Light v. St. Louis & San Francisco Railway Co.

| Mo. | Apr 15, 1886

Sherwood, J.

This is an action instituted before a justice of the peace to recover a sum of money claimed ■to have been over-paid by plaintiff to defendant on a land contract, whereby land was sold by the Atlantic &■ Pacific Railroad Company to Duncan, and the contract assigned by him to Brock. Plaintiff claims as the assignee of his father, Jesse Light, who claimed as the assignee of Brock. Under the terms of the contract the payments were to be made in installments, and plaintiff, after the assigment of the contract to him,' paid thereon-to the defendant company in 1879, $1-85.00; ■In about ten days thereafter he received from the agent of the defendant ‘company a statement showing'the pay. mants made from time to time to them on the contract. And in.about three months .thereafter he received from the defendant company a deed for the land mentioned in the contract.

I. It is wholly immaterial whether the requirements of the contract were met by the method of the .assignment made to Jesse Light, since the defendant •company received those payments from time to time, .and thereby treated him as the lawful and rightful assignee. And the like line of remark applies to plaintiff ; he made the payment as if assignee, that payment was .accepted, a statement of the payments made forwarded to plaintiff, and then a deed for the land by the defendant company. It is quite obvious that these acts on the part of the defendant company estopped it from urging the lack of any evidence showing an assumption by it of the obligations resting on the Atlantic & Pacific Railroad Company, by reason of the original contract; and precluded the defendant company, also, for like reasons, from urging any want of strict compliance with the terms of that contract as to the method of effecting an .assignment thereof. After treating Jesse Light as the .assignee of the contract; after receiving his money as such, after assuming, by so doing, that it was the successor to the obligations arising on the original contract, and after acting in a similar, but more pronounced, manfier toward plaintiff, it cannot withdraw from its position, and require the plaintiff to prove what by its own acts it has tacitly asserted and conclusively admitted.

II. As to the instructions, those given by the court •of its own motion, and at the instance of the defendant, presented the matter at issue very favorably to the jury. And as to the sixth and seventh instructions asked by defendant, the* refusal of the court to give them was not called to the attention of the court in the motion for a new trial, and, therefore, cannot be noticed.

III. The only point then left for comment, is whether,' under the evidence, there was an over-payment of money made on the contract. This, of course,, is a mere matter of computation, which, having been made, it is not found that the recovery by the plaintiff was unwarranted.

Therefore, judgment affirmed.

All concur.