I. In our opinion the former litigation had, and judgment entered therein, settled forever and completely the rights and liabilities of the parties to the agreement made on September 10, 1884.
It was a matter fairly in issue under the pleadings of that case, and the court was, by request of the defendant, joined therein by plaintiff, asked to adjudicate the respective claims of the plaintiff and defendant. This was done, and the court found the facts, and decreed, in accordance with the facts, “ that the consideration of said contract had wholly failed — that the same was without consideration, vbid and of no effect.” This is a final decree, not reversed, nor appealed from, and by it the parties are forever bound. Buchanan v. Smith, 75 Mo. 463; Choteau v. Gibson, 76 Mo. 47; Hickerson v. City of Mexico, 58 Mo. 64. Neither was such a judgment, so had in the equity case, disturbed by the subsequent non-suit in the action at law.
There had grown out of the original one action a separate equity suit, which was, and should have been, separately tried, determined and separate judgment entered. It could not have been properly tried in any other way. Estes v. Fry, 94 Mo. 271.
Such judgments are so entirely separate and distinct that the appellate courts will affirm one and reverse and remand the other. Crowe v. Peters, 63 Mo. 429-436; Boeckler v. Railroad, 10 Mo. App. 453; State ex rel. Dixon v. Givan, 75 Mo. 517.
The case at bar, then, is before us, relieved altogether of any incipient agreement, since, by the judgment of a court of competent jurisdiction, it no longer exists as a living, valid contract, and we are thereby under no necessity of further considering several points suggested, in connection therewith, in defendant’s brief.
*589II. It seems the court fairly instructed the jury. Objection is made to plaintiff’s instruction, number 3, for the alleged reason “that it confines the attention of the jury to the forty-acre tract, independent of the whole farm.” The context of the whole instruction does not fairly warrant this criticism. In fixing plaintiff’s damages the jury was in effect correctly told to regard the quantity and value of the land actually taken, and the damage, if any, to the remaining portions of the tract of which it forms a part, and to set-off against this sum such benefits as the farm may have received by reason of the location of the railroad, which are special, or peculiar, to the farm, and not common to other lands in the same neighborhood. To concede this to be the proper measure of damages, in addition to approving the court’s instructions, furnishes, as well, good reason for the court’s action in failing to give defendant’s instructions numbered 2 and 6. Railroad v. Ridge, 57 Mo. 600; Railroad v. Waldo, 70 Mo. 629 ; Lee v. Railroad, 53 Mo. 179 ; Railroad v. Chrystal, 25 Mo. 544 ; Newby v. Platte Co., 25 Mo. 258.
Under the petition the court was fully warranted in submitting to the jury whatever damages, if any, were done to the entire tract of eleven hundred acres. It was the gravamen of the plaintiff’s complaint, that he owned and held the whole eleven hundred acres as one farm, that, this road was laid out and constructed through and across the same, and that by reason of such appropriation of said strip through and “across said lands” he was damaged, etc. Besides, this was the theory upon which defendant introduced a number of witnesses and it was sought by them to show' to the jury that the tract of land, taken as an. entirety, was not injured. The damages proved were within the allegations of the petition. Burkeholder v. Rudrow, 19 Mo. App. 65. And the trial court was correct in refusing defendant’s instruction number 6. Combs v. Smith, 78 Mo. 32; Welsh v. Railroad, 19 Mo. App. 127.
*590III. That the defendant may have entered upon this land, to construct its road in 1884, with the consent of the plaintiff, is no bar to this action. Griswold v. Railroad, 8 Mo. App. 582; Allen v. Railroad, 84 Mo. 651. We have examined in detail, the various reasons urged for reversal of this cause, and in this opinion have reviewed such as, in our estimation, have any apparent merit.
We think, in all matters called to our attention, the cause was fairly tried, and submitted on proper issues and correct instructions.
The judgment of the circuit court is therefore affirmed.
The other judges concur.