183 Mo. App. 622 | Mo. Ct. App. | 1914
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
By a general warranty deed,.dated on tbe 25th day of July, 1910, Bernard S. Pratte and wife, with whom tbe contract was originally entered into by defendant, conveyed tbe 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 tbe following day—that is, July 26, 1910—and on tbe same day Pratte, tbe grantor, assigned tbe contract here sued upon to these plaintiffs. From this it appears that plaintiffs succeeded to both tbe title of Pratte and wife in tbe lands and to bis rights under tbe contract as well. A couple of weeks afterward—that is to say, on tbe 10th day of August, 1910—Bernard S. Pratte formally executed to plaintiffs a written assignment of bis right of action for damages, past, present and future, and for such damages as bad accrued to him against defendant on account of tbe breach of said contract, and all rights of action thereunder or thereabout, to these plaintiffs. Plaintiffs thereupon insti
It appears that, though "Pratte assigned his right of action for all damages suffered by the overflow and because of the breach of the contract to construct a solid embankment above the high-water mark to these plaintiffs, as above stated, he retains some interest in the proceeds of the recovery. "What his interest therein is does not definitely appear, but the case concedes that he is still interested therein in some amount.
It is first argued the judgment should be reversed for the reason the suit is not brought in the name of the real party in interest. The suit proceeds in the name of the three plaintiffs who succeeded to P'ratte’s rights in the lands by virtue of his deed and who succeeded to the right of action for damages under the written assignment thereof above described. Obviously there is no merit in this argument, for the subject-matter of the assignment is a mere chose in action arising out of contract, and the assignee may sue thereon, though the title were passed to him for no other purpose than that of collection. Moreover, if Pratte is interested in a portion of the recovery, these plaintiffs are to be regarded as the trustees of an express trust under the code provision, and the suit is properly brought by them, and it remain for them to account to Pratte. Defendant is immune from further prosecution on account of the same cause of action as that involved in the assignment here. [See West Plains Bank v. Edwards, 84 Mo. App. 462; Young v. Hudson, 99 Mo. 102, 12 S. W. 632; Springfield, to use, v. Weaver, 137 Mo. 650; 37 S. W. 509; 39 S. W. 276.]
It is earnestly insisted that the court erred in its instruction on the measure of damages, but the argument is without merit. It appears from the instructions that, in so far as the loss of growing crops on the land is concerned, the court told the jury plaintiffs were entitled to be compensated according to the value of the crops destroyed which were then standing in the field, and such is the correct rule on the subject. [See Pace v. St. Louis, etc. R. Co., 174 Mo. App. 227, 156 S. W. 746; Hunt v. St. Louis, etc. R. Co., 126 Mo. App. 261, 103 S. W. 133; Carter v. Wabash R. Co., 128 Mo. App. 57, 106 S. W. 611.]
The evidence reveals that certain top soil was washed away from a goodly portion of the cultivated
It appears that defendant had constructed a right of way fence of posts and wire along on Pratte’s land but designed to inclose its railroad right of way and sever it from the farm. The inundation of the lands resulting from the overflow of Saline creek and because defendant failed to construct the embankment above high-water mark dislodged this fence from its position and deposited it in the fields. When the flood abated, Platte went about clearing his field of debris and encountered this fence rolled up and tangled together. He employed labor and removed it from the field and reset it in position, but omitted to first give notice to defendant to do so. This proceeding entailed an expense of- $260, and plaintiff was permitted to recover from defendant therefor. In connection with that matter, the court gave instruction number 3a, as follows:
‘1 The court instructs the jury that, if your finding be for plaintiffs, you will in fixing the damages, if any, which accrued to the fence alleged to have been torn away, allow to plaintiff the fair and reasonable worth and value, at the time and place of the work and labor expended in removing said fence from the place to which it had been carried by said flood, and of repairing and re-building said fence, at the original location.”
There are several arguments put forward in the brief, but we regard all of them that merit discussion as fully answered by what has been said. We have examined the record with care and considered all of the points made, but see no reversible error therein. The case was well instructed by the court and no error appears in refusing instructions requested by defendant.
The judgment should be affirmed. It is so ordered.