Yazoo & Mississippi Valley Railroad v. Neal

47 So. 673 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court.

The agreed statement of facts shows that in June, 1906, E. E. and E. N. Neal instituted two suits against the railroad, company, under section 4058, Code 1906 (section 3561, Ann. Code 1892) for failing to maintain a proper stock gap and cattle guard. On the trial of this case it was agreed that one of the suits should be dismissed, and an agreed judgment was taken in the other for the statutory penalty of $250. Immediately thereafter the railroad company took an appeal from this agreed judgment to the supreme court. On the 4th day of December, 1906, a voucher was duly sent to R. E. and R N. Neal, receipted for by their attorneys, and the same was duly paid. On the same day — that is to say, on the 4th day of December, 1906 — after the judgment had been paid, the appeal was dismissed, and the railroad company paid all costs. On the very next day, December 5th, the plaintiffs instituted another suit about the same stock gap, claiming that this statutory penalty had accrued between the date of taking the judgment in July, 1906, and the date of paying the amount by the railroad company on December 4, 1906. Under proper pleas this cause was tried resulting in a verdict for R. E. and R. N. Neal, from which the railroad company appeals.

This case is controlled by the case of Railroad Co. v. Odeneal, 74 Miss. 827, 21 South. 52. This suit was a pending suit from the date of judgment to the date it was settled on December 4, 1906, and, while this appeal was pending no other suit could have been instituted. No sufficient time had elapsed after the settlement of the suit in which to give the railroad company an opportunity to repair this stock gap.

It is further contended by appellee that, by the terms of the agreement of compromise, the railroad was only released up to the 20th day of July. We find nothing in the agreement between the parties to justify us in adopting this view. The whole settlement between the parties was reduced to writing, and concludes as follows: “Plaintiff agrees to accept two hundred and fifty dollars in full satisfaction of all damages arising out of the failure to construct and maintain said cattle guards up to this date.” This agreement bears no date whatever, and seems to have been used as a voucher by the parties making the settlement for the railroad, and was sent forward for the purpose of having the railroad company issue a check in settlement of same. On this ag’reement the voucher seems to have been made out on the 19th day of November, 1906, and approved by the disbursing officer. The voucher was duly sent forward with directions to pay same when receipt accompanying it was dated and signed. This receipt was signed on the 4th day of December, 1906, by Ward & Dudley, attorneys, and the next day another suit was instituted about the same stock gap. It is our view that this compromise only became perfected on the 4th day of December, 1906, and that the agreement must speak as a finality only from that date. When the attorneys for appellee accepted the money from the railroad company in settlement of this compromise, it speaks asi a settlement from the date of the acceptance of the money and the signing of the receipt therefor. If the payment had been delayed beyond the time from which the agreement was to speak, since the agreement itself does not show this, it was the duty of appellees to refuse to accept the voucher, unless it was clearly understood at the time the money was taken that it was to be a settlement only from July 20th, and not from the date of payment.

Reversed and dismissed.