Light v. St. Louis & San Francisco Railway Co.

Decision Date07 June 1886
Citation1 S.W. 380,89 Mo. 108
PartiesLight v. The St. Louis & San Francisco Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from Phelps Circuit Court. -- Hon. C. C. Bland, Judge.

Affirmed.

John O'Day for appellant.

(1) There is no competent evidence that respondent had succeeded to all the rights of Robert Brock, James R. Duncan's assignee, by assignment in writing as provided by the contract. (2) There is nothing in the evidence to show that the appellant assumed any of the obligations or responsibilities of the Atlantic & Pacific Railroad Company or was substituted legally, or in fact for that corporation in the contract. (3) If there was an over-payment, appellant contends it cannot be held responsible under the evidence in this case, even should it be held that appellant, in relation to the transaction, stood in the position that the Atlantic & Pacific Railroad Company would have stood if it had made the deed, for the payment was voluntarily made and the deed accepted, and the contract of making and receiving the deed and paying the money fully consummated by an acceptance of the deed after respondent was aware of the alleged mistake. (4) The proceedings in the circuit court must have been likened to a proceeding in equity to set aside a settlement for mistake. Plaintiff was not entitled to a jury trial. There were no issues of fact. It is reversible error for the court, against the objection of the appellant, to order a jury.

A. Corse for respondent.

OPINION

Sherwood, J.

This is an action instituted before a justice of the peace to recover a sum of money claimed to have been over-paid by plaintiff to defendant on a land contract, whereby land was sold by the Atlantic & Pacific Railroad Company to Duncan, and the contract assigned by him to Brock. Plaintiff claims as the assignee of his father, Jesse Light, who claimed as the assignee of Brock. Under the terms of the contract the payments were to be made in installments, and plaintiff, after the assignment of the contract to him, paid thereon to the defendant company in 1879, $ 185.00. In about ten days thereafter he received from the agent of the defendant company a statement showing the payments made from time to time to them on the contract. And in about three months thereafter he received from the defendant company a deed for the land mentioned in the contract.

I. It is wholly immaterial whether the requirements of the...

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