341 S.W.2d 336 | Mo. Ct. App. | 1960
Plaintiff Crouch filed his petition in the Circuit Court of Henry County on February 5, 1959, alleging that an oral agreement was made between the plaintiff and the defendant Brookshire on December 7, 1957, for the plaintiff to pasture 100 head of cattle, except bulls, for which the plaintiff was to receive $3.50 per head per month, except unweaned calves, plus any expense which the plaintiff incurred for feed during adverse weather, for veterinarian expense and for all labor involved in feeding the cattle; that about December 7, 1957, the defendant delivered 50 head of cattle to the plaintiff pursuant to the agreement and that the cattle remained on the plaintiff’s pasture since that date; that the plaintiff had theretofore filed a suit against the defendant and recovered a judgment against the defendant for pasture, feed and expense on the cattle up to and including October 9, 1958; that since the 9th day of October, 1958, the plaintiff had kept 58 cows and 33 weaned calves and yearlings, and had incurred a total expense of $1,966.69 in caring for defendant’s cattle, including the pasture rent; that the plaintiff had made demand of the defendant for the payment of the account but the defendant had refused to pay the plaintiff. Defendant filed a general denial.
Trial was held on July 15, 1959, before a jury which returned a verdict for plaintiff in the amount sued for. Defendant appealed.
The facts involved in this case are the same as those stated in the case of Crouch v. Brookshire, 330 S.W.2d 592 decided by this court on December 7, 1959. That case involved a suit for the care of these cattle from December 7, 1957 to October 8, 1958 for which the plaintiff secured a judgment. That judgment was affirmed by this court. The present suit is on the same contract to cover the pasture and expense on the defendant’s cattle from October 9, 1958 to January 26, 1959 in the amount of $1,966.69.
The law is well settled that the points determined in an opinion on a former appeal in the same case are res adjudicata as to a subsequent appeal. Lauf et al. v. Wiegersen, Mo.App., 17 S.W.2d 369; Zep-penfeld v. Morgan, Mo.App., 185 S.W.2d 898. This general rule is subject to certain exceptions such as where the opinion was out of harmony with other decisions; where mistake of fact was made; or where injustice to the rights of the parties would be done by an adherence to the first opinion. Zeppenfeld case, supra. A review of the record and the authorities leads us to the conclusion that we were clearly right in the views expressed in our former opinion. It follows, therefore, that the judgment of the circuit ’ court should be affirmed. It is so ordered. All concur.
