McCormick v. Interstate Consol. Rapid-Transit Ry. Co.

• Decision Date: 06 February 1900
• Citation: 154 Mo. 191,55 S.W. 252
• Parties: McCORMICK v. INTERSTATE CONSOL. RAPID-TRANSIT RY. CO.
• Court: Missouri Supreme Court

55 S.W. 252

154 Mo. 191

McCORMICK v. INTERSTATE CONSOL. RAPID-TRANSIT RY. CO.

Supreme Court of Missouri, Division No. 2.

February 6, 1900.

ACCOUNT STATED — OPEN ACCOUNT — SETTLEMENT — PLEADING — ISSUES AND PROOF.

1. A settlement of account between parties covering all grounds of difference between them arising out of claims for labor and materials under a contract, in which notes are given for the balance remaining due, is binding upon them, and cannot be afterwards repudiated, and suit brought on the original claim, except on proof of fraud or mistake, or that it was expressly agreed that some of the matters were left open for future adjustment.

2. A settlement of an open account by the execution of notes for the sum found due, changes the cause of action from one on an open account to one on an account stated, and hence recovery cannot thereafter be had on complaint on an open account.

Error to circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Richard P. McCormick against the Interstate Consolidated Rapid-Transit Railway Company. From a judgment in favor of plaintiff on confirmation of a referee's report, defendant brings error. Reversed.

Warner, Dean, Gibson & McLeod, for plaintiff in error. C. M. Ingraham, for defendant in error.

BURGESS, J.

This is an action for extra work alleged to have been done and extra materials furnished by plaintiff for the Wyandotte Railway & Tunnel Company in the construction of a tunnel in Kansas City, Mo., with which said company the defendant was thereafter consolidated. The petition in the cause alleges that defendant is a corporation under the laws of Kansas; that the Kansas City & Wyandotte Railway & Tunnel Company was also a corporation; that the said Kansas City & Wyandotte Tunnel Company, by consolidation, became, and is now, a part of the Interstate Consolidated Rapid-Transit Railway Company; that defendant succeeded to all the rights, debts, and liabilities of the said Kansas City & Wyandotte Railway & Tunnel Company after the rendition of the services and the furnishing of the labor and materials alleged, and assumed and agreed to pay all the debts and liabilities of said Kansas City & Wyandotte Railway & Tunnel Company; that from the 15th day of May, 1887, to April 7, 1888, the plaintiff rendered services to the Kansas City & Wyandotte Railway & Tunnel Company, which services were performed at the request of said railway and tunnel company in building and constructing for it the tunnel under Eighth street, from Washington street to Bludd street, in Kansas City, Mo., and for materials and labor and for other necessary things furnished by plaintiff in the construction of said tunnel, and in and about said work, on the like request; and an itemized statement of said services, labor, and materials is attached and filed with the petition, and the further allegation is that said services, labor, and material were reasonably worth $23,228.31. There is a further allegation of interest due thereon, amounting to the sum of $2,229.14, making a total of $25,457.35, which it is alleged is owing to plaintiff from the defendant on account of its assumption of the liabilities, as aforesaid, of said railway and tunnel company. There are the further allegations that no part of said $25,457.35 has been paid, and that on July 16, 1888, a partial settlement was made, and that at that time defendant executed and delivered to plaintiff its three notes, but that said notes were not taken in payment; that one of said notes has been paid, and the other two — one for $3,100, and one for $2,686.34, with interest and protest fees — have not been paid, and plaintiff offers to surrender and cancel them, and asks judgment for the said sum of $25,457.35. The answer admits the corporative character of defendant, and admits that the Kansas City & Wyandotte Railway & Tunnel Company, by consolidation, became a part of the Interstate Consolidated Rapid-Transit Company, and that the last-named company succeeded to all the rights and became liable for all the debts of said Kansas City & Wyandotte Railway & Tunnel Company. It also admits that plaintiff performed certain services and furnished certain materials in and about the construction of its tunnel under Eighth street, west of Washington street, in Kansas City, Mo., but denies that the defendant is now indebted to plaintiff in the sum sued for in this petition, or any other sum. The answer further alleges: That on July 16, 1888, and prior thereto, there was a dispute therein existing between plaintiff and defendant as to the amount due to him under "his said contract from defendant," and that by the terms of said contract it was provided as follows: "To prevent all disputes and litigation, it is further agreed by and between the parties to this contract that the engineer shall in all cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and construction thereof, and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive upon said contractor; and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the party of the second part to receive any money under this agreement." That neither the chief engineer of defendant nor of the said railway and tunnel company ever allowed any part of the claim or claims for which this suit is brought, and that he did not decide at any time that such claims, or any part thereof, were due to the plaintiff from defendant, but, on the contrary, denied that said sum sued for, or any part thereof, was due. The answer further alleges that on July 16, 1888, plaintiff and one Gillham, as chief engineer of said Kansas City & Wyandotte Railway & Tunnel Company and of defendant, came together to adjust and settle all claims and demands made by plaintiff against defendant, and to compromise all disputes existing between them; and that then and there it was agreed there was due plaintiff for work done and materials furnished in and about the construction of said tunnel the sum of $17,691.22. It also alleges that on said July 16, 1888, defendant accepted said compromise settlement, and paid to plaintiff said sum of $17,691.22, and that plaintiff accepted said sum of $17,691.22 in full and complete compromise settlement of any and all demands that plaintiff had in law or equity against defendant, and that of said sum of $17,691.22 the sum of ____ was paid in cash, and for the remainder thereof plaintiff received three notes of defendant, of which the two notes describin plaintiff's petition are a part. The answer further pleads that said notes and money, together, making said sum of $17,691.22, were paid to plaintiff, and by plaintiff received, in absolute discharge and payment of any and all claims which plaintiff had against defendant, and that defendant made said payment of money and notes in consideration of said compromise settlement, and in full compromise settlement and release of all claims and demands which plaintiff had or might have had against defendant, and that plaintiff, on said July 16, 1888, formally and fully receipted to this defendant. Aside from the above, the answer contains a general denial. The reply to the answer states that the portion of a contract quoted in paragraph 4 of the answer, being that relating to the powers and duties of the chief engineer of defendant, has no application to plaintiff's claim for compensation done outside the contract, of which the said quotation forms a part; and further states that defendant allowed and paid plaintiff for some work done outside of the contract, for which credit has been given to defendant. The reply further denies that there was ever any final and full settlement of accounts between plaintiff and defendant, and avers that the notes aforesaid were not taken in payment of its claim against defendant, or any portion thereof.

The facts are about as follows: On April 25, 1897, the plaintiff and the Kansas City & Wyandotte Railway & Tunnel Company entered into a written contract, by the terms of which plaintiff agreed to excavate a tunnel for said company under Eighth street, in Kansas City, Mo., extending from a...