Slinkard v. Lamb Construction Co.

WILLIAMS, J. Plaintiff recovered judgment against defendant in the Circuit Court of the City of St. Louis in the sum of $4,500, for personal injuries alleged to have been the result of defendant’s negligence. Thereupon defendant duly appealed to the St. Louis Court of Appeals. The opinion of the Court of Appeals, affirming the judgment, will he found reported in 212 S. W. 61. One of the judges of that court deemed its decision to be in conflict with certain opinions of this court and one of the opinions of the Kansas City Court of Appeals, and the case was thereupon properly certified to this court. We have carefully read the record and find that the opinion of the Court of Appeals contains a fair and accurate statement of the facts. We are also of the opinion, after a careful review of the case, that the opinion of the Court of Appeals properly declaras the law applicable to the issues made. *624 There is one statement in said opinion, however, which we deem unnecessary to a decision of the case and upon that point express no opinion. The point to which reference is here made is found in Paragraph One of that opinion and reads as follows: “as we read the release in question the consideration alleged therein is a mere recital and is not contractual in the legal sense.” Since this suit is not a contest between the parties to the release or between their privies it is unneceessary to determine whether the consideration mentioned in the release was contractual or a mere recital — this because in either event the appellant, being a stranger to the contract of release, would have no right to object to the introduction of parol evidence tending to vary its terms. [McKim v. Met. St. Ry. Co., 196 Mo. App. 544, l. c. 546, and cases therein cited; McKee v. St. Louis, 17 Mo. 184, l. c. 190-1.] To all the remaining portion of the opinion of the Court of Appeals we fully agree, and are unable to see any conflict between that opinion and the opinions mentioned by the learned dissenting member of that court. For the reasons (except as above limited) stated in the opinion of the Court of Appeals, we rule that the judgment of the circuit court, should be affirmed. It is so ordered. All concur, except Gbaves, J., who dissents.