Turner v. Wabash Railroad

114 Mo. App. 539 | Mo. Ct. App. | 1905

ELLISON, J.

Theplantiff shipped two carloads of cattle from Columbia, Missouri, to Chicago, Illinois, one carload of which he charges was negligently delayed en route, which caused undue and unnecessary shrinkage in Aveight to his damage. The judgment in the trial court was for plaintiff.

It appears that it was the understanding that the shipment Avas to be by way of St. Louis, and that by such mode of shipment plaintiff had an opportunity of the market at the latter place, and that, if it did not suit him, the cattle would be reshipped on to Chicago. There was a written contract of shipment. In the face of the contract, the provision to ship by way of St. Louis was inadvertently omitted by the defendant’s agent in writing the contract. But, in the usual endorsement made on the back of such contracts, the agent wrote the shipment was “via St. Louis.” It was handed to the plaintiff in that way and he, under the circumstances, was deceived into the belief that the face of the contract was properly drawn to correspond with what was written on the back. In bringing the suit, plaintiff declared against the defendant for a violation of its duty in that it was guilty of a negligent delay. The defendant by answer set up the written contract. Whereupon, plaintiff by reply set up the facts concerning the contract, charging the mistake and asking that the contract be set aside and for such further orders, decrees, or judgment as the nature of the case might require. The issue thus made was tried by the court as a chancellor and a finding had in plaintiff’s favor, that the contract be reformed to accord with the intention of the parties. The case proper was then tried and resulted in a judgment for plaintiff as above stated.

The mistake, above suggested, was shown to have been admitted by defendant. But the ground is taken here that the issue of mistake was improperly raised by the pleadings; it being defendant’s position that a reformation of the contract should have been asked in the petition and that it was not proper to put in the reply to the answer that which, defendant contends, should have been in the petition in the first instance. Defendant has cited many authorities that bear more or less on the question. We are, however, relieved of the necessity of discussing these, since the Supreme Court has decided, in a comparatively recent case, that it is proper pleading to ask in reply to defendant’s answer, setting up such contract, that it he reformed. [Courtney v. Blackwell, 150 Mo. 278.] That case was one involving fraud. While in this case, though fraud was charged in the reply, so also was mistake charged, and mistake is what plaintiff relies upon and which he clearly showed at the trial. Defendant seeks to draw some distinction between the case just cited and this case, based on the ground that the former was for fraud and the latter for mistake. We cannot find any room for a distinction and, hence, following the rule laid .down by the Supreme Court, we rule the point against defendant.

But it is set up in defendant’s brief that, for a mistake to be made the subject of aid from a court of equity, it must be mutual. Grant it (Benn v. Pritchett, 163 Mo. 560; Adkins v. Tomlinson, 121 Mo. 487). We find it was mutual in this case. Defendant does not deny the mistake on the part of its station agent at Columbia, and its general agent admitted it in a letter to ’ plaintiff. There is no doubt, from the evidence, that plaintiff was mistaken as to the face of the contract and that he was led or deceived into such mistake by the act of defendant’s agent in endorsing on the back of the contract that it was a shipment by way of St. Louis.'

In plaintiff’s first instruction was included the question whether there had been a mistake made in the omission from the contract. The defendant suggests that such mistake had been already found as a fact, and the court had reformed the contract on account thereof, and that it was therefore confusing to the jury to submit such matter to them as though an issue in the case. We think there is no good reason to suppose that such matter misled the jury and rule the point against defendant.

It is finally suggested that the verdict is excessive, for the reason that it is in excess of the sum asked by plaintiff when he made his claim to defendant before bringing suit. The verdict does exceed, by a small sum, the claim made by defendant. But, as it is sustained by the evidence, we see no objection on the ground stated by defendant. A shipper is not concluded in his action by the amount of his claim made before action brought. It may doubtless be evidence against him, but there may be many good reasons why it should not conclude him.

A full examination of the case has satisfied us that no substantial error was committed, and the judgment is therefore affirmed.

All concur.