Rowland v. St. Louis & S. F. R. Co.

• Decision Date: 30 April 1907
• Citation: 102 S.W. 19,124 Mo. App. 605
• Parties: ROWLAND v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

102 S.W. 19

124 Mo. A. 605

ROWLAND v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

1. FRAUD—PLEADING—ALLEGATION OF FRAUD.

The reply in an action in which the answer sets up an accord and satisfaction, alleging that such settlement was for certain things, all of which were entirely outside of and not in any way connected with the subject-matter of the action, and that the same was perfectly understood between plaintiff and defendant, does not attack the contract of settlement for fraud as permitted by Rev. St. 1899, § 654 [Ann. St. 1906, p. 670].

2. EVIDENCE—PAROL CONTRADICTION OF CONTRACT.

An instrument declaring the agreement of the parties to be an accord and satisfaction "of all claims to date," including three hogs killed, and claims for damages to land or crops or from failure to erect gates, may not be shown by parol not to include damages to crops by hogs from failure to maintain fences.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Tom Rowland against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Moses Whybark, for appellant.

GOODE, J.

This case is for damage done to plaintiff's crops by hogs which entered his fields from defendant's right of way in consequence of a failure to erect and maintain good and lawful fences and sufficient cattle guards. The railroad runs through plaintiff's farm, and the evidence supported the statements of the petition in regard to hogs entering from the railroad and destroying the crops. In defense of the action, besides a general denial, the defendants alleged that before the institution of the suit they had agreed on a settlement with plaintiff covering the demand in controversy, and all other claims of plaintiff; that the balance found to be due plaintiff was $60, which defendants paid to him, whereby he was precluded from prosecuting the present action. A replication was filed denying the averments of the answer, and pleading further as follows: "Comes now plaintiff, and states, by way of reply to the second count containing the new matter pleaded, that said alleged voucher was in settlement of three hogs killed and loss occasioned from five acres of land, all of which was entirely outside of and not in any way connected with the subject-matter of this action; and that the same was perfectly understood between the plaintiff and defendant herein."

It should be stated that the present action was brought to the March term, 1905, of the circuit court, and was for damage done during the crop season of 1904. The exact date of the injury is not given, but it was after April 12th. Some of plaintiff's demands against the defendants for loss of stock killed by locomotives and injuries to crops by the entrance of hogs on his farm from the right of way had been placed in the hands of a firm of attorneys for collection. A settlement was entered into in August or September between said attorneys and an agent of the defendants, of which the St. Louis & San Francisco Railroad Company seems to have been the active and responsible party, and the one in whose name the settlement was made. It is contended by plaintiff the matter involved in the present action was not included in the adjustment. The terms of the settlement are shown by the following writing, which defendants introduced in evidence:

                  "Voucher 837, Dated September 19, 1904
                   "St. Louis & San Francisco Railroad
                                Company
                                           "August 27th
                

"T. N. Rowland, c/o T. J. Brown, New Madrid, Missouri: For accord and satisfaction of all claims against said company to date, including three hogs killed near Conran, Missouri, on or about June 11th, June 13th, and July 12th, 1904. Also all claims arising from damage to land or crops or from failure to erect and maintain farm crossing gates. Sixty Dollars.

                   "[Signed]    H. T. Dick
                                 "District Attorney
                               "H. J. Conran,
                                 "Auditor of Disbursements.
                               "W. H. Bassett,
                                 "Vice President & Gen. Mgr.
                  "Approved: E. H. Seneff, General Attorney.
                

"Received September 14, 1904, of the St. Louis & San Francisco Railroad Company, sixty dollars in full payment of above account.

                                         "T. N. Rowland.
                  "Witness:  W. N. Swain."
                   Indorsed: "T. N. Rowland, Hubbard &
                               Brown."
                

In connection with the foregoing document, defendants introduced two exhibits (A and B). Exhibit A is nearly a duplicate of the document just copied, and is as follows:

                "Record No. 837.
                               "Recorded in September, 1904.
                "St. Louis & San Francisco Railroad Company.
                

                "To  T. N. Rowland, Dr., Account T. J. Brown,
                            New Madrid, Missouri.
                "1904.  For accord and satisfaction of all
                        claims against said company
                        to date including three hogs
                "Aug.   killed near Conran, Missouri,
                "27th.  on or about June 11th, June
                        13th and July 12th, 1904;
                        also all claims arising from
                        damage to land and crops or
                        from failure to erect and maintain
                        farm crossing gates. . . . . . . .  $60.00
                

"Received Sept. 14, 1904, of the St. Louis & San Francisco Railroad Company, Sixty No-100 Dollars in full payment of above account.

                                        "T. N. Rowland.
                 "Witness: ________."
                

Indorsed: "T. N. Rowland." "Hubbard & Brown." "Pay National Bank of Commerce in St. Louis, or order New Madrid Banking Co., New Madrid, Mo. W. H. Garanflo, Cashier."

This is Exhibit B:

                    "New Madrid, Missouri, Aug. 1st, '04
                  "St. Louis & San Francisco R. R. Co.
                "Application for Damages for Loss of Crop and
                               Money Expended.
                        "T. N. Rowland, Conran, Mo.
                

                To money paid to hands for clearing
                 ground for cultivation............  $12 40
                To labor for self and team.........    4 00

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