and the further •sum of five hundred dollars, his damages so as aforesaid sustained, and for costs of suit.”
    “exhibit a.
    “The St. Louis, Wichita & Western railway company-agrees, and hereby obligates itself, to build a good, substantial and lawful fence on each side of the railroad track, the distance the same extends through the north half of the southeast quarter of section twelve (12), township twenty--eight (28), range ten (10), east, and the north half of the southwest quarter of section twelve (12), township twenty-eight (28), range ten (10), the same to be completed at and at .the time the said railway company begins to run regular trains on said tracks through said premises.
    “And the said railway company further agrees to make and construct, at and by the time the said company begins .to run regular trains through said premises, a ‘crossing’ with cattle-guards on each of the eighty acres described herein, at such places as C. H. Shoemaker, the owner of said land, shall designate.
    “And it is understood and agreed that the said fence is to be a good and substantial five-board fence, and the said fence .and crossings to be kept up and maintained in good repair by said railway company.
    “And in case the said railway company should fail to build and construct said fence and crossings with cattle-guards, in the manner and by the time before stated, then the said company agrees to forfeit and pay to the said C. H. Shoemaker one thousand dollars. Dec. 22, 1879.
    (Signed) A. J. Allen.”
    
      The defendant filed an answer containing a general denial, and also a special denial that A. J. Allen mentioned in the petition was the agent of the St. Louis, Wichita & Western railway company, or that he represented himself as such. This part of the answer was duly verified by the affidavit of F. A. Bettis, one of the attorneys of the defendant. Trial had at the May Term, 1881, of the court, to* a.jury. The jury found for the plaintiff,.and assessed his damages at the sum of $1,000. They also made the following findings on special questions of fact submitted, namely:
    “Was A. J. Allen, whose name is attached as maker to-the instrument upon which this'action is founded, either an agent or officer of the defendant when he signed the instrument? A. Yes; agent.
    “If the jury answer that he was an agent, state, how and through whom he derived his authority as such agent, whether his authority in this case was general or special, and the extent of his authority as such agent? A. Hobart & Co. General agent.
    “Was A. J. Allen, whose name is attached to the instrument sued upon, at the time of making the same either an agent or officer of the St. Louis, Wichita & Western railway company, and if either, which? A. Yes; agent.
    “If an agent, state how and through whom he derived his-authority, whether his authority, if any, to make the instrument sued upon was general or special, and the extent of his-authority as such agent? A. Through Hobart & Co. General agent.
    “Had the said A. J. Allen any authority to bind the defendant by the instrument sued upon? A. Yes.
    “Was there any consideration to the St. Louis, Wichita & Western railway, company for the alleged premises contained in the instrument sued upon, and if yea, state the consideration fully? A. Right of way through the land described in-contract sued upon.
    “Was there any consideration to the defendant for the alleged premises contained in the instrument sued upon, and if yea, state the consideration fully? A. Yes; the right of' way through the lands described in the contract sued upon.
    “If the jury find to either the eighth or ninth interrogations that there was a consideration, and that such consideration was the right of way for the St. Louis, Wichita & Western railroad company over the plaintiff’s lands described in the-petition, or for any damages arising therefrom, or for the land constituting such right of way, then state whether such right of way'was appropriated by said company, by regular proceedings as required by law; whether said proceedings remain unreversed aud unappealed'from, and the date when such proceedings became complete? A. We find as to the interrogations eight and nine, that it was not appropriated according to' law, but was appropriated for the use of the St. Louis & San Francisco R. R. Co., by contract.
    “Has the St. Louis, Wichita & Western railway company ever run any trains upon or operated the railroad through the lands of plaintiff in Greenwood county? A. No.
    “Has any demand ever been made upon the defendant, or any of its officers, to fulfill the terms of the alleged contract: if so, when and upon what officers? A. Yes, upon the assistant engineer of said defendant.
    “ Has the plaintiff ever executed or tendered a deed or other evidence of the title for the right of way as set forth in his petition, to either the defendant or the St. Louis, Wichita & Western R. R. Co., and if yea, to which and when, and to what person it was delivered? A. Yes. To A. J. Allen,, agent.
    “Was B. F. Hobart an officer or agent of the defendant, and if so, which? A. Yes; agent.”
    Thereafter the defendant filed its motion for a new trial,, which being considered by the court was overruled, and the court thereupon rendered judgment in favor of the plaintiff and against the defendant, for the sum of $1,000, and all costs. The defendant brings the case here.
    
      F. A. Bettis, and H. II Harding, for plaintiff in error. •
    
      Hamilton Ellis, and Scott & I/ynn, for defendant in error.
   The opinion of the court was delivered by

Horton, C. J.:

The counsel for plaintiff in error contend that the petition does not state facts sufficient to constitute a cause of action; that the sum mentioned in the contract sued on should be considered as a penalty only, and not as liquidated damages; and finally, that the judgment should have been for defendant below instead of plaintiff, because the special findings show that the St. Louis, Wichita & Western railway company never ran any trains over or operated the railroad upon the lands of plaintiff below, and as the contract was that the fence, crossings and cattle-guards were to be built by the time such trains were run by the company, therefore no judgment could be rendered. Further, as said special findings show that the consideration for the contract was the right of way for the St. Louis, Wichita & Western railway company through the lands of plaintiff below, the connection of plaintiff in error therewith was wholly without consideration.

Before discussing these questions, we ought, we suppose, to dispose of the objections of defendant in error to any consideration of the case. It is’ urged, under the assignments of the petition in error, that nothing is reviewable upon the record. We think otherwise. Plaintiff in error filed a motion for a new trial in the court below, and among other grounds therein alleged were the following: “That the general verdict is contrary to law.” “Because of excessive damages found by the jury, and appearing to have been given under the influence of passion and prejudice.”

These grounds brought before the trial court the question of the sufficiency of the petition, because if such petition states no cause of action, no verdict could be given and no judgment rendered thereon, and also called to the attention of the court the question, whether or not the damages were in excess of the allegations of such petition. But even if the attention of the court below had not been directed to the alléged defects-in the petition, it would be competent for this court to examine such petition, to ascertain whether it stated sufficient facts to constitute a cause of action. Any error apparent in the final judgment of a district court may be corrected by suit in error in this court, although no exception was taken thereto by the party complaining, and no motion made to set aside the-judgment. (Dexter v. Cochran, 17 Kas. 447, and the cases there cited.)

As the case is now before us, the petition is to be lib•erally construed, and as the petition alleges that the St. Louis & San Francisco railway company, under and by the name of the St. Louis, Wichita & Western railway company, constructed the road over the premises of the defend-’ ant in error, we may assume for all the purposes of this case that the St. Louis & San Francisco railway company was the successor of the St. Louis, Wichita & Western railway company. The special findings are not inconsistent with this assumption. They find among other matters, that A. J. Allen had authority to bind the St. Louis & San Francisco railway •company, and that the consideration to such railway company for the contract, was the right of way through the lands •described in such agreement. If the St.’ Louis & San Francisco railway company was the successor of the St. Louis, Wichita & Western railway company, the running of the regular trains of the former road made such company liable under the agreement to build and complete the fences, crossings and cattle-guards mentioned in the agreement, by the time that such regular trains ran on the road through the premises of defendant in error. Therefore the petition states facts sufficient to constitute a cause of action, and defendant in error was entitled to judgment.

The second proposition, that the sum mentioned in the contract sued on should be construed as a penalty only, and not as liquidated damages, presents some difficulty. Upon like •questions, courts have differed greatly. The decisions are numerous, but they are neither uniform nor consistent, and it would be a waste of time to examine them in detail, or to attempt to show that they are harmonious.

In the agreement, the railway company obligated itself to build a lawful fence on each side' of the railway track, and to construct a crossing with cattle-guards on each of the eighty acres through which the railway was to be operated. Upon default in so doing, it agreed to forfeit and pay one thousand dollars. It is said in some of the cases that the doctrine of liquidated damages ought never to apply to a case which admits of partial performance. This perhaps is too strong a statement of the law, but if a contract consists of several stipulations, the breach of each of which is capable of accurate valuation, then the sum mentioned in the contract is-to be construed as a penalty, and not as liquidated damages. The petition alleges that the plaintiff below was damaged in-the sum of five .hundred dollars, and then adds that by reason thereof the agreement became forfeited and absolute. The agreement sued upon admitted of partial performance, and the breach of each stipulation on the part of the railway company was capable of accurate valuation; therefore, in our opinion-the sum named therein must be construed as a penalty, and not as liquidated damages. The judgment as rendered was excessive under the allegations in the petition, the actual damages averred therein being five hundred dollars only. A ^judgment in excess of that sum cannot be sustained.

The case will be remanded, with directions to the court below to enter judgment for five hundred dollars in favor of the defendant in error, if such party consents thereto; otherwise, the judgment of the district court will be reversed, and a new trial ordered.

All the Justices concurring.  