Coffman v. Saline Valley R. Co.

• Decision Date: 02 June 1914
• Docket Number: No. 13347.,13347.
• Citation: 183 Mo. App. 622,167 S.W. 1053
• Parties: COFFMAN et al. v. SALINE VALLEY R. CO.
• Court: Missouri Court of Appeals

167 S.W. 1053

183 Mo. A. 622

COFFMAN et al. v. SALINE VALLEY R. CO.

No. 13347.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. ASSIGNMENTS (§§ 23, 121)—CHOSE IN ACTION —BREACH OF CONTRACT—RIGHTS OF ASSIGNEE.

A cause of action for breach of a railroad company's contract to raise a railroad embankment above high-water mark, so as to protect the adjoining lands from the overflow of an adjacent creek, was assignable, and the assignee could sue thereon in his own name, though the assignment was for no other purpose than collection.

2. ASSIGNMENTS (§ 119)—CHOSE IN ACTION— ASSIGNMENT FOR COLLECTION—ASSIGNEE AS TRUSTEE OF EXPRESS TRUST.

Where a chose in action is assigned for collection, the assignor retaining an interest in the right, the assignee is entitled to sue as trustee of an express trust, being bound to account for the proceeds to his assignor.

3. EVIDENCE (§ 450)—PAROL EVIDENCE—CONTRACT —CONSTRUCTION—"HIGH-WATER MARK."

Where plaintiff's assignor conveyed a right of way to defendant railroad company separating his remaining land from a creek in consideration of the railroad company's agreement to raise its embankment above high-water mark, and to permit plaintiff to connect the embankment with other levees so as to protect his land from overflow, the words "high-water mark," as used in the contract, were not limited to the point at which high water extended when no freshets occurred, but plaintiff was entitled to show that his assignor and defendant's agent went over the right of way immediately before the contract was signed, and ascertained the high-water mark by examining its location on certain trees, and that defendant did not build its embankment to the height so ascertained, and that the resulting injury to the land was caused by such omission.

4. DAMAGES (§ 112)—INJURIES TO CROPS— MEASURE OF DAMAGES.

In an action for injuries to growing crops, the measure of damages is the value of crops destroyed which were standing at the time of the injury.

5. DAMAGES (§ 110)—INJURIES TO LAND— REMOVAL OF SOIL.

Where certain top soil was washed from a large portion of plaintiff's cultivated land as a result of defendant's failure to construct a proper railroad embankment under contract with plaintiff's assignor, the measure of plaintiff's damage was the difference between the value of the land before and after the injury.

6. DAMAGES (§ 44)—BREACH OF CONTRACT— ELEMENTS—REPAIR OF FENCE.

Defendant railroad company having contracted, in consideration of a conveyance of a right of way, to raise its embankment above high-water mark so as to protect plaintiff's adjoining land, failed to do so, and, as a result, the land was overflowed, and the railroad company's right of way fence dislodged from its position and deposited in plaintiff's field. When the flood abated plaintiff's assignor cleared the field of debris and encountered the fence rolled and tangled together, and, without first giving notice, removed the fence from the field and reset it in position, as necessary to protect his crops from incursion of cattle from without. Held, that plaintiff's assignor properly reconstructed the fence in order to mitigate his damages, and plaintiff was entitled to recover as an element of damage the reasonable value of the work of so doing.

Appeal from Circuit Court, Cape Girardeau County; Chas. B. Faris, Judge.

Action by Patrick H. Coffman and others against the Saline Valley Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Giboney Houck, Lane & Alexander, and Davis & Hardesty, all of Cape Girardeau, for appellant. Thomas B. Whitledge, of St. Marys, and John V. Noell, of Perryville, for respondents.

NORTONI, J.

This is a suit for damages accrued on account of a breach of contract. Plaintiffs recovered, and defendant prosecutes the appeal.

The damages sued for were occasioned by means of the overflow of certain fields, whereby crops were destroyed and certain top soil washed from a portion of the cultivated lands. Besides this there is a question made with respect to a right to recover compensation for rebuilding a fence which it appears belonged to defendant, but was washed over upon plaintiffs' cultivated lands. The lands overflowed are situated adjacent to Saline creek. Plaintiffs' vendor and assignor, Bernard S. Pratte, formerly owned these lands, and on the 28th day of August, 1905, entered into the written contract with defendant railroad company which is here sued upon. By this contract Pratte agreed to convey to the railroad company a right of way for its railroad across such lands along and adjacent to Saline creek, and in consideration therefor defendant railroad company agreed and undertook to construct a solid embankment along the line referred to in the contract for its railroad, which was to be built above high-water mark so as to protect the lands from overflow, and Pratte was accorded the right to join certain other levees thereto. The contract authorized the railroad company to take immediate possession of the right of way referred to for the purpose of constructing its railroad thereon and this it did. The railroad was completed some time in the year 1906, but it appears the embankment was not built as required by the contract; that is, up to the high-water mark. On the contrary, the evidence tends to prove that it was built several feet below that, and because of this the overflow from Saline creek passed over the railroad embankment in the spring of 1910, and inundated Pratte's fields, so as to destroy his growing crops thereon, and to wash away a considerable amount of the top soil on a portion of his land. Among other things, this flood dislodged and removed a large portion of the railroad right of way wire fence from its position, rolled it up, and deposited it in the fields. In order to protect his remaining crops and possessions, and to the end of mitigating damages thereto, Pratte removed the fence from where it was deposited in the fields on his lands and rebuilt it along the right of way, at an expenditure of about $260. One of the items of damages sued for relates to this matter. By a general warranty deed, dated on the 25th day of July, 1910, Bernard S. Pratte and wife, with whom the contract was originally entered into by defendant, conveyed the lands involved to plaintiffs Patrick H. Coffman, Augusta C. Rond, and Robert A. Brown. Although this deed is of date July 25, 1910, it appears to have been acknowledged and delivered on the following day, that is, July 26, 1910, and on the same day Pratte, the grantor, assigned the contract here sued upon to these plaintiffs. From this it appears that plaintiffs succeeded to both the title of Pratte and wife in the lands and to his rights under the contract as well. A couple of weeks afterward —that is to say, on the 10th day of August, 1910—Bernard S. Pratte formally executed to plaintiffs a written assignment of his right of action for damages, past, present, and future, and for such damages as had accrued to him against defendant on account of the breach of said contract and all rights of action thereunder or thereabout to these plaintiffs. Plaintiffs thereupon instituted this suit for damages, and, as before said, recovered against defendant as for a breach of the contract, in that, though it had constructed its railroad and...