124 Mo. App. 605 | Mo. Ct. App. | 1907
This case is for damage done to plaintiff’s crops by hogs which entered his fields from defendant’s-right of way in consequence of a failure to erect and maintain good and lawful fences and sufficient cattle-guards. The railroad runs through plaintiff’s farm and the evidence supported the statements of the petition in regard to hogs entering from the railroad and destroying the crops. In defense of the action, besides a general denial, the defendants alleged that before the institution of the suit they had agreed on a settlement with plaintiff covering the demand in controversy, and all other claims of plaintiff; that the balance found to be due plaintiff was sixty dollars, which defendants paid to him, whereby he was precluded from prosecuting the present action. A replication was filed denying the averments of the answer and pleading further as follows:
“Gomes now plaintiff, and states by way of reply to the second count containing the new matter pleaded, that said alleged voucher was in settlement of three hogs killed and loss occasioned from five acres of land, all of which was entirely outside of and not in any way connected with the subject-matter of this action; and that the same was perfectly understood between the plaintiff and defendant herein.”
It should be stated that the present action was brought to the March term, 1905, of the circuit court and was for damage done during the crop season of
“Voucher 837, dated September 19, 1904. .
“St. Louis and San Francisco Railroad Company. “T. N. Rowland, August 27th.
“Care of T. J. BroAAm,
“New Madrid, Missouri.
“For accord and satisfaction of all claims against said company to date, including three hogs killed near Conran, Missouri, on or about June 11, June 13, and July 12, 1904. Also all claims arising from damage to land or crops or from failure to erect and maintain farm crossing gates. ' Sixty Dollars.
Signed
“H. T. Dioic, District Attorney,
“H. J. Conran, Auditor of Disbursements, “W.'H. Bassett, Vice-Pres. & Gen. Mgr. “Approved: E. H. Seneff, General Attorney.
“Received September 14, 1904, of the St. Louis & San Francisco .Railroad Company, sixty dollars in full payment of above account. T. N. Rowland,
Witness: W. N. Swain,
Endorsed: T. N. Rowland,
Hubbard & Brown.”
“Record No. 837. Recorded in September, 1904.
St. Louis & San Francisco Railroad Company.
“To T. N. Rowland, Dr., Account T. J. Brown, .
New Madrid, Missouri.
1904. For accord and satisfaction of all claims against said company to date including, three hogs killed
Aug. near Conran, Missouri, on or about 27th. . June 11, June 13, and July 12, 1904; also all claims arising from damage to land and crops or from failure to erect and maintain farm-crossing gates...........$60.00
“Received Sept. 14, 1904, of the St. Louis and San Francisco Railroad Company, Sixty No-100 Dollars in full payment of above account.
“Witness: T. N. Rowland.
“Endorsed: (T. N. Rowland, Hubbard & Brown.)
“(Pay National Bank of Commerce in St. Louis, or order New Madrid Banking Co., New M'adrid, Mo.
“W. H. Garanflo, Cashier.)”
This is Exhibit “B”:
“New Madrid, Missouri, Aug. 1, ’04.
“St. Louis and San Francisco R. R. Co.
“Application for damages for loss of crop and money expended.
“T. N. Rowland, Conran, Mo.
“To money paid to hands for clearing- ground for cultivation......................$12.40
“To labor for self and team.................. 4.00
“To rent on 5 acres of land.................. 17.50
$33.90
“Yours truly,
“Hubbard & Brown,
“By Brown.”
“Eec’d Law Dept. Aug. 3, 1904.
St. L. M. & S. E. E. E. Co.
St. Louis & Gulf Ey. Co.”
Thomas Brown, one of the attorneys who' had plaintiff’s demands against the defendants in charge when the adjustment occurred and represented plaintiff in negotiating it, testified that nothing was included in it except the claim for three hogs which had been killed, and a claim for damages sustained by plaintiff to five acres of corn that he had failed to cultivate on account of a farm crossing and gate not being erected between the land where he lived and the land he did not cultivate. The latter item seems to be the one shown in Exhibit “B.”. Brown swore the adjustment did not embrace the loss of plaintiff’s peas, pumpkins and corn crop in the year 1904, which loss is the subject-matter of this action. He testified further that when the voucher or receipt for the money paid on the settlement was signed, he talked with the agent of the railroad companies Who had the matter in charge, and it was agreed that the payment was for the hogs and the loss entailed by plaintiff’s failure to cultivate the five acres of ground; that it would not interfere with plaintiff’s collection of damages caused by hogs destroying his crops. Brown’s testimony is inconclusive at this point. He swore the understanding between him and Eowland, his client, was, as
The judgment is reversed and the cause remanded.