Scott v. Parkview Realty and Improvement Company

• Citation: 164 S.W. 532,255 Mo. 76
• Parties: JOHN SCOTT et al. v. PARKVIEW REALTY AND IMPROVEMENT COMPANY, Appellant
• Decision Date: 17 February 1914
• Court: United States State Supreme Court of Missouri

164 S.W. 532

255 Mo. 76

JOHN SCOTT et al. v. PARKVIEW REALTY AND IMPROVEMENT COMPANY, Appellant

Supreme Court of Missouri, Second Division

February 17, 1914

Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.

Affirmed.

Collins Barker & Britton, M. P. Murray and Dawson & Garvin for appellant.

(1) "In order that a decision may operate as an estoppel on a subsequent appeal of the same case the question must have been fairly presented to the court as necessary to a decision in the case and directly considered and decided. Parties should not be concluded upon questions that are decided upon mere implications arising from the general disposition of the case or those which were merely collateral to the matter actually considered." Gwin v. Wagoner, 116 Mo 151; Ables v. Ackley, 133 Mo.App. 600; Gannon v. Pauk, 200 Mo. 97; Bird v. Sellers, 122 Mo. 32; Chambers v. Smith, 30 Mo. 156; Shoe Mach'y Co. v. Ramlose, 231 Mo. 508; Hamilton v. Marks, 63 Mo. 167; Bank v. Donnell, 195 Mo. 571; Kelly v. Thuey, 143 Mo. 437; Holmes v. Loan Assn., 166 Mo.App. 730; Bagnell v. Railroad, 242 Mo. 21; Railroad v. Cundeff, 184 F. 891. (2) Under a proper interpretation of the grading contracts sued upon the final estimate and certificate of the engineer was made in good faith, was based on correct engineering principles and binding on the parties. McGregor v. Construction Co., 188 Mo. 611; Williams v. Railroad, 153 Mo. 487; Howard County v. Baker, 119 Mo. 407; Chapman v. Railroad, 114 Mo. 549; McCormick v. St. Louis, 166 Mo. 315; Iron Co. v. Halverson, 48 Mo.App. 383. (3) While in the construction of contracts, words are usually to be taken in their ordinary or popular sense, yet a particular or general custom or usage may be proved to vary the usual meaning or to show that words are used in a special sense. Under all the evidence in the case, the word "haul," as usually and customarily employed by engineers and contractors in and about St. Louis at the time, meant the shortest practicable distance between cut and fill, and "haul" was measured in that way. This was in contemplation by the parties when the contract was entered into. The adoption of a long and circuitous route by respondents for their economy and convenience did not entitle them under such circumstances to payment at the contract price on the basis of such long and circuitous route. Under such circumstances, the failure of the engineer to object, did not amount to an authorization to plaintiffs to charge defendant with an additional sum of over $ 77,000 on account of a longer route adopted by them because of its being cheaper to them than the shortest practicable route. (4) The respondent, by acting upon the final estimate, and accepting from appellants the sum of $ 76,497.70, in full of all claims, and by still holding and retaining the money, gave to the final settlement the force and effect of an account stated. McCormick v. St. Louis, 166 Mo. 315; Coal Co. v. St. Louis, 145 Mo. 651; McCormick v. Transit Co., 154 Mo. 191; Adams v. Helms, 55 Mo. 468; Lindersmith v. Land Co., 31 Mo.App. 258. (5) There was a completed settlement, accord and satisfaction. Maack v. Schneider, 51 Mo.App. 92; Brink v. Garland, 58 Mo.App. 356; Tumilty v. Tumilty, 13 Mo.App. 444; Franklin v. Railroad, 97 Mo.App. 473; Cogan v. Railroad, 101 Mo.App. 179; Pickel v. Chamber of Commerce, 10 Mo.App. 191; Marshall v. Larkin's Sons, 82 Mo.App. 636; Rawlins v. Rawlins, 102 Mo. 563; Tansey v. Railroad, 90 Mo.App. 101; Knorp v. Wagner, 195 Mo. 637; Coal Co. v. St. Louis, 145 Mo. 653; Darwin v. Westbrook, 71 Hun, 405; Boteler v. Roy, 40 Mo.App. 234; School Board v. Hull, 72 Mo.App. 409; Henson v. Stever, 69 Mo.App. 136; Gens v. Hargadine, 56 Mo.App. 245; Reilly v. Chaoquette, 18 Mo. 220; State ex rel. v. Ewing, 116 Mo. 136. (6) Such settlement is so far conclusive between the parties that it cannot be reopened either at law or in equity, except upon clear and convincing proof of fraud or mistake, and never where, as here, the party attacking the settlement was aware, when he made it, of the facts upon which he bases his claim for relief. There is no claim that there was a mistake here, and there is an entire failure of proof of any fraud. McCormick v. Transit Co., 154 Mo. 191; Pickel v. Chamber of Commerce, 10 Mo.App. 191; Lindersmith v. Land Co., 31 Mo.App. 258; Dengler v. Auer, 55 Mo.App. 548; Marmon v. Waller, 53 Mo.App. 610; Kronenberger v. Binz, 56 Mo. 121; Kent v. Highleyman, 28 Mo.App. 614; Buffington v. Land Co., 25 Mo.App. 492; Marshall v. Larkin's Sons, 82 Mo.App. 635; Quinlan v. Keiser, 66 Mo. 603; Cannon v. Sandford, 20 Mo.App. 590; Morgan v. Joy, 121 Mo. 682; Draper v. Owsley, 15 Mo. 613; Mitchell v. Henley, 110 Mo. 598; Gens v. Hargadine, 58 Mo.App. 245. (7) (a) The reply did not state facts sufficient to avoid the release. (b) There was no fraud, duress, or coercion in the procurement of the settlement. Bullock v. Woolridge, 42 Mo.App. 356; Davidson v. Hobson, 59 Mo.App. 130; Bryan v. Hitchcock, 43 Mo. 527; Parker v. Marquis, 64 Mo. 38; Hamilton v. Mallett, 8 Mo.App. 584; Vout v. Geraldin, 64 Mo.App. 165; Dausch v. Crane, 109 Mo. 332; Silliman v. U.S., 101 U.S. 465. There was no threat; the only threat was by plaintiffs. There was no evidence of any false statement. There was no evidence of any duress. There was no evidence of any concealment of available assets. Rule's statement to Scott was not a statement of a present or past fact or condition. It was not even an expression as to the future. It was not even a prophecy. At most it was a mere expression that one of two things might happen. (8) Where, as in this case, the stock of a corporation has been paid for by a transfer to it of property and the stock has been issued as full paid and nonassessable, there is no further liability of the stockholder to the corporation and it cannot be said that the corporation has any claim against him for unpaid stock. As to all the world, except a creditor who has extended credit to the corporation upon the faith that its stock has been full paid, and without notice as to the manner in which it has been paid, the stock is full paid. Such a creditor may have a cause of action against the stockholder, but it is a right peculiar to the creditor, and not the right of the corporation, nor one which can be enforced in the right of the corporation and such liability is not an asset of the corporation. Bank v. Rockefeller, 195 Mo. 15; Webb v. Rockefeller, 195 Mo. 55; Woolfolk v. January, 131 Mo. 620; Bank v. Gillespie, 209 Mo. 217.

Kinealy & Kinealy for respondents.

(1) The decision of this court in banc on the first appeal became the law of the case for the subsequent trial and this appeal. Taussig v. Railroad, 186 Mo. 289; Hayward v Smith, 187 Mo. 464; Mill Co. v. Sugg, 206 Mo. 148; Railroad v. Bridge Co., 215 Mo. 286. (2) The greater part of appellant's brief discussing questions settled by the first appeal must be disregarded. When the Supreme Court in its opinion ordered "the cause remanded to be retried according to the views herein expressed," the lower court had no power to do anything else. Bridge Co. v. Stone, 194 Mo. 175. (3) Appellant's criticisms of the instructions given for respondents are without merit. (a) Instruction 3 follows Judge Valliant's opinion: Scott v. Parkview Co., 241 Mo. 123. (b) Instruction 5 follows the opinion of this court. Id., 133. (c) Instruction 6 follows that opinion also: Id., 136. The purchase price of property is prima-facie evidence of its value and the consideration named in the deeds is prima-facie true. Abbitt v. Transit Co., 104 Mo.App. 540; 13 Cyc. 613; Burkholder v. Henderson, 78 Mo.App. 294; Anderson v. Cole, 234 Mo. 4; Allen v. Kennedy, 91 Mo. 328; Wood v. Broadley, 76 Mo. 33; Fontaine v. Bank, 57 Mo. 561. The real owners of unpaid stock are liable thereon to creditors. Hotel Co. v. Wright, 73 Mo.App. 244; Business Men's Assn. v. Williams, 137 Mo.App. 588. And so also are persons who acquire the stock with knowledge of all the facts. Schneider v. Johnson, 161 Mo.App. 374; Berry v. Road, 168 Mo. 316. (4) There was no error in the court's instruction against the so-called counterclaim. That was founded on a contract and the evidence failed to show any agreement for liquidated damages because of failure to complete the work on October 1, 1903. No claim for unliquidated damages was made in the court below and defendant cannot now try the case here on a different theory. Hof v. Transit, 213 Mo. 445; St. Louis v. Contracting Co., 210 Mo. 491; Gordon v. Park, 202 Mo. 236; Williams v. Lobban, 206 Mo. 399. And the evidence showed that appellant caused the delay and suffered no damage. Beattie Mfg. Co. v. Heinz, 120 Mo.App. 476; 30 Am. & Eng. Ency. Law, p. 1255. (5) Appellant has no standing to complain of the refusal of instructions, because of the excessive number asked by it. Desberger v. Harrington, 28 Mo.App. 632; Renshaw v. Ins. Co., 33 Mo.App. 394; Kinney v. Springfield, 35 Mo.App. 96; McAlester v. Barnes, 35 Mo.App. 668; City v. West, 157 Mo. 309. Moreover, all of defendant's instructions are drawn wholly regardless of the views expressed by this court on the former appeal. In addition to this, instructions based upon "false and fraudulent representations" submit questions or conclusions of law, which is erroneous. Best & Russell Co. v. Meyerfeld, 77 Mo.App. 181; Smith v. Sims, 77 Mo. 269; Hoester v. Sammelmann, 101 Mo. 619; Mateer v. Railroad, 105 Mo. 353; Nichols v. Stevens, 123 Mo. 96. (6) The contract price for services is prima-facie evidence of their reasonable value. Nelson v. Railroad, 113 Mo.App. 659; Ibers v. O'Donnell, 25 Mo.App. 120; Deardorff v. Eberhart, 74 Mo. 37; Water Co. v. Realty Co., 152 Mo.App. 300; Bambrick v. Webster Assn., 53 Mo.App. 225; Cozad v. Elam...