Scott v. Parkview Realty and Improvement Company

• Decision Date: 09 February 1912
• Parties: JOHN SCOTT et al., Appellants, v. PARKVIEW REALTY AND IMPROVEMENT COMPANY
• Court: Missouri Supreme Court

145 S.W. 48

241 Mo. 112

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

Supreme Court of Missouri

February 9, 1912

March 1912

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

Reversed and remanded (with directions).

Kinealy & Kinealy for appellants.

(1) This being an appeal from the action of the court in refusing to set aside nonsuits as to the first and third counts of the petition, plaintiffs' evidence is to be taken as true defendant's contradictory evidence as untrue, and every inference of fact made in favor of plaintiffs which can reasonably be drawn from the evidence so considered. Forbes v. Dunnavant, 198 Mo. 193; Mockowik v. Railroad, 196 Mo. 550. (2) The provision of the contract that "the engineer's opinion as to the increase of haul is to be binding on both the contracting parties" did not make the engineer an arbitrator for the construction of the contract. What was meant by the "haul" is to be determined by a proper interpretation of the contract, and therefore even if Mr. Pitzman had had the right to make up the estimate it was not binding, because based upon an erroneous construction of the contract. Lewis v. Railroad, 49 F. 708; Williams v. Railroad, 112 Mo. 463; Wilcox v. Baer, 85 Mo.App. 587; Elevator Co. v. Mertz, 107 Mo.App. 28; Carr v. Lackland, 112 Mo. 442; Const. Co. v. Tie Co., 185 Mo. 25; Patterson v. Camden, 25 Mo. 13; Ganson v. Madigan, 15 Wis. 153; Railroad v. Moynihan, 179 Mo. 629. (3) And to have been binding the estimate would have had to be made up by the engineer in the utmost good faith and without any ulterior purpose, and under the evidence in this case that was a question for the jury. Williams v. Railroad, 112 Mo. 463; Lewis v. Railroad. 49 F. 708. (4) The fact that the receipt given in this case purports to be in full of the amount due for the work done does not bar appellants from maintaining this action for the balance really due. Sawyer v. Walker, 204 Mo. 133; Aull v. Trust Co., 149 Mo. 1; Dawson v. Wombles, 111 Mo.App. 532; Ireland v. Spicard, 95 Mo.App. 53; Rivers v. Blom, 163 Mo. 442; 23 Am. & Eng. Ency. Law (2 Ed.), 989, tit. Receipts. (5) The court erred in holding as a matter of law that the defendant had established, as a defense to the first and third counts of the petition, the affirmative defense set up in the amended answer and that for that reason the plaintiffs were not entitled to recover on either of those counts. Dalton v. Poplar Bluff, 173 Mo. 39; Milliken v. Commission Co., 202 Mo. 637; Asphalt v. Transit Co., 102 Mo.App. 469; Dawson v. Wombles, 111 Mo.App. 532. (6) The court was not justified in forcing appellants to a nonsuit on the theory that there was a bona fide dispute between the parties which was settled by the payment of a less amount than was actually due for the following reasons: (a) Because neither from the receipt nor the extrinsic evidence does it appear that the consideration for the payment of the money was the settlement of an existing dispute between the parties. Siewing v. Tacke, 112 Mo.App. 414; Ins. Assn. v. Wickham, 141 U.S. 564; Perkins v. Headley, 49 Mo.App. 556; Milling Co. v. Insurance Co., 105 Mo.App. 146; Steinwender v. Creath, 44 Mo.App. 356; Ham v. Barrett, 28 Mo. 388; Bluedorn v. Railroad, 121 Mo. 258; Erhart v. Dietrich, 118 Mo. 418; Winter v. Supreme Lodge, 96 Mo.App. 1. (b) Because the question of the measurement of the haul had long before the date of the final payment on February 1, 1904, been settled and agreed upon between the parties and thereby became liquidated and thereafter the defendant could not, had it so desired, reopen the question so as to make it a live dispute in good faith. Ins. Assn. v. Wickham, 141 U.S. 564; Harrison v. Iron Works, 96 Mo.App. 348; 19 Am. & Eng. Ency. Law, p. 391; Pollman Co. v. St. Louis, 145 Mo. 651. (c) Because even if there had been a dispute between the parties the question of its good faith was for the jury. Goodson v. Acc. Assn., 91 Mo.App. 339; Chamberlain v. Smith, 110 Mo.App. 657; Lightfoot v. Hurd, 113 Mo.App. 612. (7) The court erred in excluding the evidence offered by appellants to show that respondent's capital stock had not been fully paid but that a number of its stockholders were financially able to respond to a judgment. The evidence was competent on the question of bona fides. (8) The compromise and settlement of this same dispute by the payment of the same final payment here involved having been pleaded as an affirmative defense to the fifth and sixth counts of the petition as well as to the first and third, and the verdict and judgment having gone against defendant upon said fifth and sixth counts on said affirmative defense, and defendant not having appealed from that judgment, that defense has now become res adjudicata against respondent. Wilson v. Boughton, 50 Mo. 17; Young v. Byrd, 124 Mo. 590; Case v. Bridge Co., 58 N.Y. Super. 435; Water Works Co. v. School Dist., 23 Mo.App. 227; West v. McMullen, 112 Mo. 405; Kimberly Co. v. Young, 90 Mo.App. 505; State ex rel. v. Railroad, 149 Mo. 109.

Henry S. Caulfield, George W. Lubke and George W. Lubke, Jr., for respondent.

(1) This court will not review the action of the trial court in sustaining the demurrer to the evidence, because eight exhibits which were in evidence before the trial court and which were introduced by appellants have been lost by the appellants, and are not contained in the bill of exceptions or the abstract of either party, and no evidence of their substance is available. Christopher v. White, 42 Mo.App. 428; Vandeventer v. Goss, 190 Mo. 239; McCullough v. De Witt, 163 Mo. 306; Rutledge v. Tarr, 95 Mo.App. 265; Deering v. Hannah, 93 Mo.App. 618; Costello v. Fesler, 80 Mo.App. 107; Brand v. Cannon, 118 Mo. 595; Tobacco Co. v. Walker, 123 Mo. 670; Doherty v. Noble, 138 Mo. 25. (2) The final estimate and certificate of the engineer was binding upon the appellants. 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) The appellants by acting upon the final estimate, receiving the checks of respondent based upon the final estimate, and receipting to the respondent in full for all claims under the contract, and 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. (4) Such settlement is so far conclusive between the parties that it cannot be reopened or gone into either at law or in equity, except upon clear proof of fraud or mistake, and not even then 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. McCormick v. Railroad, 154 Mo. 191; Pickel v. Chamber of Commerce Assn., 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. Larkins Son, 82 Mo.App. 635; Quinlan v. Keiser, 66 Mo. 603; Cannon v. Sandford, 20 Mo.App. 590; Morgan v. Joy, 121 Mo. 682; Mitchell v. Henley, 110 Mo. 598; Gens v. Hargadine, 56 Mo.App. 245. (5) There was no fraud 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. (6) The evidence conclusively shows a completed compromise or 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 Ass'n, 10 Mo.App. 191; Marshall v. Larkins Son, 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 (N.Y.) 405; Boteler v. Roy, 40 Mo.App. 334; School Board v. Hull, 72 Mo.App. 409; Henson v. Stever, 69 Mo.App. 136; Gens v. Hargadine, 56 Mo.App. 245; Reilly v. Chouquette, 18 Mo. 220; State ex rel. v. Ewing, 116 Mo. 136. (7) The verdict and judgment upon the fifth and sixth counts of the petition are not res adjudicata on the question of a settlement of the cause of action set forth in the first and third counts. State to use v. Kaye, 83 Mo.App. 678; Winham v. Kline, 77 Mo.App. 36; Spurlock v. Railroad, 76 Mo. 67; Tutt v. Price, 7 Mo.App. 194; Dickey v. Heim, 48 Mo.App. 114; Foundry & Mach. Co. v. Mfg. Co., 100 Mo.App. 414. (8) The court did not err in excluding the evidence of how respondent's capital stock was paid up.

VALLIANT, C. J. Woodson, J., concurs in all except paragraph 4 and the result, as to which he dissents.

OPINION

In Banc

VALLIANT, C. J.

Plaintiffs sue to recover a balance claimed by them to be due from defendant for work done in grading a certain tract of land belonging to defendant lying partly in the city and partly in the county of St. Louis.

The petition is in six counts; before entering on the trial plaintiffs dismissed their second and fourth counts, and went to trial on the first, third, fifth and sixth. At the close of the evidence on both sides the court at the request of defendant gave instructions to the jury to the effect that as to the first and third counts the plaintiffs were not entitled to recover, whereupon the plaintiffs took a nonsuit with leave as to those two counts; the trial progressed...