Leon v. Barnsdall Zinc Company

Decision Date07 January 1927
Citation290 S.W. 633,220 Mo.App. 1268
PartiesMOSES LEON ET AL., RESPONDENTS, v. BARNSDALL ZINC COMPANY, APLANT. *
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Jasper Court.--Hon. S.W. Bates Judge.

AFFIRMED.

Judgment affirmed.

A. W Thurman for appellant.

(1) The court erred in refusing, at the close of plaintiffs' case, to give the defendant instruction No. 1, directing the jury that under the pleadings and evidence to find for the defendant. The plaintiffs made no proof of performance of the contract and besides it is shown that there had been a previous judgment entered upon the same cause of action, and that the matter was fully adjudicated. Roy v Voteler, 40 Mo.App. 213; Meepher v. Heinbach, 249 S.W. 440. The reversal of the judgment in the original case was a finality. Berry v. Majestic Milling Co., 263 S.W. 406; Strottman v. Railroad, 228 Mo. 154, 263 S.W. 410; Abbott v. Railroad, 232 Mo. 616; Rutledge v. Railroad, 123 Mo. 140; Bowen v. Railroad, 118 Mo. 541; Lilly v. Tobbein, 103 Mo. 477; Powell v. Bowen, 240 S.W. 1085; Gulf Refining Co. v. U.S. 70 L.Ed. 58; Metropolitan Water Co. v. Kaw Valley Drainage Dist., 223 U.S. 519, 56 L.Ed. 533; Scullin v. Railroad, 192 Mo. 1; Gilsey v. Gilsey, 201 S.W. 588, 198 Mo. 505, 240 S.W. 1085. (2) Instruction No. 1 given in behalf of the plaintiffs directing the jury to return a verdict for plaintiffs on each count was erroneous under the pleadings and the evidence and against the law under the evidence. Said instruction ignored the contract and the performance and authorized recovery without regard to whether or not the plaintiffs had performed the covenants of said contract. It is further erroneous because it allowed recovery upon a contract which had been adjudicated in a previous suit. See authorities on No. 1. Said instruction was peremptory and ignored the pleadings and issues. Royal Mining Co. v. Fidelity Casualty Co., 161 Mo.App. 185; Haskell v. Metropolitan Railroad, 161 Mo.App. 64. (3) Under the pleadings and under the evidence it appears that all matters involved in this suit had been fully adjudicated between the same parties and the court erred in not directing the jury to find for the defendant; that it appears under the pleadings and under the evidence introduced by plaintiffs that the plaintiffs in this suit instituted a previous suit upon the identical contract for damages against the defendant in the sum of $ 6000 and that a judgment was rendered in said previous suit for that sum; that under the pleadings and under the evidence the court erred in refusing to instruct the jury to find for the defendant as all matters in said contract and all damages growing out of said contract had been finally adjudicated. That it appears that the instruction of the court and the verdict of the jury and the judgment rendered is contrary to the judgment directed by the Supreme Court and in violation of sections 1, 3, and 5 of article 6 of the Constitution of Missouri, which gives the Supreme Court the power and jurisdiction to control the lower court and to direct judgment and that said judgment is contrary to the mandate as directed. Strottman v. Railroad, 208 Mo. 154, 263 S.W. 410, cites other cases under No. 1. (4) The judgment is wrong under the pleadings and under the evidence and is against the law. See authorities cited under No. 1. It is not presumed that the Supreme Court ignored the Statutes of Missouri, or reversed the judgment on account of technical errors. Revised Statutes, secs. 1276, 1513, 1514. Section 1514 provides that the Supreme Court shall examine the records and reverse or affirm the judgments or decisions and give such judgment as the court should have given. 23 Cyc. 1147, 1148; Wilhelmi v. Des Moines Insurance Co., 68 N.W. 782; Ginnochio v. Railroad, 263 S.W. 411; Abbott v. Railroad, 232 Mo. 616; Powell v. Bowen, 240 S.W. 1085; Moody v. Century Savings Bank, 239 U.S. 374, 60 L.Ed. 336; State ex rel. v. Speer, 284 Mo. 45.

McReynolds & Blair and John Flanigan for respondent.

(1) The judgment in the former suit is no bar to this action. Hobson v. Lenox, 201 S.W. 967; Dillinger v. Kelley, 84 Mo. 561; Whitlock v. Appleby, 49 Mo.App. 295; Taylor v. Larkin, 12 Mo. 103; Lawler v. Vette, 166 Mo.App. 342, 149 S.W. 43; McNees v. Ins. Co., 69 Mo.App. 246; Shanklin v. Francis, 67 Mo.App. 461; 34 Corpus Juris, 777-778. (2) The judgment for the first two installments is conclusive in the present suit. It precludes all defenses urged by the defendant herein. In re MeMenamy's Guardianship, 270 S.W. 662; 34 Corpus Juris, 844, 845, 854, 855, 943; Richardson v. Dell, 191 S.W. 64-65; Mitchell v. Joplin Nat. Bank, 200 Mo.App. 243, 204 S.W. 1125; Edgell v. Sigerson, 26 Mo. 583; Jones v. Silver, 97 Mo.App. 240-241; Nat. Surety Co. v. Breuchaud, 173 A.D. 795, 160 N.Y.S. 77; N. Y. City Car Adv. Co. v. Greenberger, 150 N.Y.S. 642; Topliff v. Topliff, 8 Oh. Cir. Ct. 55, 4 Oh. Cir. Dec. 312; Julian v. Granite Mon. Co., 187 S.W. 585; Smith v. Kiene, 231 Mo. 215, 132 S.W. 1052; Hickerson v. Mexico, 58 Mo. 61; State v. Bates, 193 S.W. 913. (3) Defendant's peremptory instruction properly refused. Leon v. Barnsdall Zinc Co., 274 S.W. 699. (4) Plaintiffs' peremptory instruction was properly given. Sturdivant Bank v. Houck, 215 S.W. 758; Crawford v. Stayton, 110 S.W. 665; Clemens v. Knox, 31 Mo.App. 185; Ford v. Dyer, 148 Mo. 528; Hoster v. Lange, 80 Mo.App. 234.

COX, P. J. Bailey and Bradley, JJ., concur.

OPINION

COX, P. J.

Action for balance due on a contract. The issues were found for plaintiff under a peremptory instruction by the court. Defendant appealed.

The contract which is the basis of this suit was a sale by plaintiffs of their rights under a contract with the owners of certain lands relative to a mining lease. Defendant agreed to pay plaintiff $ 6000 in monthly installments of $ 1000 each. This suit is to recover the last four installments.

The history of the transactions between these parties as far as litigation is concerned may be briefly stated as follows: A suit was brought by plaintiffs against this defendant based on this same contract and plaintiff recovered the full $ 6000 which defendant had agreed to pay plaintiffs. On appeal to this court the judgment was reversed without remanding by majority opinion on the ground that there was no consideration for the contract. One judge dissented and the case was certified to the Supreme Court. [See Leon v. Barnsdall Mining Company, 247 S.W. 1013.] The Supreme Court held that There was a sufficient consideration to sustain the contract and plaintiffs could recover for the first two installments, amounting to $ 2000, but held that as the other four installments were not due when that suit was brought plaintiffs could not recover for them in that action. [See same case, 274 S.W. 699.]

We refer to these two reports for a full statement of all the facts. As we view the case now before us we do not deem it necessary to incorporate herein a full statement of the facts. We think our conclusion here must be governed by the decision of the Supreme Court in the other case. This case is a new suit to recover four installments provided in the contract which the Supreme Court held had not matured when the other suit based on this contract was filed.

Both parties now contend that the judgment of the Supreme Court in the other case is res adjudicata in this case. The appellant contends that since the Supreme Court held in the other suit that plaintiff could only recover two installments, amounting to $ 2000, in that suit, and reversed and remanded the case with directions to enter judgment for that amount and made no order in relation to the other four installments, that the judgment is a finality and precludes any other suit upon the same contract. We are of the opinion, however, that since the ground for holding that no recovery could be had in that suit for the amount of the last four installments provided in the contract was, that these installments were not due when the suit was filed, as stated in the opinion, the judgment in that case is not a bar to this suit. If recovery is prevented in any suit solely for the reason that the cause of action had not accrued when the suit was brought the judgment in that case is not a bar to another suit to recover the same thing after the cause of action does accrue. [Dillinger v. Kelley, 84 Mo. 561; Lawler v. Vette, 166 Mo.App. 342, 149 S.W. 43.]

Respondent contends that the judgment in the former suit is res adjudicata of every question raised by the defense in this suit and for that reason the peremptory instruction to find for plaintiff in this case was correct.

In the former suit, which was based on...

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