State ex rel. Cardwell v. Stuart ( 1903 )

BLAND, P. J.

The facts of this case are satisfactorily stated in the opinion of this court on a former appeal (74 Mo. App. 182). The judgment was then reversed. But on motion for rehearing the cause was remanded to afford the plaintiff an opportunity to impeach the settlement theretofore made between him and Stuart, the administrator, which was pleaded by defendants as a bar to plaintiff’s right of recovery. Instead of impeaching the settlement for fraud or mistake, the plaintiff in his reply to that portion of the answer setting up the settlement as a bar, stated the following:

“And plaintiff further says that is is true that the said defendant, William Stuart, as such administrator, did pay to him the sum of seven hundred and fifty dollars, in part payment of his interest in said estate, but the said plaintiff has never received from said administrator but the sum of seven hundred and fifty dollars, and there is still a balance coming to him as alleged in his petition. ’ ’

There is not a ray of evidence tending to impeach the settlement, yet in the absence of either allegation or proof to impeach the settlement, the trial court, in utter disregard of the decisión of this court on the former appeal, to the effect that the settlements signed and delivered by plaintiff to Stuart, as administrator, operated as an acquittance of the alleged misconduct of Stuart, submitted the issues to the jury on the theory that the written evidence of the settlements were but ordinary receipts and subject to explanation, and permitted a verdict of $1,000 in favor of plaintiff to stand. The opinion of this court on the former appeal is the law of this case. Overall v. Ellis, 38 Mo. 209; Potter v. Adams, 143 Mo. 665; Chapman v. Railway, 146 Mo. 481; May v. Crawford, 150 Mo. l. c. 524; Butler County v. Boatmen’s Bank, 165 Mo. 456; Lancaster v. Elliott, 42 Mo. App. 503; Lawson v. Spencer, 90 Mo. App. 514.

The judgment is reversed.

Reyburn and Goode„ JJconcur.