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Cases determined in the St Louis
andtlie Kansas Citv Courts of...
^^^:^^^
nRFPu^^ErtS^SruntrroWCTF AT F 0 R M .
Digitized by VJ»JCV IC
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HARVARD LAW SCHOOL
LIBRARY
Digitized by VjOOQIC
Digitized by VjOOQIC
Digitized by VjOOQIC
r
f
!
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Digitized by VjOOQIC
CASES DETERMINED
IN THE
ST. LOUIS AND THE KANSAS CITY
COURTS OF flPPEIlLS
OF TII3
STATE OF MISSOURI,
FROM NOVEMBER 7, 1893, TO JANUARY 8, 1894.
REPORTED BY
David Goldsmith, of the St. Louis Bar
AND
Ben Eli Guthrie, of the Macon Cit^ Bar,
OFFICIAL REPORTERS.
VOL. LV.
COLUMBIA, MO.
E. W. STEPHENS, PUBLISHER.
1894.
Digitized by VjOOQIC
Entered according to act of Congress in the year 1894 by
B. W. STEPHENS,
In the office of the Librarian of Congress at Washington, D. O.
C^J^/jZ/YFA^.
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JUDGES OF THE
ST. LOUIS COURT OF APPEALS.
Hon. RODERICK E. ROMBAUER, Presiding Judge.
Hon. WILLIAM H. BIGGS,
%dges,
Hon. henry W. BOND, "
h J
John Lewis, Clerk,
David Goldsmith, Reporter,
JUDGES OF THE
KANSAS CITY COURT OF APPEALS,
Hon. JACKSON L. SMITH, Presiding Judge.
Hon. JAMES ELLISON,
Hon. T. A. GILL,
L. F. McCoy, Clerh
Ben Eli Guthrie, Reporter.
\ Judges.
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Table of Cases Determined.
A
Aal, Brolaski V 196
Allen & Sou, Erath & Flynn v. 107
American Rubber Co. v. Wilson 656
Ames V. Hose 422
Anderson v. Anderson 268
Arnold v. Hartfprd Fire Ins.
Co 149
Arnold, Querbaeh y 286
Atehison, Topeka & Santa Fe
R'y Co., Nicholson v 593
Atwood V. Atwood 370
Atwood, Soudder v 512
Auer, Dengler v 548
B
Bain, Wm. W. Kendall Boot &
Shoe Co. V 264
Baker v. Robinson 171
Bank of Little Rock v. Fisher. 51
Barbee, Watson v 147
Bamett v. Nolte 184
Bauman, Carthage Marble &
White Lime Co. v 204
Beck, Hniser v. 668
Bick, garnishee, etc., Hellman
&Co, V 168
Bishop, Cox V 135
Bremen Bank v. Umrath 43
Brolaski v. Aal 196
Broyles, Kennedy v. 257
Burr, Rainwater v 468
Barris v. Shrewsbury Park
Land & Improvement Co 381
Busso V. Fette 453
O
Cahill, Collins & Co. v. Ely . . . 1 02
Carondelet Electric Light &
Power Co., Smith v 559
€arr, Fowler v 145
Carthage Marble & White Lime
Co., Bauman v 204
Chamberlain v. Pullman Palace
Car Co 474
Chandler V. Oldham 139
Chicago, Rock Island & Pacific
R'y Co., Handley v 499
Chicago, Santa Fe & California
R'y Co. V. Eubank 335
Chom V. Missouri, Kansas &
Texas R'y Co 163
City of St. Joseph ex rel. Gibson
V. Hax 293
City of St. Louis, Harman v. . 175
City of St. Louis v. Robinson. 256
Clifford, Lee v 497
Collins V. Kammann, garni-
shee, etc 464
Collins, Selz v 55
Commercial Bank, Nichols v . . 81
Cook V. Von Phul 487
Cox V. Bishop 135
Crouch, Wetmore v 441
Culver, Page v. 606
D
Dengler v. Auer 548
Dilly V. Omaha & St. Louis
R'y Co 123
Dougherty, Green v 217
Droege v. Droege 481
Dundee Land & Investment
Co., Grimm v 457
Dwelling House Ins. Co., Eth-
ington V 129
E
Elliott, Lancaster V 249
Ely, Cahill, Collins & Co. v ... . 102
Enterprise Soap Works v.
Sayers 15
Erath & Flynn v. Allen & Son 107
Ethington v. Dwelling House
Ins. Co 129
Eubank, Chicago, Santa Fe &
California R'y Co. v 335
Fairbanks & Co., garnishee,
etc., Walker V 478
Fehlig, Holschen v 375
(y)
Digitized by VjOOQIC
VI
CASES DETERMINED.
Fendler, Rich v 236
Fette, Bussov 453
First National Bank of Fort
Scott V. liillard 675
Fisher, Bank of .Little Bock v. 51
Fowler v. Carr 145
Fred Heim Brewing Co. v.
Hazen 277
Freymark v. McKinney Bread
Co 435
G
Gallaher V. Smith 116
Galvin, Sunday Mirror Co. v. . 412
Gay, Kelleyv 39
German American Mut. Life
Ass'n, Stiepel v 224
Gill V. Reed 246
Gillett, Pearson v 312
Glazier, Springfield Engine &
Thresher Co. V 95
Gordon v. Ismay 323
Green v. Dougherty 217
Greer, Terry v 507
Gregg, Loan v 581
Grimm v. Dundee Land & In-
vestment Co 457
Handley v. Chicago, Rock
Island & Pacific R'y Co 499
Hanlon v. O'Keefe 528
Hannibal & St. Joseph R'y Co.
Welsh V 599
Harber, Steckman v 71
Harding v. Manard 364
Harman v. City of St. Louis. . . 175
Hartford Fire Ins. Co., Arnold
V 149
Hatton, Trorlicht, Duncker &
Renard Carpet Co. v 320
Hax, City of St. Joseph ex rel.
Gibson v 293
Hazen, Fred Heim Brewing
Co. V 277
Heim Brewing Co. v.|Hazen. . . 277
Hellman & Co. v. Bick, gar-
nishee, etc 168
Henning, State ex rel. Schon-
horst V 579
Hickman v. Hickman 303
Holsehen v. Fehlig 375
Hubbell, State v 262
Huiser v. Beck. 668
Huse, Ames v 422
I
Ing, Ransberger v 621
Ismay, GJordon v 323-
J
J. D. Marshall Livery Co. v.
McKelty 240
Jones V. Jones 523.
Eammann, garnishee, etc., Col-
lins V 464
Keith, Mayer v 157
Kelleyv. Gay 39
Kendall Boot & Shoe Co. v.
Bain 264
Kennedy v. Broyles 257
Killoren v. Meehan 427
Kinealy v. Staed 176-
Kinnard, Selecman v 635
Koster, Order of Railway Con-
ductors V 186
Krah v. Weidlich 536
L
Lancaster v. Elliott 24^
Lang & Gray, Rock Island
Plow Co. V 349
Langan v. Schlief 2ia
Langkop v. Missouri Pacific
R'y Co 611
Lee V. Clifford , 497
Lee V. Publishers, George
Knapp & Co 390
Lillard, First National Bank of
Fort Scott V 675-
Loan V. Gregg 581
Lowenberg, White v 69
Lysaght v. St. Louis Operative
Stonemason's Ass'n 538-
M
Manav'd, Harding v 364
Marshall Livery Co. v. McKel-
vy 240
Mayer y. Keith 157
McKelvy, J. D. Marshall Liv-
ery Co. v 240
McKinney Bread Co., Frey-
mark V 435
McManus v. Watkins 92
McNown v. Wabash R'y Co. . . 585
Meehan, Killoren v 427
Meek, State ex rel. Wood v. . . 292
Merritt, Price v 640
Mesker, Storck v 26
Digitized by VjOOQIC
CASES DETERMINED.
vu
Miller, Myers v 338
MisBouri, Kansas & Texas B'y
Co., Chorn v 163
Missouri Pacific R'y Co., Lang-
kop V 611
Mohr, State v 325
Mohr, State v 329
Moore v. St. Louis Wire Mill
Co 491
Morse, State V 332
Myers v. Miller 338
N
Nichols V. Commercial Bank. . 81
Nichols V. Reybum . 1
Nicholson v. Atchison, Topeka
& Santa Fe K'y Co 593
Nolte, Bamett V 184
O
CKKeefe, Hanlon V 528
Oldham, Chandler v 139
Omaha & St. Louis R'y Co.,
DiUy V 123
Order of Railway Conductors v.
Koster 186
Orr, Schreiner, Flack & Co v. . 406
Paddock, Seaman v 296
Page V. Culver 606
Paxson v. St. Louis Draiyage
Co 566
Pearson V. GiUett 312
Peter Cooper Building & Loan
Ass'n, Whipple v 554
Plummer, State v 288
Price V. Merritt 640
Prosser, Sheehan v 569
Pullman Palace Car Co.,
Chamberlain v 474
Publishers, George Knapp &
Co., Lee v 390
Q
Querbach v. Arnold 286
Rainwater v. Burr 468
Ransberger v. Ing 621
Reed, QUI V 246
Reybum, Nichols v 1
Rich V. Fendler 236
Robinson, Baker v 171
Robinson, City of St. Louis v. . 256
Robinson v. Troup Milling Co. 662
Robyn v. Supreme Sitting
Order of Iron Hall 198
Rock Island Plow Co. v. Lang
& Gray 349
Roever, State ex rel. Smith v. . 448
8
Said V. Stromberg 438
Sayers, Enterprise Soap Works
V 15
Schlief, Langan v 213
Schmitz y. St. Louis, Iron
Mountain & Southern R'y Co. 576
Schreiner, Flack & Co. v. Orr.. 406
Scudder v. Atwood 512
Seaman v. Paddock 296
Selecman v. Kinnard. 635
Selz V. Collins 55
Sheehan v. Prosser 569
Sheehan, State ex rel. Kerr v. . 66
Shrewsbury Park Land & Im-
provement Co., Burns v 381
Skinner V. Stifel 9
Smith V. Carondelet Electric
Light & Power Co 559
Smith, Gallaher v 116
Smith, Viertel V 617
Smith V. Western Union Tel.
Co 626
Springfield Engine & Thresher
Co. V. Glazier 95
Staed, Kinealy V 176
State V. Hubbell 262
State V. Mohr . . . ... 325
State V. Mohr 329
State V. Morse 332
State V. Plummer 288
State V.White 366
State ex rel. Bank of Belton v.
Wray 646
State ex rel. Kerr v. Sheehan . . 66
State ex rel. Schonhorst v.
Henning 579
State ex rel. Smith v. Roever. .. 448
State ex rel. Wood v. Meek. . . 292
Steckman v. Harber . , . 71
Stiepel V. German American
Mut. Life Ass'n 224
Stifel, Skinner v 9
St. Joseph (City of) ex rel.
Gibson v. Hax 293
St. Louis (City of), Harman v. 175
St. Louis (City of) v. Robinson 256
St. Louis Drayage C!k)., Paxson
V 566
St. Louis, Iron Mountain &
Southern R'y Co., Schmitz v. 676
Digitized by VjOOQIC
VIU
CASES DETERMINED.
8t. Louis Operative Stone-
masons Ass'n, Lysaght v 538
8t. Louis Wire Mill Co., Moore
V 491
Storck V. Mesker 26
Stromberg, Said v 438
Sunday Mirror Co. v. Galvin. . . 412
Supreme Sitting Order of Iron
Hall,Robynv 198
T
Terry v. Greer 507
Trorlicht, Dunoker & Renard
Carpet Co. v. Hatton 320
Troup Milling Co., Robinson v. 662
u
Umrath, Bremen Bank V 43
V
Viertel v. Smith 617
Von Phul, Cook V 487
W
Wabash R'y Co., McNown v.. 585
Walker v. N. K. Fairbanks &
Co., garnishee, etc 478
Watkins, McManus V 92
Watson V. Barbee 147
Weidlieh, Krah V 536
Weil V. Willard 376
Welsh V. Hannibal & St. Joseph
R'y Co 599
Western Union Tel. Co., Smith
V 626
Westmore v. Crouch 441
Whipple V. Peter Cooper Build-
ing & Loan Ass'n 554
White V. Lowenberg 69
White, State v 356
Willard, Weil v -..376
Wilson, American Rubber Co.
V 656
Wm. W. Kendall Boot & Shoe
Co. V. Bain 264
Wrav, State ex rel. Bank of
Beltony 646
Digitized by VjOOQIC
TABLE OF CASES CITED.
Adams v. Cowles 95 Mo. 501 374
Allen V. Sales 56 Mo. 28 ^ 645
Allison V. Sutherlin 50 Mo. 274 425
Amot V. Branconier 14 Mo. App. 431 . . . ^ 245
AuU Savings Bank v. Aull 80 Mo. 199 310, 311
Baker. V. Baker 70 Mo. 136 343
Bank v. Bank 30 Mo, App. 271 91
Bank V. Metcalfe 29 Mo. App. 384 675
Bamett v. Timberlake 57 Mo. 499 55
Bates V. Scott Bros 26 Mo. App. 428 * 317
Beokv. Hass Ill Mo. 268 .-. 646
Beck & Paul! Lithograph Co. v.
Obert 54 Mo. App. 240 505
Beers v. Strimple 116 Mo. 179 433
Beidman V. Gray 35 Mo. 282 185
Belch V. Miller 32 Mo. App. 397 255
Bell V. Railroad 72 Mo. 50 62
Benoist v. Murrin 47 Mo. 537 . . 490
Bensley v. Haeberle 20 Mo. App. 648 466
Berry V. Railroad 65 Mo. 172 617
Bevans v. Bolton 31 Mo. 437 674
Bircher V. Parker 40 Mo. 118; 43 Mo. 443 144
Birtwhistle v. Woodward 95 Mo. 113 468
Blair v. Ins. Ck) 10 Mo. 566 113
Blank & Bro. Candy Co. v.
Walker 46 Mo. App. 482.. 354
Blessing v. Railroad 77 Mo. 411 574
Bluedom V. Railroad 108 Mo. 439 591
Bobbv. Bobb 89 Mo. 419 311
Bohan v. Casey 5 Mo. App. 102 277
Bohn V. Devlin 28 Mo. 319 317
Boland V. Railroad 36 Mo. 484 62
Bredell v. Alexander 8 Mo. App. 117 490
Bremen Bank v. Umrath 42 Mo. App. 525 185
Brennan v. Tracy 2 Mo. App. 540 437, 438
Bricker V. Railroad 83 Mo. 391 166
Briggs V. Munchon 56 No. 474 379
Briggs V. Railroad Ill Mo. 168. 128
Brinkman V. Hunter 73 Mo. 172 91
Britton v. Dierker 46 Mo. 591 284
Brown v. Hawkins 54 Mo. App. 75 301, 675
Brown V. Railroad 36Mo. App. 458 116
Bryson v. Penix 18 Mo. 14 ...673,674
Buckwalter V. Craig 55 Mo. 71 42
Buesching v. St. Louis Gas Light
Co 73 Mo. 233 404
Building & Planing Mill Co. v.
Huber 42 Mo. App. 432 291
BuUene v. Barrett 87 Mo. 186 452
Burris v. Shrewsbury, etc., Co.. . 55 Mo. App. 381 511
Digitized by VjOOQIC
CASES CITED.
Calhoun v. Paule 26 Mo. App. 274 24
Callahan V. Griewold 9 Mo. 457 345
Callahan V. Warn© 40 Mo. 131. : . . . 62
Campbell v. Allen 38 Mo. App. 27 162
Campbell v. Dent 54 Mo. 325 472
Capital Bank V. Armstrong 62 Mo. 59 282,283, 284
Carpenter V. King 42 Mo. 219 343
Caulfield V. Farish 24 Mo. App. 110 211
Chandler V. West 37 Mo. App. 631 55
Chouteau V. Jupiter Iron Works. 94 Mo. 388 14
Chouteau v. Nuckolls 20 Mo. 442 223
Christy v. Flanagan 87 Mo. 670 223
City of DeSoto v. Merciel. . 53 Mo. App. 61 604
City of St. Louis V. Bowler 94 Mo. 630 257
City of St. Louis V. Gas Co 70 Mo. 116 255
Clark V. Fairley 30 Mo. App. 335 13
Clements v. Yeates 69 Mo. 623 658
Cooker v. Cocker 56 Mo. 180 49
CoUinff V. McGraw 47Mo.495 645
Collins V. Warburton 3 Mo. 202 62
Cooke V. McNeil 49 Mo. App. 81 584
Covey V. Raiboad 86 Mo. 635 494
Coxv. Capron 10 Mo. 691 50
Cromwell v. Ins. Co 47 Mo. App. 103 155
Culverhouse v. Worts 32 Mo. App. 419 611
Cummings v. Collins 61 Mo. 520 495
Dayharsh V. Railroad 103Mo.570 494
Deering v. Collins •. . 38 Mo. App. 80 320
Deland V. Vanstone 26Mo. App. 297 54
Dickhaus v. Olderheide 22 Mo. App. 76 180
Dickson v. Desire 23 Mo. 151 309
Dobyns V. Meyer 95 Mo. 132 101,452
DonneUv. Harshe 67 Mo, 170 444, 445
Donohoe v. McAleer 37 Mo. 312 533
Downey v. Higgs 41 Mo. App. 215 106
Doyle V. Wurdeman 35 Mo. App. 330 552
Drey V.Doyle 99 Mo. 459 216
Driskell V. Mateer 31 Mo. 325 680
Droege V. Droege 52Mo. App. 84 486
Dwyer v. Dwyer 16 Mo. App. 422 486
Dyas V. Hanson 14 Mo. App. 363 62
E
Easley V. Railroad 113 Mo. 245 592
Edwards V. Thomas 66 Mo. 468 156
Ellison V. Martin ... 53 Mo. 75 273
EUs V. Railroad 40 Mo. App. 165 672
Ensworth v. Barton 60 Mo. 511 558
Eppright V. Nickerson 78 Mo. 482 354
Erwin V. Authur 61 Mo. 387 369
Estes V. Springer 47Mo. App. 99. . . 163
Eswin V. Railroad 96 Mo. 290 32
Evans V. Foreman 60 Mo. 449 185
Ewing V. Hoblitzelle 85 Mo. 64 47
Exendine v. Morris 76 Mo. 416 344
Digitized by VjOOQIC
CASES CITED. xi
Expressmen's Aid Society v.
Lewis 9Mo.App.41ii 194
Eyerman v. Cemetery Ass'n 61 Mo. 490 36
Fare v. Gunter 82 Mo. 522 460
Fath V. Railroad 105 Mo. 537 15
Feurth V. Andewon 87 Mo. 354 558
Finlay v. Bryson 84 Mo. 664 320, 418
Flato V. Mulhall 72 Mo. 522 .' 91
Flynn v. Bridge Co 42 Mo. App. 536 497
Foxv. Courtney Ill Mo. 150 379, 380
Ford V. Talmage 36Mo. App. 71 8
Forder V. Davis 38 Mo. 108 343
Fontaine V. Hudson 93 Mo. 62 ...491,655
Freeman v. St. Louis Quarry Co. 30 Mo. App. 362 176, 257
Fugitt V. Kixon 44 Mo. 295 62
Fuj^ler V. Bothe 43 Mo. App. 44 495
Fulkerson V. Davenport 70 Mo. 546 343
a
Gaibout V. Clark 24 Mo. App. 426 24
Galbreath v. Newton. 30 Mo. App. 380 122
Galbreath v. Rodgers 30 Mo. App. 401 ; 45 Mo. App. 324. 295
Galev. Ins. Co 33 Mo. App. 664 156
Gamble v. Gibson 59 Mo. 585 4
Gantler v. Kemper. » 58 Mo. 567 646
Garth V. Caldwell 72 Mo. 622 640
Gentry v. Templeton 47 Mo. App. 55 40
Gibson v. Zeibig 24 Mo. App. 65 634
Gillinwaters v. Gillinwaters 28 Mo. 60 483
Gilmer v. Gilmer 37 Mo. App. 672 487
Glass V. Gelvin 80 Mo. 297 558
Goetzv. Piel 26 Mo. App. 634 646
Grace V. Nesbitt 109 Mo. 9 211
Gray v. Bowles 74 Mo. 419 343
Greely V. Reading 74 Mo. 309 101, 452
Green's Bank v. Wickham . . 23 Mo. App 663, 480
Greenway v. James 34 Mo. 326 521, 575
Greenwood v. Burns 50 Mo. 52 42
Griffin V. Samual 6 Mo. 52 317
Griffin V. Van Meter 53 Mo. 430 317
Griswold v. Railroad 18 Mo. App. 52 116
Grove v. City of Kansas 75 Mo. 672 437
Groves v. Railroad 57 Mo. 304 114
Grubbs v. Cones 57 Mo. 84 466
Haggard v. Railroad 63 Mo. 302 343
Halpin v. Manney 33 Mo. App. 388 36
Hambleton v. Town of Dexter. . . 89 Mo. 188 545
Hamilton v. Clark 25 Mo. App. 436 369
Hammerslough v. Cheatham 84 Mo. 13 672
Hardwick V. Cox 50 Mo. App. 513 521
Harrison V. Railroad 50Mo. App. 332 .. .. 156
Harrisonville V. Porter 76 Mo. 358 113
Harman v. City of St. Louis 55 Mo. App. 175 .... 257
Harned V. Railroad 51Mo. App.487 166
Digitized by VjOOQIC
xii CASES CITED.
Harwood v. Diemer . 41 Mo. App. 48 25
HaskeU V. Champion 30 Mo. 139 1 ",5, 282
Hayden V. Sample 10 Mo. 138 437
Haysler v. Owen 61 Mo. 273 36
Hellman v. Pollock 47 Mo. App. 205 675
Henderson v. Henderson 13 Mo. 151 310, 311
Henry V.Henry 65 Mo. 689 672
Henry v. McKerdie 78 Mo. 416 343
Henry v.Sneed 99 Mo. 407 558
Hewson v. Tootle. . ., 72 Mo. 637 102
Hickman V. Railroad .. 22 Mo. App. 345 494
Higgiqs V. Railroad 43 Mo. App. 548 575
Hilliker V. Francisco 65 Mo. 599 455,457
Hofifman v. Parry 23 Mo. App. 20 575
Holland V. McCarty 24 Mo. App. 112 212
Holton V. Railroad 50Mo. 151 480
Hope V.Blair 105 Mo. 105 343
Houston v.Woolley 37 Mo. App. 15 320
Hovey v. Pitcher 13 Mo. 192 4
Hubbard V. Railroad 63 Mo. 68 558
Hudson V. Wabash Railroad 101 Mo. 30 522
Huflf V. Shepard 58 Mo. 246 274
Hughes V. Menefee 29 Mo. App. 192 267
Hughes V. Mermod 44 Mo. App. 288 337
Iron Mountain Bank v. Arm-
strong 62 Mo. 70 558
Iron Mountain Bank y. Mnr-
dock 62 Mo. 74 71
Ivory V. Micheal 33Mo.398 282,283,284
J
Jackson v. Railroad 54 Mo. App. 636 .^ 309
Javne v. Wine 98 Mo. 404 569
Jeffries v. Wright 51 Mo. 220 343
Jelly V. Pieper 44 Mo. App. 380 15
Jennings V. Railroad 112Mo. 275 592
Jennings v. Sparkman 48 Mo. App. 246 452
Johnson v. Beazley 65 Mo. 250 343, 344
Johnson v. School District. ... 67 Mo. 321 653
Johnson v. Whitman Ag'l Co. . . . 20 Mo. App. 100 620
Joseph Nelke Ss Co. v. Boldridge. 43 Mo. App. 328 452
K
Kane V. School District... 48Mo. App. 408 053,654
Karnes V. Alexander 92 Mo. 660 343
Keegan v. Kavanaugh 62 Mo. 230 495
Keith V. Plemmons 28 Mo. 104 181
Kennedy v. Dodson 44 Mo. App. 550 301, 675
Kenney v. Railroad 105 Mo. 270 591, 592
King V.Wood 7 Mo. 389 379
Kingston Bank v. Bosseman 52 Mo. App. 269 284
Kitchen v. Greenabaum 61 Mo. 110 522
Knox V. Hunt 18 Mo. 243 639
Koppelman . Furniture Co. v.
Frioke 39Mo.App.146 452
Kronski v. Railroad 77 Mo. 362 317
Krum V. Jones 25 Mo. App. 71 558
Kuhlmannv. Meier 7 Mo. App. 260 144
Digitized by VjOOQIC
CASES CITED. xiii
Lackland V. Garesohe 56 Mo. 267 ." 467
Lambert v. Estes 99 Mo. 808 311
Lancaster V. Elliott.; 55 Mo. App. 249 387
Lane V. Charless 5 Mo. 285 181
Larimore v. Tyler 88 Mo. 66 522
Lee V. Porter 18 Mo. App. 377 91
Lengle v. Smith 48 Mo. 276 444, 445
Lewis V. Gray 66 Mo. 614 343
Lewisv. Harvey 18Mo.74 .• 185
Lindenpcbmidt v. Lindenschmidt 29 Mo. App. 300 527
Lingenfelder v. Brewing Co 103 Mo. 578 35
Link V. Vau^in ,17 Mo. 585 558
LinnvilJe v. Welch ^9 Mo. 203 62
Loeb V. Insurance Co 99 Mo. 50 155,156
Long V. Long 44 Mo. App. 141 242
Lower v. Bank 78 Mo. 67 222
Lndowski v. Benevolent Society 29 Mo. App. 337 546, 547
M
Manhattan Brass Co. v. Webster
Co 37Mo. App.145 452
Mantz V. Magnire 52 Mo. 146 19
Marble V. Walters 19 Mo. App. 134 634
Marks v. Bank of Missouri 8 Mo. 319 254
Martin V. Grabinsky 38 Mo. App. 366 62
Masonic Benevolent Ass'n v.
Bunch-. 109 Mo. 560 193
Mason v. Black 87 Mo. 329 491
Matthews v. Switzler 46 Mo. 301 424
Mauerman v. Siemerts 71 Mo. 101 62
McClanahan V. West 100 Mo. 309 343,344
McConey v. Wallace 22 Mo. App. 377 553
McConnell V. Bra>-ner 63 Mo. 464 311
McCord V. McCord 77 Mo. 166 211
McCormick v. Kaye 41 Mo. App. 263 138
McCullough V. Ins. Co 113 Mo. 606 170
McDermott V. Class 104 Mo. 14 106
McDermottv. Railroad 87Mo.287 495
McFarland V. Creath 35Mo. App. 112 195
McGowan V. Railroad 61 Mo. 528 »... 574
McKeev. Ins. Co 28 Mo. 383 195
McKensie V. Railroad 24 Mo. App. 392 569
McManus v. Gregory 16 Mo. App. 375 25
Meier V. Theimann 15 Mo. App. 307 668
Mellier v. Bartlett 89 Mo. 134 181
Melton V. Smith 65 Mo. 315 390
Messenger v. Messenger 56 Mo. 329 527
Meyberg v. Jacobs 40 Mo. App. 128 170
Mikel V. Railroad 54 Mo. 145 460
Midland Lumber Co. v. Kreeger. . 52 Mo. App. 419 156
Miller v. Lullman 61 Mo. 311 672
Miller v. Goodrich Bros. Banking
Co 53Mo.App.430 378
Mills V. Thompson 61 Mo. 407 102
Moberly V. Railroad 98 Mo. 183 404
Mohney v. Reed 40 Mo. App. 99 36
Mooney v. Kennett .... 19 Mo. 551 436
Moore v. Railroad 85 Mo. 594 574
Digitized by VjOOQIC
xiv CASES CITED.
: 78 Mo. 434 284
23 Mo. App. 420 101
lad 19 Mo. App. 646 405
, 53 Mo. App. 274 411, 474
103 Mo. 639 182, 183
1 43 Mo. App. 326 337
86 Mo. 445 521
68 Mo. 242 444
17 Mo. App. 204 54
N
19 Mo. App. 183 369
5 Mo. App. 545 101, 452
Ass'nv.Kirgin 28Mo. App. 80... 194
23 Mo. 19 181
le 23Mo. App. 631 444
Cattle Co. V.
37Mo. App. 43 162
23 Mo. App. 1 102
tnn 20Mo. App. 336 185
[) 47M0.435 575
irly 45 Mo. 125 390
29 Mo. App. 105 156
45 Mo. App. 573 645
52 Mo. 55 :n7
67 Mo. 203 180
48 Mo. App. 208 483
15 Mo. App. 74 302
61 Mo. 78 317
79 Mo. 88 54
45 Mo. 312 68, 69
55 Mo. App. 312 599
d 33Mo. App.543 606
blronCo 49 Mo. 128 135
29 Mo. 184 89
41 Mo. 447 . 343
18 Mo. 140 185
; 59 Mo. 406 317
90 Mo. 649 101
llMo.411 181
. 88 Mo. 319 593
[arshaU 10 Mo. 345 655
71 Mo. 72 405
18Mo. App. 607 646
28 Mo. App. 368 5, 6, 7
7 Mo. 440 185
45MO.404 387
56 Mo. 500 639
73 Mo. 127 317
lit 44Mo.App.212 337
gor 53 Mo. App. 366 337
106 Mo. 423 404, 405
Digitized by VjOOQIC
CASES CITED. xv
Rawlinjcs v. Bean 80 Mo. 614. . 674
Keichla v. Greensfelder 52 Mo. App. 43. 406, 494, 495
Relyeav. Railroad 112 Mo. 86 574
Rimel v. Hayes 83 Mo. 200 473
Rindskoff V. Rogers 34Mo. App. 126 102
Ring V. Paint Co 44Mo. App. Ill 62
Ringer v. Holtzclaw : 112 Mo. 522 378, 380
Ritter v. Ins. Co 28 Mo. App. 140 467
Robinson v. Berr3mian 22 Mo. App. 610 284
Roederv. Studt 12 Mo. App. 566 634
Ronanv. Dewes 17 Mo. App. 306 480
Root V. Sleeping Car Co 28 Mo. App. 199 476, 477
Rothschild v. Fren8<V>rf 21 Mo. App. 321 505
Rottman v. Fix 25 Mo. App. 571 248
Rowden v. Brown 91 Mo. 429 344
Rubelman Hardware Co. v. Greve 18 Mo. App. 6 180
Ruoker v. Harrington 52 Mo. App. 481 378
Rude V. Mitchell 97 Mo. 365 455
Ruggles V. CoUier 43 Mo. 353 122
S
Sampfon v. Thompson Mo. App 317
Sanders v. Oldhausen 51 Mo. 163 639
Sanderson's Adm'r v. Reinstadler 31 Mo. 483 62
Sawyers v. Drake 34 Mo. App. 472 268
Scott V. Scott 95 Mo. 300 672
Schmitz V. Railroad 24 S. W. Rep. 472 577
Schneider v. Schiflfman 20 Mo. 571 185
School District v. Holmes 53 Mo. App. 487 215
Scott V. Crews . 72 Mo. 263 343
Seaman v. Paddock 51 Mo. App. 466 298
Seaman v. Paddock 55 Mo. App. 296 675
Shwp V. Johnston 76 Mo. 660 436
Sheble v. Curdt. ... 56 Mo. 437 639
Sheedyv.Bank 62 Mo. 17 467
Sheffield V. Balmer 52 Mo. 476 440
Shores v. Shores 34 Mo. App. 208 260
Shoose V. Neiswaanger 18 Mo. App. 236 553
Shroederv. TaaflPe 11 Mo. App. 267 379
Siela ▼. Railroad 82 Mo. ,430 494
Silver V. Railroad 78 Mo. 528 615
Simpson v. Simpson 31 Mo. 24 487
Skrainka v. Oertel 14 Mo. App. 474 277
Sloan V. Mitchell 84 Mo. 546 343
Smarr v. McMaster . . 35 Mo. 349 7
Smithv.Ham 51 Mo. App. 437 451
Smith V. Shell 82 Mo. 215 379
Smith V. Zimmerman 51 Mo. App. 619 156
Smith, etc., Co. v. Rembaugh. . . 21 Mo. App. 390 ' 505
Smock V. Smock 37 Mo. App. 56 640
South Missouri Land Co. y.
Combs 53 Mo. App. 298 386
Soutier ▼. Kellerman 18 Mo. 509 37
Spooner ▼. Ross 24 Mo. App. 599 675
Sprague ▼. Rooney 104 Mo. 360 521
Springer V. Kleinsorge 83 Mo. 152 379
Stanley V. Railroad 84 Mo. 623 615
8^ate v. Bums ... 85 Mo. 47 167
Statev.Cook 33Mo.App.67 604
Digitized by VjOOQIC
CASES CITED.
lell 45Mo. App. 94 363
idson 46 Mo. App. 9 363
berger 90 Mo. 369 293
on 39 Mo. App. 297 331
18 83M0.319 .. 343
er 45 Mo. App. 112 263
lore 98M0.211 328
yford.. 19M0.337 \ 331
Lam 95M0.332 71
oy 47Mo.App.187 334
onigle 101 Mo. 353 282, 284, 285
t^omery 63 Mo. 296 263
by 53 Mo. App. 571 331
sey • 52Mo. App. 668 334
Bberger 42 Mo. App. 466, 361
aberger 106 Mo. 135 335, 361
iders 53M0.234 263
:g8 33 Mo. 92 331
w 26Mo.App.383 360
•e 62M0.597 335
son 65 Mo. 115 335
therby 45 Mo. 17 343
lb 47Mo. App. 599 ..335
t 21 Mo. App. 309 335
t 84 Mo. 440 263
V. Allen 45 Mo. App. 551 337
V. Donegan 12 Mo. App. 190 ; 88 Mo. 374 343
V. Durant 53 Mo. App. 493 170
V. Ganzhom 52 Mo. App. 220 337
V. Henning . ... 26 Mo. App. 119 580
V. Mo. Pac. R'y Co. 114 Mo. 289 545
V. Rombauer 101 Mo. 499 293, 337
V. Temperance Ben-
siety 42 Mo. App. 490 .. : 545, 546
V. Pittman 103 Mo. 553 6
V. Bacon 24 Mo. App. 403 53
V.Potter 63 Mo. 212 282
[ns. Co 43 Mo. App. 513 155
lews 63 Mo. 371 558
V. McManus 26 Mo. App. 51 211
5.. Ass'n V. Delano.. 108 Mo. 217 440, 521
immers 54 Mo. 340 522
•ide S4Mo. App. 414 156
liields 26Mo. App. 327 245
yce 97 Mo. 243 317
n Schrader 107 Mo. 228 522
ludy 53Mo. App. 196 170
Allen 68 Mo. 82 274
ily 51 Mo. App. 75 620
lor 27M0.245 282,284
andolpb 46 Mo. App. 569 680
rpenter 83 Mo. 333 672
^rdv.Kohn 46 Mo. App. 439 216
[)ck 27 Mo. 290 610
Digitized by VjOOQIC
STATUTES CITED.
xvii
W
Walker v. Martin 8 Mo.
Walser v. Graham 45 Mo.
Walsh V. Drayage Co 40 Mo.
Walsh, V. St. Louis, etc., Ass'n. .101 Mo.
Walsor V. Thies 56 Mo.
Wayv. Braley.. 44 Mo.
Weber V. Railroad 100 Mo
Welch V. Railroad 55 Mo.
Wheeler, etc. Co. v. Givan 65 Mo.
White V. Maxcy 64 Mo.
White V. Middlesworth 42 Mo.
White V. Van Houten 51 Mo.
Whitehead v. Cole 49 Mo.
Wilkinson v. Farnham i . . . 82 Mo.
Williams v. Latham 113 Mo.
Wilson V. Huston 13 Mo.
Wilson V. Milligan 75 Mo.
Winn V. Madden 18 Mo.
Wiser V. Chesley '. 53 Mo.
Withnell v. Petzold 104 Mo.
Wood V. Hall 23 Mo.
Woolfolk V. Tate 25 Mo.
App. 560 89
App. 629 347
App. 339 13
534 254
89 437
App. 457 674
32
599
42
71
. 195.
App. 599 :.148,
559.
App. 373 521
577 532
App. 426 148, 604
672 521
165 672
146 62
41 ..673, 674
App. 261 355
547 245
409 380
App. 110 101
597..... 49
Tates V. Johnson 87 Mo. 213 ' 343
Yeats V. Ballentine 56 Mo. 530 36
Young V. Glasscock 79 Mo. 574 146
Ziegler y. Fallon ,
28 Mo. App. 295 197
Table of Statutes Cited.
Administration,
R. 8. 1889, see. 92.. 4
R. 8. 1889, sees. 100, 101. . . 5
R. 8. 1889,800. 190 7
R. 8. 1889, sec. 222 4
Assifl^inients,
R. 8. 1889, sec. 457 427
R. 8. 1889, sec. 460 221
Attachments,
R. 8. 1879, sees. 457, 458 . 220
R. 8. 1889. sec. 521 ... .319, 320
Bills of Exchange,
R. 8. 1889, sees. 719, 720 ... 90
R. 8. 1889, sec. 723 91
Cities, Towns and Villages,
R. 8. 1889, sec. 1404 120
Code of Civil Procedure,
R. 8. 1889, sec. 2013 274
R. 8. 1889, sec. 2016 274
R. 8. 1889, sec. 2047 182
R. 8. 1889, sec. 2092 488
R. 8. 1889, sec. 2093 489
R. 8. 1889, sec. 2097 558
R. 8. 1889, sec. 2121. ... 128
R. 8. 1889, sec. 2123 128
R. 8. 1889, sec. 2186 505
R. 8. 1889, sec. 2213 211
R. 8. 1889, sec. 2238 658
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XVlll
STATUTES CITED.
Constitution,
Art. 6, sec. 12 337
Art. 6, see. 12, amendment
1884 292
Art. 6, sec. 38 274
Art. 9, sees. 23, 24, 25 47
ConveyaBoes of Real Estate,
B. a 1879, sec. 2406 220
Corporations, Private,
R. S. 18^9, sec. 2527 460
R. S. 1889, sec. 2608 587
R. S. 1889, sec. 2611
126, 606, 613, 615
R. 8. 1889, sec. 2612 .... 126, 128
R. S. 1889, sec. 2725 627
Courts of Record,
R. S. 1889, sec. 3318 316
R. S. 1889, sec. 3338 47
Laws, 1891, p. 113 47, 48
Criminal Cases, Practice,
R. 8. 1889, sec. 4058 363
R. 8. 1889, sec. 4063 363
R. 8. 1889, sec. 4329 360
\
Crimes and Punishments,
R. 8. 1889, sees. 3502, 3503.. 263
R. 8. 1889, sees. 3592, 3593. . 334
R. 8. 1889, see. 3808 331
R. 8. 1889, sec. 3810
326, 328, 330, 331
R. 8. 1889, sees. 3931, 3936 . 411
Divorce,
R. 8. 1889, sec. 4500.
R. 8. 1889, sec. 4501.
R. 8. 1889, sec. 4505.
Executions,
R. 8. 1889, sec. 4968.
Homesteads,
B. 8. 1889, sec. 5435.
Injunctions,
R. 8. 1889, sec. 5498.
.,.. 180
523
274
293
298
Forcible Entry and Detainer,
R. 8. 1889, sec. 5124 216
Frauds and Perjuries,
R. 8. 1889, sec. 5186 378
Fraudulent Conveyances,
R. 8. 1889, sec. 5176 074
Interest,
Laws, 1891, p. 171 659
Justices' Courts,
R. 8. 1889, sec. 6126 460
R. 8. 1889, sec. 6139 466
R. 8. 1889, sec. 6237 68
R. 8. 1889, sec. 6328.... 604, 605
R. 8. 1889, sec. 6330
598,603, 604, 605
R. 8. 1889, sec. 6332 317
R. 8. 1889, sec. 6337. .817, 604
R. 8. 1889, sec. 6340... 604, 605
Laws, 1883^ p. 103 460
Landlord and Tenant,
R. 8. 1889, sec. 6373 610
R. 8. 1889, sec. 6376. . : 638
R. 8. 1889, sees. 6397, 6398. 610
R. S. 1889, sec. 6570... 47, 48, 68
Liens,
RT. 8. 1889. sec. 6709.... 105, 538
R. S. 1889, sec. 6712 . . 106
Mines and Mining,
R. 8. 1889, sec. 7034
664, 666, 667
R. 8. 1889, sec. 7035 ...666, 667
Replevin,
R. S. 1889. see. 7482 533
R. S. 1889, sec. 7489 .... 146, 533
R. 8. 1889, sees. 7490, 7495.
533, 536
Revenue,
R. S. 1889, sec. 7517 651
R. S. 1889, sec. 7519 650
R. 8. 1889, sec. 7520... 651, 654
Weights and Measures,
R. 8. 1889, sec. 8863. . . 650, 552
Writs and Process,
R. 8. 1889, sec. 8950 274
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CASES DETERMINED
BT THX
ST. LOUIS AND THE KANSAS CITY
COURTS OF APPEALS.
OCTOBER TERM, 1893.
Robert Nichols, Appellant, v. Valle Reybubn, ei 49I
Administrator de bonis non of the estate ^■^•^,
of Joseph Brewsteb, Respondent* 1 jtj^
' 56 1
St. Lords Court of Appeals, November 7, 1898.
1. Administration: compensation for legal services rendered to
THE ADMINISTRATOR: DIRECT LIABIUTT OF ESTATE. An attomej, who
renden legal servioes for the benefit of the estate of an intestate at
the instance of the administrator, is entitled to have his claim for
reasonable compensation therefor allowed against and paid directly
ont of the assets of the estate.
2. : : ORIGINAL JURISDICTION OP CIRCXHT COURT IN ESTAB-
LISHMENT OF CLAIM. A circuit court has original jurisdiction of an
action by an attorney for the establishment of such a claim directly
against such estate.
Appeal from the St. Louis City Circuit Court. — ^Hon.
James E. Withbow, Judge.
Bevebsed and Remanded (Bond^ J., dissenting.)
B. M. Nichols J for appellant.
(1) Section 92, of the Revised Statutes of 1889,
provides that the administrator shall * 'defend all suits
brought against him;'' and section 222 provides that
Vol. 55—1 (1)
Digitized by VjOOQIC
a 55 MISSOUBI APPEAL REPORTS,
Nichols V. Bejbom.
**the court shall allow all reasonable charges for legal
advice and services." Had the administrator paid
this expense of administration, it would have been
allowed him as * 'costs.'' 2 Woerner on Administra-
tion, sections 514 and 515; Gamble v. Gibson^ 59 Mo.
585. The right to an allowance of an attorney's
fee, as costs, is given or created by sections 92 and 222,
and it has been held that, when given by the statute,
the same can be assessed. City of St. Louis v MeintZj
107 Mo. 615. (2) The circuit court has jurisdiction to
allow and direct the payment by the administrator de
bonis non out of the funds in his hands belonging to
the estate of Joseph Brewster, deceased, counsel fees
as costs and expenses incurred, but not paid, by the
prior administrator. Ziegenhdn v. Tittmcm^ 103 Mo. 557 ;
Powell V. Powellj 23 Mo. App. 368; Long v. Bedmann^
58 Ind. 62; Scott v. Dailey, 89 Ind. 477; Thompson v.
Smith, 64 N. H. 412; In re Gouts, 87 Cal. 480; Pennie v.
Roach, 94 Cal. 515; PoHis v. Cole, 11 Tex. 158. (3)
Equity should entertain jurisdiction, for if appellant is
compelled to prove up his claim against the estate of
Jeptha H. Simpson, his administrator would be put to
an action against the estate of Joseph Brewster, where
in this action the claim can be laid against the estate
from which it is justly due and the multiplicity of suits
prevented. Biddle v. Ramsey, 52 Mo. 153 ; Primm v.
Raboteau, 56 Mo. 414. (4) The petition shows that
the expenses were incurred by the administrator in
defending a suit, brought against him as such for the
purpose of ascertaining who is entitled to the fund in
his hands subject to distribution. It is the duty of the
administrator to ascertain to whom he should pay out
the fund as distributee under the law. Kingslmd v.
Scudder, 36 N. J. Eq. 286 ; In the Matter of the Estate of
McCune, 76 Mo. 205; Johnson v. Halifield^ 82 Ala. 123 j
In re Simmons Will, 55 Ky. 239.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Nichols y. Beybam.
Bobert E. Kern, for respondent.
RoMBAUER, P. J. — The plaintiff's petition states in
substance the following facts: One Jeptha Simpson
was appointed administrator of Joseph Brewster's estate
and served as such from October 12, 1886, the date of
his qualification, until February 23, 1893, the date of
his death. While Simpson was acting as such adminis-
trator, he employed the plaintiff, who is an attorney at
law, to advise him in the matters of his administration
and to defend him in all matters pertaining to the estate,
and particularly in a suit brought by Ida May Healy
and others, wherein the claimants sought to establish
that they were the sole distributees of said estate by
virtue of a deed of adoption claimed to have been exe-
cuted by Brewster. The plaintiff as such attorney in
the matters aforesaid performed services of the reasona-
ble value of $2,000, and expended $23. 25 in cash, neither
of which were paid for by said Simpson. After Simp-
son's death the defendant was appointed administrator
de bonis non of Brewster's estate, and as such became
possessed of the remaining assets of the estate, valued
at $9,000. The plaintiff prays that the sum of $2,023.25
may be ordered by the court to be paid to him by the
defendant out of the funds in his hands belonging to
the estate of Joseph Brewster. The petition further
states that the services were performed *'for the benefit
of the funds and of the parties interested in the estate
of Brewster."
To this petetion the defendant interposed a general
demurrer, which the court sustained. The plaintiff
declining to plead further, judgment was entered against
him on a demurrer, and he brings the case by appeal to
this court.
It will be thus seen three points are presented for
our decision. First. Can an attorney at law, who
Digitized by VjOOQIC
4 55 MISSOURI APPEAL EEPORTS,
Nichols V. Reybum.
f
makes a contract with an administrator to defend him
in his trust relation, prosecute his claim for the services
rendered in pursuance of such contract directly against
the estate represented by such administrator. Second.
Can he prosecute such claim against the estate for ser-
vices rendered in determining by legal proceedings who
are the proper distributees of the estate, provided it
further appears that the services were rendered in the
interest of the true distributees, and in the defense of an
action which the administrator was bound to defend in
the courts of administration. Third. If he can do so,
has the circuit court original jurisdiction of such an
action!
Neither of these questions is free from difficulty
either on principle or authority, and we will discuss
them in the order above presented.
On principle the proper answer to the first question
must depend upon the character of the contract which
the attorney makes in these cases. The administrator
is a mere agent for the estate. The general rule is that,
where an agent contracts for a disclosed principal, and
acts within the scope of his authority, the principal,
and not the agent, is liable upon the contract. To this
rule, however, there are many exceptions, one of which
is recognized in Hovey v. Pitcher^ 13 Mo. 192, namely,
that where the credit is given to the agent, the agent
may personally be^ued. Section 92 of the Revised
Statutes of 1889 makes it the duty of the administrator
to defend* all actions brought against him, the defense
whereof is necessary in the course of administration.
Section 222 provides that the court shall allow the
administrator, in his settlements, reasonable charges
for legal advice and services. It was decided as early
as Gamble v. Gibson^ 59 Mo. 585, that an executor
could subject the estate to a charge for necessary legal
services rendered to the estate at his request by another.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Nichols y. Beybom.
Such claims are expenses of administration, and, if
reasonable, must be allowed by the court against the
estate as diminishing the assets of the estate in the
hands of its statutory trustee to that extent.
Such being the law, we hold that an attorney in
contracting for professional services with an adminis-
trator, ^wa/oci^, contracts on the credit of both the
agent and principal. The agent becomes responsible
to him to the extent of the contract which he makes,
without regard as to whether it is reasonable or not, or
for the benefit of the estate or not ; the estate becomes
responsible to him for his reasonable charges for ser-
vices rendered, which are for its benefit.
In carrying out this proposition to its logical
-results, it was held, and we think properly so, in Long
V. Bodmatiy 58 Ind. 62, that as by statutory provision
the reasonable fees of an attorney, employed by an
executor or administrator in the management of the
decedent's estate, are made a proper charge against the
estate, the attorney may, in the event of the non-
payment of his fees, waive his personal claim against
the executor or administrator, and apply directly to the
proper court for the allowance and payment thereof
out of the estate. The action in that case was insti-
tuted in the circuit court. In the same line is Powell v.
Powell^ 23 Mo. App. 368, in which it was held that
under sections 100 and 101 of the Revised Statutes,
which provide for the allowance of expenses incurred
by the administrator for labor in preserving stock and
other perishable property left by the deceased and
requiring immediate care, the person furnishing the
labor under a contract with the administrator may pro-
ceed directly against the estate. In rendering the
decision Judge Phillips said: **It would, in my opin-
ion, be sticking in the bark to say the claim can only
be allowed as a credit to the administrator, instead of
Digitized by VjOOQIC
6 55 MISSOUBI APPEAL REPORTS,
Nichols ▼. Bejbum.
allo^wing it in favor of the meritorious party whom the
statute authorized the administrator to employ. '' This
language was quoted with approval by the supreme
court in State ex rel. Ziegenhein v. Tittmann 103 Mo.
553, 565. We hold, therefore, that both on principle
and authority the first question above put should be
answered in the aflSrmative. While the exact point
arising for decision is one of first impression in this
state, the case of Powell v. Powell^ supray furnishes
ajithority by analogy for such holding.
Passing to the consideratioti of the second question,
we conclude that under the general allegations of the
petition, which the demurrer admits to be true, it must
likewise be answered in the affirmative. The true
inquiry in all such cases is, have the services been per^
formed in the interest of the estate. We are referred
by respondent to Bates v. Byberg, 40 Cal. 463, where
it was held that an administrator can not appeal from
an order of final distribution on the ground that the
estate was improperly divided between the legatees;
also to Shaw v. Moderwelly 104 111. 64, where it was
decided that an executor can claim no allowance for
defending a will which is defeated upon the trial of its
validity; and to Mumper^ s Appeal ^ 3 Watts and S, 441,
where it was held that the executor is not entitled to
attorney's fees upon the trial of the validity of the will
upon appealj although the will be upheld. All these
cases, however, furnish no authority for the upholding
of the demurrer in this case. The petition here states
in general terms that the ' services were performed in
advising the administrator in the matters of his admin-
istration, and, while it emphasizes particular services, it
alleges that all the services were performed for the
benefit of the funds and of the parties interested in the
estate.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Niohols Y. Beybum.
In this state the administrator is a statutory
trustee **to the end that the property of the estate
may be collected, preserved and disposed of according
to law/' Smarr v. McMaster^ AdmW^ 35 Mo. 349, 351.
If he is sued touching assets of the estate, it is his duty
to defend. Whether such duty ceases after all the ben-
eficiaries of the estate are brought in and are before the
court does not rise for decision now, as that question is
one which aflEects the claimant's measure of damages in
this case and not his right of recovery, and it is only
the latter which can be reached by a general demurrer
to his petition. We may state generally, however, that
in this case as in all others the powers of the officer are
commensurate with his duties.
This brings us to the third question, namely,
whether the plaintiff has selected the proper forum for
the adjudication of his claim. Sectipn 190 of the
Revised Statutes provides that *^any person having a
demand against an estate may establish the same by
the judgment or decree of some court of record.'' In
the view we take, and which was taken by the Kansas
City court of appeals in the analogous case of Powell
V. Powell^ suprUj the plaintiff's claim is a demand against
the estate. There is nothing in the section above
recited, which would limit its operation to such
demands as arose in the lifetime of the decedent. The
administration of Simpson has ceased with his death,
and the probate court could not allow the claim as a
credit in Simpson's settlements, all the less so since
there are well-considered cases holding that such
expenses can be allowed to an administrator only after
they have been actually paid by him. Bates v. Vary^
40 Ala. 421, 441; Thacher v. Dunham^ 5 Gray, 26. Nor
could the probate court allow the claim in the settle-
ments of the present administrator, because the
expenses were not incurred by him. Nor, it would
Digitized by VjOOQIC
8 55 MISSOUEI APPEAL REPORTS,
Nichols V. Beybum.
fieem^ could the probate court allow them on an inde-
pendent suit brought in that court by the plaintiflE.
The very fact that all demands exhibited in the probate
court must be classified , and that the statute makes no
provision for the classification of such a claim, seems to
preclude the idea of a suit by the claimant in the pro-
bate court. Besides that, probate courts are courts of
statutory jurisdiction, and have such powers only as
the statute confers upon them either directly or as are
necessarily 'incident to the proper exercise of duties
directly imposed. Ford v. Talmagej 36 Mo. App. 71,
and cases cited.
To hold that the plaintiff's only remedy is to have
his claim allowed against Simpson's estate, and then
have Simpson's administrator present it for allowance
against the estate of Brewster, would be a denial of any
adequate remedy to the plaintiff. The administrator
of Simpson could not pay the claim until the expira-
tion of two years, and not then unless the assets of the
of the estate were sufficient to pay all demands ; nor
could he exhibit the claim to the present administrator
of Brewster's estate for allowance, according to the
authorities above cited, until he had first paid it
himself.
We recite the foregoing additional considerations, ,
sustaining the jurisdiction of the circuit court, merely
to show the inconvenience of any other holding. If
this is a claim against the estate, as it purports to be,
the jurisdiction of the circuit court can be upHeld by
the language of the statute without any other aid.
We do not intend to decide that, in case it should
turn out, upon the trial of the cause, that the statutory
distributees attended to the defense of their own inter-
ests, either ah initio or at subsequent stage of proceed-
ings, such showing might not defeat the recovery of the
claimant on that account altogether, or materially
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Skinner v. Stifel.
reduce his damages, as the case may be; nor do we
intend to decide that the burden is not upon the plain-
tiflE to show that the services were performed in the
interest of the estate. We simply decide that, the alle-
gations of the petition, which include these services
and others J being sufficiently comprehensive to justify
some recovery, we cannot uphold a general demurrer
thereto.
The judgment is reversed and the cause remanded.
Judge Biggs concurs. Judge Bond dissents.
EdwabdSkinneb, Respondent, v. Philip Stifel, et a?.,
Appellants.
St- Louis Court of Appeals, November 7, 1803.
156 9.
1. Contributory Negrligrence : law and pact. The evidence in IJ2— 22'
this oanse is considered, and held not to oonolusively establish contri- ^ 049
butory negligence on the part of the plaintiff in failing to observe an
excavation in a public highway.
^. Instruction Given Orally and in Absence of Counsel. It
is error for the trial court, after the submission of a cause to the
jury, to give to them an additional instruction orally or in the absence
of counsel whose attendance can be procured.
3. : COMMENTING ON CHABAOTEB OP THE CAUSE. It is prejudicial
error for the court in an instruction to the jury to state that it con*
aiders the cause a very simple one both as to the law and the facts,
and to urge the jury to come to some agreement owing to the small
amount of money involved.
4. Neglifirence : violation of municipal ordinance. Held, in the
course of discussion, that the violation of a municipal ordinance,
requiring persons making excavations on public highways to display
danger signals over such excavations, is negligence, per se.
Appeal from the St. Louis City Circmt. — ^HoN. Jacob
Klein, Judge.
Eeversed and remanded.
Laughlin, Wood <& Tansey, for appellants.
Digitized by VjOOQIC
10 55 MISSOURI APPEAL REPORTS,
dkinner v. Stifel.
Julian Laughlinj for respondent.
(1) The question of contributory negligence was
submitted to the jury, and a finding had for plaintiff.
(2) On the question of the verbal instruction of the
court to the jury, there was nothing improper said, or
that in any way injuriously affected defendants. Fair-
grieve V. Moberlpy 29 Mo. App. 141 ; McPherson v.
Railroad^ 97 Mo. 254; Allen v. Woodsony 50 Ga. 53;
Pierce v. BehfusSj 53 Mich. 66.
RoMBAUER, P. J. — The plaintiff recovered a judg-
ment for $21.35 against the defendants for injuries to
his vehicle and loss of time, alleged to have been
caused by the defendants' negligence in failing to place
a red light, in the night time, on an excavation made by
them in a street of the city of St. Louis, as required
by the ordinances of the city.
The defendants appeal, and assign for error that
the court refused to sustain their demurrer to the evi-
dence, and that the court further erred in giving to the
jury in their absence and in absence of their counsel an
oral instruction, the tenor of which was prejudicial to
them.
The plaintiff, who is a hack driver, testified that
on the night in question he was driving northwardly
along Twenty-ninth street, and that while crossing
Franklin avenue he drove into an excavation made
by the defendants, who were contractors with the city
of St. Louis and were repairihg the street. There are
railroad tracks running along Franklin avenue, and
this excavation was on the north side of the tracks
and between them and the north curb of the street*
The excavation was more than ten feet long and about
eighteen inches deep. There was a driveway built
alpng the intersection of Franklin avenue and Twenty-
ninth street, so that by keeping in the center of
Digitized by VjOOQIC
OCTOBER TERM, 1893. 11
^ Skinner v. Stifel.
Twenty-ninth street the plaintiff could have crossed
Franklin avenue without injury. He testified that his
reason for not driving in the center of the street was
that it was muddy there, and he wanted to keep his
cab clean. The plaintiff also testified that he knew
that the north side of Franklin avenue was being exca-
vated, but he did not know that the excavation had
proceeded as far west as Twenty-ninth street; that
there was no red light at that point; that he did not
see the excavation until he drove into it; that the night
was bright and clear, but that the nearest electric light
to the crossing was one block away; that he was driv-
ing at an ordinary trot at from four to five miles an
hour, and that this was the speed of his team when it
dropped into the excavation. The plaintiff also gave
in evidence an ordinance of the city of St. Louis, the
material portions of which provide:
** Every person, who shall cause to be made any
excavation in or adjoining any public street, shall
cause one red light to be securely and conspicuously
posted on or near such excavation or obstruction,
provided such obstruction does not extend more than
ten feet in length, and, if over ten feet and less than
fifty, two red lights, one at each end, and shall keep
such lights burning during the entire night.''
The plaintiff was corroborated in his testimony by
a passenger in his hack as to the rate of speed at which
he was driving, as to the accident, and as to the absence
of any red light posted on or near such excavation.
The defendants claim that the court on this
evidence should have sustained their demurrer to
the evidence, because the inference was unavoidable,
that plaintiff's own negligence contributed to the
accident complained of. In that view we cannot
concur. The plaintiff testified that he did not see
the excavation, and this, in view of the fact that
Digitized by VjOOQIC
12 55 MISSOURI APPEAL REPORTS,
Skinner y. Stifel.
even on clear nights slight depressions in the ground
are discoverable only on close scrutiny, is not devoid
of probability. He had a right to rely on it that all parts
of the street on which he was driving were in a safe
condition, or that, if they were not, the danger signal
prescribed by the ordinance would be displayed. That
the excavation was one requiring the display of such
signal is conceded. That no such signal was displayed
was testified to by the plaintiflE and another witness.
Under these circumstances the question, whether the
plaintiff was exercising reasonable care in driving along
the highway, was a question of fact to be passed upon
by the jury. It was submitted to the jury on instruc-
tions favorable to the defendants, and their first assign-
ment of error must be ruled against them.
After the submission of the cause to the jury, they
deliberated for one day, and, being unable to agree,
they were called into court and the judge in the absence
of counsel said to them: ''Gentlemen of the jury, I
deem it my duty to say to you in this case that I con-
sider the case a very simple one both on the law and on
the facts, and one in which the jury ought to come to
an agreement. The case does not involve a great deal
of money, but it will entail a good deal of expense, not
merely to the parties but also to the public, to have a
failure of the jury to agree. Now, while I do not wish
to compel any juror to give up his just and honest con-
victions in regard to the evidence in this case, I think
it is the duty of the jurors to listen to each other, hear
each other's statements and arguments in regard to the
matter, and to endeavor to come to an agreement in
the case, so as to avoid the necessity of a new trial of a
case that is so small. You may retire then, and con-
sider of your verdict further in this case.''
The defendants claim that these remarks were
prejudicial to them and constitute reversible error.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 13
Skinner v. Stifel.
Although our statute provides that written inst?hctions
should be given by the court to the jury before the
cause is submitted to them, it has been repeatedly held
that it is not error to further instruct the jury either at
their request or where they disagree, but such additional
instructions should be in writing, and should be given
to the jury in open court, and in presence of counsel if
their presence can be had. The reaso^ for the limita-
tion is obvious. The statute provides that the instruc-
tions shall be carried by the jury to their room for their
guidance, which they evidently cannot do if the
instruction is oral. Beyond this, when the court gives
instructions either oral or written in the absence of
counsel, the parties have neither the opportunity to
save their exceptions to such action at the time, nor have
they the opportunity of offexing additional instructions
in explanation of, or supplementing those of the court,
should they so desire. For these reasons we must hold
that the court erred in further instructing the jury
orally and in the absence of counsel, however praise-
worthy the action of the court in endeavoring to save
to the state and to the parties the costs of a new trial
might otherwise have been.
On the other hand we must not lose sight of the
fact, that we are authorized to reverse judgments for
prejudicial errors only. We have ourselves decided
that the mere fact of the instruction being oral is no
ground for setting aside a verdict, where the instruc-
tion is given in the presence of counsel and is one
touching a conceded fact ( Walsh v. St. Louis Drayage
C!t>., 40 Mo. App. 339) 5 but we have also decided that error
is presumed to be prejudicial, and that to justify an
appellate court in affirming a judgment where error
has intervened in the trial, the burden is upon the
party claiming the benefit of the judgment to satisfy
the appellate court that the error was not prejudicial.
Digitized by VjOOQIC
i MISSOUEI APPEAL EEPORTS,
Skinner t. Stif el.
Fairley, 30 Mo. App. 335. To this rule we
ired since. On the other hand the supreme
very pointedly decided, upon a review of the
3 in this and other states, that an instruction
he jury in the absence of counsel constituted
error, although the instruction was in writing
died no objectionable elements. Choteau v.
on Works f 94 Mo. 388. In that case the jury
for some time addressed the following writ-
ly to the court: ** Would it be consistent
astructions of the court to find for plaintiff
inal damages r' To which the judge made
ing written answer: **It would be consistent
minal damages, provided the jury are of the
'om the evidence that there was no substantial
sustained by the plaintiff in consequence of
1 of the contract, if there was a breach.''
it will be seen that it is next to impossible to
e verdict in this case under that decision,
instruction had the additional objection of
and of embodying two objectionable elements,
hat the court considered the issues very sim-
as to law and fact, and that the controversy
i a small amount. Both of these propositions
rant to the merits of the case and yet may
iienced the jury in their decision, since the
was a hack driver of presumably limited
id the defendants were contractors of presuma-
ent means not to feel so small an amount,
re see our way to an affirmance of the judg-
reating the remarks of the court as purely
jr, and as not an ''instruction'' in the techni-
i of that term. Cautionary remarks are
to the jury touching their conduct while con-
he case, and not touching any elements to be
>j them in it^ consideration.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 15
Enterprise Soap Works v. Bayers.
As we feel compelled to reverse the judgmelit for
this error, we will add the following, which may facili-
tate the final settlement of the controversy. The
defendants' witnesses testified to facts which, if believed
by the jury, would have justified them in finding that
the defendants had used reasonable care and diligence
in placing lights on the obstruction and in keeping
them burning all night. The court instructed the
jury upon defendants' request that the burden of proof
rested upon the plaintiff to show that the defendants
were careless and negligent in placing or failing to place
the danger signals, or in keeping the same burning at
the intersection of Twenty-ninth and Franklin avenue.
The court also instructed the jury as to the meaning of
ordinary care, as applicable to both parties. These
instructions were over-favorable to the defendants.
The duty to place such lie^hta anrl Vai^p thftPi T;>"^^^^g
is an imperative dutv under the ordinance, the viola-
tion of which is negligence_per se. In such cases una-
voidable accident will excuselthe defendants, but the
rule of ordinary care finds no application. This con-
clusion is the logical result of our ruling in Jelly v.
PiepeTj 44 Mo. App. 380, and of that of the supreme
court in Fath v. Railway j 105 Mo. 537, 548.
The judgment is reversed and the cause remanded.
All the judges concur.
Entebpeisb Soap Wobks, Respondent,v. Henby Sayebs
et alj Appellants.
St. lionis Court of Appeals. November 7, 1893.
!• Law and Fa»ct: ikterpbetatiok of wRiriNas: bssoission' 07
CONTBAOT OF SALE. The interpretatioa of writings is always for the
eonrt, except when they are ambigaons and the ambiguity must be
solved by extrinsio unoonoeded facts, or when they are addaced
merely as containing evidence of facts from which different inferences
can be drawn, and when it is for the jury and not for the court to
55
151
M
2871
06
584,
55
"Is
?a
457
77
2?
56
15
94
•389
55
15
97
•448
1718
1487
Digitized by VjOOQIC
16 55 MISSOURI APPEAL REPORTS.
Enterprise Soap Works ▼. Sayers.
draw these inferences. And held that correspondence In eyidence
in this canse, which was offered to establish the rescission of a
contract of sale, did not fall within either of these exceptions.
2. Beocissioii of Sale : tender, when xtnkecessabt. A tender need
not be shown, when it conclosively appears that it would have been
fmitless, if made.
8. : recovery of purchase moket: measure of recovery, a
vendee of merchandise, after payment of the purchase money,
duly rescinded the sale. Subsequently he caused this merchandise
to be attached in a suit against the vendor in a foreign jurisdiction
for the recovery of this purchase money, and to be sold under a judg-
ment in rem recovered by him therein. Later still he sued the
vendor in personam for the purchase money. Held, in the latter suit,
that the vendor was entitled to credit only for the net proceeds of the
sale under the judgment in rem, and not for the reasonable value of
the merchandise sold.
Appeal from the St. Louis City Circuit Court, Hon.
Daniel D. Fisheb, Judge.
Apfibmed.
B. M. Nichols f for appellants.
(1) The fact that respondent, having discovered
the tallow was not up to sample on November 17, 1889,
continued for two months, without rescinding the con-
tract, to negotiate for the tallow, under the contract,
but at a rate below the contract price, is, together with
a delay in rescinding the contract for a period of two
months, such an exercise of dominion over the tallow
as would amount to an acceptance and a waiver of its
right to object on account of quality. Tiedeman on
Sales, sec. 114; Benjamin on Sales [4 Am. Ed.], sec.
703; Genethal v. Schnidery 52 How. Prac. 134; Lawrence^
V. Dale^ 3 Johns. Ch. 30; Stafford v. Pooler ^ 6 Barb.
148; Hallon v. Johnson^ 83 Pa. St. 222; Hirshhomv.
Stewart, 49 Iowa, 418; The Dutchess Co. v. Harding ^
49 N. Y. 323. (2) To place the other party in statu
quo by a return, or an oflEer to return, is an absolute
Digitized by VjOOQIC
OCTOBER TERM, 1893. 17
Enterprise Soap Works v. Sayers.
condition precedent to the exercise of the ri^t of
rescission. Cahn v, Ried, 18 Mo. App. 124 ; Melton v.
Smithj 65 Mo. 324; Tower v. Pauley y 51 Mo. App. 75.
(3) The first instruction was erroneous, in that it
ignored the evidence as to the market value of the
goods taken by respondent at Nashville, and told the
jury to find a verdict for the difference between the
amount paid as purchase money and the net proceeds
realized from the sale of the goods under the attach-
ment. If respondent had appropriated the goods
without the judicial proceedings in Tennessee, in the
present action it would be compelled to allow appellants
their market value, as a credit, and how can the judg-
ment, by which appellants are in no way bound,
change that rulel Spencer v. Vance^ 57 Mo. 427. (4)
The instruction was further erroneous, in the fact
that it substituted the price which the goods brought
at a forced sale in the place of the market value of the
goods, the evidence of a forced sale being no evidence
of the market value, and inadmissible. Lawrence v. City
of Boston J 119 Mass. 126; Everett v. Railroady 59 Iowa,
445; Railroad v. Daughty, 22 N. J. L. 495.
Oeo. R. Lockwoody for respondent.
(1) The refusal of respondent to accept the tallow,
and its tender back of the tallow, through its letters,
effected a rescission of the contract of purchase. Story
on Sales [4 Ed.], sees. 417 and 418; Grimoldy v.
Wells, 10 Com. PI. (L. R.) 391; Calhoun v. Paule, 26
Mo. App. 274. (2) A tender back of the tallow was
not necessary, as it was apparent that appellant would
not accept and refund the purchase price. Calhoun v.
Pauley 26 Mo. App. 274. (3) Whether respondent
refused to accept the goods sent and tendered them
back within a reasonable time was in this case a ques-
VoL. 55—2
Digitized by VjOOQIC
18 55 MISSOURI APPEAL REPORTS,
Enterprise Soap Works v. Sayers.
tion to be determined by the jury, and not the court.
Calhoun v. Pauley 26 Mo. App. 274; Oatis d Sons Mfg.
Co. V. Mayer, etc.y Mfg. Co., 42 Mo. App. 307; Johnson
V. Whitmanj etc. Co., 20 Mo. App. 100; Tower v. Paulj/y
51 Mo. App. 75; Tiedeman on Sales, sec. 115. This
action was for the recovery of so much of the purchase
price as had not been recovered by the attachment and
sale of the goods shipped respondent, and not for dam-
ages for breach of warranty. Johnson v. Whitmany etc.
Co.y 20 Mo. App. 100; Calhoun v. Pauley 26 Mo. App.
274; Enterprise Soap Works v. SayerSy 51 Mo. App.
310.
' RoMBAUER, P. J. — This cause is here on its second
appeal. On the former appeal (51 Mo. App. 310), we
decided that two counts in a petition are inconsistent,
where one seeks a recovery of damages for a breach of
warranty in the sale of chattels, and the other a
recovery on the ground that the sale had been
rescinded by the plaintiff for cause. Our decision in
short was to the effect that the affirmance of a sale in
one count, and its denial in another, were inconsistent
in point of fact, because the proof of one cause of
action necessarily disproved the other. Both could
not be true.
. The case beiug remanded for new trial, the plain-
tiff elected to proceed as upon a rescission of the sale.
The case was tried on that theory, and the plaintiff
again recovered judgment. The defendant appeals,
and assigns for error that there was no evidence that
the defendant had rescinded the contract, and that
the cause was submitted to the jury on erroneous
instructions. These assignments we will proceed to
consider in the order stated.
The entire evidence touching the contract and its
rescission is in writing. **The interpretation of writings
Digitized by VjOOQIC
OCTOBER TERM, 1893. 19
Enterprise Soap Works y. Sayers.
is always for the court except in two cases. Firsts
where the writing is ambiguous and the ambiguity
must be solved by extrinsic unconceded facts, and
next where the writing is merely adduced as containing
evidence of certain facts, from which different inferences
may be drawn, and where it is for the jury and not the
court to draw the inferences. Mantz v. Maguire, 52 Mo.
App. 146. In the case at bar the court, upon the
writings adduced, declared, as a matter of law, that the
•contract in question was rescinded by the plaintiff, but
left it to the jury to find whether it was rescinded for
good cause and within a reasonable time. Whether
the court erred in so holding must be determined from
such writings and extrinsic conceded facts.
The plaintiff resides in Nashville, Tennessee, and
the defendants in St. Louis, Missouri. On October
25, 1889, the defendants wrote to plaintiff as follows:
''We to-day mail you a sample of prime tallow, which
passed through fire and is in consequence discolored
by smoke; in every other respect is uninjured. We can
sell you one hundred and fifty barrels of same (in
syrup barrels; at four and one-eighth cents per pound,
we paying freight to your city. Above, provided unsold
when hearing from you. Please wire at our expense if
you can use it. '^
To this the plaintiff replied by wire October 28:
''Will take tallow. Hold for instructions; if sold
answer.''
The defendants thereafter, having received instruc-
tions from the plaintiff as to the shipment of the tallow,
shipped the same November 6, and on November 7,
drew their bill of exchange, payable one day after sight,
upon the plaintiff for $1,871.62, the contract price of
the tallow, which the plaintiff accepted and paid prior
to the receipt of the tallow. The tallow arrived in
Nashville on November 16th, and was delivered to the
Digitized by VjOOQIC
20 55 MISSOURI APPEAL REPORTS,
Enterprise Soap Works y. Sajers.
plaintiff shortly thereafter. The plaintiff thereupon
wrote to the defendants under date of November 19th :
''We have gotten in the tallow, and regret that we
Jiave to make complaint of same. You spoke of having
shipped it from some other point, and so we presume
you have never examined it; for, if you had, we don't
think you would have sent us such stock. It is not up
to sample, and is very watery. As soon as the driver
got the first load he came to the oflSce and reported it
full of water, before we examined it; he discovered it
in rolling the barrels. When we examined it, we found
he was correct. We send you a sample, that you may
judge for yourself. If that is not satisfactory, we shall
expect you to come, or send some one here to represent
yoij, so that the matter can be adjusted in a satisfactory
way, without any resort to law. If you cannot send or
come, you can name any dealer here, and we will
appoint one, these two to select the third man, and we
will abide the decision of such a committee. We would
much prefer that you come yourself. Please let us hear
from you by return mail, and oblige. ^^
To this the defendants replied under date of Novem-
ber 20th: '' Your favor of the nineteenth to hand, and
will say that its contents surprised us gi'eatly. ♦ * ♦
The tallow itself is, we are confident, fully up to sample*
* * * But as to water, that is another matter; we did
not intend to ship you any water, and do not expect
you to pay for it. Our representative assured us no
watery barrels went forward, as this was a special
injunction to watch for water. If, in spite of his care,
barrels containing water were sent forward, we are
willing to make it good to you. Let us know how
many barrels contained water, and what quantity.'^
To this the plaintiff replied under date of Novem-
ber 22nd : ' 'We have your letter in reply to ours. Accept
thanks for prompt reply. As we expected, you think
Digitized by VjOOQIC
OCTOBER TERM, 1893. 21
Enterprise Soap Works ▼. Bayers.
we are mistaken about tallow not being up to sample.
We have never asked you to take our opinion in the
matter. We have seen the tallow and compared it
with sample, and don't hesitate to say that it is not
what we bought. * * We proposed a fair and honorable
way to determine whether our claim is just or not, and
we trust you will yet see that the best way to settle the
dispute is to arbitrate it. * * So, kind friends, we have
the sample and the tallow, and are not afraid of the
result of any comparison, and you might as well come
down to business at once. We have got the evidence
that can't begotten around, and insist on a settlement."
To this the defendants replied under date of
November 23rd: ''We do not wish to do anything
unjust or unfair, but we can only say, as we did before,
we will reimburse you for water shipped."
To this the plaintiff replied under date of December
7th: ^^We have not used a barrel of the tallow ^ and do
not intend to until the matter is settled either by arbitra-
tion or a lawsuit. We have no sort of doubts as to
what we can prove in a suit, but would prefer to have
you settle without going that far. * * Now, as a last
proposition to settle the matter peacefully, we agree
that, if you will come or send a man to Nashville, and
we do not prove the tallow below sample, we will pay
the railroad fare both ways. Let us hear from you
and oblige."
To this the defendants replied under date of
December 9th : '/Let us know what you consider a
fair allowance for the alleged difference in quality.
Would rather present you the amount that a trip to
Nashville would cost, than expend it for railroad fare,
etc."
To this the plaintiff replied under date of Decem-
ber 12th: "We received your last letter, and have
delayed a few days in answering. We wish you had
Digitized by VjOOQIC
55 MISSOURI APPEAD REPORTS,
Enterprise Soap Works y. Bayers.
to come or send to Nashville, as we do not
Is thing settled on what we say ; and, as we think
s believing, we would rather have you here to
it yourself than any man in the world. How-
ou are not here ; so we put ourselves to the
of bringing in several gentlemen and let them
the stock you sent us. We enclose their state-
from which you can see the stuff is very bad.
Ve would prefer that you take the tallow off of our
md refund our money. In fact, we would he
to haul it to the depot for you free of charge,
)Tj if we keep it, we must have a reduction of
We would add that we paid freight on it to the
of $231.26, while you only allowed $183.83.
^e not '^^d a barrel of the tallow^ and it is very
\ our way; so we wish you would decide at once
it off ofoij(r hands. We don't think $600 fully
}he loss on it, but are willing to place it at that
if that will effect a settlement and prevent the
and expense of a law suit.''
this the defendants replied under date of
)er 13th: ** Yours, twelfth, to hand. Please
at our expense a sample of the tallow drawn
ly twenty-five barrels, and in quantity say ten
, and oblige.''
this the plaintiff replied under date of December
*At your request we send 10 pounds of samples
tallow. Our soapmaker says he took it from
Tent barrels."
this the defendants replied under date of Decem-
i: **Yours 18th to hand, also sample. To end this
we will make au allowance of 1-4 c. per lb. on
3w, and also collect and repay to you the over-
in freight. Send us the freight bill you paid,
an make claim on E'y Co., and your sight drafts
;e two amounts will be honored."
Digitized by VjOOQIC
OCTOBER TERM, 1893. 23
Enterprise Soap Works y. Sayers.
Only such portions of the above letters are set out
herein, as bear upon the present inquiry.
After the receipt of the last letter the plaintiff
placed the claim into the hands of an attorney, who,
under date of December 30th, wrote to the defendants
as follows:
**The Enterprise Soap Works Co., of this city has
turned over to me the correspondence touching ^ con-
tract for 150 barrels prime tallow, with instructions to
work out for the Co. their rights in the matter. Now,
from the facts as I gather them, there is no doubt that
the contract was an executory one, and that the E. S.
Wks. has the right to inspect the goods and reject them,
if not up to the quality contracted for. And inas-
much as the contract is executory, the only remedy of
the E. S. Wks. is to reject the goods; for by accepting
them with the knowledge of the defects would be to
waive the defects. But, inasmuch as they have already
paid for the goods, they would rather lose something in
a compromise of the matter, than to incur the risks and
delay of litigation. What they desire most is fo get back
their moneys and you take your goods. In that event they
will take their money without interest, and put .the
goods on cars without charge to you. K you would
prefer to let them take the goods and deduct $600 from
the price of the goods and repay to them that amount,
they will settle the matter that way. If you are not
willing to either of these propositions, then the only
thing left to the E. S. Wks. will be to proceed to sue —
have the tallow sold by order of the court, apply the pro-
ceeds to the costs and amount due E. S. Wks. from yoUj
and hold you for the balance. This I am instructed to
do, unless you do one of the other of the two things
mentioned above. Please let me hear from you at
once.''
Digitized by VjOOQIC
24 55 MISSOUEI APPEAL REPORTS,
Enterprise Soap Works y. Bayers.
To this letter the defendants replied, their letter
bearing date December 31st, but not being mailed until
some time thereafter, as follows:
*^ Yours of the 30th noted. As we also wish to
avdid unpleasant litigation, we are willing to make a
concession within reason. But, rather than allow
$600, we will take the chances of the courts. '^
Upon a receipt of this last letter the plaintiflE insti-
tuted suit by attachment against the defendants in Nash-
ville, and caused the writ of attachment to be levied upon
the one hundred and fifty barrels of tallow in its posses-
sion. The plaintiflE's attorney mailed a copy of the pub-
lication made in that suit to the defendants. Whether
the defendants received this notice is not quite clear,
but it stands admitted that they had notice of the, pen-
dency of the attachment suit, brought by the plaintiflE
against them at Nashville, before its termination.
Upon the written evidence above set out, the infer-
ence is unavoidable that the plaintiflE did everything it
was required to do to enable it to claim a rescission of
the contract. It is true the plaintiflE had received the
tallow, but there is no expression in any of its letters
which could be tortured into an admission that it had
accepted it. The diflEerence between these two proposi-
tions is too well settled in the law of sales to admit of
any dispute. Benjamin on Sales, sections 1345, 1346;
Gaiboutv. Clark, 24 Mo. App. 426; Calhoun v. Paule,
26 Mo. App. 274. We concede that the vendee must
exercise his right of non-acceptance within a reasona-
ble time, but the delays in this case were owing to the
acts of the vendor, and not to those of the vendee;
hence the case is lacking all elements which would
enable the court to declare as a matter of law that the
ultimate refusal on part of the vendee to accept the
goods, and the institution of the suit for a recovery of
Digitized by VjOOQIC
OCTOBER TERM, 1893. 25
Enterprise Soap Works y. Sayers.
the purchase money, did not occur within a reasonable
time.
Equally untenable is the further objection made by
the defendants, that there was not at anytime a tender
on part of the plaintiflEs to return the goods. Such a
tender is distinctly made in plaintiflE's letter of Decem-
ber 12th. Besides, it appears from all the evidence not
only that the tender made was unavailing, but that a
more specific tender, ifmade^ would have been equally
unavailing. Where it conclusively appears that a ten-
der, if made, would have been fruitless, it need not be
shown. McManus v. Gregory ^ 16 Mo. App. 375; flar-
wood V. Diemer, 41 Mo. App. 48.
We must, therefore, hold that the court committed
no error in submitting to the jury only the questions
whether the plainiflE had just cause to rescind the con-
tract, and whether it exercised the right within a reason-
able time. If these two elements were found by the
jury, it resulted as a matter of law from the writings in
evidence that the plaintiflE had rescinded the contract.
Complaint is also made of the instructions of the
court on the measure of damages. The uncontro verted
evidence showed that the plaintiflE had caused the
defendant's goods to be attached at Nashville and to
be sold on execution, and that it realized upon such sale
a certain amount, which the court directed the jury to
credit to defendants in case they found for the plain-
tiff. This the jury did. The defendants now claim
that the court should have directed the jury to allow
to the defendants the reasonable market value of such
goods at Nashville, and not the net proceeds of their
sale. This contention is devoid of all foundation. This
action is for money had and received, and the defend-
ants are entitled to such credits only as they or their
property have paid to the plaintiff in money or its
equivalent. The case stands exactly upon the same
Digitized by VjOOQIC
I 55 mi'
I g5 514
55 20
71 630
26 55 MISSOURI APPEAL REPORTS,
Storck v. Meeker.
footing as if plaintiff had levied its execution on other
property of the defendants than the one in controversy,
and had realized a certain amount upon such sale. It
is not claimed that the court in Nashville did not have
jurisdiction to have the property subjected to plaintiff's
process, nor that there was any illegality in the sale
under that process; hence any analogy with the rule
in cases of a conversion of goods is wholly inadmissible.
Seeing no error in the record, we affirm the judg-
ment. All the judges concur.
Fbedebick Stokok, et al., Respondents, v. Benjamin T.
MeskeR; et ah^ Appellants.
St. Louis Court of Appeals, November 7, 1803.
!• Practioe AppeUate: waiver of demxtrrer to evidenoe. An in-
struction of non-suit was offered and refused at the close of the
. plaintiff's evidence, and thereon renewed at the close of the case.
Held that, in the review of these rulings, the entire evidenoe should
be considered.
2. Oontraots: consideration. A contractor for the erection of a>
building sub-let a portion of his contract, which the sub-contractor
failed to execute in accordance with its provisions. Thereon it was
agreed between the contractor and sub- contractor that the work should
be repaired at their joint expense, so as to make it answer the re*
quirements of the contract in respect to the deficiencies then known
to the contractor. After the repairs had been partly proceeded with,,
the contractor ascertained that the work was deficient in other re-
spects, and refused to carry out this agreement. Held that this
agreement for repairs at joint expense was without consideration,
and, notwithstanding its partial performance, was not obligatoiy oxk
the contractor.
8. : EVIDENCE OP DAMAGES FOR BREACH. When a Contractor sub-
lets a part of his contract, and the sub-contractor fails to perform his
part of the work in conformity with the contract, the former cannot
establish the quantum of his damages against the latter, nor his right
to substantial damages, by proof that he had agreed upon their
amount with the person with whom he had contracted, and thereon
paid it.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 27
Storok v. Mesker.
4. : EXTRINSIC EVIDENOB OF CUSTOM. Extrinsio evidence is ad-
missible in the oonstruotion of a building oontraot to show that a term
in it, such as a requirement for "old style roofing tin/' had by the
usage of trade acquired a peculiar signification.
5. : ORAL EVIDENCE IN VARIANCE OF ITS TERMS. But evidence of
a contemporaneous oral agreement between the parties to the contract,
inconsistent with a technical term used in it, is not competent.
6. Instractions: measure of damages, non-direction. While it
is the better practice to instruct the jury as to the measure of the
damages, the failure of the court to do so amounts only to non-di-
rection, and therefore is not ground for the reversal of the judgment.
Appeal from the St. Lonis City Circuit Court. — ^Hon.
Daniel Dillon, Judge.
Apfibmed.
Nathan Frank and Chas. W. Bates ^ for appellants.
(1) The practical interpretation of an ambiguous
written contract may be shown by parol evidence of
the acts of the parties, and should control. St. Louis
Gaslight Co. v. City of St. Louis, 46 Mo., 121,128;
Matthews V. Danahy, 26 Mo. App., 660; Deutmannv.
Kilpatrickj 46 Mo. 624; Sedalia Brewing Co. v. Sedalia
Water Works J 34 Mo. App. 49; Jones on Construction of
Contracts J sec. 95, and cases cited. Parol evidence is ad-
missible of the circumstances surrounding the execution
of an ambiguous written contract and its subject-matter,
the relation of the parties and their conversations in
reference thereto before, at and about the time of its
execution. Bla^k River Lumber Co. v. Warner, 93 Mo.
374: Beisenleiter v. Lutherische Kirche, 29 Mo. App.
291; Thorington v. Smith, 8 Wall. 1; Quarry Co. v.
Clements, 38 Ohio St. 587; Galen v. Brown, 22 N. Y.
37; Birch v. Depeyster, 1 Stark, 210; 4 Camp. 385;
Sweet V. Shumway, 102 Mass. 365; Browne on Parol
Evidence, sec. 54, pp. 190, 191 ; Saddock v. Woods ^ 48
Digitized by VjOOQIC
28 55 MISSOURI APPEAL REPORTS,
Storck y. Mesker.
Iowa, 433; Quigley v. De Haas, 98 Pa. St. 292. (2)
The compromise of a disputed claim for unliquidated
damages and a threatened lawsuit is a complete bar to
an action on the original claim, so long as the defend-
ant is in good faith performing the compromise, and is
ready and willing to perform the same according to its
terms. Hunt v. Evnter, 52 Mo. App. 263; Maack v.
Schneider, 51 Mo. App. 92, 102; Perkins v. Headleyj
49 Mo. App. 556; Fuller v. Kemp, 33 N. E. Eep. 1034;
Deutmannv. Kilpatrick, 46 Mo. App. 624: Adams v.
Helm, 55 Mo. 468; Dunham v. Griswold, 100 N. Y. 224;
Mitchell V. Henley, 110 Mo. 598; Green v. Railroad, 82
Mo. 653; Black River Lumber Co. v. Warner, 93 Mo.
374; Smith v. Coal Co., 36 Mo. App. 567; Turemanv.
Stephens, 83 Mo. 218; Imboden v. Ins. Co., 31 Mo. App.
321. (3) Defendant's demurrer to the evidence should
have been sustained. Whitascheck v. Glass, 46 Mo.
App. 209; Kingsland, etc., Co. v. Iron Co., 29 Mo. App.
526; Martinowsky v. City of Hannibal, 35 Mo. App. 70.
Kehr <& Tittman, for respondents.
(1) There is no ambiguity, either patent or latent,
in the written contract, and parol evidence to vary or
contradict the same is inadmissible. (2) Neither the
promise to do a thing nor the actual doing of it will
be a good consideration, if it is a thing which the party
is already bound to do, either by the general law or by a
subsisting contract. lAngenfelderv. Wainright, etc., Co.,
103 Mo. 578, and authorities there cited in brief on
page 587 and by the court on page 593. (3) The con-
tract and its breach being shown, plaintiff was entitled
to recover and defendant's instruction was properly
refused. (4) In civil cases the court is not required to
give instructions, where none are asked. Dempsey v.
Reinselderj 22 Mo. App. 43-45; Tetherow v. Railroad^
Digitized by VjOOQIC
OCTOBER TERM, 1893. 29
Storok V. Mesker.
98 Mo. 74-86; Drury v. White, 10 Mo. 354; Simonds v.
Oliver, 23 Mo. 32; Harrington v. Minor , 80 Mo. 270.
Biggs, J. — The plaintiflEs were contractors for the
building of the Abbey New Engelberg in Nodaway
county.. The building was to be constructed under
written specifications. For the tin and galvanized iron
work the specifications provided as follows: **A11 the
roofs, excepting spire, to be covered with old style
roofing tin, very best quality, with standing seams, and
well painted on the inner side before laid. The two
spires to be covered as the rest of the roof. The
cupola to be covered with ornamented galvanized
shingles. The gutters and valleys to be lined with the
best valley tin, and to run under the roof at least six
inches. The conductors to be of the best. No. 26,
Juniata galvanized iron. All angles and all other
necessary places to be covered with best tin, as above,
all well soldered and rosined, and made perfectly
water-tight, and put up as indicated on plans, or as
may be directed, with all necessary curves, breaks and
bends, etc., to carry the water from the several roofs
to within one foot of the ground. The conductors to
be four inches from the upper roof and six inches
from the lower roof, and thoroughly secured with iron
hooks; all necessary places to be flush, whether speci-
fied or not, and made water-tight. All leaks to be
stopped after other craftsmen, and all left perfectly
water-tight upon the completion of the building. All gal-
vanized iron cornices to be as per drawings and details,
and of the best. No. 26, Juniata galvanized iron. All
work done and all material furnished must be of suffi-
cient quality and quantity for its various uses, so as to
fully carry out the evident intent of the design, and
anything omitted in either plans or specifications, nec-
essary to complete the job, must be done by the con-
Digitized by VjOOQIC
i MISSOUEI APPEAL REPORTS,
Storek v. Mesker.
• contractors notwithstanding such omissions,
e work must be constructed and finished in
't in a good, substantial and workmanlike
iccording to the accompanying drawings and
cations to the full extent and meaning of the
I to entire satisfaction, approval and written
e of the architect and the owner.''
de eighth day of July, 1889, the defendants,
le in St. Louis, agreed and contracted with
tiflfs in consideration of the sum of $1984
I the materials and construct all the items of
ve specially set out, the materials and work
le quality and kind required by the aforesaid
ons. The work was completed and paid for
of 1889.
a cause of action the plaintiflEs allege in
that the defendants, in constructing the roof,
Lse ^^old style roofing tin of the best quality' y^^
)ther greatly and inferior tin in the roof, and
eason of the careless and unskillful manner
the tin was put on, the roof was never water-
fa always leaked, and was never fit for the
for which it was intended. It was also
lat the defendants did not cover either of the
; with **old style roofing tin of the very best
but that they covered them with an inferior
)er brand of tin ; that the work thereon was
in a workmanlike manner, but was carelessly
igently done. The same averments were
to the materials used and the work done in
Tiction of the angles, and it was alleged that
of all of this the roof was never water-tight,
lued from the fall of 1889 to the summer of
eak, when it became necessary to remove it
ut a new one on ; and that, in doing this,
tiffs expended the sum of $1500.
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 31
Storok v. Mesker.
— ^ — — . . . — » »
It was conceded by the defendants that the roof
was not put on in a good workmanlike manner, that it
was not water tight, and that it continued to leak until
the summer of 1892. As a defense or rather as a bar
to the action it was alleged in the answer, and sought
to be established on the trial, that, after the defendants
had been notified of the defective condition of the roof,
the plaintiflEs' claim against them growing out of the
construction of the roof was compromised, wherein it
was agreed that the. plaintiflEs and defendants would
repair the roof, each party paying one-half of the cost ;
that in pursuance of this agreement they proceeded to
repair the roof, but, before the repairs were completed,
the plaintiffs withdrew from the arrangement and noti-
fied the defendants to put on an entirely new roof, or
that plaintiffs would do so at the expense of the
defendants.
The reply was a denial of the n^w matter con-
tained in the answer.
There was a verdict and judgment for the plaintiffs
for one thousand dolllars. From this judgment the
defendants have appealed, and they urge that under
the law and the evidence the plaintiffs were not enti-
tled to a judgment, and that the court erred in reject-
ing competent and relevant testimony offered by
them.
At the close of the plaintiffs' evidence in chief the
defendants asked the court to declare as a matter of
law that the plaintiffs could not recover. This the
court refused to do. At the close of all the evidence
the instruction was renewed, and the court again
refused it.
The defendants, by introducing evidence, waived
the demurrer to the plaintiffs' evidence to the extent of
assuming the risk of supplying by their own evidence
the defects, if any, in the plaintiffs' case. Esum v.
Digitized by VjOOQIC
32 55 MISSOURI APPEAL REPORTS,
Btorck y . Mesker .
Bail/road, 96 Mo. 290; Weber v. Bailroadj 100 Mo. 195.
Therefore, this assignment of error must be determined
by examining all the evidence.
The argument of the defendants' counsel in sup-
port of this assignment is based on the proposition that
the alleged compromise agreement discharged the
defendants from liability on the original contract.
It is undisputed that the roof was not constructed
of what is known to the trade as *'old style roofing
tin;'' that the roof was badly put on, and that it con-
tinued to leak until the summer of 1892, notwithstand-
ing the attempts by plaintiffs and defendants to repair
it. After one or two interviews between the parties
and the church authorities, who were demanding that
the roof be taken off and replaced by another, and who
were threatening to sue the plaintiffs if this was not
done, the following correspondence was had between
the plaintiffs and the defendants:
^'St. Louis, ;Mo., May 18, 1892.
^^ Messrs. StorcJc <& Brinks y Twelfth and State streets j
Quinct/y HI.
*' Gentlemen: We were sorry we could not see
you again while you were down here. While we have
always expressed our willingness to do all we possibly
could to make the roof right, which we now again con-
firm, but after we once get it tight we would not be respon-
sible for it. Since thinking over the matter seriously,
we do not think it proper to take off the present tin
roof and relay it. We are satisfied in our own minds
that we can make it perfectly tight, notwithstanding
the trouble and expense we have been to, without tak-
ing the present tin roof off and relaying it. We also
wish to state that it will cost us a great deal more to
put on a tin shingle roof, as you suggest, we to furnish
a first-class tinner and you to do the same, and both to
put on Hiud finish the roof together, and the church to
Digitized by VjOOQIC
OCTOBER TERM, 1893. 33
Storck y. Mesker.
furnish all the material; while we do not wish to be
arbitrary and want the good will of you all, and not-
withstanding it will cost us considerable more money,
we will agree to do so, namely, you to furnish, as well
as ourselves, a first-class tinner apiece, and they to put
on the tin shingle roof and complete it together, and
we to receive the old tin, and you or the church to
release us from any damage done now and hereafter
caused from the leaky roof.
**If this is satisfactory please advise us, and we
will send a first-class man at any time you may say.
^'Trusting that our relations may continue to be of
the very pleasantest, and that you will favor us with
any future orders, we remain,
** Yours respectfully,
**Mesker & Beo.^'
*^QuiNCY, III., May 25, 1892.
^^Messrs. Mesker & Bro.j St. Louis j Mo.
** Gents: We received your letter, you stat-
ing you will make a tight roof on the church in
Conception. We got a letter from Father Placitus,
which I will lay by. The best will be to give satisfac-
tion, take the tin oflE and replace it and throw out
the bad tin, and, if you will do that, we will stand half
of the expense; you to send a first-class tinner, and we
will send a first-class tinner, you to furnish the tin and
we will pay for half the tin, and we will have a tight
roof. Please answer at once and show your good will,
and we will try to give you new orders.
^'Respectfully yours,
^'Storck & Brinks.''
*'St. Louis, Mo., June 1, 1892.
^^Messrs. StorcJc & Brinks, Quincy, 111.
** Gentlemen: We should have answered your
letter long before this; the writer has been . out of the
Vol. 55—3
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
Storek y. Mesker.
i just returned this morning. In answer to
E the 25th ult. is at hand, and is perfectly satis-
to us with one exception, that we do not think
isary to take off all the tin and relay it, but
)v there is a bad seam, and, in the judgment of
hanic, should be taken out, he shall do so. As
id before, the roof can be made tight without
ip the entire tin and relaying it. And if this
done, we do not see why you and ourselves
be compelled to throw money away in that
; and the number of rolls taken up must be left
) mechanics that are sent up, as they are the
it certainly should know how many are to be
p, and this must be left in their hands, and no
, outside of them, should determine how many
tin shall be taken up. Under those conditions
proceed at once to send a first-class man, and
the same; also, as stated in yours of 25th ult.,
id half the expense and we the other half. If
itisfactory, let us know at once when to send
I. Respectfully yours,
'^Meskeb & Bro.^'
*'QuiNOY, III., July 12, 1892.
s. Mesker <& Bro.j St. Louis, Mo.
ENTLEMEN: — In a week or ten days we will be
>r going to Conception to make the church roof
nd as you always said you would be ready any
we trast you will not make any delay on the
om your side. We hope you also will have the
•y tin ready for it. Please send two pair of
ong, as the man we engaged has got none. I
be a few days before the date we wish to be at
ion, and I will go there myself and help get the
;arted, and I hope we will give satisfaction,
mswer as soon as you will be ready.
1*^ Respectfully yours,
*'Stoeck & Brinks,"
Digitized by VjOOQIC
OCTOBER TERM, 1893. 35
Storek y. Mesker.
As a result of this correspondence each party fur-
nished a tinner to make repairs on the roof. The me-
chanics proceeded with the work for several weeks, and
before its completion Father Placitus, the representa-
tive of the church, ordered the work stopped and de-
manded of the plaintiffs that the old roof be taken off
and replaced with a new one, because it was ascertained
that that portion of the roof, which had been repaired,
leaked in several places, and also for the reason that
the tin used was not ** old style roofing tin '^ as required
by the specifications, but was of a different and inferior
quality of tin. Thereupon, the plaintiffs notified the
defendants of the demands of Father Placitus, and re-
quired of them the construction of a new roof in accord-
ance with the specifications. The defendants having
failed within a reasonable time to accede to the demaild,
the old roof was removed, and a new one substituted.
The letters show an agreement to repair the roof at
the joint expense of the parties; but there is no evidence
of a consideration for the agreement, as the defendants
were already bound by the terms of their contract to do
what the letters contemplated should be done. Xtn-
genfelder v. Wainright Brewing Co., 103 Mo. 578. The
letters merely contemplated the carrying out of the de-
fendants' original contract. Neither did a part perform-
ance of the agreement furnish a consideration for it,
nor estop the plaintiffs from denying its binding force
as against them. The defendants represented that they
could repair the roof so as to make it water tight, in
which they failed, as the uncontradicted evidence
shows. This was the inducement to the plaintiffs to
enter into the contract. Besides it appears from the
plaintiffs' evidence, which is in no way contradicted,
that, after the repairs were commenced, they learned
for the first time that the roof was not constructed of
^*old style roofing tin,'' which fact entitled the repre-
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
Storok y. Meeker.
3S of the church to reject the roof altogether as
I never finally accepted it ; Mohney v. Beed, 40
3. 99 ; Haysler v. Owen^ 61 Mo. 273 ; Eyerman v.
f Ass^fij 61 Mo. 490; Yeats v. Ballentiney 56
)] Halpin v. Manney^ 33 >Mo. App. '388. For
lasons we think that the alleged compromise
nt was without consideration, and therefore
binding on the plaintiffs.
J next insisted that the evidence was not suffi-
warrant the recovery of substantial damages,
en the defendants failed to remove the old tin
ther Placitus, by and with the consent of the
3, determined to replace it with a tin shingle
ichthe evidence shows was much more expensive
one provided for in the specifications. There-
. settlement of the claim of the church against
itiffs, the latter agreed to and did pay to Father
the sum of $1,500.00 towards the construction
3W roof. It was incumbent on the plaintiffs, in
recover substantial damages, to go further than
introduce some evidence tending to show the
)le cost of a roof constructed in accordance with
ifications. The mere fact, that they paid the
^, 500.00 towards the construction of an en-
ferent kind of roof, proved nothing. It did not
my basis for the measurement of the damages
laintiffs. However, this insuflBciency in the
I* evidence was remedied by that introduced by
adants. One of the defendants tesitfied that a
:, constructed of **old style roofing tin," would
t between $950.00 and $1,300.00, according to
d of ' * old style tin ' ' used. The recoverj^ being
OO.OO was within the limits of this evidence,
t, therefore, hold that there is no merit in this
ent of error.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 37
Storok V. Mesker.
It appeared upon the trial that the term *^old style
roofing tin'' referred to certain brands of tin which
were manufactured in a certain way, and that the
meaning of the phrase was so understood by ' * the trade. ' ■
It was competent to show this by parol evidence; this
in no way tended to vary the contract, but only to
explain it.^ But it was not competent for the defend-
ants to prove, as offered, that it was understood at the
time they made their bid that they could use other tin
than ^*old style roofing tin of the best q^uality,'' as
understood by dealers in tin. Such evidence would
clearly have tended to vary the contract. The refusal
of the court to admit this testimony constitutes the
third assignment of error.
The admissibility of oral evidence to explain the
meaning of technical terms in mercantile contracts is
well supported by the decisions and the text-books.
Browne on Parol Evidence thus states the rule:
**Extrinsic evidence is admissible in the construction of
a mercantile contract to show that phrases or terms
used in the contract have acquired by the custom of
the locality, or by the usage of trade, a peculiar signifi-
cation, not attaching to them in their ordinary use, and
this whether the phrases or terms are, in themselves,
apparently ambiguous or not.'' (Browne on Parol
Evidence, sec. 57, p. 202.) And the same author says
that such evidence has no tendency whatever to change
or vary the contract.
This rule has been applied in this state in the case
of Soulier v. Kellermanj 18 Mo. 509. There the con-
tract called for the delivery of four thousand, shingles.
The defendant delivered eight bundles containing by
actual account two thousand and five hundred shingles.
The defendants' evidence tended to show that, by the
custom of the lumber trade, the eight packs of shingles
were properly reckoned as four thousand shingles.
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Storok v. Meeker.
lis defense the court said: **The usage of
trade is evidence from which the intention
ent of the parties may be implied; and,
cannot control an express contract, made
IS as to be entirely inconsistent with it, yet,
contracts, the terms employed have their
g and force best understood by reference
;e. Evidence of such usage is admitted,
the terms of an express contract or to
obligation, but to determine the meaning
on of the contract as made,^^
3r of the defendants to prove that, at the
made their bid, it was orally agreed that
ise in the construction of the roof a brand
nown as *'old style roofing tin,'' was clearly
;he rule as stated by the supreme court,
3lear that such evidence would have been
with the terms of the written contract, in
i have varied the obligation of the defend-
t. Hence, the court did right in excluding
ure of the court to instruct the jury as to
of damages presents a case of non-direction
3h is not reversible error. It ia the better
instruct the jury on the subject, as the
iamages is always a question of law. But,
urt fails to do so, causes cannot be reversed
on alone.
; no error in the record that would justify
of the judgment, it will be affirmed. All
oncur.
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 39
Kelly V. Gay.
William Kelly, Eespondent, v. Thomas E. Gay
et al,j Appellants.
St. liouis Court of Appeals, November 7, 1898.
Principal and Agent : application of proceeds of the sale of
REALTT. The plaintiff through his agent authorized the defendants to
sell certain real estate for him. The sale was made, and the proceeds
paid to this agent, excepting that a portion of them was applied to
the satisfaction of a forged deed of trust on the realty, which this
agent had executed prior to his employment, and of the existence of
which the plaintiff was ignorant. Held, that the plaintiff was enti-
tled to recover from the defendant the amount thus applied.
Appeal from the St. Louis City Circuit Court. — Hon.
Daniel D. Fisheb, Judge.
Affiemed.
T. J. Rowe, for appellants.
(1) No person will be allowed to adopt that part
of a transaction which is favorable to him, and reject
the rest to the injUry of the one from ijrhom he derived
the benefit. Austin v. Loring, 63 Mo. 19. (2) When
one of two innocent parties must suffer by a third, the
one who has enabled such third party to occasion the
loss ought to sustain it. Rice v. Groffmarij 56 Mo. 434.
(3) The power to sell includes the power to receive
payment. Glass had the power to sell, and, having such
power, payment to him was proper. Story on Agency,
sec. 102; Tufnley v. Corbett, 18 Cal. 494; Summer v.
Saunders J 51 Mo. 89; Brooks v. Jamison, 55 Mo. 505.
(4) A principal, who takes the proceeds of an unau-
thorized act on the part of his agent, thereby ratifies
the act and makes it his act. Davis v. Krum, 12 Mo.
App. 279.
Digitized by VjOOQIC
40 55 MISSOURI APPEAL REPORTS,
Kelly V. (Hj.
M. W. Huff and James E. Hereford, for
respondent.
(1) An agent authorized to sell goods has no
authority to take anything but money in payment.
BucJcwalter v. Craig, 55 Mo. 71; Wheeler , etc, Co. v.
Givatij 65 Mo. 89; Greenwood v. BumSy 50 Mo. 52. (2)
One authorized to sell real estate is not authorized to
receive money. Parsons on Contracts, p. 128; Stewart
V. Woods, 63 Mo. 252.
Biggs, J. — On the trial of this cause no exceptions
were saved to the action of the court in admitting or
rejecting evidence, and no instructions were asked or
given ; hence we must affirm the judgment, if it can be
sustained on any possible theory of law applicable to
the facts. Gentry v. Templeton, 47 Mo. App. 55.
The defendants are real estate agents, and the plain-
tiff brought his action to recover from them the purchase
money for certain real estate. It was alleged in the
petition that the defendants sold the property as the
agents of the plaintiff, and that they had collected the
purchase money and had refused to pay it to plaintiff.
There was evidence tending to show the following
facts: The plaintiff is a colored man. One Ben Glass,
also colored, who was unknown to the defendants, rep-
resented to them that he was William Kelly, the owner
of certain property in the city pt St. Louis, and that he
desired the defendants to find a purchaser for the prop-
erty at the price of $600. A purchaser was found, who
agreed to pay the price asked. In order to consum-
mate the fraud. Glass represented to the plaintiff that
the property had been sold for $900, and that Charles
Vogel, whom the plaintiff had employed to sell it, had
made the sale. The plaintiff, believing this to be true,
Digitized by VjOOQIC
OCTOBER TERM, 1893. 41
Kelly v. Ofty.
executed the deed and permitted Glass to take posses-
sion of it. Glass delivered it to the defendants, who in
turn delivered it to the purchaser. Some months pre-
vious to this, Glass and wife, personating Kelly and
wife, had executed and acknowledged a deed of trust
on the same property to secure the sum of $200 bor-
rowed by Glass from one Lewis. This deed of trust
was of record, and at the date of the sale the debt
secured amounted to $204. The defendants, in closing
the trade, applied the purchase money first to the dis-
charge of the incumbrance. .The commissions and
some taxes were then deducted, and for the remainder
the individual check of the defendants for $353, paya-
ble to the order of William Kelly , was delivered to Glass.
Glass forged the indorsement of plaintiff on the check,
and the bank paid to him the money. Upon the fore-
going state of facts the court, sitting as a jury, found
that the sum of $153 was due the plaintiff, for which,
with interest thereon from the date of the institution of
the suit, a judgment was entered. The defendants
alone have appealed.
It clearly appears that Glass, in the first instance,
was not authorized to employ the defendants to sell the
property. However, the plaintiff in this action has
elected to ratify this unauthorized act of Glass, thereby
concluding himself as to all acts of either Glass or the
defendants within the scope of the agency.
It may be remarked in the outstart that the fact,
that the defendants were deceived as to the true identity
of Glass, can make no difference. They were bound to
know that he was Ben Glass and not William Kelly.
With this idea kept in view the case will be relieved of
some of its apparent difficulties.
As the representative of Kelly, Glass had the right
to agree with the defendants concerning the selling price
Digitized by VjOOQIC
42 55 MISSOURI APPEAL REPORTS,
Kelly V. Gay.
of the property, and whether it should be sold for cash
or on a credit. The agency of Glass also carried with
it the right to settle with the defendants for the pur-
chase price, provided it was paid in the usual course of
business. Buckwalter v. Craig ^ 55 Mo. 71; Wheeler <&
Wilson Mfg. Co. v. Givarij 65 Mo. 89; Greenwood v.
Burns J 50 Mo. 52. Under these authorities the delivery
of the check to Glass must be considered a valid pay*
ment of a portion of the purchase money, as it is undis-
puted that the check was good, and that this was the
usual way of transacting business. The defendants are
not chargeable with the subsequent criminal act of
Glass, by which he was enabled to cash the check and
convert a portion of his principal's money to his own
use. But we do think that the defendants, in with-
holding and applying a portion of the purchase money
to the payment of the forged deed of trust, acted at their
peril. .This act of theirs was outside of the scope of
the general employment. Before applying the money
of theii* principal in any such way, they were bound to
have his authority. It is not true, as contended, that
the plaintiff admitted that he had received the money
which Glass borrowed from Lewis. A careful reading
of the record will show this to be an erroneous deduc^
tion from the plaintiff's testimony. He admitted that
he received $200, a portion of the purchase money, and in
the same connection he stated that this amount was all
that he had ever received on account of the property.
He also testified that he had no knowledge or informa-
tion of the fraudulent deed of trust when it was given,
and that he learned of it for the first time when he
called on the defendants for a settlement. There is
nothing in the record to contradict this.
We, therefore, hold that there was evidence tend-
ing to show a liability on part of defendants for the
sum of $204, the amount of the fraudulent incum-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 43
The Bremen Bank v. Umrath.
brance, and, as the judgment was for considerable less,
they have no room for complaint.
With the concuiTence of the other judges the judg-
ment will be affirmed. It is so ordered.
The Bbemen Bakk, Appellant, v. Hebmank XJmbath
et al.j Eespondents.
St. Louis Court of Appeals, November 7, 1893.
L Appointment of Special Judfire of Circuit Court tinder
Act of 1891. The act of 1891 (Session Acts, p. 113), providing for
the appointment of a special judge of a circuit court when the regular
judge is laboring under a temporary disability, applies to the circuit
court of the city of St. Louis.
55 43
I 60 102
55 43
69 48T
2. : DETERMINATION BY SPECIAL JUDGE OP MOTION FOR NEW TRIAL
OP CAUSE TRIED BEFORE THE REGULAR JUDGE. A Special judge
appointed under that act has the power to act on a motion for the
new trial of a cause tried before .the regular judge, and to sustain it
for the reason that under the circumstances he cannot dispose of it
upon its merits. A mere protest against his hearing of the motion
will, therefore, not render his action in this regard erroneous; but
whether it would have been so, had the objection been supported by
affidavits, showing a likelihood of an early return of the regular judge
to the bench, is not decided.
3. Motion for New Trial : effect, when not filed by all of the
DEPENDANTS AGAINST WHOM JUDGMENT WAS RENDERED. When all of •
the defendants against whom a judgment was rendered do not join in
a motion for new trial, and their liability is several and not
dependent upon the same conditions, as where it is against one as
the maker and others as the endorsers of a note and the former does
not join in it, it is error to sustain the motion as to all of the
defendants.
4. Pleckdings : default. The answer of one defendant to a petition
against several applies to a subsequelit amended petition, which does
not change the effect of the original petition as to him; hence his
failure under these circumstances to plead to the amended petition
does not put him in default.
Digitized by VjOOQIC
44 55 MISSOURI APPEAL REPORTS,
The Bremen Bank v. Umrath.
Appeal from the St. Louis City Circuit Court. — Hok.
John A. Harrison, Special Judge.
Reversed a*nd remanded.
Lubke & Muenchj for appellant.
(1) The act of 1891 is not applicable to the city
of St. Louis. Constitution, art. 6, sec. 27, Revised
Statutes, 1889, sees. 14, 15 and 16. State ex rel. v.
Smith, 44 Mo. 112. If one of the judges of the circuit
court of that city is incapacitated from acting, one of the
other judges of that court can sit in his place. (2) That
act did not invest the* special judge in the case at bar
with the power to act upon the motion for new trial.
Gale V. Michie, 47 Mo. 328, Allen v. Snyder, 82 Mo.
256; Meyer v. Yocum, 15 Mo. App. 579; Givens v. Van
Studdiford, 86 Mo. 150; Voullaire v. Voullaire, 45 Mo.
608. But if he had that power, his reason for granting
the new trial was insufficient. Revised Statutes, 1889,
sec. 2241; Session Acts, 1891, p. 70; State ex rel. v.
Adams, 84 Mo. 310. (3) The court erred in setting
aside the entire judgment. Umrath, the third defend-
ant, made no motion that the judgment be set aside to
him. Revised Statutes, 1889, sec. 2207; State ex rel. v.
Adams, 84 Mo. 310; Hunt v. Railroad, 89 Mo. 607.
0. B. Givens and Christian & Wind, for respond-
ents.
(1) '^A party has the sanie right to have his
motion for a new trial heard and duly considered as he
has to institute or defend an action.'' Woolfolk v.
Tate, 25 Mo. 597. As no judge but the one who pre-
sided at the trial could pass upon the issues raised by
the motion for a new trial, it was the duty of the
judge who succeeded the trial judge to set aside the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 45
The Bremen Bank y. Umrath.
verdict and order a new trial. Woolfolk v. Tate, 25 Mo.
597; Cocker V. Cocker, 56 Mo. 180; State v. Boogher, 3
Mo. App. 448. (2) When Judge Withrow announced
to the governor that he was unable by reason of illness
to discharge his duties as judge, he ceased to have
any control or authority or jurisdiction over the motion
for a new trial, and the appointment of Judge Harrison
by the, governor under the act of March 18, 1891, vested
in him all the duties as well as the powers of judge of
that court. Session Acts, 1891, p. 113 ; Lancy v. Barrett,
75 Mo. 469. (3) Although Judge Harrison might
have obtained a transcript of the evidence, that would
not have put him in a position to say whether the ver-
dict was against the evidence or the weight of evidence
The manner and appearance of the voice, gestures and
the looks of each witness are lost to him, and frequently
have a material weight with the circuit judge in deter-
mining his course. Vaughan v. Montgomery, 5 Mo.
532; Jfc4/'^e t;. %aw, 11 Mo. 365, 366. (4) None of
the other judges of the St. Louis circuit court have any
power to pass upon the motion. Voullaire v. Voullaire^
45 Mo. 607, 608. (5) The act of March 18, 1891,
applies to the city of St. Louis, and Judge Harrison
was therefore judge de jure of the circuit court. Session
Acts, 1891, p. 113; Revised Statutes, 1889, sec. 6570,
clause 19. But even admitting all that appellant
argues against the act of 1891, Judge Harrison was
judge de facto, and as such his acts were binding and
cannot be attacked collaterally, or by private indi-
viduals at all. Simpson v. McOonegal, 52 Mo. App.
540; Wilson v. Kimmel, 109 Mo. 260, and cases cited
in both.
Bond, J. — This appeal was taken from an order
granting a new trial herein made by Special Judge
Harrison for the reasons set out in the order
sustaining the same, to- wit: *^Not having heard
Digitized by VjOOQIC
^;{r:v7«p^
46 55 MISSOURI APPEAL REPORTS,
The Bremen Bank v. IJmrath.
the evidence in the case, and not being advised therein
and being unable to pass upon the merits of said
motion, it is therefore ordered by the court that the
motion for a new trial herein be sustained, and that
the judgment rendered on the sixteenth day of Jan-
uary, 1892, be set aside and for naught held and
esteemed. To the action sustaining said motion the
plaintiff then and there also duly excepted and in due
time presented this bill of exceptions, which is now
signed, sealed and ordered filed in and made a part of
the record of this cause, this fourteenth day of Jan-
uary, A. D. 1893.
^^JoHN A. Harbison,
* 'Judge.''
The motion for new trial thus disposed of had
been argued in March, 1892, before Judge Withrow, the
regular judge of the court, and taken under advisement
by him but not decided. In November, 1892, he in
writing, supported by his physician's certificate, ''did
<5ertify to the Governor of the state of Missouri that
owing to continued sickness he, the said Withrow, was
then unable to discharge the duties of his said office,
and that he expected not to be able to resume the said
duties until March or April, 1893; that thereupon the
governor did, under the act of the General Assembly
of Missouri, approved March 18, 1891, empowering the
governor to appoint special circuit judges, on December
6, 1892, appoint Hon. John A. Harrrison special
circuit judge" during the inability of the regular judge.
Under this commission Special Judge Harrison quali-
fied on December 7, 1892, and thereupon ordered the
docketing for hearing by him of all motions not dis-
posed of by Judge Withrow. Pursuant to said order
this motion for new trial was docketed . ' ' Thereupon said
Hon. John A. Harrison did call said motion for hearing,
but the plaintiff by its counsel objected to and pro-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 47
The Bremen Bank y. Umrath.
tested against said action and proposed hearing, and
did insist that said motion could properly and legally
be determined only by the said Hon. James E. With-
row: but the said Hon. John A. Harrison overruled
said protest and objection, to which action the plaintiff
then and there duly excepted. And the said Hon. John
A. Harrison, on January 4, 1893, did order that said
motion for a new trial be sustained for the ^reasons
recited in the record of said order." The judgment
was set aside as to all the defendants, although one of
the defendants, Umrath, did not join in the motion for
new trial.
The first point raised by the appellant is as to the
applicability of the act of March 18, 1891 (relating to
special judges), to the St. Louis city circuit court.
There is nothing in the language of the act (Session
Acts, 1891, p. 113) which excludes from its operation
an appointment made within its terms in the city of St.
Louis. The power of the general assembly to legislate
over the city and county of St. Louis is expressly
reserved in the constitution. Ewing v. Hohlitzellej 85
Mo. 64; Constitution of Missouri, art. 9, sees. 23 and
25. The city of St. Louis is one of the judicial circuits
of the state, (eighth judicial circuit). See Constitution
of Missouri, art. 9, sec. 24, and Revised Statutes, 1889,
sees. 3338, and 6570, clause 19.
The act of March 18, 1891, section 1, is as follows,
to-wit: *^ Whenever the judge of any circuit or crim-
inal court already elected in this state,'' etc. Section
2. *^In all circuits of this state, when a judge has been
appointed as provided in next preceding section,'' etc.
Section 3. ^^The business in the courts of some of the
counties of this state is such as to create an emer-
gency," etc. ^'Therefore this act shall take eflEect and
be in force from and after its passage."
Digitized by VjOOQIC
: w'':.
48 55 MISSOURI APPEAL REPORTS,
The Bremen Bank y. Umrath.
These provisions demonstrate that the law in
question is applicable to all the judicial circuits in the
state, and therefore embraces the circuit court of the
city of St. Louis which is by law one of the judicial
circuits of the state. Nor is this conclusion affected by
the use of the term • ^counties' ^ in the last section of
the act, since the use of this term in /general statutes
is held to embrace the city of St. Louis, unless con-
trary to their * ^evident intent,'' or ^^some law specially
applicable to such city.'' Revised Statutes, 1889,
section 6570, clause 19, supra.
We, therefore, hold that the appointment of
a special judge for the circuit court of the city of St.
Louis, as shown by the record in this case, constituted
him judge dejure during the term for which he was
commissioned, and that the objections of appellant on
this score are hypercritical and unsound.
Nor do we think there is any force in the conten-
tion of appellant, that the special judge had no power
to act on matters ''which had been tried or heard and
taken under advisement" by the regular judge. Dur-
ing the sickness of the regular judge, the special judge
was invested with full control and authority over the
business of the court where he presided. Whether or
not he erred in his rulings or judgments may be shown
in the appellate courts, but his power to act during the
interim for which he was appointed was the same as
that of a regular judge. Session Acts, 1891, p. 113,
sec. 1.
This distinction presents the controlling question
in this case. Did the special judge commit reversible
error in his ruling sustaining the motion for new trial
under the facts shown in this record! The plaintiff
claims that the action of Judge Harrison in calling up
the motion against its protest, and sustaining it not on
its merits but for causes not set out in the motion, was
Digitized by VjOOQIC
OCTOBER TERM, 1893. 49
The Bremen Bank v. Umrath.
reversible error. Had the plaintiff moved for a contin-
uance of the motion for new trial supporting his motion
for continuance with the proper affidavits touching the
probability of the speedy return of Judge Withrow to
the bench, we would be in a position to review the
propriety of Judge Harrison's action in not con-
tinuing the motion. The record, however, presents
the naked question of the power of Judge Harnson
to pass on the motion, and we are all agreed
that he had such power, and that, while the reason
assigned by him does not verbally coincide with the
rule laid down by the supreme court in Woolfolk v.
TatCy 25 Mo. 597, and Cocker v. Cocker, 56 Mo. 180,
it sufficiently appears that he was actuated by the same
motives in awarding a new trial, which under the rule
laid down in these cases should actuate a judge thus
situated.
But we are all of opinion that the judge erred in
vacating the entire judgment against all the defend-
ants. Hermann Umrath, one of the defendants, did
not appear at the trial and filed no motion for a new
trial. Against him the judgment was a finality. His
liability was not dependent on the same facts as that of
the other defendants. He was the maker of the note,
and whether the facts stated in the answer of the other
defendants were true or not was immaterial to him,
and amounted to no defense for him. Had the court
vacated the judgment as to the other defendants only,
the plaintiff might have dismissed as to them and still
retained its judgment against Umrath, because the lia-
bilty of the defendants was not joint but several.
This error of the special judge we have the power
to correct either by a proper judgment in this court, or
by reversing his ruling and remanding the cause. We
have concluded to adopt the latter course in order
that the motion for new trial may be disposed of on its
Vol. 55— 4
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
The Bremen Bank y. Umrath*.
y Judge Withrow who has since returned to
ih. By this disposition of the matter a retrial
luse (the trial of which as the record shows
)r five days) may possibly be avoided. The
it awarding a new trial is accordingly reversed,
cause remanded. All the judges concur.
ON MOTION FOB BEHEABING.
IBAUEB, P. J. — The defendants claim that the
rt did not err in setting aside the judgment as
ann Umrath, because he was in default, and
were not sworn to inquire into the damages as
but were sworn to try the issues between the
and all the defendants, as if the defendant
had also presented an issue. This claim rests
nisconception of the record. The defendant
had answered the original petition of plaintiflE
of general denial. That answer was on fil6
le cause was tried. After his answer was filed
ntifE amended its petition, but the amended
did not charge Umrath in any other capacity
e original petition did, hence there was no
f of his filing any other answer to the amended
than the one he had already filed. As long as
wer was on file and raised an issue no default
J taken against him. Cox v. CaproUj 10 Mo. 691.
) motion is overruled. All concur.
Digitized by VjOOQlC
OOTOBEB TERM, 1893. 51
56
51
60
125
flO
222
55
51
05
507
lb
5(
75
522
65 51
Bank y. Fisher.
Bank of Little Boos, Appellant, v. Chables 8.
FiSHEB et al.j Bespondents.
Bt. Louis Oourt of Appeals, November 7, 1893.
Trover: bight of aotiok bt hobtoageb. An action of trover cannot
be maintained by one who has neither the right of property in
the chattel alleged to have been oonvezted, nor the right of posses- I52i 157
sion; and neither of said rights follows from the mere fact that the
plaintifE is a mortgagee of the chattel before condition broken.
Appeal from the St. Louis City Circuit Court. — Hon.
Daniel Dillon, Judge.
Affibmed.
Harvey <& Hill for appellant.
Nathan Frank and Chas. W. Bates for respond-
ents.
EoMBAUEB, P. J. — This is an appeal from a judg-
ment rendered upon a general demurrer to plaintiff's
petition, and the only question presented for our
eonsideration is, whether the petition states facts suffi-
cient to constitute a cause of action.
Such parts of the petition as are deemed of special
importance by the parties are set out literally; other
parts are set out in substance only. The facts stated
are as follows: The defendant sold some machinery
to one, Thomas W. Baird, and delivered it to a common
carrier in St. Louis, Missouri, taking a bill of lading
therefor in the usual form. According to such bill,
the machinery was to be transported to Friars Point,
in the state of Mississippi, and was there to be deliv-
ered to Baird or to his order. Baird becoming insol-
Digitized by VjOOQIC
1
52 55 MISSOURI APPEAL REPORTS,
Bank y. Fisher.
vent, the defendants claimed the right of stoppage
in transitUy and demanded a return of said property
on June 27, 1891, from the carrier, or a connecting
carrier at Friars Point, which demand ''was not in
legal form, and void,^^ and the carrier redelivered the
property to the defendants.
Baird, who was in possession of one bill of lading,
"sold and delivered said machinery to the Friars Point
Planing Mill and Excelsior Manufacturing Company,
a corporation or company then domiciled and doing
business at Friars Point, Mississippi, and at the time
of selling the same to the last mentioned company, the
said last mentioned company, in consideration of said
sale, executed and delivered to Thomas W. Baird four
promissory notes, by which the said last mentioned
company bound and obligated itself to pay to said
Thomas W. Baird the sum of $893. As security for
the payment of said notes, it was agreed by and
between said Thomas W. Baird and the said last
mentioned company that the title should be reserved
by the said Baird until the payment of said notes to
said Baird or his assigns, but this was for the only
purpose of securing the payment of said notes.
"Afterward, to-wit, on the twenty-sixth day of
May, 1891, said Thomas W. Baird, before the maturity
of said notes or either one of them, in due course of
business, assigned said notes to this bank (the plaintiflE)
for value received, and this bank has ever since been,
and now is, the legal holder of said notes, no part of
which has been paid. At the time said Baird sold the
machinery to the last named company (the manufac-
turing company) he indorsed and delivered to said
last named company the bill of lading for said machin-
ery, which was then in the custody of the carrier, it
being intended that said bill of lading shouid be, and
the same was, a symbolical representative of the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 53
Bank t. Fisher.
machinery, and the delivery of said bill of lading was
intended to be a delivery of the machinery.''
The plaintiff demanded the machinery from the
defendants, and, upon their refusal to comply with
such demand, brings this suit for its conversion.
Had the petition simply stated that the plaintiff
was the owner and entitled to the possession of the
property in controversy, and that the defendants
wrongfully converted the same to their own use, it would
not have been subject to a demurrer. The code in
these cases requires only the statement of legal, and
not of evidential, facts. But, when the petition pur-
ports to state all the evidential facts upon which the
plaintiff's cause of action is grounded, it must state
them suflBciently to show a cause of action in the
plaintiff. A petition is fatally defective, when all the
facts stated therein, if true, will not warrant a recov-
ery. State to use v. Bacon, 24 Mo. App. 403.
We may concede, for the sake of argument only,
however, that the rule established in Lickbarrow v.
Mason, (6 East, 21; 1 Smith's Leading Cases, part 2,
*753, which is adopted in most states of the Amer-
ican union, is the law of this state. That rule is that,
where a bill of lading is delivered by the vendor to
the vendee, and the vendee assigns the same in good
faith and for value to a third party while the goods
are in transit, the vendor's right of stoppage in the
transit is gone. We may also concede, for the sake of
argument, that a person may, in the state of Mississippi,
reserve a secret lien on personal property which he
sells and delivers, and that such lien is assignable and
passes to the assignee of the notes taken by the vendor
for the purchase money. But, conceding both these
propositions, it still leaves the petition fatally defective,
because it fails to show any matured cause of action at '
the date of the institution of the suit.
Digitized by VjOOQIC
64 55 MISSOURI APPEAL EEPOETS,
Bank y. Fisher.
The question to be decided is not whether the
defendants^ right of stoppage in transitu was gone
when they attempted to exercise it, but whether the
plaintiff had a cause of action against them when he
brought this suit. Conceding that the pledge to the
plaintiff was valid, still, it does not appear by the peti-
tion that the plaintiff had either the actual or the con-
structive possession of the property at any time^ or that
it had any right to the immediate possession of the
property when it brought this suit. The constructive
possession of the property passed to the manufacturing
company when Baird delivered the bill of lading to
it, and remained in that company, notwithstanding
Baird's reservation of title. This reservation, as the
petition states, was taken as a security, and constituted
Baird a mortgagee at best. The plaintiff, as assignee
of that claim, stands in no better position than Baird.
The petition does state that the notes taken by Baird
and assigned to the plaintiff are unpaid, but it fails to
state either directly or inferentially that any part of
said debt has matured, which alone could give the
plaintiff any right to the immediate possession of the
property, even if the transaction in all other respects
was valid as against the defendants.
Now, the action of trover cannot be maintained in
this state when the plaintiff has neither the right of
property in, nor the right of possession to, the chattels
alleged to have been converted. Parker v. RodeSj 79
Mo. 88; Myers v. Hale, 17 Mo. App. 204; Deland v.
Vanstone^ 26 Mo. App. 297. . Conceding to the plaintiff
everything it claims on other points, the insuperable
objection still remains that, according to the state-
ments of its petition, it was, at best^ a mortgagee of
the property before condition broken, and, not being
as such entitled to the possession of the property, it
Digitized by VjOOQIC
OCTOBER TERM, 1893. 55
8elz y. Collina.
cannot maintain this action. Chandler v. Westj 37 Mo.
App. 631 ; Bamett v. Timberldkej 57 Mo. 499.
Therefore, without expressing any opinion on the
two first points involved in the case, we must conclude
that the absence of any averment in the petition,
showing that the plaintiff at the date of the institution
of the suit had a right to the possession of the property
in controversy, renders the petition fatally defective on
demurrer. The judgment is affirmed. All the judges
concur.
MoBBis Selz et al.j Respondents, v. T. E. Collins
etal.j Appellants.
St. Louis Court of Appeals, November 7» 1808.
L Bctnks: ksouoekob m failikq to collect dratt: law ilsd fact.
Whether eondnot amounts to negligence is a question of law, when
the facts are not in dispute and but one inference can reasonably be
drawn therefrom. This rule is applied to the failure of a bank to
either collect a draft received by it for collection, or to notify the
drawer of its nonpayment in due time.
2. — — : ; . But whether the drawer, in the case of such
negligence on the part of a bank, is entitled to a verdict for the full
amount of the draft is held under the evidence in this cause to be a
question of fact, dependent upon the probability of the collection of
the draft if the bank had used du^ diligence in pressing the drawee
for payment, or in notifying the drawer of the nonpayment of the
draft.
8. : : CTTHTTLATiVE REMEDIES. In the case of such negli-
gence, the drawer can prove his claim against the drawee under
an assignment for the benefit of creditors, made by the latter, and
collect dividends thereon, and can at the same time pursue his right
of action for the negligence of the bank; these remedies are cumula-
tive. Nor need the prosecution of his suit against the bank be de-
layed to await the outcome of the assignment.
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56 55 MISSOURI APPEAL REPORTS,
Selzv. Collins.
Appeal from the St. Louis City Circuit Court. — ^HoN*
John A, Haebison> Special Judge.
Reversed and bemakded.
Lee & Ellis for appellants.
(1) The court erred in taking the case away from
the jury. Where a prima facie case or defense has
been made, the same must be submitted to the jury,
and a peremptory instruction is error. Kenney v. Bail-
road, 80 Mo. 573-578; Carson v. Porter, 22 Mo. App.
179-184; Cannon v. Moore, 17 Mo. App. 102; Berne v.
Bailroad, 20 Mo. App. 232. (2) A bank contracts, to
use due diligence in the business of collection, and it is
only bound to use reasonable care and diligence in the
discharge of its assumed duties. In a case of doubt,
its best judgment is all the principal has a right to
require, especially if the doubt arises by reason of the
neglect of the principal to give specific instructions;
the bank will be acquitted even if its discretion be
exercised erroneously. 1 Moree on Banking [3 Ed.],
sec. 218 ; National Bank v. Merchants^ Bank, 91 U. S.
92, 104. It is not within the scope of the collecting
bank's agency to bring a suit upon paper left with it
for collection, and this rule is much stronger as to an
attachment suit and the furnishing of a bond. Crow v.
Mechanics^ Bank, 12 La. Ann. 692; Weatheral v. Bank,
1 Miles (Pa.), 399; 1 Morse on Banking, sec. 246. A
bank which is itself a creditor of a debtor, and is also
a collector for another against said debtor, has a right
to prefer itself out of the deposits in its hands as against
the party whom it represents as an agent. Freeman v.
Citizens^ National Bank, 42 N. W. Rep. 632. (3) In
this case the burden of proof was upon the plaintiffs to
show, not only the acts of neglect complained of, but
Digitized by VjOOQIC
OCTOBER TERM, 1893. 57
Selz V. Collina.
also by reason thereof that the plaintiffs had sustained
a specific loss, to wit, the amount claimed. The burden
does not shift from the plaintiffs to the defendants,
when the former has established an act of neglect, so
as to require the defendants to show that the plaintiffs
had suffered no loss tl^erefrom. Fox v. Davenport
National Bank, 73 Iowa, 649; Sahlein v. Banky 90 Tenn.
221 ; Stowe v. Bank, 2 Dev. (N. C. ) 408 ; Bruce v. Baxter ^
7 Lea, 477 ; Van Wart v. Woolly, 3 B. & C. 439 ; Allen v.
Suydan, 20 Wend. 329 ; First National Bank v. Fourth
National Bank, 77 N. Y. 320; In the matter of Cornell^
110 N. Y. 351, 360; Bank of Mobile v. Muggins, 3 ^la.
206; Hamilton v. Ounningham, 2 Brock. 350; Penn^g-
ton V. Yell, 11 Ark. 212, 219; Joy v. Morgan, 35 Minn.
184. (4) It appears that the assigned estate has not
yet been settled or wound up; that plaintiffs have
proven up their claim before the assignee; have
received dividends both before and since the institu-
tion of this suit. There is no proof or presumption that
plaintiffs will not be paid in full out of the assigned
estate, and therefore there was no evidence to go to the
jury in support of plaintiffs' second count. Hence,
the instruction that the jury should find in favor of
the defendants should have been given.
Nathan Frank and Chas. W. Bates for respond-
ents.
(1) An agent to collect a draft is liable for failure
to follow instructions, whereby loss is occasioned to the
principal. Whitney v. Eocpress Co., 104 Mass. 152.
Central Georgia Bank v. Cleveland Bank, 59 Ga. 667;
National Bank v. City Bank, 103 U. S. 668; Butts v.
Phelps, 79 Mo. 302; s. c, 90 Mo. 670. Independent
of instructions, a failure on the part of the collecting
agent to exercise ordinary diligence renders it liable for
Digitized by VjOOQIC
. MISSOURI APPEAL REPORTS,
8elz v. Collins.
Dyas V. Hanson^ 14 Mo. App. 363; City
lank V. Clinton Co. National Banky 30 N. E. Rep.
t National Bank v. Fourth National Bank, 77
; B.C., 89 N. Y. 412; Whitney v. Express Co.,
152. Independent of instructions, it is the
1 agent or bank having a draft for collection
he owner, within a reasonable time, of its non-
so that he may take such steps for the pro-
his interests as in his judgment seem proper,
liable for loss occasioned by his failure so to
idad National Bank v. Denver National Bank, 4
Allen V. JSuydan, 17 Wend. 368, 372 ; Sahlein v. '
moke, 90 Tenn. 221; 16 S. W. 373; 3Suther.
)amages, p. 25; Bank of Mobile v. Muggins^
), 212. (2) The measure of damages in this
Lses — in an action against a collecting bank —
)unt which the plaintiflE loses by the default of
ting bank, with interest. The liability of the
agent being established, the claim being
have been collectible during the time defend-
it and were guilty of breach of duty as agent,^
[Solvency of the drawee, the only party on the
Qg shown, the owner of the draft is entitled to
for the full amount of the claim, with interest
time the cause of action accrued. Dyas v.
4 Mo. App. 363; National Bank v. City Bank,
5. 668; Trinidad National Bank v. Denver
Bank, 4 Dill. 290; First National Bank v.
itional Bank, 89 N. Y. 412 ; Fahey v. Fargo^
Sup. 344; Mechem on Agency, sec. 518; 1
Negotiable Instruments, sec. 329; 3 Suther-
damages, pp. 16 to 30, and cases cited. (3>
e facts are undisputed, the liability of the col-
-nk or agent is a question of law for the court*
Sanson, 14 Mo. App. 363, 369, 370; Fahey v.
N. Y. Sup. 344; Allen v. Suydan^ 17 Wend.
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OCTOBER TERM, 1893. 59
Selz y. Collins.
368, 372; State ex rel v. Hall, 45 Mo. App. 298, 303;
Matthews v. Lothj 45 Mo. App. 455, 459; Trinidad
National Bank v. Clinton Co. National Bank, 30 N. E.
Rep. 958; Murphy v. Bailroad, 21 S. W. Rep, 862, 863;
St Nicholas Bank v. State National Bank^ 128 N. Y. 26.
RoMBAUEB, p. J. — The substantial question arising
upon this appeal is, whether the trial court erred in
directing the jury to return a verdict for the plaintiflEs
for the balance due upon a certain bill of exchange to
the plaintiffs from one Wetzel.
The petition of the plaintiflEs states the following
facts • The plaintiflEs are merchants in Chicago, Illinois,
and the defendants are bankers in Fort Benton, Mon-
tana. On the fifteenth day of October, 1883, the plain-
tiflEs sent to the defendants for collection a draft drawn
on Wetzel for $2,032.25, payable one day after sight.
The defendants undertook for a valuable consideration
to collect said draft. The draft was presented to Wetzel
by defendants, and accepted by him. On the twenty-
seventh day of October, 1883, the defendants collected
of Wetzel in part payment of said draft $1,016.13, which
amount they remitted to the plaintiflEs. The plaintiflEs
had reason to rely, and did rely, upon the defendants'
judgment, skill and care for the collection of the bal-
ance, and by the exercise of ordinary care and dili-
gence on the part of the defendants the balance of said
draft could have been collected of Wetzel. After the
defendants received said draft, Wetzel became insolvent
and so remained. The defendants knew, or by the
exercise of ordinary care might have known, of WetzePs
financial condition, but failed and neglected to use
ordinary care to secure for plaintiflEs the balance due on
said draft, whereby the same was lost to the plaintiflEs,
with the exception of $325.37 paid to them by the
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60 55 MISSOURI APPEAL REPORTS,
8elz v. Collins.
assignee of Wetzel. The petition winds up with a
prayer for judgment.
The answer of the defendants denied generally the
facts stated in plaintiffs' petition , and then states in
substance the following: It admits that the defendants
received the draft for collection with instructions that,
if Wetzel would make a reasonable payment upon it,
to hold the draft for ten days for payment of the resi-
due. They presented the ^ draft to Wetzel at its matu-
rity, obtained from him payment of one-half, and gave
him twenty days wherein to pay the residue. There-
after, on December 4, they received instructions from
the plaintiffs to urge the payment of the balance, which
they did, but Wetzel refused to pay it. Wetzel after*
wards made an assignment for the benefit of his credi-
tors, and the plaintiffs proved up their claim and
received dividends to the amount of $600. The answer
sets up the proof by the plaintiffs of their claim before
the assignee in bar of this action. The plaintiffs took
issue on the answer by reply.
The plaintiffs gave evidence tending to substantiate
the facts stated in their petition. It appeared from
the plaintiffs' own evidence that, when they sent the
draft for collection to the defendants, they stated in
their letter: ^*If he (Wetzel) will make a reasonable
payment at maturity, please make returns, and hold for
ten or twenty days for collection of balance.'' To this
letter the defendants replied: ** Yours of 15th inst. is
at hand, enclosing draft for $2,032.25 against W. S.
Wetzel. He, to-day, paid us on same one-half, and
agrees to pay balance in twenty days. We hand you
our St. Louis draft for same." October 27, 1833.
It appeared from the defendants' evidence that the
one-half of the draft, which they remitted to the plain-
tiffs, was money advanced by them for Wetzel, and
that Wetzel was at the time overdrawn in the bank of
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OCTOBER TERM, 1893. 61
Selz y. Collins.
the defendants where he kept his accounts, and con-
tinued to be so overdrawn until December 13, when he
made an assignment for the benefit of creditors. It also
appeared that, when the plaintiffs, under date of Novem-
ber 27, wrote to the defendants to urge the payment of
the balance of draft, the defendants exhibited the letter
to Wetzel, who thereupon requested them to honor his
check upon their bank for the residue of the draft,
which the defendants declined to do on the ground that
he was then overdi^awn.
It also appeared from the defendants' evidence
that, from the date of the receipt of the draft until date
of WetzePs assignment, he was constantly overdrawn
on the bank, his overdrafts varying between $567 and
$6,820, and being on the majority of days over $5,000;
also that Wetzel's indebtedness to the defendants on
other matured obligations at the date of the receipt of
the draft by them was $5,888, and increased from that
time on continually up to the date of his assignment,
when it reached the figure of $35,036. It further
appeared from the plaintiffs' evidence that, under the
laws of Montana, an attachment suit may be brought
on all matured obligations upon contracts, expressed
or implied, for the payment of money, provided the
plaintiff gives bond. It also appeared that the defend-
ants, upon being advised that Wetzel was about to
make an assignment, instituted an attachment suit
against him for $25,000, which amount they realized in
fM; that the defendants were preferred creditors in the
assignment to the amount of $6,000, and were fully
secured on the residue of $4,000 not included in the
attachment or assignment.
As to Wetzel's financial condition between the date
when defendants received the draft, and the date of the
assignment, the evidence is conflicting. He himself
states the real value of his assets as greatly in excess of
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62 55 MISSOURI APPEAL EEPOETS,
Belz y. Collins.
his liabilities, but as likely to be sacrificed by the
assignee. That he was embarrassed during the entire
interval, and in a commercial sense insolvent, under
our definition of that term in Bing v. Paint Co.., 44 Mo.
App. Ill, all the testimony concedes.
The rule, that the question of negligence is ordi-
narily a question for the jury, means that it is so when
the facts are either disputed or, if conceded, admit of
different inferences by reasonable men. The proper
conclusion to be drawn from a conceded state of facts,
admitting of but one reasonable inference, is always a
question of law, and the question of negligence is no
exception to the general rule. Boland v. Eailroady 36
Mo. 484; Callahan v. Warne, 40 Mo. 131; Bell v. Bail-
road, 72 Mo. 50; Mauerman v. Siemerts, 71 Mo. 101.
In applying this rule to negotiable paper, it has been
held that what amounts to due diligence in making
demand or giving notice of dishonor, where the facts
are conceded, is a question of law for the court. Col-
lins V. Warbmton^ 3 Mo. 202; Wilson v. Huston^ 13
Mo. 146; Linnvillev. Welchf 29 Mo. 203; Sanderson^ s
AdmWv. Beinstadler^ 31 Mo. 483; Fugitt v. Nixon, 44
Mo. 295; Dyas v. Hanson, 14 Mo. App. 363; Ma/rtinv.
GrabinsJcyj 38 Mo. App. 366. The first question, there-
fore, for us to determine is whether under the conceded
facts the court was justified in declaring as a matter of
law that the defendants were guilty of negligence in
not notifying the plaintiffs, after the expiration of
the twenty days, that the residue of the draft remained
unpaid.
The letter of introduction sent by the plaintiffs to
the defendants with the draft admits of but one inter-
pretation. It authorized the defendants to hold the
draft for twenty days after maturity for the collection
of the balance, and no longer. If, at the expiration of
the twenty days the balance of the draft was not paid,
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OCTOBER TEEM, 1893. 63
Selz y. Collins.
it became the defendants' duty to either notify the
plaintiflEs at once of that fact, or return the draft to
them. The extended time, according to defendants'
evidence, expired November 16, 1883, and the first
information given by the plaintiffs to the defendants of
the fact that the residue of the draft was not paid, was
under date of December 17, and was to the effect that
Wetzel had made an assignment, and that the defend-
ants had handed the draft of plaintiffs to an attorney.
No excuse is shown for this delay, nor can we see what
excuse could be shown. We hold that, under the con-
ceded facts, the defendants were guilty of negligence
in this matter, and that the court committed no error
in instructing the jury to find for the plaintiffs.
The next question is, whether the court was
justified in declaring, without qualification, that the
measure of the damages of the plaintiffs consisted of
the unpaid residue of the draft.
On this branch of the case the defendants maintain
that the exhibition of plaintiffs' claim to, and its allow-
ance by, WetzePs assignee bars the action against the
defendants; next, that, until the close of the assign-
ment, there can be no judgment for a definite amount
against the defendants; and, thirdly, that the question
of the extent of the loss of the plaintiffs as a natural and
probable result of the negligence of the defendants, is
a question which should have been submitted to the
jury.
The first proposition must be ruled against the
defendants, both on principle and authority. That
question goes to the plaintiffs' right of recovery, and
not to the measure of their damages. If the plaintiffs
have a cause of action against the defendants, it is no
answer to say that they have also a cause of action
against Wetzel and are pursuing it. Whatever the
plaintiffis have or may recover from the assignee is to
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64 55 MISSOURI APPEAL EEPOETS,
Selz V. Collins.
be credited to the defendants. Trinidad Bank v. Denver
Bank, 4 Dillon, 290; National Bank v. City Banky 103
U. S. 668, 672. Some cases hold, and, with reason,
we think, that, where the liability of the bank springs
from a contractual relation, it will, under the circum-
stances above shown, upon payment of the loss, be sub-
rogated to the rights of the holder of the draft. But,
whether this be so or not, we are not aware of any
decision which holds that the plaintiflE in a case of this
character is bound to exhaust his remedy against the
acceptor before he can recover substantial damages
from his negligent agent.
This brings us to the last and most serious ques-
tion in the case, namely: Assuming that the defendants
were negligent, is the question whether the plaintiffs
suffered loss by such default to the face value of the
draft a question of law or of fact?
In order to justify a recovery, as a matter of law,
for the entire amount of the draft, it was incumbent
upon the plaintiffs to show tliat the entire loss was due
to the default of the defendants, and that, but for such
default, the loss would not have happened. Allen
V. Suydany 20 Wend. 329; First National Bank v.
Fourth National Banky 77 N. Y. 320, 330. Cases may
arise where the existence of these two conditions are
shown by the evidence to be so certain that the question
resolves itself into a mere question of law; but where,
under the evidence, they are merely more or less
probable, the question must remain one of fact for the
jury under our system of judicial procedure. In this
case it was for the jury to say under the evidence
whether, if the defendants had used due diligence in
pressing Wetzel for payment of the residue, he would
probably have paid it, or whether, if defendants had
notified plaintiffs of the nonpayment, or returned the
draft on November 16, the plaintiffs could probably
Digitized by VjOOQIC
OCTOBER TERM, 1693. 65
SelzT. Collins.
have secured its paymeDt by Wetzel, notwithstanding
his insolvent condition. Had the cause been submitted
to a jury on appropriate instructions, a verdict for the
plaintiffs for the full amount of the draft, less credits
for money received from the assignee, would have been
well supported by the evidence.
The cases cited by plaintiffs in opposition to this
view are not in point. In Whitney v. Express Co.j 104
Mass. 152, the agent neglected to present a draft for
payment, although, as the case finds, the drawees •
were ready to pay it. The drawees became insolvent
before demand. It does not appear on what instruc-
tions the case was submitted to the jury, but the plain-
tiffs secured a verdict for the full amount in the trial
court, and the supreme court simply held that the loss
was wholly due to defendant's neglect and must be borne
by them. The case of Trinidad Bank v. Denver Bank^
4 Dillon, 290, was one of the failure to present a draft
for payment, and it was conceded that the draft would
have been paidy if presented in time. It was not presented,
and the drawee failed. Judge Dillon held that the
measure of damages was the amount of the draft. In
Dyas V. Hanson^ 14 Mo. App. 363, the question was
submitted to the jury, in appropriate instructions,
whether the draft could not be collecfted in consequence
of a failure to present it within a reasonable tiine. The
only case which seems to have any bearing is Fahy v.
FargOj 17 N. Y. Sup. 344, where the court held that,
where it is reasonably probable thsA the draft would have
been paid if defendant had done his duty, he is prima
facie liable for the whole amount of the draft. In that
case the referee found an absence of a reasonable prob-
ability, and his finding was reversed by the supreme
court; but whether the reversal was had because the
court found that the referee erred in his finding of facts,
or in his findings of law, does not clearly appear.
Vol. 55—5
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66 55 MISSOURI APPEAL REPORTS,.
— ^ — ■ ^i
State ex rel. Eerr y. Sheehan.
We must conclude that the last proposition above
stated should have been submitted to the jury, and
that, in taking it away from them by a peremptory
instruction, the court committed error prejudicial to
the defendants.
The judgment is reversed and the cause remanded.
All the judges concur.
State ex rel. J. W. Ejjrr, Respondent, v. Patrick
I Sheehan, Appellant.
I St. Louis Court of Appeals, November 7, 1893.
Justices* Courts: setting aside default: computation of time.
If the ten days, allowed t)y statue for the filing of a motion to
set aside a Judgment by default in a justice court, should expire on a
JSunday, the motion must be filed before that day.
Appeal from the St. Louis City Circuit Court. — Hon.
Daniel D. Fisher, Judge.
Affirmed.
LubJce (& Muench and Geo. W. Jjuhke^ Jr.y for
appellant.
A judgment by default rendered by a justice of the
peace may be set aside by him, provided -application
therefor be made within ten days after the rendition of
the judgment. Revised Statutes, 1889, sec. 6237. In
the computation of the time during which an act may
be done, the first day is excluded and the last day in-
cluded. If the last day be Sunday, it is also excluded
or omitted in the computation. The tenth day for
doing an act after a given Thursday is the second Mon-
day thereafter. Gribbon v. Freel, 93 N. Y. 93;
Revised Statutes 1889, sec. 6570 (vol. 11, p. 1541);
Dorsey v. Pike^ 46 Hun, 112 ; Porter v. Hercej 43 Hun,
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OCTOBER TERM, 1893. 67
State ex rel. Kerr v. Sheehan.
11; Gagev. Davis, 129 111. 236; Muir v. Galloway, 61
Cal. 498; Carothers v. Wheeler, 1 Ore. 194; Spencer v.
Haiig, 45 Minn. 231; Johnson v. Merritt, 52 N. W.
Bep. 863.
Henry B. Davis and W. TV. Cohick for respondent.
In computation the first day is to be excluded and
the last day included; but, if the last day fall on Sun-
day, it, too, shall be excluded, showing that the act then
must be performed on the previous Saturday. Patrick
V. Faulke, 65 Mo. 312-314, and cases there cited.
Biggs, J. — The defendant is one of the justices of
the jHjace of the city of St. Louis. On the nineteenth
day of January, 1893, he entered a judgment by default
in a cause then pending before him, in which the relator
was plaintiff and the St. Louis car company was the
defendant. On the thirtieth day of the same month
the defendant in that action filed a motion to set aside
the judgment, which motion the defendant justice sus-
tained. The present action was begun in the circuit
court by a petition for mandamus upon appellant to
show cause why the said order setting aside the judg-
ment should not be annulled. The ground of the com-
plaint was that the motion was not filed within ten days
after the rendition of the judgment. The defendant,
in his return, admitted the facts, but justified his action
on the ground that the tenth calendar day after the
judgment was entered was Sunday, and that, under a
proper construction of the statute concerning the com-
putation of time, when the last day for doing the act
falls on Sunday, the act may be done on the following
Monday. The court sustained a demurrer to the return,
and, the defendant refusing to plead further, the order
setting aside the judgment against the car wheel com-
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68. 55 MISSOURI APPEAL REPORTS,
, ■ . - ».
State ex rel. Kerr t. Sheehan.
pauy was anDnlled and for nangbt held, aQd the costs
of the present proceeding ordered to be taxed against
the defendanj;. From that judgment the defendant
has appealed.
The statute (section 6237, Revised Statutes, 1889)
provides: **Every justice of the peace shall have
power, on the application of the party aggrieved, or his
agent, and for good cause shown, to set aside the judg-
ment of nonsuit and by default above directed, upon
the payment of all costs then accrued. Every such
application shall be made mthin ten daySj or twenty
days if the party be a nonresident of the state, after
the rendering of the judgment,'' etc.
Was the defendant's return good as a matter of
lawt The inquiry involves the construction of the
fourth clause of section 6570 of the Revised Statutes of
1889, promulgating additional rules for the construc-
tion of statutes, which clause reads : *'The time within
which an act is to be done shall be computed by exclud-
ing the first day and including the last, if the last day
he Sunday it shall he excluded. ^^
In the case of Patrick v. Faulke, 45 Mo. 312, the
supreme court with some hesitation held that, when the
last day within which a statute prescribed that an act
should be done fell on Sunday, such act must be per-
formed on the previous Saturday. It is argued that
this decision is not controlling authority in the present
action, because the supreme court had under consider-
tion the mechanics' lien act, which at that time was
construed strictly. It was said in the opinion in that
case that, although the mechanics' lien law was highly
favored, yet it gave extraordinary rights to the mechanic
or material man, and that, for a party to avail himself
of its advantages, he must bring himself strictly within
its terms. So, in this case, the ten days allowed for
filing a motion to set aside a judgment of nonsuit or
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 69
White V. Lowenbefg.
default are days of grace merely, and the party who
seeks the privilege which the law thus affords must
bring himself within the strict letter of the act.
Holding, as we do, that the decision of the supreme
court in the Patrick case is applicable to and decisive of
this case, we must afSrm the judgment. All the judges
concur.
Hugh White, Respondent, v. Isaac Lowbnbbbo,
Appellant. 1 55
KftTiflftft City Court of Appeals, November 20, 1898.
1. Instruction: witness swsaring falselt: material faot. An
instruotion telling the jury if they believe any witness has willfally
sworn falsely they are at liberty to disregard the whole of his testi-
mony, is fatally faulty in not confining the false swearing to a material
faot.
2. : : DISCRETION OP COURT. Instmotions calling atten-
tion to the veracity of witnesses are not favored by the courts, and
the propriety and necessity is left largely with the discretion of the
trial courts, and when given they should be drawn so as to confine
their application to material facts.
Appeal from the Buchanan Circuit Court. — Hon. Henbt
M. Ramey, Judge.
Bevebsed akd bemanded.
Byan d McDonald for appellant.
The court erred in giving plaintiff's first instruc-
tions as to credibility of witnesses. This class of instruc-
tions is never proper in such cases as the one at bar.
The fnost that could be said in reference to the testi-
mony of defendant Lowehberg, against whom the force
of said instruction was directed, was that it was in con-
tradiction to that of another witness, who was an attor-
57
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70 55 MISSOUEI APPEAL REPOETS,
White V. liowenberg.
ney for plaintiflE. Our courts have said that such
instructions ought not to be given in such cases. State
V. Gushing, 29 Mo. 217; State v. Stone, 31 Mo. 406;
Bank v. Murdoch <& Armstrong , 62 Mo. 74; White v.
Maxcy, 64 Mo. 559. Even though such instructions
could be considered as proper in this case, yet the
instruction as given is fatally defective in failing to
state that the jury in order to disregard a witness' tes-
timony must believe ''that he willfully swore falsely to
a material fact in the case.''
Charles F. Strop for respondent.
The case was fairly presented to the jury, but if
there ii^ any error in the record upon a view of the
whole case, it is manifest that the judgment is for the
right party and it should not be reversed, even though
error may have intervene^. Bassett v. Olover, 31 Mo.
App. 150 ; State to use v. Benedict, 51 Mo. App. 651.
Ellison, J. — This action is on an account for work
and labor in building a wall. Plaintiff recovered, and
defendant appealed. There was contradictory testi-
mony at the trial— each party having evidence tending
to support their respective contentions. The court gave,
at the instance of plaintiff, the following instruction to
the jury: ''The court instructs the jury that they are
the sole judges of the weight of the evidence and the
credibility of the witnesses, and if they believe that any
witness has willfully sworn falsely, they are at liberty to
disregard the whole of his testimony."
It will be noticed that this instruction fails to limit
the false testimony to any substantial or material fact
in the case. It authorizes the jury to disregard the
entire testimony of any witness whom they may believe
has sworn falsely as to any statement he may have
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OCTOBER TERM, 1893. 71
Steckman v. Harbor.
made, whether it may be some matter properly in the
ease and affecting its decision, or some matter which
may have been inadvertently or improperly drawn out.
Instructions of this nature are not looked upon
with much favor by the courts {Iron Mountain Bank v.
Murdoch J 62 Mo. 74), yet their propriety or necessity in
the given case is left largely with the discretion of the
trial court. White v. Maxcy, 64 Mo. 559; State v.
Hicham, 95 Mo. 332. But, when asked in cases where
the court deems it proper to give them at all, they
should not be drawn so as to suggest to the jury that
they might disregard the entire testimony of a witness
who had sworn falsely as to some trivial matter, pos-
sibly disconnected from the case. The instruction as
given in this case is so wide a departure from the form
in which such instructions have been approved that we
feel constrained to disapprove it.
Of the remaining objections it is sufficient to say,
after a careful examination, that we think there was
evidence sufficient to support the verdict. Nor do we
approve of the view presented by the appellant as to
the other instructions. The court's action as to them
we believe to be connect.
For the error mentioned, the judgment will be
reversed and the cause remanded. All concur.
E. H. Steckman, Appellant, v. E. M. Habbeb et al..
Respondents.
KanBUB City Court of Appeals, November 20« 1893.
1. Bquity: MAxni: conduct op plaintiff. The maxim, ''He who
seeks equity, must do equity/' applied to the facts of this case and
the oonduet of plaintiff in concealing a trustee's sale from the
defendants to get even with one of them on account of another trade,
results in the affirmance of a decree requiring the plaintiff to convey
certain land to the defendants before he can have judgment against
them on certain notes.
Digitized by VjOOQIC
72 55 MISSOURI APPEAL REPORTS,
Steekman ▼. Harber.
2. Deposition : not signed bt witness^ waiver. Where the signing
of a deposition is waived at the close of the finding, this is suffleient
to authorize its use at the trial.
Appeal from the Qrwndy Circuit Court. — ^Hon. Q-. D,
BuBQESS, Judge.
Affirmed.
Geo. Hall for appellant.
(1) There was no finding to Support the judgment
of the court. While the trial court was not bound to
state separately its findings of the facts, it was required
to state its findings generally, and having failed so to
do the judgment is erroneous. Revised Statutes, 1889,
sec. 2135; Jordan v. BuschmeyeTy 97 Mo. 94. (2) The
instrument read in evidence purporting to be the
deposition of Fred. G. Grantham was not signed by
him, as required by section 4455 of Revised Statutes,
1889, and was inadmissible and incompetent as evi-
dence; and the statement in the notary's certificate
that the parties waived the signing of the same does
not cure the defect. (3) Defendants were not partners
of plaintiff, nor did their relations entitle defendants to
notice of the foreclosure of the Q-rantham deed of trust,
nor to a conveyance of the land to them on payment
of the notes held as ordered by the court. Hedges^
Batterton i& Co. v. Wsar, 28 Mo. App. 575. The
defendants had, by their indorsement on the back of
the notes, waived notice and demand, and had guaran-
teed payment, and were not entitled to notice of any
proceedings against Grantham or his property. Mfg.
Co. V. Hester^ 71 Mo. 91; Koenig v. Bramlett^ 20 Mo.
App. 636; Osbom (& Co. v. Lawson^ 26 Mo. App. 549.
(4) Neither the allegations in defendants' answer nor
the evidence entitle the defendants to the relief granted,
and the court should have given the first instruction
asked by plaintiff. (5) The agreement in regard to the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 73
Steckman v. Harber.
release of the Lewis deed of trust on the land sold to
G-rantham, the execution of the notes and deed of
trust by Grantham to defendants and the transfer of
the same to Lewis is all in writing, and any evidence as
to any contemporaneous parol agreement about the
notes to Lewis running, and about defendants being
notified when Lewis wanted his money is all irrelevant
and incompetent. State ex rel. Yeoman v. HoshaWy
98 Mo. 358; Pearson v. Carson j 69 Mo. 550; Traq/ v.
Iron Works, 29 Mo. App. 342. (6) As plaintiflE was
not a party to the agreement between Lewis, Gates, his
attorney, Grantham and defendants about letting
Grantham's notes and the Lewis notes run at interest
and was not interested in the same only so far as his land
was holden as security for the same, he was not bound by
any such agreement. And if he had been a party to
such agreement it was not founded on a sufficient con-
sideration. McGlothlin v. Hemry, 59 Mo. 214 Gamier v.
Papin, 30 Mo. 246; Bircher v. Payne, 7 Mo. 462; Price
V. Cannon J 3 Mo. 453. (7) Lewis had the right to
iissign the two Grantham notes, sued on, to plaintiflE and
Howsman, and they were entitled to them by subroga-
tion when they paid the two notes for which they
were held as collateral security and for which plaintiff
and Howsman's lands were held. Allen v. Bermott,
9Q Mo. 56; Orrich v. Burham, 79 Mo. 174; Wolf v.
Walters, 56 Mo. 292; Brotvn v. Kirk, 20 Mo. App.
524. Lewis was the owner of the notes sued on and
had the right to sell them. Beecher v. Buckhom, 44
Am. Dec. 580; Chandler v. Stevenson, 68 Mo. 450;
1 Parsons on Bills and Notes, 157.
Harber d Knight for respondent.
(1) The plaintiff's petition is a straight petition at
law; The defendants showed equally as complete a
Digitized by VjOOQIC
74 55 MISSOURI APPEAL REPORTS,
Steckman v. Harber.
defense at law, and these being the admitted facts, the*
plaintiff could not recover at law. Fumold v. Banky.
44 Mo. 340; Hull v. Sherwood^ 59 Mo. 174; Bushong v^
Taylor y 82 Mo. 660; Roberts v. Barlett, 26 Mo. App.
611-617 (directly in point). (2) The plaintiff then
abandons his law petition, and seeks the aid of eqnitjr
(which he must do) by invoking the equitable doctrine^
of subrogation, or as it is called, cession, marshaling
of assets, or contribution. If he recovers at all, he^
must recover in equity, and by the aid of equity, and
his whole case is in equity, and henceforward he must
address himself to its rules and doctrines; and how
can he recover or hope to have any standing in a court
of equity, when every one of its rules, and every one-
of its principals of natural justice, which time has
crystallized into maxim's meet him at the threshold and
scowl at his case. ^'He who seeks equity, must do
equity.^' Creed v. Scraggs^ lB.etsk. 590: Whelanv.
Bdllyy 61 Mo. 569, 570; Story's Equity Jurisprudence^
sec. 64, notp 2 ; Henson v. Keating j 4 Hare, 1 ; Neeson
V. Clarksofiy Id. 97; PhiUips v. Phillips, 50 Mo. 603;
Erwin v. Blake d Pet, 18; Story's Equity Jurispru-
dence, sec. 64, and cases cited; 1 Pomeroy on Equity^
Jurisprudence, 422; Finch v. Finch, 10 Ohio St.
501-508; American and English Encyclopedia of Law,
vol. 6, p. 707, title 5, note 2. In one breath he asks to be*
subrogated to his securities, and in the next, when
offered all he has paid, refuses Harber and Carnes the
right to be subrogated to their securities. This he
cannot do. For his prayer is addressed to *'a court of
conscience, to a court that touches nothing that is^
impure." **He who comes into equity must do so with
clean hands," or as otherwise expressed, *'He that hath
committed iniquity sht^l not have equity." American
and Encyclopedia of Law, vol. 6, p. 708, note 2;
Creath v. Sims, 5 How. (U. S.^, 192; Daniels J.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 75
Steckman v. Harber.
Francis, Maxims [1 Am. Ed.], 7. To mfx up the
language of the doctor's letter with that of a great
jurist we would have something like the following:
**The condign and appropriate answer to such a prayer
from such a tribunal, is this, that you have speculated
^quite enough' upon your cosureties, 'already,'''
Supreme court of the United States; 1 Pomeroy,
Equity Jurisprudence, 435-443, and notes; Bispham's
Equity [4 Ed.], 60-62, and notes. (3) The civilians
had another maxim which our English ''Shylocks"
have been meeting face to face for more than seven
hundred years, which is this : * 'Equality is equity ; ' ' or,
as otherwise expressed, ''equity delighteth in equality."
American and English Encyclopedia of Law, vol. 6,
p. 707, note 1; Lake v. Gibson^ 1 L. C. Eq. 177;
Bispham's Equity [4 Ed.], 60; 1 White & Tudor's
L. C. Eq., 105, note. See, also, 1 Story's Equity Juris-
prudence, sec. 64// Rice v. Morton^ 19 Mo. 281, 282;
Lawrence v. Blow, 2 Leigh. 30; HoWs AdmW v. Ores-
wellj 72 Gill & Johnson, 37, 52 ; Furnold v. Bmkj 44 Mo.
338; Hickman <& Pearson v. McCurdyy 7 J. J. Marshall,
560, 561, 562 ; "A surety stands in such a relation to his
principal'' said Rogers, J., "that he cannot be per-
mitted to speculate upon him." And the rule is the
same in relation to contribution between cosureties."
Wynne AdmWs v. Brooke^ 5 Rawle, 106, 110; Hickman v.
McCurdy, 7 J. J. Marshall, 555-560; 1 Hare & Wal-
lace's L. C. Eq., 154, note; McCormicWs AdmWs v.
Aharmon^s Ex. Devisees y 3 Munford, 484, 487; Daniel
V. Ballard^ 2 Dana, 296, 297; Morrison v. PoyntZj 7
Dana, 307; Bmny v. Yarboroughy 2 Ired. on Eq. 249-
251; Allen v. Wood, 3 Id. 386-388; Farr v. Ravenscrafty
12 Gratt. 642; Edgerly v. Emerson^ 3 Foster, 355;
Bank v. Robertson^ 19 Ala. 98; 1 Hare & Wallace's L.
C. Eq., 156; Mason v. Lord, 20 Pick. 447, 449; Fletcher
V. Grover, 11 N. H. 369; 1 Hare & Wallace's, L. C.
Digitized by VjOOQIC
76 55 MISSOURI APPEAL REPORTS,
Steokmftn v. Harber.
Eq., 168; American and English Encyclopedia of Law,
vol. 6, p. 712, division 11; Bispham's Eq., sec. 37;
Bispham^s Eq., sec. 47; Mfg, Co. v. Worstefj 23 N.
H. 462; Penn v. Lord Baltimore^ 1 Ves. 444; 2 L. C.
Eq., 767; Midler v. DowSy 4 Otto. 444; McGregor v.
McGregor y 9 Iowa, 65; American and English Ency-
clopedia of Law, vol. 6. pp. 712, 713; 1 Pomeroy
on Equity Jurisprudence, 468; Roper v. Roper y 3 Tenn.
Ch. 53; Parkes v. Parkes^ 3 Tenn. Oh. 687; Vaughan
V. Barclay, 6 Whart. (Pa.), 392; DeKlynv. Wathns^
3 Sandf. Ch. (N. Y.), 185. (4) '^A purchaser, either
at a judicial sale or under a deed of trust, who is
guilty of any fraud, trick, or device, the object of
which is to obtain the property at less than its value,
and succeeds in doing so, will not be permitted to
enjoy the fruits of his purchase.'' Reiser v. Gammon y
95 Mo. 217. **And the person who has gained an
advantage by means of such fraudulent act, will be
converted into a trustee for those who have been
injured thereby.'' McNew v. Booth, 42 Mo. 189.
*^8uch cases go upon the ground of fraud, and courts
will give relief without regard to the circumstances,
whether the agreement was a written or a verbal one ;
or whether it was supported by a consideration or
not." Sloivry v. McMurry, 27 Mo. 119; Rose v. Bates y
12 Mo. 30; Dramschroeder v. Thiasy 51 Mo. 100; Baier
V. Berberichy 6 Mo. App. 537, 540; Grumley v. Webby
44 Mo. 444; Peacock^ s AdmWv. ^ckow, 50 Mo. 261 ;
Turner v. Johnson, 95 Mo. 431 ; 0^ Fallon v. Cloptony
89 Mo. 284, 290; Rogers v. Rogers, 87 Mo. 257, 260;
Digby v. Jones, 67 Mo. 104, 109; McNees v. Swansy, 50
Mo. 588; 37 Cent. L. J. 755.
Ellison, J. — This action was originally instituted
>as an action at law against the defendants on which
judgment was asked against them on two promissory
notes executed to them by one Grantham, and by them
Digitized by VjOOQIC
OCTOBER TERM, 1893. 77
Steekman v. Harber.
indorsed (and payment guaranteed) to 0. H. Lewis.
Lewis transferred the notes to plaintiflE and Howsman,
and Howsman thereafter sold his interest in the notes to
plaintiflE. The defendant Carnes had purchased a tractof
land subject to the incumbrance of two deeds of
trust, the payment of which he assumed. Carnes
retained one-fifth interest in the land for himself, and
sold to defendant Harber one-fifth, to plaintiflE one-
fifth, and to Howsman two-fiif ths ; each of these parties
assuming the proportion of the incumbrances that their
portion of the land bore to the whole amount.
Defendant's answer and plaintiflE's reply disclosed
the following state of facts as stated by one of the plain-
tiflE's declarations given by the trial court: **It is further
admitted by the pleadings that the defendant, Carnes,
became the purchaser of the land described in defend-
ant's answer, May 7, 1887, at which time it was incum-
bered by two deeds of trust given to secure two notes,
one for $2,250 and interest, the other for $1,200 and
interest, both held by 0. H. Lewis, which said defend-
ant. Games, assumed and agreed to pay as part of the
purchase money. That said defendant afterwards sold
defendant Harber one undivided fifth of said land^
plaintiflE one undivided fiifth of said land, and Wm.
Howsman the undivided two-fifths of said land, all
subject to said indebtedness, plaintiflE and defendant
Harber each assuming and agreeing to pay the undi-
vided one-fifth, and said Howsman the undivided two-
fifths of said indebtedness as part of their respective
purchase prices for their parts of said lands. That
said parties afterwards divided said land, one-fifth of
which was set oflE and deeded to plaintiflE subject to
said incumbrance, one-fifth of which plaintiflE assumed
and agreed to pay. Two-fifths of said land was set oflf
and deeded to said Howsman subject to said incum-
brance, two-fifths of which he assumed and agreed to
Digitized by VjOOQIC
78 55 MISSOUEI APPEAL REPORTS,
Steokman ▼. Harbor.
pay, and two-fifths of said land was set oflE to defend-
ants, subject to said incumbrance, two-fifths of which
(or one-Mth each) defendants assumed and agreed to
pay. That defendants afterwards sold their part of
said land to Fred. G. Grantham, and by agreement of
all of said parties and said Lewis, said Lewis released
said defendant's portion of said land from said two
deeds of trust and in consideration of which said
Grantham executed to defendants the two notes sued
on secured by deed of trust on said part of said land
purchased of defendants, which notes defendants
assigned as collateral security to said Lewis to be
collected and applied on defendant's portions of said
$2,250 note and $1,200 note when they become due,
which defendants had assumed and agreed to pay." It
further appears that plaintiff paid to Lewis the two
original notes, and thereby had assigned to him the two
notes in suit which were held as collateral.
Plaintiff, by his reply, seeks to be subrogated to
the rights of Lewis in the notes in suit, and the ques-
tion is, has he shown himself entitled to the aid of a
court of equity in this respect, under the facts as devel-
oped at the trial. The notes in suit were, as shown,
secured by a deed of trust on the two-fifths interest in
the land set apart to the defendants. E. P. Gates,
Esq., an attorney, practicing law at Kansas City, Jack-
son county, Missouri, who had charge of Lewis' legal
business, was trustee in this deed of trust. The trust
deed provided that in case of sale thereunder the
notice should be published in Jackson county, and
the sale should take place at Independence, the county
seat. Plaintiff and defendants reside at Trenton, Mis-
souri, a distance of, perhaps, one hundred miles from
Kansas City or Independence. They were at this time
friends, and saw each other almost daily. The great
preponderance of the evidence shows that Lewis held
Digitized by VjOOQIC
OCTOBER TERM, 1893. 79
Steokman v. Harber.
the notes as an investment for the interest thereon;
and that it was agreed between Lewis and all the parties
to this transaction including plaintiff, that he, Lewis,
would not proceed to collect the money when it became
due without first giving them notice. (I do not refer
to this understanding as a binding agreement at law,
but rather as it may affect plaintiff's statm in seeking
relief at the hands of a court of equity.) Plaintiff
directed Mr. Gates, the trustee, to advertise and sell the
land; which he did, plaintiff becoming the purchaser.
Defendants knew nothing of the sale, or that one
had been ordered, and were thereby deprived of the
opportunity of protecting themselves. Plaintiff knew
that defendants were solvent, and that the njoney could
have been made off of them without resorting to the
land, yet he did not demand payment of them or notify
them of the intended sale, notwithstanding he was
meeting them in Trenton almost daily. He concedes
in his testimony that it was his desire to get the land.
Plaintiff impressed Mr. Gates, so that gentleman testi-
fied, that in directing a sale he was acting for all the
parties in interest, including these defendants, and, by
reason of such impression, Mr. Gates did not notify
defendants of the sale by sending them a copy of the
advertisement, as he would otherwise have done. It
does not appear that defendants knew that plaintiff
had paid off the original incumbrance to Lewis and
received from him an assignment of the notes in suit.
On the contrary, it was shown that they would have
paid the amount represented by these notes (being
their portion on the original incumbrance) on demand,
and 'that immediately upon learning of the sale they
tendered to plaintiff their portion of the $2,250, for
which the note for $900 was collateral, together with all
his expenses. Defendants also, when plaintiff had
gotten from Lewis the note of $600, which was col-
Digitized by VjOOQIC
Vfi^
80 55 MISSOUEI APPEAL REPORTS,
Steokman v. Harber.
, , ^ _-_
lateral for their share of the $1,200 note, offered to
pay it and the amount due from them on the $900, and
all his expenses. These offers were refused.
The trial court entered a decree in substance that
if plaintiff would make a deed to defendants of the
lands purchased by him at the sale under the deed of
trust, within thirty days, that judgment should be
entered for him, plaintiff, for $1,540.73, being the
amount due him on the notes including interest, taxes
and costs of sale. This we consider an equitable
adjustment of the entire transaction as it appears in the
record, and we shall order its affirmance.
By reference to authorities cited by counsel those
principles of equity, which have found expression in a
variety of maxims, will be found: *'He who seeks
equity, must do equity,'^ that is, he will only be allowed
to obtain equity upon equitable terms or conditions
which will be imposed by the chancellor. Now, in this
case the evidence preponderates in favor of the con-
tention that it was understood and agreed, between all
the parties to the land purchase, that Lewis preferred
that the notes continue at interest after maturity, and
when he wanted the money on them he would notify
the parties. Plaintiff, being a party to this understand-
ing, of course knew of it when he obtained the notes
from Lewis. He knew that the parties lived a long
distance from the place of sale and were not likely to
see an advertisement of sale m the papers. Notwith-
standing this, and the fact that he was on friendly
terms and in daily contact with defendants, boarding
at the same hotel with one of them, and knew that
they were pecuniarily responsible for the amount
represented by the notes, he never mentioned the
matter to them. We must conclude that his keeping
his actions and intentions secret from defendants was
for a purpose not equitable or just to them, and such
Digitized by VjOOQIC
OCTOBER TERM, 1893. 81
Nichols V. Bank.
was the result. Indeed plaintiff does not deny but
that his object was **to get even'^ with defendant
Games on account of ''another trade, '^ with which, of
course, we have nothing to do.
2. Objection is made to a deposition taken by
plaintiff, but used and admitted for defendants for the
reason that it was not signed by the deponent. Sign-
ing was waived by the parties at the close of the taking,
and this we regard as sufficient to authorize the use of
the deposition. It has now become a practice in many
places to take depositions with the aid of a steno-
grapher; it sometimes being inconvenient for the
witness to wait until the stenographic notes are trans-
cribed, his signature is waived by the parties and so
certified by the notary.
We have given attention to the line of argument
offered in plaintiff's behalf, and do not take issue with
many of the legal propositions asserted, though we
think them not applicable in behalf of a party himself
seeking equitable relief under the circumstances sur-
rounding these parties as shown by the record. The
formal objections taken to the decree in the cause are
not deemed sufficient to justify a reversal.
The judgment will be affirmed. All concur.
Albert 0. JTiohols, Respondent, v. Commeeoial Bank | g ^i
OF Burlington Junction, Appellant. "^^
im 311
Kansas City Court of Appeals, November 20; 1893.
1. Action: petition: ex contractu. The petition charged the breach
of a parol promise to pay a check and that plaintiff was induced
thereby to sell certain cattle to L. and receive in payment said check,
which defendant refused to pay to plaintiff's damage, etc. Held,
the action was ex contractu, since there is no allegation of fraud or
deceit.
Vol. 55—6
Digitized by VjOOQIC
82 55 MISSOURI APPEAL REPORTS,
Nichols v. Bank.
2. Frauds and Perjuries: orioinal pbqmipe: collateral prom-
ise: ESTOPPEL. The evidence in this case is reviewed and it is
held:
(1) That the representations of defendant's cashier did not con-
stitute an unconditional promise, but a mere expression of
opinion.
(2) Nor were they an original promise that would bind the defend-
ant.
(3) But if such representation amounted to a promise at all, it was
in its nature collateral and within the statute of frauds.
(4) That the check in question was an inland bill of exchange and
a promise to accept it must be in writing.
(5) That plaintifiTs case did not come within the provisions of sec-
tion 723, Revised Statutes, 1889.
(6) That the words and conduct of defendant's cashier could not
operate as an estoppel in pais, as one cannot invoke the doctrine
of estoppel to validate a promise which the statute declares
absolutely void.
Appeal from the Nodaway Circuit Court. — Hon. Cyrus
A. Anthony, Judge.
Reversed.
William C. Ellison for appelant.
(1) All of the statements of the assistant cashier
were verbal, and, therefore, created no binding obliga-
tion on the bank to pay the check. A promise to
accept or pay a check, as in the case of bills of
exchange, must be in writing. Bank v. Banky 30 Mo.
App. 271; Bisley V. Banky 83 N. Y. 318; Walton v.
MandevillCy 56 Iowa, 597; Randolph on Commercial
Paper, vol. 1, sec. 80, says a postdated check is, to all
intents and purposes, a bill of exchange. To the same
effect see Id. vol. 2, sec. 568,648; Daniel on Negotiable
Instruments, vol. 2, sec. 1607; Tiedeman on Commer-
cial Paper, sec. 437; Bank v. Carter y 88 Tenn. 279,
Revised Statutes of 1889, vol. 1, sees. 719, 720; Flato
Digitized by VjOOQIC
OCTOBEB TERM, 1893. 83
Nichols V. Bank.
V. Mulhally 72 Mo. 522; s. c, 41 Mo. App. 476; Lee v.
Porter, 18 Mo. App. 377; Walton v. Mandeville et al. (9
N. W. 913), 56 Iowa, 597. (2) AssumiDg that the
assistant cashier's agreement in relation to the check,
created no obligation which could be enforced against
the bank, because void under the statute of frauds, I think
it clearly follows that no action in tort, founded on a
breach of the agreement, can be sustained. To do so,
would be a greater fraud upon the law than is -com-
plained of in this case as having been practiced upon
the plaintiflE. It cannot be said to be fraudulent to
refuse to perform an agreement which one is under no
legal obligation to perform. Dang v. Parker, 52 N. Y.
494; Winston V. Young, 53 N. W. Rep. (Minn.) 1015;
Lydickv. Holland, 83 Mo. 703; Bernhart v. Walls, 29
Mo. App. 206.
W. W. Ramsay and T. J. Johnston for respond-
ent.
(1) The cashier of a bank is the agent of the bank
and the chief manager of its banking business ; in short,
he is its executive in performing all the offices or func-
tions of its organization and committed by its charter
to the directory. Bissel v. Bank, 69 Pa. St. 415; Bank
V, Bank, 1 Parson's Select Cases, 180; Everett v.
United States, 6 Porter (Ala.) 166; s. c, 30 Am. Dec.
584; Corser v. Paul, 41 N. H. 24; s. c. 77 Am. Dec.
753, and note, 759 et seq.; Ex parte Winson, 3 Stony,
411. And a bank is bound by the declarations of its
cashier made within the scope of his authority ; Bank v.
Haskell, 51 N.H. 116; s. c, 12 Am. Rep. 67. It is not
essential to the validity of the act of the cashier that it
should be done at the bank or within banking hours.
Bissell V. Bank, supra; Bank v. Bank, 10 Wall. U. S.
604; Houghton v. Bank^ 26 Wis. 663; s. c, 7 Am. Rep,
Digitized by VjOOQIC
84 55 MISSOURI APPEAL REPORTS,
Nichols V. Bank.
at pp. 110, 111. (2) The defendant is estopped to
deny its liability to the plaintiff for the damages result-
ing to him, by its conduct in inducing him to part with
his cattle to one whom it knew to be insolvent at the
time, by promising payment for his cattle if he would
present Logan's check for them. This is not a case
where defendant, through its agent, promised to honor
or pay Logan's check already drawn, or to Ije drawn,
for a past consideration, as for cattle already sold — not
that; but a promise and statement that induced the
plaintiff to deliver his cattle, and who made the
inquiry for the purpose of determining whether he
should deliver them, and of which purpose defendant
was aware, iand upon the strength of which, alone, he
did deliver them and permit them to be shipped out of
the state. Freeman v. Cook^ 2 Exchq. 654; 2 Herman
on Estoppel and Res Jud. 880, 884, sec. 953; Pickard
V. Sears J 6 Ad. and Ellis 469. (3) Where one, by
either acts or words, influences another to act in a
particular manner so as to change his previous condi-
tion, such an one will not be permitted to deny the
truth of such acts or statements to the injury of the
other; nor need it be his intention specifically to induce
the other to so act ; provided his statements or conduct
be of such a character as would naturally induce the
other to act as he did in relation to the matter. And
this applies in all cases where it would be inequitable
and against conscience to permit him to deny the truth
of his acts or representations. Horn v. Cole, 51 N. H.
287; s. c, 12 Am. Rep. Ill; Mitchell v. Reed, 9 Cal.
205; Dezellv. O'Dell, 3 Hill, N. Y. 220; Buchanan v.
Moore, 13 Serg. & R. 304; s. c, 15 Am. Dec. 601;
Welland Canal Co. v, Eathway, 8 Wend. 480; Justices
V. Totvn of Lancaster, 20 Mo. App. 559, loc. cit. 562;
Choteau v. Goddin, 39 Mo. 229; Zepp v. Taylor, 14 Mo.
482; Gujgfey v. O'Reileyy 88 Mo. 418 loc. cit. 434; Espey
Digitized by VjOOQIC
OCTOBER TERM, 1893. 85
\ ^^
Nichols V. Bank.
V. Bank, 18 WaU. U. S. 604, loc. cit. 617, 618, 621;
Nelson V. Bank, 48 111. 36; Light v. Powers, 13 Kan.
96; Bank v. Bank,SOM.o. App. 278,279; Pope v. Bank,
59 Barb. N. Y. 226; Weinstein v. Bank, .69 Tex. 38;
s. c, 5 Am. 8. R. 23; Bank v. Bank, 50 N. Y. 575;
Bank v. Haskell, 51 N. H. 116; s. c, 12 Am. Rep. 67
and note 75. (4) Corporations are liable for the acts
of their agents within the scope of their powers, and are
estopped by the same state of facts as natural persons,
as they can only act by agents. Railroad v. Schuyler
et a?.,34N. Y. 50, 51; Herman on Estoppel and Res
Judicata, sees. 1165, 1369, 1170. The statute of frauds
and other statutes require certain contracts to be evi-
denced by writing; yet a party may so conduct himself,
by acts or' words, in regard to some matter in which he
has an interest, as to estop himself from asserting such
right in such matter or thing to the injury of another,
who was induced by such acts or words to change his
condition ; Herman on Estoppel and Res Judicata, sees.
932, 933,934, 935, et seq. Wendellv. Renssellaer, 1 Johns.
Ch. 334, loc. cit, 335. (5) Where one, assuming to act
as agent of and in behalf of a principal, whether so
authorized or not, or whether really an agent in fact, if
the one in whose behalf he acts, and whom he pretends
to represent, afterwards recognizes his acts by appro-
priating the benefits, or by taking steps to carry out the
arrangements of the transactions set on foot by such
agent, or assumed agent, if he do so with knowledge of
what the transaction is, audits import, he will be bound
as though such had been done by his previous authori-
zation; and a fortiori, where it would be to the injury
of the one with whom such agent or assumed agent
had such transaction, for such principal to refuse to
carry out the agreement after having so recognized it
and taking steps to carry it out. A principal cannot
Digitized by VjOOQIC
86 55 MISSOURI APPEAL REPORTS,
Nichols y. Bank.
ratify a transaction in part done by an agent, or
assumed agent, acting in his behalf, and repudiate the
balance of it. Story on Agency [Bennett's Ed.],
sec. 250; Herman on Estoppel and Res Judicata, sec.
1065; 1 Field's Lawyers' Briefs, p. 135, sec. 149;
Buschv. Wilcox, 82 Mich. 336; s. c, 21 Am S.
Rep. 656, 657. Mundorff v. Wickershaniy 63 Penn. St.
87; 8. c, 3 Am. Rep. 531. Stoiy on Agency [Bennett
Ed.], sees. 242, 252, 253; Bank v. Frick, 75 Mo. 178,
loc, cit. 183. (6) The undertaking of the defendant
was an original and not a collateral one, and therefore
did not require to be reduced to or evidenced by writ-
ing. The consideration for the promise was the cattle
delivered by plaintiflE to Logan, and the drawing of the
draft by him on Perry Bros. ; the defendant, through
its agent, promised to pay that consideration if plaintiff
would make the delivery and Logan make the draft.
And did the defendant bank, the next day after, the
delivery of the plaintiff's cattle, receive Logan's draft
on Perry Bros, for the amount of the purchase price
of said" cattle and f oi-ward it to them at Omaha for pay-
ment, just to blind the plaintiff by making him believe
it was but the carrying out of the prior arrangement
and promise, while in fact it was but the part the bank
was to play in the scheme to beat the plaintiff; or was
it not rather an act of good faith on the part of the
bank to honestly keep and perform its part of the
agreement made between its agent, the assistant
cashier, and the plaintiff! The law will not tolerate
the first supposition — not permit the defendant to thus '
stultify itself, or take advantage of its own wrong.
Glenn V. LehneUj 54 Mo. 45; Brown on Frauds, sec.
197; Wood on Stat. Frauds, sees. 94, 143; Kansas
City S. P. Co. V. Smith, 36 Mo. App. 608, and cita-
tions.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 87
Nichols v. Bank.
Smith, P. J. — This is an action brought by plain-
tiflf against the defendant, a corporate bank, to recover
damages.
The cause was submitted to the court upon an
agreed statement of facts, the substance of which wa^:
First. That the plaintiff, a farmer residing near Bur-
lington Junction, entered into a parol contract with
one, Logan, whereby the plaintiff was to sell and deliver
to the latter at the farm of the former certain cattle at
a price to be agreed upon, the cattle to be delivered and
the purchase money paid by a check on defendant bank.
The cattle were to be shipped to PeiTy Bros., at Omaha.
Second. Logan was known to both plaintiff and defend-
ant to be insolvent. Third. On the day before the cat-
tle were to be delivered, the plaintiff desiring to know^
whether the check of Logan for the value of the cattle
would be paid by the defendant bank, went to the town
of Burlington Junction, and there met the assistant
cashier of defendant bank on the street before banking
hours, and there stated to him the contract which he
had entered into with Logan, and there inquired of
said assistant cashier if said Logan's check on his
bank for an amount that would cover the value (then
not known) of two car loads of cattle, would be good and
accepted by his bank ; and said assistant cashier ans-
wered that Logan had been drawing drafts on Perry
Bros., payable to his bank, and Perry Bros, had always
promptly honored said drafts, and his bank had been
paying Logan's checks on it drawn against said drafts,
and that in this instance he had no doubt but that
Logan's check on his bank for the cattle would be good
and that his bank would pay it; that Logan had no funds
himself, but that if he would make a draft in favor of
his bank on Perry Bros, for the amount the cattle
would bring, there was no doubt that Perry Bros.
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS.
Nichols V. Bank.
the same, and that he thought there was
the plaintiflE's accepting Logan's check for
—in fact his bank would have paid the check
dting to hear from the draft. Fourth, That
the statement of defendant bank's* assistant
d believing the same to be true that Logan's
he defendant bank would be paid by it, the
as thereby induced to deliver his cattle to
i to accept in payment thereof his check on
ant bank for the sum of $2,129.65, and the
i thereupon received the cattle and shipped
Try Bros, at Omaha. Fifth. That on the day
;he delivery of the cattle and the acceptance
jk by plaintiff, Logan drew a draft in favor
nt bank on Perry Bros, for an amount covei*-
Lirchase price of the plaintiflE's cattle, and
laid draft to the defendant bank; that shortly
on the same day, the plaintiff indorsed and
?an's check to a bank in a neighboring town
ntiff owed money, and directed that bank to
ch^ck in the usual course of business and
imount thereof to his credit; but fearing this
;ht not be without risk, and within time to
irawn Jiis letter from the mail, he went to the
bank and told the assistant cashier what he
and asked him if that course would be safe
ht. He answered that it tvas all right and the
d he paid. Neither the draft or check was
nor has the purchase money fbr the cattle
;^ed by plaintiff.
iourt rendered judgment for plaintiff for
and the question which we are required by
endant's appeal to determine is, whether the
led the law arising on the undisputed facts
red thereon the judgment of the law.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 89
Nichols V. Bank.
Turning to the plaintiff's petition we find it
charges the breach of a parol promise of the defendant
bank, made through its assistant cashier, to pay a cer-
tain check thereafter to be drawn on it. It further
charges that by reason of such promise of defendant's
cashier, the plaintiff was induced to sell certain cattle
to one Logan and receive in payment thereof said check
which the defendant had refused to pay, whereby plain-
tiff is damaged by the loss of said cattle in the sum of
$2,129.65. It is seen that, according to this exposition
of the petition, the action is ex contractu. There
is no allegation of fraud or deceit. Peers v. Davis, 29
Mo. 184; Wal}cer v. Martin^ 8 Mo. App. 560.
Recurring to the agreed statement of facts it
will be found that the defendant's cashier did not
make an explicit, unconditional promise to pay Logan's
check. In the language used by defendant's cashier,
there is nothing expressed beyond his opinion or con-
viction. He stated to plaintiff that Logan had no
funds himself, but that if he would make a draft in
favor of the bank on Perry Bros, for the amount the
cattle would bring, there was no doubt but that Perry
Bros, would honor the same, and that he thought there
was no risk in the plaintiff accepting Logan's check
for the cattle. In fact the bank would have paid the
check without waiting to hear from the draft. In the
last sentence of the foregoing quotation, the words ^^he
thaughf^ are implied after the words ^*in fact," so that
the sentence thus construed would read: ^'In fact
'he thought' the bank would have paid the check
without waiting to hear from the draft." It will be
seen that this interpellation is not only authorized by
the words of the quotation which precede it, but that
they are necessary to convey the full meaning intended
to be expressed by the person who spoke them. Nor
does the language used by the defendant's assistant
Digitized by VjOOQIC
90 55 MISSOURI APPEAL EEPORTS,
Nichols v. Bank.
cashier during his conversation with plaintiff on the
day after the check had been received by plaintiff
express more than an opinion that plaintiff^ s course would
be safe and all rights and that the check would be paid.
There is nothing from the beginning to the end in any
representation or assurance of defendant's assistant
cashier that goes further than the mere expression of
an opinion that, in the event that certain transactions
were had, that the bank would pay the check. This we
think to be the full import and meaning of the lan-
guage employed by defendant's assistant cashier.
It nowhere is made to appear that the plaintiff was
induced to receive of Logan his check in payment for
the cattle upon the faith of an unconditional promise
of defendant's assistant cashier that it would pay such
check. The cattle were not sold and delivered to Logan
in pui*suance of any request or direction of defend-
ant's assistant Cashier, or under any promise, if plaintiff
would or should do so, that the defendant would pay
him the purchase price thereof, so that there is no
original promise that would bind the defendant. And
since the bank had no funds of Logan, to certify his
check would have been but a promise to pay the debt
of another, and void under the statute if not made in
writing. If the defendant's assistant cashier made
any unconditional promise at all to pay Logan's. check
for plaintiff's cattle, it was, in its very nature, collateral,
and, not being in writing, was within the statute of
frauds.
But, assuming that the defendant's assistant cash-
ier before or after the sale and delivery of the cattle
made a parol promise to pay or accept an existing or
nonexisting check of Logan's, still no action can be
maintained for a breach of such promise, because not
permitted by the statute. Revised Statutes, sees. 719^
720.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 91
Niebols V. Bank.
We omitted to state at the proper place that the
check in question was postdated, and such being the
case, it was to all intents and purposes an inland bill
of exchange (Randolph on Commercial Paper, sees. •
80, 568; Bank v. Carter, 88 Tenn. 279), and no action
could be maintained on a promise to accept the same,
unless it was in writing. Lee v. Porter, 18 Mo. App.
377; Flato v. Mulhall, 72 Mo. 522.
Nor does section 723, Revised Statutes, help the
plaintiff, because he was not the drawer of the check,
nor was he otherwise within its provisions. Brinkman
V. Hunter, 73 Mo. 172; Flato v. Mulhall, supra; Black-
iston V. Dudley, 5 Duer. 373; Bank v. Bank, 30 Mo.
App. 271.
But it is insisted that the action can be maintained
upon the theory of an estoppel in pais. It is quite diflS-
cult to understand how this can be so, as it is not per-
ceived that there exists in the case the groundwork of
an estoppel. If the parol promise of the defendant's
assistant cashier was void in law, this the plaintiff must
be presumed to have known, and therefore he had no
right to rely upon the same. If he did, he must accept
the consequences of his own impi:udence. He cannot
invoke the doctrine of an estoppel to validate a prom-
ise which the statute declares absolutely void. The
rule is, that no one can be estopped Iqt an act that is
illegal and void, and an estoppel can only operate in
favor of a party injured in a case where there is no
provision of law forbidding the party against whom
the estoppel is to operate from doing the act which is
sought to be carried out through its operation. 2 Her-
man on Estoppel, 922.
This seems to be a case of great hardship on the
plaintiff, and we regret that we are unable to find any
principle of law applicable to the facts which justifies
us in upholding the judgment. It follows that the
judgment must be reversed. All concur.
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92 55 MISSOURI APPEAL REPORTS,
HoManus y. Watkins.
James J. MoManus, Appellant, v. Hikam Watkins
et ah J Respondents.
Kansas Gity Court of Appeals, November 20, 1893.
1. Appellate Practice: matters not in motion for new trial.
Errors not referred to in the motion for a new trial will not be con-
sidered on appeal.
2. "Warranty: working satisfactorily: evidence. An action on
the warranty of a machine will not be defeated by a paper signed
after the sale, stating that the machine was working satisfactorily,
and such paper does not estop the warrantee from the setting up of a
breach of warranty, and testifying to matters inconsistent with such
paper ; nor will such paper be excluded in this case, because it pre-
vented plaintiff from claiming back from the machine company, nor
because it was an injury to plaintiff to have the admission in the
report disproved.
Appeal from the Gentry Circuit Court. — Hon. A. M.
Woodson, Judge.
Afpibmed.
Ed. E. Aleshire for appellant.
(1) ^"The mere failure of a party to a contract,
who labors under no disability or infirmity, through
his own fault and neglect, to read it or inform himself
as to its contents, is not sufficient to annul or overcome
its legal eflEect as to him.'' Gwin v. Waggoner, 98 Mo.
315; Black Biver Lumber Co. v. Warner, 93 Mo. 374;
Huse V. McQuade, 52 Mo. 388; Johnson County v.
Wood, 84 Mo. 489; Clark v. Diffenderfer, 31 Mo. App.
232; John T. Hair & Co. v. Walmsley, 32 Mo. App.
115; Beed v. Nicholson, 37 Mo. App. 646. (2) Plain-
tiflE's instruction number 4, found at bottom of page
Digitized by VjOOQIC
OCTOBER TERM, 1893. 93
McManus v. Watkins.
19, should have been given. If it was not error to
refuse this instruction, then it was error to admit the
report in evidence. It was the duty of the court in
some manner to instruct the jury what weight should
be given to the report. I contend that this report,
made by an intelligent man who could re^td and write,
was sufficient to estop the defendants from claiming a
breach of the warranty. It embraces all of the evi-
dence of estoppel, in this: First. It was an admission
inconsistent with the evidence of Watkins that the
machine did not do good work. Second. It prevented
McManus from reclaiming back from the Whitely
Machine Company because his customer had accepted
the machine. Third. It was an injury to plaintiff to
have the admission in the report disproved, and resulted
in a judgment against him. Taylor d Mason v. John
and Jacob Zepp, 14 Mo. 482; Newman v. Hooky 37 Mo.
207; Hundley v. Filbert^ 73 Mo. 34; Mateer v. Bail-
roady 105 Mo. 320.
McCullough <& Peery for respondents.
Upon the merits of the case there is no merit in
this appeal. The evidence was ample to support the
verdict. The issues were fairly presented by the
instructions. The only question that could arise is
upon the paper or report offered by plaintiff and
claimed to constitute an estoppel on the part of the
defendant. As to this point .appellant is concluded by
a decision of this court in a case in all respects like
this one. It would, in fact, be difficult to find two
cases more nearly alike. Fairbanks v. BelAssa^ 36 Mo.
App. 711. That case also disposes of any question
arising on the evidence in the case at bar. And we
submit this case so far as the merits are concerned, by
simply calling attention to the former opinion.
Digitized by VjOOQIC
94 55 MISSOURI APPEAL REPORTS,
McManus v. Watkins.
Ellison, J. — PlaintiflE seeks to recover the amount
of a note given by defendant to plaintiflE as a part of
the purchase price of a twine binder. Defendant
defends on the ground that the binder was warranted
to do good work and that it failed to do so and that
defendant returned it to plaintiff. There was a judg-
ment for defendant and plaintiff comes here.
We are precluded from giving attentioij to much
of the brief and argument of plaintiff aimed at alleged
errors in the trial below, for the reason that plaintiff
failed to refer to such errors in his motion for a new
trial. The motion for new trial complains only of the
giving of defendant's instructions 1 and 2 and the
refusal of plaintiff 's instruction number 4 ; and of per-
mitting two witnesses to testify to the statements made
by one McGuff , as to what was to be contained in a
written report which was signed by defendant. The
exception to the two instructions given for defendant
is not pressed on this appeal and we will, therefore,
consider the two remaining objections.
The instruction refused for plaintiff was, in effect,
a direction to the jury to find for plaintiff. Defendant
had signed a written paper on the twenty-fifth of June,
1890, stating that the machine was ** working satis-
factorily.'' The instruction declared that if the jury
believed such was the case, that then defendant was
estopped from setting up a breach of warranty and the
finding should be for plaintiff. Plaintiff for his reasons
in support of this says: First. That the admission
was inconsistent with the evidence of the defendant.
This may be readily granted, and yet it is no reason
why the jury should not be left at liberty to consider
the whole evidence in connection with this admission.
Second, That this acknowledgment that the machine
was working satisfactorily prevented plaintiff **from
Digitized by VjOOQIC
OCTOBER TERM, 1893.
'95
Engine and Thresher Co. v. Glazier.
reclaiming back from the Whitely Machine Company. '^
There is nothing in the case to show what contracts or
rights existed on plaintiflE 's part against the Whitely
Machine Company, or, indeed of any relation whatever
existing between them. Third, That *4t was an injury
to plaintiff to have the admission in the report dis-
proved." Conceding this, it was only such an injury
as results to any parly from the consideration of
competent testimony.
We have found no objection to the trial which
would justify our interference and we affirm the judg-
ment. All concur.
Spbingfield Engine and Thresher Company, Respond-
ents, V. Henry E. Glazier, Appellant.
Kansas Gity Gourt of Appeals, November 20, 1893.
1. Justices* Courts: JURISDICTION: attachment: interplea. Where
a justice acquires jurisdiction of an attachment proceeding, he also
has jurisdiction to hear and determine an interplea for the attached
property ; although such property exceeds in value the amount fixed by
statute as the limit of justices' jurisdiction, such interplea being an
incident growing out of the principal action.
2. Chattel Mortgagre: description: dblivert. Though the descrip-
tion in a chattel mortgage be insufficient, yet if possession is delivered
to the mortgagee before the rights of third parties attach, they
can take no advantage of the faulty description, as delivery cures
such defects.
3. : deliyert to agent. A delivery to a third person for the
mortgagee's use is a good delivery, if accepted by the mortgagee; and
delivery to an agent is as effective as delivery to the mortgagee.
4* Instruction: ATTACHMENT: interplea. An instruction directing the
jury to find for the interpleader for such of the property, sold under
attachment, as they believe to be included in his mortgage is affirmed.
55
95
03
848
55
95
65
617
15
95
77
m
65
95
83
381
55
95
95
264
Digitized by VjOOQIC
96' 55 MISSOURI APPEAL REPORTS,
Engine and Thresher Co. v. Glazier.
6. : : : value op propbrty. On an interplea for
property seized in attachment, the only issne to try is whether the
attached property is the interpleader's or not, and an instmction as to
the valne of such property is error; and on a finding for the inter-
pleader the coort should adjadge the fund in its custody, arising from
the sale of the property, to the interpleader.
Appeal from the DeKalb Circuit Court. — Hon. Ohas. H.
8. Goodman, Judge.
Reversed and remanded.
Samuel G, Loring for appellant.
(1) The court erred in refusing the fourth instruc-
tion prayed for by the defendant, Glazier. Revised
Statutes, sec. 572, p. 229. There are no statutes for
the filing of interplead in attachment cases before jus-
tices, other than section 604, page 234. Spooner v.
Boss, 24 Mo. App. 603; Bergart v. Borchert^ 59 Mo. 85;
Scott V. Bussellj 39 Mo. 410. (2) The court erred in
admitting in evidence the chattel mortgage from John
and Robert Head to this plaintiff, and in refusing the
sixth instruction prayed for by defendant. If the plain-
tiff was unable to determine what property was
attempted to be conveyed by said mortgage, how was it
possible for the defendant to ascertain that fact! As to
him the mortgage was void for uncertainty. Chandler
V. West, 37 App. 634; Stambaker v. Ford, 81 Mo. 539;
Hughes v. Manifee, 29 Mo. App. 204; Bank v. Metcalf,
29 Mo. App. 384; Montgomery v. Wright, 8 Mich. 143;
Nicholson v. Koape, 58 Mass. 34; Kelley v. Reed, 57
Miss. 89; Cord v. Cooper, 30 Ind. 9. It should not
have been admitted in evidence, and defendant's sixth
instruction should have been given. (3) The court
erred in giving the first and second instructions upon
the part of the plaintiff, for the reason there was no
evidence upon which to base said instructions; and
Digitized by VjOOQIC
OCTOBER TERM, 1893. 97
Engine and Thresher Co. v. Glazier.
farther, the court erred in giving the four instructions
prayed for by plaintiff, for the reason that they were
not responsive to the issues in the case. Hewson v.
Toallej 72 Mo. 637; Miles v. Thompson, 61 Mo. 407;
Bendskoffv. BodgerSj 34 Mo. App. 126.
Harwood & Miller for respondent.
(1) There is no law, justice or merit in the position
that the justice had no jurisdiction to entertain the
interplea, on account of the property attached selling
for more than $150, after the justice had decided
against the interpleader. An interplea, although it
may be in the nature of a replevin suit grafted onto an
attachment suit, must be tried m the forum where the
property is custodia legis — and, if the property is sold
before the interplea is finally determined, the inter-
pleader can elect to take the money in place of the
property — if he recovere. White v. Graves , 68 Mo. 221 ;
Wooldridh v. Quinn, 70 Mo. 370. The statute gives the
right to interplead in attachment suits. 1 Ee vised
Statutes, 1889, sec. 572, p. 229. There is no limit as
to value in the statiite. (2) The appellant's counsel
lays much stress, in his brief, upon the proposition that
the verdict of the jury in this case is not responsive to
the issues, and cites Hewson v. ^Tootle, 72 Mo. 635.
He evidently forgot that the verdict in this case is,
**We, the jury, find for the interpleader to the amount
of $116.45.'' Not a judgment for the plaintiff, as was
the judgment in Hewson v. Tootle, but for the inter-
pleader. Just such a judgment as Judge Henry says
would have been good in that case. (3) The right to
recover is not defeated by a sale after the interplea is
filed. Mansurv.Hill,22M.o.Api>.S72. (4) The right
to interplead in attachment proceedings being a right
given by statute, and no limit as to value being imposed
Vol. 55—7
Digitized by VjOOQIC
98 55 MISSOURI APPEAL REPOETS.
Engine and Thresher Co. y. Glazier.
by the statute, no such limit can be engrafted on the
statute by constraction. And again, the limit as to the
value over which justices of the peace have jurisdiction
applies to the suit, and not to third parties and stran-
gers who are compelled to intervene to protect their
own rights. *<The interplea is in no sense part of the
cause of action; it is the assertion of an independ-
ent right." Wolf et ah V. Vette, 17 Mo. App. 36. The
instructions given on the part of the interpleader cor-
rectly stated the law applicable to the facts ; and the
verdict being for the right party the judgment should
be aflBrmed. Orth v. Dorschleiriy 32 Mo. 366; Garesche
V. Deane, 40 Mo. 168.
Smith, P. J. — It appears from the record in this
case that Henry E. Glazier commenced a suit by attach-
ment against John and Robert Head before a justice of
the peace of DeKalb county. The writ of attachment
was levied on certain personal property which was, on
the application of the plaintiflE therein, ordered by the
justice to be sold under the provision of section 493,
Revised Statutes. Afterwards the Springfield Engine
and Thresher Company filed an interplea claiming the
attached property.
Upon the issue so made between the plaintiff in the
attachment and the interpleader the case was subse-
quently tried in the circuit court, where the judgment
was for the interpleader, and from which the attach-
ment plaintiff has appealed.
The first ground upon which the attachment
plaintiff demands a reversal of the judgment is, that
the trial court erred in refusing to declare the law as
requested in his fourth instruction, to the effect that,
under the pleadings and evidence it did not have juris-
diction of the action. Even if we concede the value of
the property in controversy to be in excess of the sum
Digitized by VjOOQIC
OCTOBER TERM, 1893. 99
Engine and Thresher Co. y. Glazier.
of $150 as contended by the attachment plaintiff, yet
this did not deprive the court of jurisdiction of the sub-
ject-matter of the interpleader's claim. This identical
question was determined in Mills v. Thompson^ 61 Mo.
415, where it was said *'that, inasmuch as the value of
the property claimed by interpleader exceeded the
amount imposed by law, as the statutory limit to
recoveries of personal property in actions before justices
of the peace, it is insisted that the justice had no juris-
diction in regard to the interplea. This view is thought
to be incorrect. That the justice had jurisdiction in
the original suit, there can arise no doubt; and this
interplea is but a collateral matter — an incident grow-
ing out of the principal action. Besides, the same
statute which allows interpleas in the circuit court
authorizes their filing before justices of the peace, and
no limit is assigned in the section referred to as to the
value of the property which is the subject of the inter-
plea. And, were we to assign a limit in cases of this
sort, we would do that which the law itself has not
done.''
A further contention of the attachment plaintiff is,
that the court erred in admitting in evidence a mort-
gage deed made by the attachment defendants to the
interpleader and in refusing to instruct the jury that
such mortgage was void. The property described by
the mortgage consisted, in part, of *'one gray mare five
years old; one bay mare four years old; three yearling
heifers ; two cows two years old ; one cow four years
old; one cow five years old, and two cows seven years
old." The property was described in the constable^s
return on the writ of attachment and claimed by the
interpleader to be '^one spotted cow; one red cow with
bob tail ; one red cow with spots on forehead ; one red
and white cow; one red cow with white flanks; one
Digitized by VjOOQIC
\_jyKt.:ifr'v
100 55 MISSOURI APPEAL REPORTS,
Engine and Thresher Co v. Glazier.
gray mare of reddish cast about nine years old; one
pony mare, bay color, about seven years old."
The property described, or intended to be described,
in the mortgage was left in the possession of the
defendant mortgagors. This was in August, 1888. It
seems that the mortgage was given to secure the pay-
ment of three notes for $500 each. In December, 1889,
the attachment defendants removed to Oklahoma after
making default in the payment of two of said notes,
the third not falling due until January, 1891. The
defendants, before their departure to Oklahoma, turned
over to the possession of their brother, Alfred Head,
who remained on the place where one of the defendants
resided at the time of his removal, the mares and cows,
which is the subject of the interpleader's claim, with
instructions to keep them until called for by inter-
pleader, and then turn them over to it. ^That the cows
were at another place where they were left and that
they were there attached. The mares were turned over
to the agent of the interpleader and were in his posses-
sion when attached. Now, it seems to us that, in the
light of the authorities the description, in the mortgage,
if there was nothing else, would be subject to the
objection which the attachment plaintiff has urged
against it.
It has been decided that, when a mortgage was
fatally defective but possession was delivered to the
mortgagee before the rights of third parties had
attached, that such third party could take no advantage
of the faulty description. Bank v. Sargent^ 20 Kan.
576. Delivery cures defects in description. Cobby on
Chattel Mortgages, sec. 187; Morrow v. Reed, 30 Wis.
81. So it has often been held in other jurisdictions
that possession taken by the mortgagee with the mort-
gagor's assent before the rights of third parties inter-
vene, cures defects in descriptions and is an identifica-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 101
Engine and Thresher Co. v. Glazier.
tion of the property. Frost v. Bank^ 68 Wis. 234;
Morrow v. Eeed, 30 "Wis. 84; Williamson v. Steely 3
Lea, 530; Stephenson v. Tucker, 14 N. J. 600; Cameron
V, Marvin, 26 Kan. 624; Frank v. Miner, 50 111. 444.
And a similar rule has been repeatedly recognized in
this state. Wood v. Hall, 23 Mo. App. 110; Moser v.
Claes, 23 Mo. App. 420; Nash v. Norment, 5 Mo. App.
545; Greely v. Beading, 74 Mo. 309; Petring v. Chrisler,
90 Mo. 649; Bohyns v. Meyer, 95 Mo. 132. And a
delivery to a third person for the mortgagee's use is a
good delivery if accepted by the mortgagee. Delivery
to an agent is as effective as a delivery to the mortga-
gee. Cobby on Chattel Mortgage, sec. 508; Jones v.
Swayze, 42 N. J. Law, 279; McPartland v. Bead, 11
Allen, 231.
According to the principles of these authorities the
court did not err in refusing to exclude the mortgage
from the evidence, or to declare it void. The inter^
pleader, on the evidence adduced by it, was entitled to
a submission of the case to the jury under appropriate
instructions.
No error is perceived in the action of the court in
giving the interpleader's second instruction which told
the jury that, if they believed from the evidence that the
property sold by the constable under the attachment,
or any part of it, was that included in the mortgage of
the plaintiff, no doubt meaning interpleader, they would
find for it as to such property.
But we think the court did err in the giving of
the first, third and fourth instructions for the inter-
pleader, in so far as they directed the jury that, if they
found the issue for interpleader, they should find the
amount of the money which said property sold for at
the constable's sale, or the value of the property not
less than it sold for at the constable's sale. The jury
found ^^forthe interpleader to the amount of $116.45.'^
Digitized by VjOOQIC
102 55 MISSOUEI APPEAL REPORTS,
Cahill, Collins & Co. v. Ely.
These instructions should not have been given.
Bindskoffv. Rogers ^ 34 Mo. App. 126; Nolan v. Deutchy
23 Mo. App. 1. They led the jury into the error of
finding a verdict that was not responsive to the issues
in the case. The only issue which the jury was required
to try was, whether the attached property was that of
the interpleader or not. Mills v. Thompsoriy 61 Mo.
407; Hewsonv. Tootle, 72 Mo. 637. It was the func-
tion of the court, if the property attached was found to
be the property of the inteipleader, to adjudge the fund
in its custody, arising from the sale, to the interpleader.
It was not a matter for the consideration of the jury.
It follows that the judgment of the circuit court
must be reversed, and the cause remanded for further
trial in conformity to the principles of law which have
been declared in the foregoing opinion. All concur.
Cahill, Collins & Company, Repondents, v. L. B.
Ely et al.y Appellants.
Kansas City Court of Appeals, November 20, 1898.
Mechanics' Liens: lien paper: contractor. It is not necessary
that the lien paper would, in terms, allege that the person to whom
the material was furnished was the original contractor; it is sufficient
if it states the names of the contracting parties, with whom the
plaintiffs agreed to do the work and furnish the material without
stating the contractor made a contract with the owner; and the lien
paper in this case is held, sufficient, since it gave the owner all the
information necessary to protect himself.
Appeal from the Carroll Circuit Court. — Hon. E, J.
Bboadus, Judge.
Affirmed.
Digitized by VjOOQIC
OCTOBEE TERM, 1893. 103
Cahill, Collins & Co. v. Ely.
PatUs^^ S Timmom attorneys for Ely.
(1) While the later decisions of the courts of our
state declare that the law in relation to mechanics'
liens ought to be liberally construed, yet it shall be
remembered that a mechanics' lien is purely of statu-
tory creation, and that it can only be maintained by a
substantial observance of, and compliance with, the
provisions of the statute. Malther v. Falcon Mining
Co. J 2 Pae. Eep. 50; Phillips on Mechanics' Liens,
sec. 89. (2) This lien must contain, if known, the
names of both the owner and contractor. Revised
Statutes, 1889, sec. 6709; Bertheolet v. Parker , 43 Wis.
551; Malther v. Falcon Mining Co.j 18 Nev. 209;
Gordon v. Deal, 31 Pac. 287. The statute contemplates
a positive designation of the name of the contractor,
if known. Mayes v. Buffners, 8 W. Va. 386; McElwee
V. Sandford, 53 How. Pr. 90; Hooper v. Flood, 54 Cal.
222. It only relieves a party claiming a lien from
giving the name of the contractor when it is not known
to him. Kelly v. Laws, 109 Mass. 396. Where th«
statute requires it, the name of the contractor, if
known, must be stated; and, if the name of the con-
tractor is unknown, that fact ought to be stated.
Phillips on Mechanics' Liens, sec. 345, et seq.; 2 Pac.
50, supra. (3) The lien only exists '*by virtue of any
contract with the owner or proprietor." Revised
Statutes, 1889, sec. 6705; Horton v. Railroad, 84 Mo.
602; Planing Mill Co. v. Amelia Brundage and husband,
25 Mo. App. 268. (4) A petition which fails to state
that the improvement was erected under a contract
with the owner, is fatally defective. Peck v. Bridwell,
6 Mo. App. 451; Revised Statutes, 1889, sec. 6712.
The allegation in the lien that Cahill, Collins & Co.,
under a contract with Hanley & Keraghan, furnished
certain materials for a building, of which L. B. Ely
Digitized by VjOOQIC
104 55 MISSOURI APPEAL REPORTS,
CahiU, Collins & Co. v. Ely.
was owner, does not allege nor show that Hanley &
Keraghan were the original contractors, nor does it
show any contractual relation with Ely at all, and is
fatally defective. Warren v. Quade, 29 Pac. Rep. 827;
Barker v. Berry, 8 Mo. App. 446; Merriman v. Headley^
26 N. W. R^p! 728; Keller v. Houlihan, 21 N. W. Rep.
729; Anderson v, Knudson, 22 N. W. Rep. 302; Bugg
Hoover J 10 N. W. Rep. 473; O'Neil v Anderson, 4
N. W. Rep. 47; v. Malther v. Falcon Mining Co,, 2 Pac.
Rep 50; Mfg. Co. v. Wilson, 29 Pac. Rep. 829.
Geo. N. Elliott and J. F. Graham for respondents.
The lien filed is sufficient. It is not claimed that
the name of the contractor is not given in the lien,
but that the lien does not allege that the contractor so
named had a contract direct with the owner, Ely. It
is not necessary to make such allegation in the lien.
Revised Statutes, 1889, sec. 6709; Simmons, Garth <&
Co. V. Carrier, 60 Mo. 581; Henry & Coatsworth Co. v.
Evans, 97 Mo. 47; McDermott v. Claas, 104 Mo. 14.
Smith, P. J. — This was an action on a mechanics'
lien. The plaintiffs had judgment in the court below,
and the defendants have appealed.
It appearej from the record before us that at the
trial, the plaintiflEs, to sustain the issue in their behalf,
gave in evidence the lien papers, on which the action
was founded, in which it was state^^ that plaintiffs
furnished the materials to the Hanly Kerraghan Plumb-
ing and Gas Fitting and Heating Company for certain
improvements on the real estate therein described, of
which the defendant Ely was the owner, and that such
materials were used in making the improvements;
The defendant objected to the introduction of this
paper on the sole ground that it did not allege nor show
Digitized by VjOOQIC
OCTOBER TERM, 1893. 105
Cahill, CoUitis & Co. v. Ely.
who was the original contractor , nor that any contract was
made toith the owner of the building. The action of the
trial court in overruling defendant's objection is made
the basis of the appeal here. It is contended that since
the lien paper does not, in direct and express terms,
describe or mention any person, or persons, as *'the
contractor, '^ that it is insufficient.
Section 6709, Revised Statutes, provides: '*It shall
be the duty of every original contractor within six
months, and every journeyman and day laborer within
sixty days, and every other person seeking to obtain
the benefit of the provisions of this article — article 1 —
within four months after the indebtedness shall have
accrued, to file with the clerk of the circuit court of the
proper county a just and true account of the demand
due him or them after all just credits have been given,
which is to be a lien upon such buildings or other
improvements, and a true description of the property,
so near as to identify the same, upon which, the lien is
intended to apply, with the name of the owner or con-
tractor ^ or bothj if known to the person filing the lien,
which shall in all cases be verified by the oath of him-
self or some credible person for him.'V
It is seen from the above quoted provision of the
statute, that the lien paper shall give **the name of the
contractor.'' It will be further observed that the lien
paper in question states that the work and labor done
and materials furnished, was under a contract by
plaintiflEs with the Hanly Kerraghan Plumbing and Gas
Fitting and Heating Company, also a defendant, for a
two-story brick block of buildings which, with the lots
on which the same were situate, was owned by defend-
ant Ely. It is insisted that the Hanley Kerraghan
Plumbing and Gas Fitting and Heating Company are
not described as **the contractor." If this descriptive
term had immediately followed that of the name of this
Digitized by VjOOQIC
106 55 MISSOURI APPEAL REPORTS,
Cahill, Collins & Co. v. Ely.
company in the lien paper the designation, no doubt,
would have been unexceptionable. The statute does not
require the lien paper to state that * 'the contractor' ' is the
original contractor ; it is sufficient if it state the names of
the contracting parties with whom plaintiffs agreed ta
do the work and furnish the materials. Downey v.
HiggSj 41 Mo. App. 215. While the statute requires
the lien paper to give the name of the owner, it no
where requires that such lien paper state that '^the con-
tractor" made a contract with the owner. We think it
is about as plain as anything can be that it may be
fairly ipferred from the facts expressly stated in the
lien paper, that Hanly Kerraghan Plumbing and Gas
Fitting and Heating Company, to whom the work and
labor and materials were furnished for the defendant's
improvements, were *'the contractors ''
The statute, section 6712, requires that the petition
in an action on a mechanics' lien, among other things,
shall allege the facts necessary for sueing the lien under
article 1; and it was held in McDermott v ClasSy 104
Mo. 14, that the giving of the name of a person, and
designating him as the party from whom the account is
due, is a designation by inference that such person is
^^the contractor,'' and that a petition showing this
is sufficient. There is no reason why, if such a statement
is sufficient in a petition on the lien, that a like state-
ment in the lien paper itself is not also sufficient ta
entitle the party furnishing the labor, or materials, to
the beneficial provisions of the statute in relation ta
mechanics' liens.
The lien paper gave the owner all the information
necessary to protect himself. It informed him of the
nature of plaintiff's claim, what the items were, the
name of the contractor to whom furnished and for
what purpose. This, we think, was all that any fair
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 107
Erath & Flynn v. Allen & Son.
and reasonable construction of the statute ought to
require.
It follows that the judgment should be affirmed,
which, with the concurrence of the other judges, is
ordered accordingly.
Ebath & Flynn, Respondents, v.-R. K. Allen & Son .
et al.y Appellants. 79 115
Kansas City Court of Appeals, November 20, 1893.
1. Principal and Sureties : STRICT CONSTRUCTION. The obligations
of sureties are to be strictly construed and their liabilities are not
to be extended by implication ; and a statute prescribing their liabil-
ities must be strictly construed.
2. Construction : nbbraska statute providing bond for mechanics,
ETC.: subcontractor. The Nebraska statute requiring county
boards to take from contractors erecting public buildings a bond for
''the payment of all laborers and mechanics for their labor, etc./'
does not include subcontractors, and an action cannot be maintained
against the sureties on such bond by a subcontractor for a balance
due him from the principal contractor, for material furnished and
wages paid to laborers.
2. : : subrogation. A subcontractor who has paid
wages to laborers cannot be subrogated to the rights of such labor-
ers so as to maintain an action on the bond against the sureties
thereon, as the statute confers a mere personal privilege or right upon
the laborers, which is in no sense assignable.
Appeal from the Buchanan Circuit Court, — Hok. Henby
M. Ramey, Judge.
Beveiwed.
B. R. Vineyard and Bowe^ Johnson & Rusk for
appellants.
(1) Sureties are the favorites of the law. Their
obligations are to be strictly construed, and their lia-
bilities are not to be extended by implication. The
80 447
Digitized by VjOOQIC
108 55 MISSOURI APPEAL REPORTS.
Erath & Flynn v. Allen & Son.
City of Harrisonville v. Porter j 76 Mo. 358; Blair v. Ins.
Co. 10 Mo. 566. (2) Only laborers and mechanics
were protected by the bond in evidence. Plaintiflfe
were subcontractors, and not laborers or mechanics.
The provisions of the bond do not extend to them.
Groves v. Railroad j 57 Mo. 304; Avery v. lonia^ County^
39 N. W. Rep. 742; Duncan v. Bateman, 23 Ark. 327;
Farmers^ Loan and Trust Co. v. Railroad, 26 N. E. Rep.
785; Merrimanv. Jones, 44 N. W. Rep. 527; Phillips on
Mechanics' Liens [2 Ed.], sees. 36, 41, 44 and 45;
Shields v. Morrow, 51 Tex5is, 393 ; Compiled Statutes
of Nebraska, 1889, ch. 54, p. 568, sees. 1 and 2; Winder
V. Caldwell, 14 Howard, 434. (3) A mechanics' lien is
a mere personal right, and is not assignable. PlaintiflEs
voluntarily paid their laborers, who were protected by
the bond, not because of such protection, but because
plaintiffs were bound to pay them. They are not sub-
rogated to the rights of said laborers or mechanics
under the bond. Griswold v. Railroad, 18 Mo. App.
52; Brown v. Railroad, 36 Mo. App. 458; Tewksbury
V. Bronson, 4 N. W. Rep. 749; 2 Jones on Liens, sees.
1493, 1494.
Crysler, Caskadon <& Stearns and E. J. Sherlock
for respondents.
(1) As to whether a mechanic's lien is a personal
right, or not, never arose in this case, nor is any ruling
on such question assigned an error. 97 Mo. 68. (2)
As to whether it is assignable, or not, is not presented
by the pleadings, nor was it passed on by the court
below, nor is it an issue in this case, nor is any action
of the court thereon assigned as error. 39 Mo. App.
311. (3) That as to whether the plaintiffs are subro-
gated to any rights their laborers may have had against
the said bond, the appellants say that no question of
Digitized by VjOOQIC
OCTOBER TERM, 1893. 109
Erath & Flynn v. Allen & SfOn.
subrogation is presented by the pleadings or motions
for a new trial, and no such question was ever passed
on by the trial court. Clafflin v. Sylvester, 99 Mo. 276.
(4) The bond sued on sustains the same relation to the
laborer, mechanic, material man, contractor or subcon-
tractor in the erection of a public building that the state
lien law does to the same persons in ordinary cases.
In the erection of a public building there is no lien, but
the bond must answer for the shortcomings of the con-
tractor to any person whom he has failed to pay. The
case of Griswold v. Bailroad, 18 Mo. App. 52, and
Broumv. Railroad, 36 Mo. App. 458, are utterly diflferent
from the case at bar, and are no authority in this case.
Here the action is founded on a bond given under the
provisions of an act to cover a case wherein the lien law
does not apply ; the action here is to recover an unpaid
balance due from a contractor for labor performed on
a building to which the lien law does not apply. There
is nothing parallel in any of the cases cited under this
head with the case at bar.
Smith, P. J. — This is an action to recover a pen-
alty in a bond. It seems from the record before us that
R. K. Allen & Son entered into a written contract with
the board of county commissioners of the county of
Jefferson, in the state of Nebraska, to do all the work
and furnish all the material for the proper construction
and completion of a court house and jail building for
said county, in accordance with the plans, elevation,
sections and detail drawings, and in the manner speci-
fied in the specifications, for which the commissioners
were to pay Allen & Son $54,800, etc.
The statute of the state of Nebraska, 1891, section
2172, provides: *'It shall be the duty of the board of
public lands and buildings, boards of county commis-
sioners, the contracting board of officers of all cities
and villages and all public boards now or hereafter in
Digitized by VjOOQIC
110 55 MISSOURI APPEAL REPORTS,
Erath & Flynn v. Allen & Son.
power by law, to enter into a contract for the erecting
and finishing, or the repairing of any public building,
bridge or other public structure to which the general
provisions of the mechanics' lien laws do not apply, and
where mechanics and laborers have no lien to secure
the payment of their wages, to take from the person or
corporation, to whom the contract is awarded, a bond
with at least two good and sufficient sureties, condi-
tioned for the payment of all laborers and mechanics
for labor that shall be performed in the erecting, fur-
nishing or repairing of the buildings or in performing
the contract; said bond shall be to the board awarding
the contract ; and no contract shall be entered into by
such board until the bond herein provided for has been
filed with, and, approved by, said board. The said bond
shall be safely kept by the board making the contract,
and may be sued on by any person entitled to the bene-
fit of this act. The action shall be in the name of the
party claiming the benefit of the act.''
Accordingly, Allen & Son entered into a bond with
the other defendants, Wyeth and Uhlman, as sureties
thereon in the sum of $15,000, conditioned as required
by the above recited statute.
Afterwards the plaintiffs entered into a written
contract under Allen & Son, by which the former agreed
to do all the work and furnish all the material for the
proper construction and completion of the cut stone and
rubble work in said building, in accordance with the
plans, elevations, sections and detail drawings of the
architect thereof, for $20,100, ninety per cent, of the
material furnished and labor perforined and perma-
nently put in place to be paid for from time to time as
the work progressed on the estimates of the architect,
etc.
It appears further that the plaintiffs proceeded to
furnish the materials and do the work as they had con-
Digitized by VjOOQIC
OCTOBER TERM, 1893. HI
Erath & Flynn v. Allen & Son.
tracted to do, and received of Allen & Son therefor
from time to time payments which in the aggregate
amounted to the contract price, less the sum of $1,143,
which the plaintiflEs claim remained unpaid at the time
the said buildings were paid for and accepted by the
commissioners. There is some claim made by the
defendants that the building was left by plaintiflEs in an
unfinished condition and that the defendants, Allen &
Son, were compelled to finish the same at their own
expense. However this may be, the amount of such
expense was small and, in the view we shall take of the
of the case, is unimportant. The suit is brought on the
bond given to the commissioners to recover the amount
which Allen & Son were behind with plaintiffs on their
subcontract.
In this connection it may be proper to state that
during the time the plaintiflEs were performing their part
of said contract with Allen & Son, they employed them-
selves in superintending the getting out of the stone
and the placing of the same in the buildings, taking
sometimes the part of a hand in both getting out and
preparing the material and doing the work on the build-
ing. The plaintiflEs, it appears, paid the laborers and
mechanics the wages due on account of the work done
by them on the buildings.
The court, against the objections of the defendants,
gave for plaintiflE an instruction telling the jury that by
the terms of the contract read in evidence between Allen
& Son and the commissioners in charge of the construc-
tion of the court house at Fairbury, Nebraska, it was
the duty of said Allen & Son to pay the laborers and
mechanics employed on said building for labor per-
formed and services rendered in the construction
thereof; that by the terms of the bond read in evidence,
the defendants, Uhlman and Wyeth, upon default of
Allen & Son to pay laborers and mechanics engaged in
Digitized by VjOOQIC
112 55 MISSOURI APPEAL REPORTS,
Erath & Flynn v. Allen & Son.
constructing said building, became, and are, liable for all
sums due laborers and mechanics engaged in the con-
struction of said building, not exceeding the amount of
the balance claimed by plaintiffs in the evidence as the
agreed balance due to them ; and if you find from the
evidence that plaintiffs, as mechanics under their agree-
ment with Allen & Son, necessarily employed laborers
to work on the stone work of said building ; that defend-
ants, Allen & Son, have been paid in full for the con-
struction of said building; that they have failed to pay
the laborers and mechanics employed by plaintiffs in
full for the work done by them and services rendered in
constructing said building; that plaintiffs, as such
mechanics, were compelled to, and did, advance money
and pay said laborers the balance due on account of their
labor and services rendered, then the jury will find for
plaintiffs and against all the defendants for such sum
as you find, from the evidence, remains due plaintiffs
on account of such labor and services rendered not
exceeding the sum of $1,143.58, the amount claimed by
plaintiffs, together with six per cent, interest from the
date the same was demanded from defendants, Allen &
Son.
The court refused to instruct the jury that, under
the pleadings and evidence, the jury should find for
defendants, Uhlman and Wyeth. The verdict and
judgment were against all of the defendants, who have
brought the case here by appeal.
Several questions have been discussed in the briefs
of counsel in this case, but we shall only consider that
of them which we think is decisive of the case, namely,
the liability of Wyeth and Uhlman, the sureties on the
bond of Allen & Son to the commissioners.
The plain meaning of the statute of Nebraska,
already quoted, is that the commissions shall, in cases
where mechanics and laborers have no lien to secure the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 113
Erath & Flynn v. Allen & Son.
- i
payment of their wages y take from the person to whom
the contract is awarded a bond with at least two good
and suflBcient sureties, conditioned for the payment of
the wages of all laborers and mechanics for labor per-
formed in erecting the building or performing the
contract. The bond in question is not broader or
more comprehensive in its scope than the statute pro-
vided it should be. The liability of the sureties
depends upon the construction of the language of the
statute authorizing the bond. The bond, it is seen, is
one of indemnity provided by the statute for the bene-
fit of laborers and mechanics. If the plaintiffs are
pereons falling within either or both of these statutory
designations, then they are entitled to the benefit of
the indemnity.
The obligations of sureties, it has long ago been
decided in this state, are to be strictly construed, and
their liabilities are not to be extended by implications.
Blmr V. Ins. Co., 10 Mo. 566; Harrisonville v. Porter j
76 Mo. 358. The statute under consideration, as
against the sureties on the bond sued upon, must be
strictly construed.
It is to be conceded the plaintiffs were the subcon-
tractors of the principal contractors. The former
agreed with the latter for a specific amount to furnish
the materials and do the work on certain part of the
buildings according to the plans and specifications of
the architect which were made part of the contract of
Allen & Son with the commissioners. The pertinent
inquiry now is, whether this statute makes any dis-
tinction between a * ^mechanic' ^ or ' laborer' ^ and a
' 'subcontractor,'^ whose undertaking is like that of
the plaintiffs in this case. It is very manifest that if
the $15,000 indemnity provided by the bond is for the
benefit of a subcontractor who furnishes material, as
well as performs labor, that in a case like this, where
Vol. 55—8
Digitized by VjOOQIC
114 55 MISSOURI APPEAL REPORTS,
Erath & Flynn V. Allen & Son.
the material furnished is of larger value, the entire
indemnity may be appropriated to his use, and thus
preclude the laborers and mechanics who worked on
the building by the day for the . contractors, or any of
their subcontractors, from a participation in its bene-
fits. The bond certainly does not provide any pro-
tection for a material man, whether he be or not a
laborer or mechanic, who has done work, as well as
furnished the material.
' But it is insisted that the converse of this is true,
that is to say, that a laborer or mechanic, though a
subcontractor, furnishing materials, who has performed
labor, either in procuring material or in placing and
fitting it in the building, is a * 'mechanic'' or * laborer' ^
within the meaning of the statute. But this conten-
tion, we think, cannot be sustained, as will appear by
reference to some of the adjudged cases construing
similar statutes. Section 10 of the statute concerning
railroad companies (Wag. Stat. 302) provided that
''as often as any contractor, etc., shall be indebted to
any laborer for thirty days', or any less number of days',
labor performed, etc., such laborer," etc. In Groves
V. Bailroad, 57 Mo. 304, it was declared that a con-
struction of the above language could not be made to
include those who furnished teams and wagons and
drivers hired by them to haul and deliver stone or other
material in the construction of the road. It was declared
further that this statute was intended for these poor
laborers, who are dependent upon their own manual
labor for their daily support, against the fraud or
insolvency of irresponsible contractors, citing Batch
V. Bailroad, 46 N. Y. 551.
Avery v. Supervisor , 71 Mich. 538, was a suit by a
subcontractor on a bond given under a statute very
analogous to the one here. There the requirement of
the statute was that the bond taken with security should
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OCTOBER TERM. 1893. 115
Erath & Flynn v. Allen & Son.
be for '^the payment by the contractor and all subcon-
tractors for all labor performed or materials furnished,''
etc. The court, in the construction of this statute) say
that the plaintiflE did not claim to have entered upon
the work under this contract, in reliance upon the
facts that the bond provided by statute had been given.
The object and purpose of the statute was the protec-
tion of the labor and material man; those who fur-
nished material to be used in building, without reference
to plans and specifications, and furnished either to the
principal contractor or subcontractor and labor done
for either. The subcontractor is an under contractor
—one who takes under the original contract and pre-
sumably with knowledge of the terms and conditions
of the original contract. This bond is not required by
the statute for the protection of that class, but to pro-
tect material men and laborers at the hands of the
contractor and subcontractor. %
In Indiana it has been declared that there is
a marked and enforced distinction between subcon-
tractors and laborers. Farmer L. & T. Co. v. Bailroad^
127 Ind. 250; Barker v. Buell, 35 Ind. 297; Colter v.
Frese, 45 Ind. 96.
In Georgia, under the acts giving to ^'masons''
and ''carpenters" a lien for their work and materials
found by them, they must, to entitle themselves to the
benefit of the act, have contracted in that capacity.
Pitts V. Bomary 33 Ga. 96.
In harmony with the doctrine of the aboved
referred to cases are Shields v. Morrow ^ 51 Tex. 393;
Huck V. Gaylordy 50 Tex. 578; Duncan v. Batemanj 23
Ark. 327.
The conclusion to be deduced from these cases is,
that a subcontractor is no more a ''mechanic'' or
"laborer" than the principal contractor, and that the
beneficial provisions of the statute relied on in this
Digitized by VjOOQIC
116 55 MISSOURI APPEAL REPORTS,
Qallaher v. Smith.
case cannot be invoked by the plaintiffs. They are
subcontractors, and are to be distinguished from the
the two classes of persons named in the statute, and
for whose benel&t alone the statutory indemnity is
provided.
And, even though the plaintiffs paid off the labor-
ers and mechanics employed by them in executing their
subcontract, there is no principle upon which they can
be subrogated to the rights of such laborers and
mechanics. The statute conferred a mere personal
privilege or right upon them, which was in no sense
assignable. Griswold v. Bailroadj 18 Mo. App. 52;
Brown v. Bailroadj 36 Mo. App. 458; Tewkshury v.
Bronsofij 4 N. W. Rep. 749; Jones on Liens, sees.
1493, 1494.
It, therefore, inevitably follows that the petition
not only failed to state a cause of action, but the the-
ory upon which the case was submitted to the jury by
the plaintiff's instruction was an erroneous one, and
should not have been given. The defendant's instruc-
tion in the nature of a demurrer should have been
given. The judgment of the circuit court must be
reversed. All concur.
^116 J. P. Gallaheb, Appellant, v. J. Fbancis Smith,
iriifii Eespondent.
1561 171 ^
Kansas City Couri of Appeals, November 20, 1893.
1. Municipal Corporations: ordinance referring to another
ORDINANCE. A Special ordinance directing the construction of a
sidewalk ordered it to be constructed in the manner and of the
material named in a certain section of a general ordinance, relating
to sidewalks. Held, such section of the general ordinance was
thereby made a part of the special ordinance.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 117
Gallaher v. Smith.
2. : DELEGATION OP LEGISLATIVE AUTHORITY: PINE OB OAK SIDE-
WALK. An ordinance provided that a sidewalk might, at the option
of the contractor, be constracted of pine, white or burr oak of certain
demensions. Meldf the ordinance was not void, and did not con-
stitute a delegation of legislative authority, distinguishing Qalbreath
V. Newton, 30 Mo. App. 380, and Buggies v. Collier, 43 Mo. 353.
Appeal from the Buchanan Circuit Court. — Hon. Henbt
M. Ramey, Judge.
Reversed and remanded (with directions).
Kelley <& Kelley for appellant.
(1) The certified tax bill in any action thereon
shall h^ prima fade evidence of the validity of the bill,
of the doing of the work, and of the furnishing of the
materials charged for, and of the liability of the prop-
erty to be charged, stated in the bill. 1 Revised
Statutes, 1889, sec. 1407; Keith v. Bingham^ 100 Mo.
300; Eernan v. Payne, 27 Mo. App. 481; Adkins v.
Railroad Co,, 36 Mo. App. 652; Ess v. Bonton, 64 Mo.
105; Stifel v. Dougherty , 6 Mo. App. 441; Wand v.
Green, 7 Mo. App. 82; Seibert v. Allen, 61 Mo. 482.
(2) The court erred in overruling plaintiff's motion
for a new trial. There was no defense whatever to
plaintiff's action on the special tax bills. The ordin-
ances, contract, advertisement, etc., given in evidence
by the defendant, not only do not impair the plaintiff's
prima facie case made by the tax bill, but they
strengthen it by showing a full compliance with all the
requirements of the statute and ordinances. A sub-
stantial compliance is all that is required. There must
have been a fair compliance with all the conditions pre-
cedent, whether prescribed by ordinance or statute,
but slight variance will not defeat a tax bill. Cole v.
Skrainka, 105 Mo. 308; Shehan v. Owen, 82 Mo. 458;
100 Mo. 22; City of St. Joseph v. Anthony, 30 Mo. App.
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118 55 MISSOUEI APPEAL REPORTS,
Gallaher v. Smith.
538; Clapton v. Taylor, 49 Mo. App. 117. (3) The
ordinances under which the work was done and the
tax bills sued on were issued, are in due form, and
valid to authorize the tax bills. Apportioning the cost
of local improvement among lot owners in proportion
to the frontage is a legitimate method of procedure.
Butherford v. Hamilton , 97 Mo. 543. It is competent
to authorize the city engineer by ordinance to cause
sidewalk to be repaired from time to time as may be
deemed necessary. The City of Kansas v. Eulingj 87
Mo. 203; Carlin v. Cavender, 56 Mo. 286. (4) The
court erred in admitting evidence as to materials to be
used by and under contract and ordinances, and which
was objected to as being incompetent to vary or aflEect
the contract or affect the tax bills.
Luke H, Moss and Carolus & Brewster for res-
pondent.
Special ordinance 1402, under which plaintiflE did
the work sued for, simply orders the work to be done,
and refers to general ordinance 356 for the manner of
doing it, ais well as the material to be used. General
ordinance 356 is simply a classification ordinance defin-
ing three diflEerent classes of sidewalks. Section 2, of
general ordinance 356, to which reference is made in
special ordinance 1402, says, among other things, that
a second-class walk should be built (either) of plank
sawn from sound pine, white or burr oak timber, with
stringei's, etc., of either of these materials; that certain
spaces should be filled with (either) cinders, broken
stone, gravel, bluff (dirt) or other material. The law
says: (Revised Statutes, 1889, sec. 1404). ^'The
common council shall have power to cause sidewalks
to be constructed at such time and to such extent, and
of such dimensions and with such materials, etc., as
Digitized by VjOOQIC
OCTOBER TERM, 1893. 119
Gallaher v. Smith.
shall be provided by ordinance.^' If this is open to
construction it means that the council shall specify the
material to be used in each instance, and that this
this choice of material shall not be left to the fancy of
the engineer or contractor. In the wisdom of the
common council, a sidewalk made of pine, with cinders,
broken stone, etc., for filling, might be durable and
safe for the public travel on one street, while on
another white oak would be necessary; and on still
another, burr oak. Galbreath v. Newton^ 30 Mo. App.
380; CAty of St. Joseph ex rel. v. Wilshire, 47 Mo.
App. 125; Bungles et al. v. Collier et al.y 43 Mo. 353;
City of St. Louis to use v. Clemens ^ 43 Mo. 395.
Gill, J. — Plaintiff, as contractor with the city of
8t. Joseph, constructed a second-class sidewalk on Six-
teenth street in said city, and in front of five lots owned
by defendant Smith. In payment the contractor
received five special tax bills ; and it was to enforce the
same against defendant's lots this action was brought.
The trial court held the ordinance providing for the
work, to be invalid, for the alleged reason that it is not
therein provided of what materials the walk should be
built, etc. From a judgment in defendant's favor,
plaintiff appealed.
The special ordinance providing for the work
ordered a second-class sidewalk to be constructed in the
manner and of the material named in section 2 of gen-
eral ordinance number 356. Said section 2 defines
second-class sidewalks, and provides with much detail
how they shall be built, demanding, among other
things, that they shall be constructed of ''plank four
feet long, not less than six inches wide and two inches
thick, sawn from sound pine, white or burr oak timber;
shall be laid across and upon two sleepers of sound pine,
white or burr oak scantling four inches in size and not
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120 55 MISSOURI APPEAL REPORTS,
Gallaherv. Smith.
less than twelve feet in length, etc., and the space
included between the stringers, sleepers or scantling
and the property and roadway lines respectively shall
be filled with cinders, broken stone, gravel, bluff, or other
material approved by the city engineer,' ^ etc. No ques-
tion is made as to the character of the work done by
the plaintiff — the walk was laid to the satisfaction of the
city's engineer, and tax bills were issued therefor. The
contractor used pine lumber both for the stringers and
the covering and filled in with ^^ bluffs ^ (which seems to
mean clay or dirt taken from the hills. )
The city of St. Joseph is a city of the second class,
and its city council derives its authority for doing such
work from section 1404, Revised Statutes 1889, and that
portion which is necessary to be here quoted reads:
'The common council shall have power to cause to be
constructed, reconstructed or otherwise improved and
repaired all * * * sidewalks ♦ ♦ ♦ within the
city, at such time and to such extent, and of such
dimensions, and with such materials and in such man-
ner, and under such regulations as shall be provided by
ordinance,'' etc.
From the foregoing statement it will be seen that
the ordinance directing the construction of the sidewalk
in question is only complete by reference to the section
of another general ordinance. Section 2 of such gen-
eral ordinance becomes then as a part of the special
ordinance. The case then stands as if the special ordi-
nance ordering this particular work had directed the
sidewalk in question to be constructed of **plank four
feet long, not less than six inches wide and two inches
thick, sawn from sound pine, white or burr oak lum-
ber, and shall be laid upon and across two sleepers of
sound pine, white or burr oak scantling four inches in
size," etc.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 121
Gallaherv. Smith.
The ordiDance and contract (which used the same
words in detailing the material to be used) clearly left
it to the option of the contractor to use either pine or
oak lumber in building the sidewalk. Was the ordi-
nance for that reason void? In support of the judg-
ment below, it is insisted that .the ordinance fails to
designate the materials from which the walk was to be
constructed, but left the decision of that matter with
the contractor, thereby delegating the legislative powers
of the common council to another. If counsel are cor-
rect in this assertion, then clearly the ordinance is
void ; for it is a well settled principle of law that such
legislative powers given to the municipal authorities by
the legislature cannot be delegated to another. But
we cannot give our assent to the contention that there
was such a delegation of legislative judgment as will
avoid the ordinance. The council has not failed to
designate the material. The ordinance, with much
minuteness of detail, has prescribed the length, breadth
and thickness of the lumber, how laid and how bal-
lasted, and then has in effect said to the contractor,
^*we are indifferent whether you use pine or oak —
either will answer.^' The council has exercised its
judgment and declared in effect that there can be no
choice between the two; and this is all that can be
asked. The legislature entrusted the selection of the
material to the wisdom and judgment of the council —
to do in the matter as they thought best. It may be
that, in the opinion of the council, pine and oak lumber
were equally good for the purpose, and that by allow-
ing the walks to be constructed of one or the other
material a larger competition in bidding would be
opened up, and the work therefore done at lower pricOt
Legislative power implies judgment and discretion, it
is trae, upon the part of those who exercise it, and a
special confidence and trust upon the part of those who
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^^■M'n?*^*'
122 55 MISSOURI APPEAL REPORTS,
Gallaher v. Smith.
confer it. But it seems to us that here the council has^
according to its judgment, exercised that discretion^
and has in a manner best suited to its judgment, speci-
fied what materials may be used in the construction of
the sidewalks to be built within its jurisdiction. While,,
then, we yield to the abstract principles of law for which
defendant's counsel contend, we yet fail to see wherein
they defeat the ordinance in question. This is quite a
different case from that of Galbreath v. Newton, 30 Mo.
App. 380. The diflBculty there was not in the failure
of the ordinance to name the material, but that the con-
tract entered into by the city engineer went beyond the
requirements of the ordinance, and permitted the sub-
stitution of one material for that named in the ordi-
nance. We there held that the engineer had no such
authority, and that he must conform his contract to the
ordinance. Neither is this a parallel case to that of
Buggies v. Collier^ 43 Mo. 353, and others of like kind
cited by counsel. In Buggies v. Collier an ordinance of
the city of St. Louis purported to leave it to the discre-
tion of the mayor alone to improve streets within a
certain limit, when and where, and of such materials
as he should think proper. This was held to violate^
the city charter, as by the ordinance the city council
had attempted to delegate to the mayor a discretion
which the legislature had conferred on it and the mayor.
Cases may arise where from the face of the ordinance
it may appear that the council has abandoned the exer-
cise of its judgment and discretion, and reposed the per-
formance of its duties on another. When an instance
of that kind is presented it will be, doubtless, our
province to condemn it and declare the ordinance void.
But we do not regard this as a case of that kind. We
think the council, in the matter in hand, did exercise
its judgment and discretion, and did not delegate it ta
another. We thus remark in answer to the printed
Digitized by VjOOQIC
OCTOBER TERM, 1893. 123
Gallaher v. Smith.
argument of defendant's counsel wherein extreme cases
are put — ^far beyond the facts appearing on this record.
The judgment was for the wrong party. It will,
therefore, be reversed and remanded to the trial court
with directions to enter judgment in plaintiff 's favor for
the amount of the tax bills, interest and costs. All
concur.
Joseph Dilly, Respondent, v. Omaha & St. Louis
Railway Company, Appellant.
1 55 123'
60 338
Kansas City Court of Appeals, November 20, 1893. "^^23
67 159
1. Bailroads: killing stock: evidence. Held, the reasonable
inference to be drawn from all the evidence in the case, was that the
injury to plaintiff 's stock occurred in Benton township.
2-. : : restraining swine: harmless error: appellate
PRACTICE. Instmcting the jury that the law restraining swine was
in force in the county where the injury occurred, is harmless^ and not
reversible error.
,3. Appellate Practice: evidence: reasonable inference. In
considering the sufficiency of evidence to go to the jury, the appellate
court must allow it the weight, whjch every reasonable inference can
properly give it.
4. Railroads: killing stock: attorneys* fee: motion in arrest.
The attorney's fee allowed by the statute is, an issue of fact for the
jury, which cannot be waived, except by written consent, or oral
consent in open court entered on the minutes, and advantage can be
taken of the failure to submit it to a jury by motion in arrest, though
no objection be made except in such motion.
5. : : costs. As defendant was compelled to appeal to be
relieved of the error in assessing a fee for plaintiff's attorney, the
docket fee will be taxed against the respondent.
Appeal from the Daviess Circuit Court. — Hon. Chas.
H. S. Goodman, Judge.
Affirmed, in part; eeversed and remanded in part.
Digitized by VjOOQIC
124 55 MISSOURI APPEAL REPORTS,
DiUy V. O. & St. L. R'y Co.
Ed. E. Aleshire for appellant.
(1) The court erred in refusing to give defendant's
instruction number 6, at the close of the evidence.
Under the law and the evidence, plaintiff was not
entitled to judgment. As has been repeatedly said by
all of the courts of this state, '*It has been for a long
time the settled law in this state that it is not only
necessary to aver these facts, but also to establish
them by proof at the trial.'' Manuel v. Bailroad, 19
Mo. App. 631; Palmer v. Bailroad^ 21 Mo. App. 437;
Backenstoe v. Bailroad^ 23 Mo. App. 148; Harris v.
Bailroad^ 23 Mo. App. 328; Wiseman v. Bailroad, 30
Mo. App. 516; Kinion v. Bailroad, 30 Mo. App. 573;
Jewett V. Bailroad, 38 Mo. App. 48; Nickerson v. Eddy
(& Cross, receivers, 50 Mo. App. 569; Mitchell v. Bail-
road, 82 Mo. 106; Backenstoe v. Bailroad, 86 Mo. 492;
King v. Bailroad, 90 Mo. 520; Briggs v. Bailroad, 111
111 Mo. 168. (2) Instruction number 3 should not
have been given for plaintiff, as there was no oral nor
record testimony offered to show that the law restrain,-
ing swine from running at large in Daviess county had
ever been adopted. Courts cannot take judicial notice
of the adoption of any special law by counties. This
applies to the stock law, township organization, local
option law, etc. Foster v. Swope, 41 Mo. App. 137;
State V. Mackin, 41 Mo. App. 99; City of Hopkins v.
Bailroad, 79 Mo. 98; State v. Hays, 78 Mo. 600; State
V. Cleveland, 80 Mo. 108. (3) The court erred in the
refusal of defendant's instruction number 8. We have
printed in the abstract every word of the evidence that
in any way pertains to the manner in which the bay
mare described in the complaint received her injury,
and state that there is not a single statement contained
in the evidence that can be construed so as to show
this mare to have been injured by being frightened
Digitized by VjOOQIC
OCTOBEK TERM, 1893. 125
Dilly V. O. & St. L. B'y Co.
into the bridge, as were the dun horse and black mare.
Plaintiff 's own evidence discredits this theory, and as
nearly all of his evidence showed the damage to this
mare to be at least $20, it was manifest injustice
to permit the jury to take into consideration the
question raised by the instruction. (4) The court
should have sustained defendant's motion in arrest of
judgment. After the finding of the jury the court
made the further order and finding, to-wit: ** Ordered
by the court that plaintiflE be allowed an attorney fee
of $35, to be taxed as other costs.'' The question of
the value of the attorney's fees to be allowed in the
case should have been submitted to a jury, unless that
right was by some of the statutory manners waived,
and in this case there was no waiver. Briggs v. Rail-
road^ 111 Mo. 168. And the motion in arrest of judg-
ment should have been sustained. Scott v. Russell^ 39
Mo. 409; Cox v. Moss, 53 Mo. 433; Tower v. Moore^
52 Mo. 120; Brown v. Railroad, 37 Mo. 298.
Thos. A. Gaines and Alexander <& Richardson for
respondent.
(1) It is not necessary that the venue shall be
proven by direct testimony. It is sufficient if it can be
inferred from the facts and circumstances in proof
th^t the injury occurred in the township alleged in the
complaint. Kinney v. Railroad, 27 Mo. App. 610;
State V. Miller, 93 Mo. 263; Singer v. Dickneite, 51 Mo.
App. 245; Reilly v. Railroad, 94 Mo. 600; Thorpe v.
Railroad, 89 Mo. 650; Holmes v, Braidwood, 82 Mo.
610; Davis v. Brown, 67 Mo. 313; Cole v. Railroad, 47
Mo. App. 624; Blondeau v. Sheridan, 81 Mo. 545.
(2) The giving of instruction number 3, relative to the
swine law being in force in Daviess county, if error,
was a harmless error, which worked no injury to
Digitized by VjOOQIC
?^3^*^^T3r;^
V
126 55 MISSOURI APPEAL REPORTS,
DUly V. O. & St. L. R'y Co.
appellant. In the cases cited by appellant the question
of the adoption of a city ordinance or of the local
option law was a material issue in the case, and it was
necessary to aver and prove that the local law was in
force. In the present case it was entirely unnecessary
to either aver or prove that the swine law was in force,
and an instruction upon an immaterial matter will not
constitute reversible error, unless it be shown that
appellant was prejudiced thereby. Orth v. Dorschlein^
32 Mo. 366; Hunter v. Miller, 36 Mo. 143; McLeod v.
SJcileSy 81 Mo. 595; Elliott's Appellate Procedure,
sees. 593, 632, 635; West v. Camden, 105 U. S. 507;
Morrow v. Bailroad, 17 Mo. App. 103; Stanley v. Bail-
road J 84 Mo. 625. (3) Where a question of fact is in
issue and there is any evidence tending to prove it, it
should be submitted to' the jury. Buesching v. Gas
Light Co.y 73 Mo. 219; Nelson v. Board of Educationy
63 Mo. 137; Smith v. Bailroad, 31 Mo. 287; Bowen v.
Lazalere, 44 Mo. 383; Grady v. Ins. Co., 60 Mo. 116.
{4) The fifth point in appellant's brief, and the one
mainly relied on by its counsel for the reversal of this
cause, is that the court taxed an attorney's fee for plain-
tiff without calling a jury. The case of Briggs v. Bail-
way Co., Ill Mo. 169, is relied on by appellant and no
doubt suggests the point, but we cannot agree with
appellant's counsel that the case at bar is ''squarely in
line with it.'^ In fact Briggs v. Bailway Company falls
very short of being decisive of this point. The order
taxing the costs is not a part of the record proper, nor
can it be made so except by bill of exceptions. The
motion in arrest only goes to the record proper, while
the taxation of costs is only incident to the judgment.
Ellison, J. — This action was instituted under the
provisions of sections 2611 and 2612, Revised Statutes,
1889, wherein an action is given for damages to stock
Digitized by VjOOQIC
OCTOBER TERM, 1893. 127
Dilly V. O. & St. L. B'y Co.
which may go upon a railroad right of way by reason
of there not being a sufficient fence, and are injured in
ways other than by colliding with the train. Judg-
ment was given for plaintiflE, both in the justice's
court and the circuit court. Defendant has brought
the case here.
I. Defendant contends that there was no evidence
tending to show the township in which the injury
occurred. We think there was when it is all considered
together. The reasonable inference to be drawn from
all the testimony on this point, was that the injury
occurred in Benton township.
Defendant further contends that the court commit-
ted error in instructing the jury that the law restraining
swine was in force in Daviess county. There being no
evidence on this' subject the instruction should not have
been given ; but we accept the view presented by plain-
tiff's counsel in this regard, and hold that, under the
testimony as applied to the law of the case, no possible
injury resulted to defendant by reason of the instruc-
tion. When it is apparent that no harmful result can
follow from an error, the holding has always been that
it was not reversible error.
Again, defendant contends that its instruction
number 8 should not have been refused. This instruc-
tion declared there was no evidence that the bay mare
was injured as charged in the plaintiff's complaint, and
ihat no damage for her injury should be allowed by the
jury. We have examined the evidence on this point in
connection. 'with argument of counsel, and have con-
cluded to rule it against defendant. The evidence, we
agree, is not as satisfactory as it might have been, but
at the same time, when we consider that we must allow
it the weight which every reasonable inference can
properly give it, we cannot do otherwise than sustain
tl^ action of the court in submitting this issue to the
Digitized by VjOOQIC
128 55 MISSOURI APPEAL REPORTS,
Daiy V. O. & St. L. E'y Co.
jury, and in also sustaining the jury's conclusion
thereon ; especially since the trial court refused to inter-
fere therewith.
II. The next point of objection is based on the
allowance of an attorney's fee of $35, under the provis-
ions of section 2612, Revised Statutes, 1889. The trial
court allowed the fee, without calling a jury, and with-
out any waiver of a jury being entered by defendant as
provided in section 2133. No objection was made to
this by defendant, except by a motion in arrest. It
was decided in Briggs v. Railroad^ 111 Mo. 168, that a
reasonable attorney's fee, as allowed by the statute
aforesaid, was an issue of fact in the sense of the stat-
ute, section 2121, and that the parties were entitled to
a jury, unless one was waived. It was furthermore
decided in that case, that there could be no waiver,
when the parties appeared, except by written consent
filed with the clerk, or oral consent in court, entered on
the minutes; and that advantage could be taken of this
by motion in arrest. No waiver, as contemplated by
that decision, was made in this case, and we must hold
under that authority that error was committed against
defendant. Plaintiff's counsel make a strong argu-
ment with citation of authority, against this view,
but we are bound, under the constitution, to give the
defendant the benefit of the last ruling of the supreme
court.
The result is that we will aflSrm the judgment as
to all things save that for the attorney's fee. As to the
. latter we will reverse the judgment and remand the
cause for trial as to such fee. The costs of an abstract
and other matters attending the branch of the case
involving the attorney's fee is nominal. The appel-
lant, however, was compelled (in a legal sense) to come
to this court to be relieved of that error, and the docket
Digitized by VjOOQIC
OCTOBER TERM, 1893. 129
Ethington v. Ins. Co.
fee which he has paid will therefore be taxed against
I'espondent. All other costs will be taxed against
appellant. All concur.
James Ethington et al.y Respondents, v. Dwelling
House Insubance Company, Appellant.
Kansas City Court of Appeals, November 20, 1893.
1. Insurance: stipulation against change op title: unpaid mort-
gage DEBT. A mortgage existed at the time the insurance was
effected, after the debt became* due, and before it was paid, a loss
occurred. Held, such default in payment did not avoid the policy
under the stipulation therein, providing that any change in the
interest, title or i>os8ession, etc., rendered it void.
2. Mortgage: eppecjtop default in payment: security. Though,
on fa^ilure to pay the debt according to the terms, the legal title passes
to the mortgagee, yet the substantial interest remains where it was
before the mortgage is still a mere security for the debt.
3. InBurance : construction of terms of poucy. In the solution of
language of doubtful import, as it may appear in the policies of insur-
ance, the courts will resolve the doubts in favor of the assured for the
reason that such clauses are interjected into the policy for its protec-
tion and serve to qualify and restrict its main obligation; and in this
case, it is assumed that the language was intended to have such
meaning as people ordinarily affix to it.
Appeal from the Daviess Circuit Court. — Hon. Ohas.
H. S. Goodman, Judge.
Affibmsd.
Joshua F. Hicklin and Ed. E. Yates for appellant.
(1) The demurrer to the defendant's answer should
not have been sustained. By it the truth of every fact
stated in the answer was admitted. The answer alleges
that the title to the dwelling house insured was changed
Vol. 55—9
Digitized by VjOOQIC
130 55 MISSOURI APPEAL REPORTS,
Ethington y. Ins. Co.
by virtue of the provisions of a certain deed of trust
and the maturity of the debt thereby secured. The
demurrer admits this to be true. The policy provides
that change of title or interest of the subject of the
insurance shall avoid the contract. Upon what theory
of pleading, then, could the demurrer be ' sustained!
(2) But, aside from this question of pleading and the
fact that the court committed error in sustaining plain-
tiflE's demurrer, our position on the merits of the case
maybe briefly stated thus: The fact that the mort-
gage debt became due and was permitted to so remain
until after loss avoided the policy, because of the
change of interest and title caused thereby. In this
position we are fully sustained by the recent case of
Holloway v. Ins. Co.y 48 Mo. App. 1, loc, cit, bottom 5,
top 6. (3) What is the change in interest or title!
Before default the mortgagor was the owner ' of the
legal estate, not only as against third persons, but as
against the mortgagee; after default, the legal title
passed immediately to the mortgagee, or trustee for the
mortgagee, as in this case, and the mortgagee then
became entitled to immediate possession ; could main-
tain ejectment and was entitled to the rents and profits
to be applied to the extinguishment of the debt. This,
we contend, worked a change in the interest or title of
the assured strictly within the condition of the policy
heretofore quoted. Pease v. Iron Co., 49 Mo. 124;
Johnson V. Houston^ 47 Mo. 227; Siemers v. Schrader,
88 Mo. 23. If the law upon any one proposition of
insurance law is well settled, it is to this effect, that,
under a condition such as we have in our policy, a
mortgage does work a change of interest. As passing
npon the identical language in question, we cite Olney
V. German Co., 88 Mich. 94; s. c, 50 N. W. Rep. 100.
As also fully sustaining this position. Fire Co. v.
aarke, 15 S. W- Rep. 166; 79 Tex. 23; Sassman v.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 131
Ethington v. Ins. Co.
Pamlico Co., 78 N. C. 145; Tatham v. Commerce Co.y 4
Hun, 136; Sherwood v. Agricultural Co., 73 N. Y. 447;
Germond v. Home, 2 Hun, 540. To which might be
added not a current, but a torrent, of like authorities.
Alexander <& Richardson and W. D. Hamilton for
respondent.
As to the suflSciency of the new matter set up in
the answer to constitute a defense, we hold that the
maturity of the debt secured by the trust deed, although
the legal title to the premises, the subject of the insur-
ance thereby vested in the trustee did not constitute
a change in the interest, title or possession of the sub-
ject of nuisance, either by legal process, or judgment
or by voluntary act of assured, within the meaning of
the policy. In construing a condition of this character,
if, upon a consideration of the whole contract, it is
uncertain whether the language of the stipulation is
used in an enlarged or a restricted sense, or, if it is
fairly open to two constructions, one of which will
uphold, and the other defeat, the claim of the insured
to the indemnity which it was his object in making the
insurance to obtain, that should be adopted which is
most favorable to the insured, and most in harmony
with such, the main purpose of the contract on his part.
The reasons for this are twofold: the tendency of any
Buch stipulation is to narrow the range and limit the
force of the underwriter's principal obligation. Loy v.
Ins. Co., 24 Minn. 315 (34 A.m. Eep. 346); Hoffman v.
Ins. Co. J 32 N. Y. 405; Westfall v. Ins. Co., 2 Duer,
495; Ins. Co. v. Wright, 1 Wall. 456; Ins. Co. v.
Cropper, 32 Penn. St. 351. Forfeitures are odious to
the law, and when policies are burdened with conditions
rendering it exceedingly difficult for the assured to
observe them, the courts will not strain for a construc-
Digitized by VjOOQIC
132 55 MISSOUEI APPEAL REPORTS,
Ethington v. Ins. Co.
tion of these conditions that will defeat a recovery, but
content themselves with giving the language a fair and
reasonable construction. Ins. Co. v. Walsh, 54 HI.
164; 5 Am. Eep 115; Loy v. Ins. Co., 24 Minn. 315;
31 Am. Rep. 346; Ins. Co. v. Lawrence, 4 Metcalf, 9;
81 Am. Dec. 521; Jackson v. Ins. Co., 23 Pick. 418;
34 Am. Dec. 69; Ayers v. Ins. Co., 17 Iowa, 176; 85
Am. Dec. 553; Assurance Co. v. Scammon, 9 Am. St.
Rep. (126 III. 355) 607; Smith v. Ins. Co., 25 Am. St.
(91 Cal. 323)191; Powers v. Ins. Co., 36 Am. Dec. (19
La. 28) 665; Ins. Co. v. Hayes, 19 Am. Dec. (17 Ohio
St. 432) 628; Ins. Co. v. Hoffman, 125 Pa. St. 625;
Ins. Co. V. Vanlue, 126 Ind. 410; Ins. Co. v. Kelly, S
Am. Rep. (32 Md.) 149.
Gill, J. — This is an action to recover for the loss
by fire of plaintiffs' dwelling house, on which defend-
ant had issued its policy of insurance. The material
part of defendant's answer was as follows: "Defendant
admits that it did, on the nineteenth day of March, 1888,
issue to plaintiffs its certain policy of insurance, by the
terms of which it insured certain property, real and
personal, in said policy described, said real estate
being situated as described in plaintiffs' petition. That,
among other things in said policy of insurance, it was
expressly provided that if any change takes place in the
interest, title or possession of the subject of insurance,
whether by legal process or judgment, or by voluntary
act of the insured, or otherwise, the entire policy, so
issued to plaintiffs by defendant as aforesaid, shall be
void.
"Defendant states that on the fifth day of January,
1887, plaintiffs made, executed and delivered their cer-
tain deed of trust conveying the real estate upon which
was situated the dwelling house insured by said policy,
to Thomas J. Jeffries, trustee, to secure a certain debt
Digitized by VjOOQIC
OCTOBER TERM, 1893. 133
Ethington v. Ins. Co.
in said deed described, due two years from said date, t
That on the fifth day of January, 1889, said debt became
due, and remained due and unpaid until after the
alleged loss by fire complained of in plaintiffs' petition.
That the title and interest of plaintiffs in and to said
real estate, on said fifth day of January, 1889, became
and was vested in the trustee in said deed of trust, and
was by him held in trust for the beneficiary therein
named from and after said date until the happening of
said loss. Therefore defendant says that the title and
interest of the plaintiffs in and to the said dwelling
house, the subject of the insurance, became, and was
changed within the meaning of the condition in said
policy of insurance hereinbefore recited, and the said
entire policy became at said date of the loss complained
of, void and of no legal effect whatever.''
The court sustained a demurrer to this answer, on
the ground that it failed to state any defense, and the
propriety of so doing is the question for our determi-
nation. ,
I. These facts are admitted by the demurrer: On
March 19,1888, defendant issued its policy of insurance
for the period of five years on plaintiffs' dwelling house.
At that time there was a deed of trust on the real
estate, executed in January, 1887, to secure a note of
plaintiff due in January, 1889, and when the house
was burned this incumbrance was past due and unpaid.
Now, the point is this : Did the subsequent default
in failing to pay off the incumbrance which existed at
the date of the policy, work such a change in the
plaintiffs' interest, title or possession as to invalidate
the policy under the provision that, ^4f any change
take place in the interest, title or possession of the
subject of insurance ♦ ♦ ♦ then the entire policy
shall be voidt '' We are clearly of the opinion that it
did not.
Digitized by VjOOQIC
134 55 MISSOURI APPEAL REPORTS,
Etliington y. Ins. Co.
Defendant's counsel contends that by the failure
of the plaintiff mortgagor to pay off and discharge the
mortgage when due the title passed to the mortgagee,
or trustee, and for that reason there was a change in
the title and interest of the assured. But this conten-
tion is more technical than substantial. Admitting
that when the mortgagor fails to pay the debt according
to the terms of his promise the legal title passes to the
mortgagee, yet the substantial interest in the property
remains where it^ was before — in the mortgagor. The
mortgage is, even after condition broken, merely a
security for the debt. This passing of the technical
legal title to the mortgagee when the mortgagor i&
in default is for nothing else but to protect the debt
and to arm the mortgagee, or trustee, with the means
of foreclosure. The mortgagee, or trustee, may on
default proceed to utilize the security; may go on and
sell the property or foreclose in court, as the case may
be, or may even take possession and appropriate the
rents to the liquidation of the debt. But, until he does
so move, the mortgagor in possession substantially
owns the property. He has, in the popular and ordi-
nary use of the term, before and after condition
broken, all the title and interest he had before maturity
of the debt — ^that is, to pay off the claim and hold an
absolute, unincumbered title.
In the solution of language of doubtful import, as
it may appear in these policies of insurance, the courts
will resolve the doubts in favor of the assured, for the
reason that such clauses are interjected into the policy
by the underwriter, and for its protection, and serve to
qualify and restrict its main obligation. And if then
the company desires to qualify or impair its obligation
to pay the loss, it should use plain and unambiguous
language. We will assume, too, that language, such
as here used, was intended to have such meaning as
Digitized by VjOOQIC
OCTOBER TERM, 1893. 135
Cox y. Bishop.
people ordinarily affix to to it; and we think it unques-
tioned that it would never be considered that a mort-
gagor had lost his interest or title to the property
simply because he had not paid promptly the debt as
he had agreed. In support of the foregoing we refer
to: Loy V. The Home Ins. Co., 24 Minn. 315; -Hartford
Fire Ins. Co. v. Walsh. 54 111. 164-168; Bailey v. Winn,
101 Mo. 656; Jackson v. Ins. Co., 23 Pick. 418; Pease
V. Blot Knob Iron^Co., 49 Mo. 128.
Our conclusion, then, is that the matter set up in
defendant's answer constituted no defense, and the
trial court rightly sustained a demurrer thereto.
Judgment affirmed. All concur.
John D. Cox, Respondent, v. Abuah W. Bishop,
Appellant. "55 issj
^^ 92 629;
Kansas City Court of Appeals, November 20, 1898.
1. Appellate Practice: failure of proof: non est factum.
Where the answer in an action on a written instrument presents the
issue of nan est factum, and there is no evidence tending to prove the
signature, and the paper itself is not offered, there can be no recovery;
2. Pleadinfir: answer: consistent defenses. Non est factum and
nonperformance of the contract are not so inconsistent that they
cannot stand together, the proof of one not necessarily disproving the
other.
Appeal from the Caldwell Circuit Cowt. — Hon. E. J.
Bkoadus, Judge.
Eevebsed and bemanded.
William A. Wood for appellant,
(1) Defendant's verified plea of non est factwn,
denying all the allegations of plaintiff's petition ,
Digitized by VjOOQIC
136 55 MISSOURI APPEAL REPORTS,
Cox T. Bidiop.
required plaintiff to introduce in evidence the instru-
ment sued on and prove its execution by defendant ;
this was not done and for that reason the judgment is
erroneous and ought to be reversed. Where the
record shows an entire failure to prove a material
averment of the petition, there can be no recovery.
Grollv. Tower, 85 Mo. 249; Brumley et ah v. Golden
et al.j 27 Mo. App. 160. (2) Defendant's general
denial, verified by him and his second defense in the
nature of failure of consideration were perfectly con-
sistent and the second count of defendant's answer was
not a confession of the alleged contract, or of its exe-
cution by defendant, or of its proper assignment to the
plaintiff. Patrick v. Gas Light Co., 17 Mo. App. 462;
Lee e. D&ddy 20 Mo. App. 462; Moore v. Bank, 22 Mo.
App. 685; Wood V. Hilhish, 23 Mo. App. 389; Nelson
V. Broadhack, 44 Mo. 599; McAdow v. Boss et al., 53
Mo. 199; May v. Burk, 80 Mo. 675; Ledbetter v. Led-
better, 88 Mo. 60. (3) The second count of defend-
ant's answer alleging that the conditions of the alleged
contract filed in suit had never been performed and
that the alleged contract was therefore void, was not a
confession and not inconsistent with his verified general
denial. He had a perfect right to show that the con-
tract filed in suit was not his and had never been
signed by him, also to show that its conditions had
not been performed. He was entitled to avail himself
of either or all of these defenses. Ledbetter v. Led-
better, supra; Nelson v. Broadhack, supra; Wood v.
Hilbish, supra; Moore v. Bank et ah, supra.
Crosby Johnson for respondent.
(1) The answer is ambiguous, if it is to be treated
as an attempt to deny the execution of the instrument
sued on ; and an ambiguous denial is to be taken as an
Digitized by VjOOQIC
OCTOBER TERM, 1893. 137
Cox v.- Bishop.
admission. Bredell v. Alexander, 8 Mo. App. 110.
(2) Where the answer contains a general denial and
special pleas, it ought to be so framed as to leave no
doubt in. the minds of the court and the adverse party
as to what is denied and what is admitted. Long v.
Long, 79 Mo. 644. (3) The allegation in the answer
that ^ 'the obligation filed with the plaintiff's petition
became null and void after the expiration of January 1,
1891, '^ is inconsistent with the [theory that such instru-
ment had never been executed and delivered, and was,
from its inception, a nullity. Skeehan v. Sims, 36 Mo.
App. 224; Roberts v. Railroad, 43 Mo. App. 287. (4)
Haines Brothers performed the conditions prescribed
by the contract in suit and could have recovered
thereon, if they had not assigned same. Railroad v.
Tygard, 84 Mo. 263; Railroad v. Stockton, 51 Cal. 334;
People V. Holden, 82 111. 93.
Gill, J. — The petition in this case alleges the exe-
cution by defendant of a contract or promise in writing,
which is filed with the petition, whereby said defendant
agreed to pay Haines Brothers, plaintiJBE's assignors, or
order, a certain sum of money, provided said Haines
Brothers should on or before January 1, 1891, con-
struct and complete a railroad from Kingston to some
point either on the Hannibal & St. Joseph Railroad or
the Milwaukee road.
By his answer, verified by aflSdavit, defendant
denied the execution of the instrument sued on ; and
along with such denial, and in another clause of the
answer, defendant alleged in defense a failure on the
part of Haines Brothers to perform their part of the
alleged contract, to-wit, that they did not build the
railroad they had agreed to, etc.
The cour^ tried the case without a jury, gave
judgment for the plaintiff and defendant appealed.
Digitized by VjOOQIC
138 55 MISSOURI APPEAL EEPORTS,
Cox V. Bishop.
On account of the absence of any testimony on a
material issue in the cause the judgment herein must
be reversed. There was no evidence on the issue of
non est factum interposed by the defendant in his
answer. The action is founded on an instrument of
writing charged to have been executed by the defend-
ant ; the answer verified by affidavit puts in issue the
execution thereof, and there was an entire failure to
introduce any evidence tending to prove the defend-
ant's signature, nor was the paper itself offered. The
very groundwork, then, of the complaint] was unproved,
and hence there should not have been any recovery on
the alleged cause of action.
The second count in the answer did not confess
the execution of the writing sued on. The answer
when all read together amounted to this: Firsts a
denial under oath that defendant executed the written
contract sued on, and, second ^ an allegation that Haines
Brothers did not build the railroad as therein stipula-
ted. These counts of the answer are not so inconsist-
ent that they cannot stand together. The proof of the
one does not necessarily disprove the other; and this,
as uniformly ruled in this state, is the test of incon-
sistent defenses. McCormick v. Kaye^ 41 Mo. App.
263.
The abstract is sufficient to present the question
here considered.
Judgment reversed and cause remanded for a new
trial. All concur.
Digitized by VjOOQIC
OCTOBEJi TERM, 1893. 139
Chandler y. Oldham.
James A. Ohandleb, Respondent, v. W. A. Oldham,
Appellant.
Kansas City Court of Appeals, November 20, 1893.
Lease: gokstbuction: sale by landlord. A lease stipulated that in
case of sale, the lessee was to have a fair valuation for any and all
improyements made by him. The lessor sold, daring the term, sub-
ject to all the lessee's rights under the lease. The lessee attorned to
the purchaser and occupied the premises till the expiration of the
lease, when he abandoned the premises and improvement and brought
- this action against his lessor for the yalue of the improvements, ffeld,
he could not maintain the action, as the above stipulation was only
intended to apply to a sale where the lessee's rights would not be
protected.
Appeal from the Boone Circuit Cowrt. — Hon. John A.
HocKADAY, Judge.
Betebsed.
Wellington Gordon for appellant.
(1) A fair construction of the contract as shown
by the terms thereof, as also by the acts of the parties
themselves, was that Chandler should receive from Old-
ham a fair valuation as pay for his improvements ; pro-
vided j Chandler was not by reason of said sale in any
manner prevented from the use and enjoyment of his
slaughterhouse and pen for the whole period of six
years. Belch v. Miller^ 32 Mo. App. 387; Lumber Co.
V. Warner y 93 Mo. 374; Brewing Co. v. Water Works^
34 Mo. App. 49. The evidence on the part of Oldham
showed conclusively that in May, 1889^ he sold his land,
made a deed and at some time took the written agree-
ment of his grantees, Nichols & Bergman, binding
them to continue the lease of Chandler and protect him
Digitized by VjOOQIC
'^^^^^9^
KV- •
140 55 MISSOURI APPEAL REPORTS,
Chandler v. Oldham.
in his possession for the full six years. He advised
Chandler of this agreement and Chandler expressed
himself as satisfied and agreed to pay his rent to Nich-
ols & Bergman, and to continue on in his lease as
their tenant. To this arrangement Chandler says in his
testimony he consented and paid his yearly rental to
Oldham's grantees. This was clearly an admission on
the part of Chandler that he did not claim damages by
reason of Oldham's selling the property, and that he
understood the contract as Oldham did — ^that in case of
a sale of the land, if he was not disturbed in his poses-
sion he was not to be paid for his improvements.
Brewing Co. v. Water Works, 34 Mo. App. 49; Dobins
V. Edmonds, 18 Mo. App. 307; Crawford v. Elliott, 78
Mo. 497. Plaintiff at the end of his term had a right
to remove all his improvements, as they were erected by
him, to be used in his business and trade, and he had
no right at the end of his term to abandon them and
sue defendant for their value. Bircher v. Parker, 40
Mo. 118; 2 Taylor's Landlord and Tenant, sec. 551,
pp. Ill, 159; Kuhlmann v. Meier, 7 Mo. App. 260; 32,
161; Clemmens v. Murphy, 40 Mo. 121; Bircher v.
Parker^ 43 Mo. 443 ; Seible v. Siemoriy 72 Mo. 526.
Ttimer, Hinton <& Turner for appellant.
(1) Appellant's first contention seems to be that
the trial court erred in failing to read into the contract,
as made by the parties, an additional proviso, namely,
that, in case of a sale of the leased premises, Chandler
should only be paid for his improvements in the event
that he should be evicted by Oldham's grantees before
the expiration of six years. Certainly there is no such
proviso in the contract itself; it first grants the prem-
ises to Chandler for the purpose of a slaughterhouse
and fencing being erected thereon; second, provides
Digitized by VjOOQIC
OCTOBER TERM, 1893. 141
Chandler v. Oldham.
for a yearly rental of $25 for the use of the ground, and
that the lease should run at the option of Chandler for
at least six years ; third and last, that in case of a sale
of the leased premises, Chandler should have a fair val-
uation for any improvements made by him, provided
that nothing in the contract should be so construed as
to prevent him from holding the lease for at least six
years. This last is the only proviso in the contract,
and it doubly secured to respondent the right to the
possession of the leased premises for at least six years,
sale or no sale. The obvious intention of the parties,
as it appears in the contract, was that in case of a sale
of the leased premises, putting it beyond Oldham's
power to renew the lease, Chandler should be reim-
bursed for the reasonable value of the improvements.
This, we take, is the only construction that can be gath-
ered from the terms of the instrument itself. That the
express terms of this contract could not be varied, nor
additional conditions or provisions read into by aid
from parol testimony, we take to be too well settled in
this state to require the citation of authorities. State
ex rel. v. HoshaWj 98 Mo. 358 ; Thompson, Payne <& Co.
V. Irwin, Allen <& Co., 42 Mo. App. 403, and authorities
cit^d at page 421. The authorities cited by counsel for
appellant in the first section of his brief have no appli-
cation to a case of this character. (2) The general law
undoubtedly is that in the absence of a contract regu-
lating the rights of the parties a tenant may remove
certain kinds of fixtures placed upon the leased prem-
ises for his own purposes. But in this case the parties
were operating under a written contract regulating this
point, and not under the general landlord and tenant
law, applicable only in the absence of contract. The
contract itself provided that the tenant should be paid
for his improvements in case of a sale of the leased
premises, and hence precluded any idea of a right or
Digitized by VjOOQIC
^.'^•-'^>T5"W^,:'
142 55 MISSOURI APPEAL EEPORTS,
Chandler v. Oldham.
duty to remove the improvements, even if this court
would hold that a slaughterhouse on a stone founda-
tion, fenced with barbed wire fencing, and a stone-
curbed spring were the proper subjects for removal
under the doctrine invoked by appellant. Tiedeman on
Real Property [1 Ed.], sec. 176, p. Ill; Iron Works v.
Eitt, 49 Mo. App. 472.
Gill, J. — This controversy arose out of about the
following state of facts : Defendant Oldham was the
owner of forty acres of land north of and immediately
adjoining Columbia. Plaintiff Chandler, a butcher,
desired the use of about an acre of this land for
slaughtering purposes, and after some negotiating the
following written agreement was entered into :
May 1,1886.
^'Articles of agreement between W. A. Oldham, of
the first part and J. A. Chandler of the second part:
J. A. Chandler is to have privilege of building
slaughterhouse on pasture of said Oldham, north of
Columbia, on gravel road and to inclose a lot with
suitable fencing. For this privilege said Chandler is
to pay the sum of $25 per year, the lease to run at the
option of Chandler, for at least six yeara. In case of
sale of said property. Chandler is to have a fair valua-
tion for any and all improvements made by him, pro-
vided that said Chandler shall not by anything in this
article, be prevented from holding the lease for at least
six years.
'^W. A. Oldham,
'*J. A. Chandlee.^^
Before the expiration of this ground lease, and
when about three of the six years yet remained, Oldham
sold the pasture land above mentioned to Nicholds &
Bergman; but in making the sale, the leasehold inter-*
est of Chandler was, by agi-eement between Oldham
Digitized by VjOOQIC
OCTOBER TERM, 1893. 143
Chandler y. Oldham.
and Nichols & Bergman, saved .and left undisturbed.
Chandler was informed of the change of ownership,
attorned to his new landlords, and continued to occupy
the acre of land and slaughterhouse by him erected
thereon, until in May, 1892, — ^the expiration of the lease
— ^when he abandoned the premises and the improve-
ments he had put there for his use in slaughtering, and
then brought this action against Oldham, the former
owner, for the value of such improvements.
The cause was tried by the court without the aid
of a jury; and from a judgment in plaintiflE's favor in
the sum of $185 defendant appealed.
The facts we have to deal with are practically
undisputed, and we have detailed above such as are
material. The point we have to decide is, whether or
not the trial court properly construed the written agree-
ment above quoted.
The learned judge who tried the case below seems
to have regarded the written contract as imposing on
Oldham the absolute duty of paying Chandler for his
improvements if the land was sold regardless of the
fact whether or not Chandler was disturbed in his lease-
hold. In other words, it was held that when Oldham,
during the currency of the lease, conveyed the forty-
acre pasture to Nichols & Bergman he (Oldham) then
became bound absolutely to pay Chandler the value of
his slaughterhouse improvements, even though Chand-
ler's leasehold interest was reserved and left unimpaired
in such sale of the freehold.
"We cannot give our assent to this construction of
the written contract. It hardly comports with what we
deem a fair and reasonable interpretation of the face of
of the instrument 5 and is so unreasonable and contrary
to the circumstances and conduct of the parties in (the
light of which the instrument ought to be viewed)
that we feel constrained to deny it. The evident pur-
Digitized by VjOOQIC
144 55 MISSOURI APPEAL REPORTS,
Chandler v. Oldham.
port and meaning of the writing was that, for a con-
sideration of $25 a year, Oldham rented to Chandler for
a period of six years the land whereon said Chandler
was to pursue his trade — the butcher business. Under
this letting Chandler would hav^ the right, during his
tenancy or at the close thereof, to remove his trade fix-
tures and improvements, so long as their removal would
not materially injure the freehold as it was when he
took the lease. 2 Taylor's Landlord and Tenant section
544, et seq. [8 Ed.] ; Kuhlmann v. Meier ^ 7 Mo. App.
260-2635 Bircherv. Parker, 40 Mo. 118-120; s. c, 43
Mo. 443.
Chandler then had a lease on this acre of land with
the right, during his tenancy, to remove the improve-
ments placed thereon for the conduct of his trade. But
it was thought that Oldham might sell the property
during Chandler's tenancy and an innocent purchaser
(unacquainted with the terms of the lease) might
become entitled to these improvements. Hence the
writing was made to stipulate that in **cafie of sale of
said property Chandler is to have a fair valuation for
any and all improvements made by him.*' The sale
here provided for was a sale not only of the freehold but
of the leasehold, such a sale as would deprive the ten-
ant, as between him and Oldham's grantee, of the
enjoyment of the lease. But no such sale was made,
"When Oldham conveyed to Nichols & Bergman he
expressly reserved the interest of Chandler held under
the lease. So that, indeed, Chandler lost nothing.
Oldham advised him of the sale and of the reservation
in his favor, and he, Chandler, expressed his satisfac-
tion and thereafter recognized Nichols & Bergman as
his landlord and paid them rent for the remainder of
his term. Oldham, the landlord, in eflfect covenanted
with Chandler, the tenant, to protect him in the enjoy-
ment of the six years' term, and this the evidence
Digitized by VjOOQIC
OCTOBER TERM, 1893. 145
Fowler v. Carr.
nnquestionably shows he complied with. The leasehold
was not sold or disturbed in any way, and it would be
the rankest injustice to permit Chandler to maintain
this action.
The judgment, which was for the plaintiflE, was
clearly, in our opinion, for the wrong party and will be
reversed. All concur.
Michael Fowleb, Appellant, v. Alonzo Cakb et al,
Respondents.
Kansas City Court of Appeals, November 20, 1803.
Replevin: anbwbr: general denial: return op property. When
in replevin the answer is merely a genera) denial, and the property
has been turned over to the plaintiff, and the finding is for the
defendant, the pleadings will not sustain a judgment ordering a
return of the property, or a money judgment for its assessed value.
Appeal from the Bay Circuit Court. — Hon. E. J.
Broadus, Judge.
Eeversed and bemanded.
J. L. Farris <& Son and Hardin Steel for appellant.
In an action of replevin in the circuit court,
where plaintiflE has obtained the possession of the goods,
the defendants must, in their answer, claim the same
and demand a return thereof; otherwise the court
cannot upon a finding in their favor, give judgment
against the plaintiff for their value. Revised Statutes,
1889, sec. 7489; Young v. Glasscock^ 79 Mo. 574.
Vol. 55—10
55 H^!
01) OHtl'i
83 '}i'>^
Digitized by VjOOQIC
146 55 MISSOURI APPEAL REPORTS,
Fowler v. Oarr.
Davis (& Davis for respondent.
Gill, J. — This is a replevin suit brought to recover
a certain lot of corn, and which was turned over to
plaintiflE in the execution of the writ issued at the
institution of the action.
The answer was merely a general denial. On a
trial before the court, without a jury, the issues were
found in defendant's favor, and the court entered a
judgment for a return of the property to defendants,
or for the value thereof fixed by the court at the sum
of four hundred dollars. After unsuccessful motions
for new trial, and in arrest, plaintiff brought the case
here on appeal.
Under the state of the pleadings in this case the
court was not warranted in awarding the judgment it
did.
The statute provides: **If the plaintiff fail to pros-
ecute his action with effect * * * and shall have
the property in his possession and the defendant in his
answer claims the same and demands a return thereof, the
court or a jury may assess the value of the property
taken and the damage for taking,'' etc. Revised
Statutes, 1889, sec. 7489.
In the case at bar the defendants did not, in their
answer, claim the property and demand a return
thereof; they simply denied each and every allegation
contained in the petition, nothing more. Hence under
the statute, above quoted, defendants were not entitled
to a judgment for a return of the property or to a
money judgment for its assessed value as was given by
the lower court. Young v. Glascock, 79 Mo. 574.
The motion in arrest ought to have been sustained.
Judgment reversed and cause remanded. All concur.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 147
Watson V. Barbee.
-N. B. Watson, Appellant, v. W. 0. Barbee,
Eespondent.
Kansaa City Court of Appeals, November 20, 1893.
-Justices* Courts: AFFIDAVIT FOR appeal: jurisdiction. Although an
affidavit for an appeal from a justice's court fails to state whether the
appeal was from the merits or matter of costs, it still confers. jurisdic-
tion on the circuit court and may be amended before the motion to
dismiss is passed upon. Following Welsh v. Bailroad, — ^Mo. App. —
Appeal from the Ray Circuit Court. — Hon. Elbbidge
^ J. Broadus, Judge.
Ee VERSED AND REMANDED.
James L. Farris & Son for appellant.
(1) No appeal allowed by the justice shall be dis-
missed for want of an affidavit or recognizance, or
because the affidavit or recognizance made or given is
defective or insufficient, if *'the appellant, or some
person for him, will, before the motion to dismiss is
determined, file in the appellate court the affidavit
required.'^ Revised Statutes, 1889, sec. 6340. (2)
In the case of Spencer v. Beasley, 48 Mo. App. 98,
wherein a similar point was raised, going to the suffi-
ciency of the affidavit. The court took occasion to
remark: ''Pending the motion to dismiss the appeal,
the plaintiflE might have, under section 6340 of the stat-
utes, obviated the objection, by filing such an affidavit
as was required by section 6330, but instead of taking
that course, he elected to stand upon the affidavit as
made.'' Which opinion of the court was approvingly
Digitized by VjOOQIC
■■^r-T^-^t??
148 55 MISSOURI APPEAL REPORTS,
Watson V. Barbee.
'^ cited in tho case of Whitehead v, Cole & Rodgers^ 49
; Mo. App. 429.'' In this case, however, the plain-
I;, tiflE (appellant herein) did, what this court said in the
^ case of Spencer v. Beasley, supra, he might have done,
> to-wit, filed a sufficient affidavit under Eevised Stat-
ic utes, 1889, sec. 6330, and thus obviated the objection
'^ to the affidavit.
V J. E. Ball for respondent.
: Ellison, J. — This action was begun before a jus*
;\ tice of the peace. Plaintiff lost the case in that court,
and in appealing to the circuit court he filed an affi-
davit with the justice which omitted to state whether
the appeal was from the merits or matter of costs. A
motion was made by defendant in the circuit court to
dismiss the appeal for such omission. Before the
motion to dismiss was passed upon, plaintiff offered to.
file a perfect affidavit, but the motion was nevertheless
sustained, and plaintiff comes here.
The trial court doubtless sustained such motion,,
notwithstanding plaintiff offered a perfected or amended,
affidavit on the authority of Whitehead v. Cole, 49 Mo.
App. 426, wherein it was held that the circuit court
acquired no jurisdiction of the subject-matter when the
affidavit for appeal was defective in the particular com-
plained of in this case. In the case of Welch v. BaiU
road, decided at this term, the position taken in the^
Whitehead case was disavowed. The judgment in this,
case will, therefore, be reversed and the cause remanded..
All concur.
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OCTOBER TERM, 1893. 149
Arnold V. Ins. CJo.
Allen H. Arnold, Respondent, v. The Hartfoed ^ if\
Fire Insurance Company, Appellant. i5~u9
86 289
Kansas City Court of Appeals, November 20, 1803.
Insurance: proofs op loss: waiver: evidence: instructions.
Thoogh proofs of loss are not as fall and complete as required by the
conditions of the policy, yet if they are timely received and objections
are withheld until after time of making proofs and after negotiations
for compromise, such objections are waived, and the proofs are
admissible in evidence. An instruction on the point set out in the
opinion is approved.
: evidence: declarations op agent: res gest^: harmless
error.. The declarations of an agent who issued the policy and gave
notice of the loss made dum fervet opus in the course of his employ-
ment, are admissible in evidence; and in this case, if improperly
admitted, were merely cumulative and harmless.
: WAIVER, JURY question. Waivcr of proofs of loss is a jury
question, and the appellate court is concluded by its finding, if there
is any evidence to sustain it.
4. Instruction: abstractions: covering case. Instructions which
are mere abstractions, and do not cover the whole case, are properly
refused.
Appeal from the Boone Circuit Court. — Hon. John A.
HocKADAY, Judge.
Affirmed.
Fyke <& Hamilton for appellant.
(1) The court erred in admitting in evidence sec-
ond proofs of loss, dated July 27. The verified plans
and specifications called for in the letter of July 20,
are not furnished with this proof of loss. No such
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150 55 MISSOURI APPEAL REPORTS,
Arnold v. Ins. Co.
description of the building is given as would enable
defendant to let a contract for repairing or replacing
the same ; and to comply with the requirements of the
policy, such plans and specifications should be furn-
ished as would enable defendant to let a contract for
replacing the building. (2) The court erred in admit-
ting in evidence statements made by Early, the agent
who issued the policy, after the fire. It was not shown
that Early had any authority whatever to speak or act
for defendant in the adjustment of the loss. Until his
authority was shown, his statements were incompetent.
Williams v. Edwards, 94 Mo. 447-451; Knudson v. Ins.
Ca., 43 N. W. Rep. 954. (3) The declaration of law
given on the part of plaintiflE is erroneous. There was
no evidence that Early had authority to do or say any-
thing to waive proofs of loss ; on the contrary, the evi-
dence clearly shows that he had no such authority.
This instruction is inconsistent with instructions 1
and 2 given on the part of defendant. (4) Defend-
ant's third declaration of law should have been given;
whether or not the statement contained in second
proofs of loss could be considered verified plans and
and specifications is a question of law, not a question
of fact. The court, upon' examination thereof, can say
whether it constitutes plans and specifications. No-
attempt was made to prove compliance with the
requirements of policy as to furnishing plans. The
term plans and specifications have a well understood
meaning. Plan: *^The delineation or design of a city,
a house or houses, a garden, a vessel, etc., traced on
paper or other substance representing the position and
the relative proportions of the different parts.'' 2 Bou-
vier [14 Ed.], p. 333. Specification: *'A particular
and detailed account of a thing." 2 Bouvier [14 Ed.],
p. 539. ''A written statement containing a minute
description or enumeration of particulars." Webster.
Digitfeed by VjOOQIC
OCTOBER TERM, 1893. 151
Arnold v. Ins. Co.
W. Gordon and C. B, Sebastian for respondent.
(1) The trial court did not err in admitting in
evidence the declarations of S. W. Early, the agent
who issued the policy, who gave the notice of loss, and
who was the only representative of the company plain-
tiff could see or hear from. The presumption is that he
was acting in the scope of his authority, and the declara-
tions were admissible. Parkv. Ins. Co., 26 Mo. App.
511; Hamilton v. Ins. Co.y 94 Mo. 353; Anthony v. Ins.
Co. J 48 Mo. App. 65; Barnard v. Ins. Co., 38 Mo. 106.
(2) It would not constitute a reversible error. There
are three separate grounds of waiver, each of which
is fully sustained by the evidence. It was merely
cumulative. Young v. Hudson^ 99 Mo. 102. The
accepting and holding the proof of loss without
objection, constitutes a waiver. Loeh v. Ins. Co.,
supra. The declarations of S. W. Early, defendant's
agent, who issued the policy ; the keeping of the proof
of loss without objection, and endeavoring to secure a
compromise and authorize Scott to make it, constitu-
ted a waiver. Stavinow v. Ins. Co., 43 Mo. App. 513;
Cromwell v. Ins. Co., 47 Mo. App. 109. (3) There
was no error in plaintiff's declaration; it correctly
declared the law of waiver, and is not in conflict with
the law given for defendant. (4) As to whether there
was a waiver or not, was a question of fact to be
determined by the court, sitting as a jury. Loeb v.
Ins. Co., 99 Mo. 50; Gale v. Ins. Co., 33 Mo. App.
664; Okeyv. Ins. Co., 29 Mo. App. 105. It is mani-
fest that the court, sitting as a jury, found that there
was a waiver. There was substantial evidence to sus-
tain the finding on all three grounds. This court will
not set aside a finding of the trial judge when there is
substantial evidence to sustain it. Nelson v. Nelson,
41 Mo. App. 130; Ewing v. Phillips, 35 Mo. App. 144.
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' y 7^"^ *'-^7fly»7^i^
152 55 MISSOURI APPEAL REPORTS,
Arnold v. ins. Co.
(5) There is no merit in the appeal. The entire record
shows that the judgment was manifestly for the right
party, and it should not be disturbed even if error did
intervene. Brooking v. Shinn, 25 Mo. App. 277; Clurk
V. Waldron, 39 Mo. App. 21.
Smith, P. J. — This is an action on an insurance
policy to recover damages by fire to building insured.
The plaintiff owned a double brick building, the north
part of which was covered by the policy sued on, and
the south part by a policy in another company.
The policy provides that *4f fire occurs the assured
shall, within sixty . days, render a statement to the
company under oath, stating, among other things, all
other insut'ance, whether valid or not, covering any of
said property, and a copy of all the depcriptions and
schedules in all policies, • • • and shall furnish,
if required, verified plans and specifications of any
building destroyed or damaged.'' It also provides
that no suit for the recovery of any claim shall be sus-
tainable in any court until after full compliance by the
insured with all the foregoing requirements. The pol-
icy also provides: **It shall be optional, however,
with this company to * * * repair, build or replace
the property lost or damaged with other of like kind
and quality within a reasonable time on giving notice,
within thirty days after the receipt of the proof herein
required, of its intention so to do."
A fire occured on June 3, 1892, which burned both
buildings, including the party wall. On July 11, 1892,
plaintiflE caused proof of loss to be forwarded to defend-
ant, which was received by defendant July 18, and on
July 20 the proofs of loss were returned to plaintiff,
and the following specific objections made thereto:
''The proofs treat the damage to two buildings com-
bined, each of which appears to be separately insured
Digitized by VjOOQIC
OCTOBER TERM, 1893. 153
Arnold V. Ins. Co.
in diflferent companies, while the loss and damage to
either is entirely irrelevant to the other company not
covering the same, and on the building insured the
loss must be specifically and separately stated. This
company waiving none of its rights under the contract
of insurance, demands full compliance with the condi-
tions of the policy, which are clearly defined in lines
from sixty-seven to eighty in its contract held by Mr.
Arnold, and, on receipt of his sworn statement indi-
cating his ** knowledge and belief as to the time and
origin of the fire, * * * together with verified
plans and specifications of the construction of the
building insured, his case will receive our prompt
attention. '^
On July 27, 1892, plaintiflE, in response to the
above objections, made out and forwarded a second
proof of loss, in which was set forth, first, an accurate
description of the property covered by the policy sued
on; second^ the destruction of the building by fire and
the cause of the fire as nearly as the assured was able
to state; thirdy his interest in the property; fourth,
the cash value of the building before the fire ; fifth, by
whom and for what purpose it was occupied and used
at the time of the fire, and, sixth, that its walls were
thirteen inches thick and about twenty-two feet high,
in a 22x44-foot building. ^* Joists were 2x12 in lower
ceiling and floors, and 2x10 in upper ceiling, all oak,
two coats of plastering on the whole inside, except
lower ceiling, which is ceiled with best ceiling; all
walls and lower ceiling were papered ; partition walls
upstairs across the room, making two apartments.
This partition wall without studding and papered on
each side, with a partition door. The stairway which
led from the upper to the lower corner of the building
was removed from its original place, on the inside of
said building, to the rear end of the same, and was a
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154 55 MISSOURI APPEAL REPORTS,
Arnold v. Ins. Co.
plain stairway made of hard pine. The floor was of
the best yellow pine. The sheeting was the same a»
the ceiling; the roof, of Worcester tin, with two coats
of mineral paint. There were three doors below and
three above. There were six windows in the building,,
two below and four above; two good counters, and the
lower room was wainscoted for four feet above the
floor, all painted, oiled and varnished." It was also
stated that the loss of the building was complete^
except some salvage on brick.
This proof, it was admitted, was timely received
by defendant. It does not appear that the defendant
made any further objection to the proof of loss, though
the defendant's adjuster testified that he mailed objec-
tions thereto to plaintiff, which plaintiff testified was
never received by him or anyone for him. At the trial
this proof w£ts admitted in evidenceover the objection
of defendant.
After the second proof of loss was forwarded by
Mr. Quinn, who made out and forwarded the same for
plaintiff, he had a conversation with W. S. Early, the
agent from whom plaintiff procured the policy in
defendant company, and who was still the local agent
of defendant at Centralia, in which conversation it was
stated by Early that there would be no trouble about
the insurance, but he said there was some little irregu-
larity in the policy, but he said the principal was from
the home company. They claimed, I believe, that the
policy did not cover the annex, or that it did not cover
the new part, and, if they could discount pro rata on
that, it would settle it. He said with the Hartford
company there is no trouble whatever, she would pay
up all right. This statement of Mr. Early was commu-
nicated to the plaintiff.
The judgment was for plaintiff, and defendant
appealed.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 155.
Arnold T. Ins. Co.
I. It is objected that the trial court erred in admit-
ting in evidence the second proof of loss because na
such description of the building was given as would
en able defendant to let a contract for repairing or replac-
ing the same, and that this requirement of the policy
was that plans and specifications should be furnished
defendant. Doubtless the object of this provision of
the policy was to afford the defendant such information
in respect to the building destroyed as would enable
it to protect itself against fraud and to intelligently
exercise its opJion to either, pay the amount of the risk
or replace the building. It may be well doubted
whether the information imparted by the proof of loss
is sufficiently comprehensive and specific for that pur-
pose. It may have been for a building of that kind;
but, however this may be, the defendant, having
received and retained the proof of loss without objec-
tion, and endeavoring to obtain a compromise until
the expiration of the sixty days after the fird in
which plaintiff had a right under the policy to amend
his proof so as to meet any objection suggested thereto
by defendant, must be held to have accepted the
detailed description as set forth in the proof as
sufficiently meeting the requirement of the policy in
respect to plans and specifications of the building.
Whatever the defect of the proof may have been, the
defendant, under the circumstances, must bo held to
have waived its objection thereto. If the defendant
was not satisfied with the proof of loss made, common
fairness required that it should have timely made the
fact known to the plaintiff, Loeb v. Ins. Co,, 99 Mo.
50; Stavinow v. Ins. Co., 43 Mo. App. 513; Cromwell
V. Ins. Co., 47 Mo. App. 109.
II. The defendant further complains of the action
of the trial court in admitting in evidence the declar-
ation of Early, the agent who issued the policy and
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156 55 MISSOURI APPEAL BEPORTS,
Arnold v. Ins. Co.
gave notice of the loss. The authority of an agent
maybe inferred from the nature of his employment.
The declarations in question were made dum fervet
opus, in the course of his employment. They were
part of the res gestce. Harrison v. Railroady 50 Mo,
App. 332; Edwards v. Thomas, 66 Mo. 468; Midland
Lumber Co. v. Kreeger, 52 Mo. App. 419. At most
they only tended to establish the waiver of proof of loss,
and since there was other independent evidence quite
suflicient to warrant the submission of the question of
waiver, they were only cumulative, and if improperly
admitted, they did no harm.
III. As to whether there was a waiver or not, was
a question of fact to be determined by the court sitting
as a jury. Loeb v. Ins. Co., supra-. Gale v. Ins. Co.j
33 Mo. App. 664; O'Key v. Ins. Co., 29 Mo. App. 105.
And since there was substantial evidence adduced to
sustain the finding of the trial court, it is conclusive on
us. Swayze v. Bride, 34 Mo. App. 414; Smith v. Zim-
merman, 51 Mo. App. 519.
IV. The trial court, we think, committed no error
in declaring the law as requested by plaintiff, to the
effect that, if the proofs of loss were not as full and
complete as required by the conditions of the policy,
yet, if the defendant received the proofs within sixty
days after the date of the fire and kept the same
without notifying the plaintiff of any objection thereto,
but he was informed by the agent of defendant who
issued the policy, prior to the expiration of the sixty
days after the fire occurred, that the plaintiff's claim
was all right and would be paid, then defendant waived
further proof of loss. There was evidence upon which
to base the theory of this instruction, and there is no
objection perceived to its correctness as a legal prop-
osition.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 157
Mayer v. Keith.
V. It follows as an inevitable sequence that the
court did not err in refusing to declare the law to be
that the statement of the size, dimensions and materials
of the building contained in the proof of loss did not
constitute the verified plans and specifications required
by the policy. It was a mere abstraction. It did not
cover the whole case. It left out of consideration the
evidence of the waiver of the requirements in the policy
to which it refers. The other declarations for the
defendant covered very fully the grounds upon which
defendant rested its defense under the pleadings and
evidence, so that the refused declaration was in any
view superfluous.
The judgment is for the right party and must be
aflSrmed. All concur.
David A. Mayeb, Appellant, v. J. F. Keith et al.^
Respondents.
Kansafl City Court of Appeals, November 20, 1893.
1. Chattel Mortgage: description: growing crop. A description
in a chattel mortgage, calling for seventy acres of growing corn,
raised bj the mortgagor, on his farm in section 35, will not cover com
raised by him on an adjoining rented farm in the same section ; nor
is parol evidence admissible to show the mortgagor intended to include
the eoTD. on the rented place.
2. : : — : INQUIRY. Such description is not of that grade of
sufficiency as .to enable third parties, after reasonable inquiry sug-
gested by the instrument, to identify the com on the rented farm as
intended to be covered.
3. : : GROWING CORN: county. A description in chattel
mortgage calling for forty acres of com, standing and grown on a
certain subdivision of section 35, etc., is sufficient, though it is not
stated that the land is in the county, yet the mortgagor is described
as being of a certain county, and, as having the com in his posses^
8ion.
! 55 l.")?
m 622
Digitized by VjOOQIC
158 55 MISSOURI APPEAL REPORTS,
Mayer v. Keith*
Appeal from the Boone Circuit Court. — Hon. Jno. A.
HocKADAY, Judge.
Affirmed.
Thos. S, Carter and C. B. Sebastian for appellant.
(1) Defendant's mortgage was inadmissible, first,
because the locu^ of the property does not appear from
the mortgage itself. There is nothing in the mortgage
to show that the corn is in the state of Missouri, much
less on what farm, or for what year raised, or even that
it was in Boone county, Missouri. Bozeman v. Fields,
44 Mo. App. 432, and authorities cited in respondent's
brief; second, because of its uncertainty, for how
could forty acres of corn stand and grow on one hun-
dred and twenty acres of land as described in defend-
ant's mortgage! Nor does the mortgage state it was
all the corn standing and grown on said one hundred
and twenty acres. Bank v. Metcalf, 29 Mo. App. 384,
and authorities cited by appellants. (2) The trial
court committed error in permitting witnesses J F.
Keith and Eliza J. McCallister, over objection cf plain-
tiff, to testify in what county and state the corn in
question was located, as they were thereby adding to
the mortgage terms not contained therein. Chandler
V. West, 37 Mo. App. 631. (3) The court erred in
refusing to allow witness, Grover E. McCallister, to
testify that the corn in question was the identical corn
he intended to include in the mortgage to plaintiff, on
objection of defendant. State v. Cahanne, 14 Mo. App.
455; Bender V, Markle, 37 Mo. App. 234; Campbell v.
Allen, 38 Mo. App. 27; Cobb v. Day, 106 Mo. 278. (4)
Instruction number 2, offered by plaintiff, should
lave been given. Plaintiff's mortgage was recorded
long prior to defendant's and was such that a
Digitized by VjOOQIC
OCTOBER TERM, 1893. 159
Mayer v. Keith.
third person by its aid, together with the aid of such
inquiries as it suggested, could have identified the
property conveyed. It tells by whom^ the corn was
raised, for what year raised, the farm raised on, giving
the section, township, range, county and state where
located, and stating it was all the corn raised by the
mortgagee for that year, except ten acres, which was
separated from that mortgaged. Stonebraker v. Ford,
81 Mo. 532. And the locus of the property thus fully
and clearly appearing from plaintiff's mortgage he
could resort to parol proof for the purpose of further
identification. Bozeman v. Fields, supra.
Sam. C. Major for respondent.
(1) Notwithstanding that the description in a chat-
tel mortgage is faulty, in that it does not locate the
property and does not state who is the owner, yet such
fault is cured where other portions of the instrument
show the residence of the mortgagor, and that the
property is in his possession, and that it shall not be
removed from the county in which the mortgagor's
residence is fixed, and that, upon default, it shall be
sold in such county. Ester v. Springer, 47 Mo. App.
99. (2) That the description in a chattel mortgage is
suflBcient, where it is such as enables third parties,
aided by the inquiries which the instrument itself sug-
gests, to identify the property, and oral testimony in
aid of the description is admissible. State v. Cabanne,
14 Mo. App. 294, 455; Bank v. Jennings, 18 Mo. App.
651; Campbell v. Allen, 38 Mo. App. 27; Jennings v.
Sparkman, 39 Mo. App. 663; Boeger v. Langenberg, 42
Mo. App. 7. (3) Under the rujes of description as
above set forth, appellant's mortgage was clearly inad-
missible in evidence. It was sought by evidence to
contradict this description and aflBx a different one.
This cannot be done. The law is that, while parol
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160 55 MISSOURI APPEAL REPORTS,
Mayer v. Keith.
evidence may aid an imperfect description, it cannot
contradict the description, nor affix a different one to
the mortgage. Cattle Co, v. Bilby^ 37 Mo. App. 43.
Gill, J. — This is a contest between two mortga-
gees as to who was entitled, on November 10, 1892, to
the possession of a lot of com grown on the farm of
Mrs. Eliza J. McCallister, in Boone county, Missouri.
Plaintiff Mayer asserts a right by reason of a chattel
mortgage made to him in September, 1892, by Grover
E. McCallister to secure his individual debt of $624,
and defendant Keith claims under a mortgage made to
him in October, 1892, jointly by isaid Eliza J. and
Grover E. McCallister to secure a joint debt of about
$800, then owing by said Eliza J. and Grover E.
McCallister to said Keith. The validity of both mort-
gages is drawn in question. The issues were' tried
before the circuit court without the aid of a jury, and
the trial judge gave judgment in defendant's favor and
plaintiff appealed.
In order to a full understanding of the matters in
dispute, we deem it necessary to state, that Eliza J.
McCallister (who is the widowed mother of Grover
McCallister) owned and lived on a farm of about one
hundred and twenty acres, while adjoining her, and in
the same neighborhood, Grover E. McCallister had a.
separate farm on which, too, he resided. In the season
of 1892, Grover McCallister raised a crop of corn on his
own farm, and also cultivated on shares forty acres of
corn on his mother's farm ; and it is this last named
corn, raised on the farm of Mrs. Eliza McCallister^
which is the subject pf this controvery.
I. With this preliminary statement we proceed ta
consider the two mortgages. Both are attacked because
of alleged insuflScient description. The Mayer mort-
gage, it must be borne in mind, was executed by Grover
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OCTOBER TERM, 1893. 161
Majer v. Keith.
McCallister to secure an individual debt which he owed
Mayer. It was prior in point of time to the Keith mort-
gage; and if, therefore, it covered the corn in question,
the plaintiff in this action must prevail.
We now quote from the Mayer mortgage: *^Know
all men by these presents, that the undersigned Grover
E. McCallister, of Boone county, Missouri, in consid-
eration of the sum of six hundred and twenty-four
dollars, to him paid by D. A. Mayer, of Boone county,
Missouri, do sell, assign, transfer and set over unto the
said D. A. Mayer, and to his executors, administrators
and assigns, the following personal property, to- wit:
That is to say, seventy acres of growing corn raised by
the said Grover E. McCallister for the year 1892 j on his
farm J in section 35, etc, in Boone county, Missouri,
being all the com he raised on said farm, excepting
ten acres on the west end of the farm, being separate
and apart from the seventy acres above mentioned. ^^
The lower court held that the description, '^seventy
acres of growing corn raised by the said GFrover E.
McCallister on his farm in section 35, * * * Boone
county, Missouri, being all the corn he raised on said
farm,'^ etc., did not fairly include within its terms the
corn which said Grover may have raised on shares on
Mrs. Eliza McCallister's farm ; and we concur in this
opinion. It matters not that Grover McCallister, in
his mind, may have intended to include not only the
com he raised on his own farm, but as well that he
raised on another farm. It won't do in such cases to
give effect to such concealed intentions. The mortgage
on its face must give notice to third parties of such
intentions, or else great fraud would be accomplished.
As we had occasion once before to say, in a case similar
to this in principle: **It is true that parol evidence may
be called in to explain the circumstances and thereby
fit the description, as given in the mortgage, to certain
Vol. 55—11
Digitized by VjOOQIC
162 55 MISSOURI APPEAL REPORTS,
Mayer v. Keith.
property intended to be mortgaged, but it is not per-
mitted the mortgagee to show, as against an innocent
purchaser, that his mortgage naming property of a
certain description, covered or applied to property
of a different description.'^ New Hampshire Cattle Co.
V. Bilby, 37 Mo. App. 43, and cases cited. A descrip-
tion of *'all the corn raised in the year 1892 on Grover
McCallister's farm, in Boone county, Missouri, '' cannot
be held to cover corn raised the same year on another
and different farm.
Neither was the description here of that grade of
suflBciency as would enable third parties after reason-
able inquiry suggested by the instrument to identify
the corn in question as that intended to be covered by
the mortgage, as was that in Campbell v. Allen, 38 Mo.
App. 27, and like cases. By inquiry it would be found
that Grover McCallister owned a farm, on which he
lived, and that in that year he raised a crop of com
thereon; the mortgage then would be sufficient so
give notice that this corn so raised on his farm, was
covered by the mortgage, but it would not be sufficient
to include other corn raised on another farm.
We have, then, no hesitancy in declaring, with the
lower court, that the Mayer mortgage did not cover the
corn in controversy. The plaintiff, therefore, had no
title or right of possession.
II. As to the chattel mortgage under which defend-
ant Keith claims, little need be said. The description
in the mortgage is * 'forty acres of corn standing and
grown on the west half of the southeast quarter of sec-
tion 35, also the southeast of the northwest quarter of
section 35, township 51, range 13. '^ This was the
description of the Eliza McCallister farm, and the evi-
dence showed that on that farm there was but forty
acres of corn raised that year. But it is objected that
the description is faulty in not further stating that sec-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 163
Chora V. The M. K. & T. Wj Co.
tion 35, township 51, range 13, was in Boone county,
Missouri. In a case lately decided by us, this objec-
tion as to the situs of the mortgaged property is fully
answered. See Estes v. Springer, 47 Mo. App. 99.
The mortgage description there was assailed for the
same reason as in the case at bar. And we answer the
objection as was done in that case; since the mort-
gage discloses that the mortgagors are of Boone county,
Missouri, and. since it is recited that the property was
to remain in their possession until condition broken,
and was not to be removed from Boone county, we
bold that it was thereby made sufficiently apparent, as
matter of description from the mortgage itself, that
the property was in Boone county, Missouri.
The foregoing disposes of every material question
in this controversy. Keith took a valid chattel mort-
gage as additional security for a bona fide claim he held
against the two McCallisters. There is nothing what-
ever appealing in this record to justify any charge of
fraud, either actual or constructive ; and as we discover
no substantial error in the trial of the cause, the judg-
ment will be affirmed. All concur.
J. D. Chobn, Respondent, v. The Missouri, Kansas
& Texas Railroad Company, Appellant.
Elansas City Court of Appeals, November 20, 1893.
1. Appellate Practice: RAILROADS: killing stock: circumstantial
EVIDENCE. If the triers of the facts can with reasonable certainty
infer from the surrounding circumstances that the stock was killed in
the manner charged, then the appellate court is not authorized to
interfere.
2. : finding op trlal court: different counts. The appel-
late court will not interfere with the judgment below, on the ground
that the trial court did not make a separate finding on each count,
where the record fails to show affirmatively that the cour*^ did not
pass on the merits of each count separately.
55 163
64 832
Digitized by VjOOQIC
164 55 MISSOURI APPEAL REPORTS,
Ghom V. The M. K. & T. E'y Co.
Appeal from the Howard Circuit Court. — Hon. John A.
HocKADAY, Judge.
Affibmed.
Jackson & Montgomery for appellant.
(1) The court erred in refusing to give the per-
emptory instructions numbered 1, 2, 3 and 4, for the
reason that the evidence did not show that the several
animals got on the railroad ground at any particular
places, nor that the fence was defective at any place
where any of said animals entered the railroad ground.
(2) The finding was void because there were four dis-
tinct causes of action set forth in four distinct counts
of the petition, and yet the court made but one general
and aggregate finding, when there should have been a
separate finding on each count. The court refused to
correct this error, although it was pointed out in the
motion for new trial and in the motion in arrest.
Bricker v. Bailroad, 83 Mo. 391, and cases cited.
Sam. C. Majors for respondent.
(1) The evidence was that the tracks of the
animals showed that they got onto the right of way
where the fence of defendant was down. Gee v. Bail-
roadj 80 Mo. 283; Earned v. Bailroad, 51 Mo. App. 487;
Allen V. Bailroad, 38 Mo. App. 294 ; Hamilton v. Boggess^
63 Mo. 233; Gaines v. Fender y 82 Mo. 497; Warren <&
Son V. Malonetfy 39 Mo. App. 295. And these authori-
ties are a complete answer to points 1, 2, 3, 4 and 5.
(2) The sixth point might be well taken if it were a
fact that the court made but one general and aggregate
finding; although there seems to be a conflict of
authority on this point. The case of Bricker v. Bail-
road^ 83 Mo. 391^ sustains that view, "while 17 Mo.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 165
Chom V. The M. K. & T. B'y Ck).
App. 341, in the case of Loomis v. JRailroad, holds a
contrary view. But like the case of Dodds v. Estill^
32 Mo. App. 46, it is not necessary in this case that
you should choose between the two opinions on this
rule of practice. The tnith is, that the court did in
fjMJt find upon all the counts for the amount claimed in
each, and upon each count separately. An examina-
tion of the statement of plaintiflE's cause of action,
filed with the justice, shows this beyond a doubt.
How can appellant say that the court did not find upon
each count! What evidence have they for this conten-
tion! The court sitting as a jury in the trial of a
cause does not return a written verdict, and there is no
separate record made of its finding. Every presump-
tion attends the acts and doings of a court of general
jurisdiction, and a party who asserts that error has
been committed must prove it. State v. Burns j 85 Mo.
47; Forth v. Gilbert j 85 Mo. 125; Beckley v. Skroh, 19
Mo. App. 75.
Gill, J. — This is an action originally brought
before a justice of the peace under the double damage
act, to recover for the killing of plaintiflE's stock; the
statement filed with the justice charged, firsts the kill-
ing of two hogs of the value of $6 each, on March 3,
1892 ; second^ the killing of one Cotswold sheep, of the
value of $8, May 30, 1892; thirds the killing of two
common Cotswold ewes, ot the value of $3 each, June
1, 1892; fourth J the killing of one hog of the value of
$8, July 11, 1892 — aggregating in value $34.
The imputed act of negligence, was the failure of
defendant to construct and maintain lawful fences at
the diflferent places where said animals went upon the
railroad, and where it was the duty of defendant to
fence its right of way. The case was taken by appeal
to the Howard circuit court, where on a trial before
Digitized by VjOOQIC
APPEAL REPORTS,
he M. K. & T. R'y Co.
jury, plaintiflE had judgment
the aggregate danLages suffered
appealed.
erein is assailed on two grounds.
IS of defendant's brief all relate
proof to establish a case against
\ connection we have read the
the abstract and find therein
sustain the court's finding on
plaint. There was ample evi-
irt in finding, that defendant was
maintain lawful fences along its
eason thereof plaintiff's stock (of
nes named in the complaint)
! adjoining enclosures onto' the
run over and killed by passing
^ere no eyewitnesses to the kill-
mt indirect proof that the stock
^r charged in the petition. The
that if the triers of the facts can
aty infer from surrounding cir-
ock was killed in the manner
fc will not be authorized to inter-
ady 51 Mo. App. 487.
Qly remaining objection is, that
distinct and separate causes of
e complaint, yet the trial judge
B finding on each count as there
e law is settled in this state, as
counsel, that where there are
the petition there should be a
h, and that it is error for the
3m the jury a general verdict in
)unts. Bricker v. JRailroadj 83
now, that this same rule should
of fact, as well as law, are tried
Digitized by VjOOQIC
OCTOBER TERM, 1893. 16?
Chom V. The M. K. & T. R'y Co.
before the judge without a jury, how' are we to deter-
mine in this case that the court did not make a separate
finding on each count! There is nothing on the face of
these proceedings that would so indicate. . There was no
verdict nor separate finding of facts by the court and
the judgment, wherein the aggregate damages are
named with the order doubling the same as the statute
requires, fails to show that the court considered the
different counts in solido rather than separately. But
when the face of the complaint is considered along with
the evidence and the judgment, it would seem conclusive
that the trial court passed on each count separately and
found thereon for the plaintiff. This is manifest from
the following considerations appearing on this record:
first J that in the first count $12 is claimed, in the second
$8, in the third $6, in the fourth, $8; and second from
the further fact that the evidence was undisputed that
the animals killed were of the values named in the com-
plaint; and thirdly, because in the judgment the aggre-
gate amount of damages is fixed at $34, which was the
exact aggregate sum claimed in the petition and sup-
ported by all the evidence in the case.
However, we base our decision on this point, and
hold it against the defendant, on the ground that the
record fails to show affirmatively that the court who
tried the case did not pass on the merits of each count
separately. As often said: ** Every presumption
attends the acts and doings of a court of general juris-
diction, and a party who asserts that an error has
been committed must prove it.'^ State v. Burns, 85
Mo. 47.
Judgment affirmed. All concur.
Digitized by VjOOQIC
55 168
59 590
i68 55 MISSOURI APPEAL REPORTS,
Hellman & Go. v. Biok.
B. Hellman & Co., Appellants, v. John Biok, Gar-
• nishee, etc., Respondent.
KanaaB Oity Court of Appeals, November 20, 1893.
1. Fraudulent Conveyances : creditor sEcuRma his debt. Where
a creditor of an insolvent firm, without knowledge of any fraud, and
only endeavoring to secure payment of his own claim, takes no more
goods than is necessary, he is not answerable as garnishee of the firm
at the suit of another creditor.
2. Evidence: trial before gofrt. The same rigid rules in regard
to the admission and exclusion of evidence ought not to be enforced
in a trial before the court, as before a jury, for it is not to be pre-
sumed that the court would, in its deliberation and judgment, be
influenced by evidence that probably might probably mislead a jury.
Appeal from the Audrain Circuit Court. — Hon. E. M.
Hughes, Judge.
Affibmed.
John M. Barker for appellant.
(1) In this case the partnership had ceased under
a written contract to honestly settle the debts, and J.
B. Harper's pretended sale of all the goods to John
Bick was void. Clayton v. Hardy ^ 27 Mo. 536. (2)
The transfer of the goods that night was fraudulent. If
the intention of such a transfer is to defeat other cred-
itors the deed as to them is fraudulent. Henderson et
al. V. Henderson, 55 Mo. pp. 534, 555, 556, and cases
cited. (3 ) While it is unquestionably true that a debtor
may, in failing circumstances, prefer one creditor to the
exclusion of another, that doctrine cannot be applied to
this case because J. B. Harper had no right to prefer rf
creditor ; he could only act under his contract to treat
creditors fairly, and his departure from that contract
Digitized by VjOOQIC
-?«^r^^^•^,
OCTOBER TERM, 1893. 169
Hellman & Co. v. Bick.
was simple rascality. The two brothers, a^ partners,
had already preferred creditors in writing and in an
upright and honorable way, and J. B. Harper should
not be allowed to conspire with Bick to swindle the
others. (4) The gross inadequacy of price in this case,
taken with the other circumstances, establishes fraud
on the part of Bick and J. B. Harper. Ames v, Gil-
morey 59 Mo. 537.
W. W. Fry for respondent.
(1) The case was tried before the court and the
appellate court will not review the evidence or interfere
with the finding of facts. Pierson v. Slifevy 52 Mo.
App. 273; Orr v. Mode, 101 Mo. 399; McCullough v.
Ins. Co., 21 S. W. Rep. 207-209. (2) A fraudulent
conveyance will not be set aside at the instance of cred-
itors to the prejudice of a bona fide purchase from a
fraudulent grantee. Gordon v. Ritenour, 87 Mo. 54. If
the transfer by J. B. Harper was fraudulent on his part
there was not an item of evidence that respondent had
any knowledge of it. That this was the finding of the
trial court is apparent from the instruction given by the
court for appellant. (3) If J. W. and J. B. Harper
were partners at the time of the sale to respondent (by
the evidence J. B. Harper was the sole owner) one
partner had the right to sell partnership property to
pay the debts of the firm. The property was under
attachment, and it was properly sold to pay the debts.
Clark V. Rives, 33 Mo. 579; Keck v. Fisher, 58 Mo. 532;
Molt V. Simmons, 16 Mo. App. 114.
Ellison, J. — Plaintiffs obtained judgment against
defendants and had garnishment served on Bick, the
respondent here, who denied owing defendants or hav-
ing any of their prpperty. The circuit court, on trial
without a jury, found for Bick, and plaintiflfe appealed.
Digitized by VjOOQIC
PPEAL REPORTS,
& Co. V. Bick.
•e in this case than a sale of
k, one of the creditors of an
knowledge of any fraud and
re or obtain payment of his
> more goods than was neces-
or Bick and there was testi-
port the finding. In such case
suit, as has been so frequently
ants were partners in a small
ries. That they bought their
ky paying him part cash and
20. The groceries were pur-
ale houses. Defendants con-
freed between themselves that
per, should take the stock and
debts. About the time the
firm of the grocery creditors
3r their claim of $48. Bick,
t to collect his note of $320,
chasing the stock from J. B.
f the attachment just referred
He paid off the attachment,
ook possession of the goods,
ding to show that the goods
I the amount he paid for them,
50 tending to show that he was
onnected with any fraud. In
d. See Meyberg v. JacobSj 40
V. Budyj 53 Mo. App. 196;
i Mo. App. 493.
made as to the admission of
£ is not of sufficient substance
ially when it is considered that
9 court without a jury. Judge
e supreme court ia McCullough
Digitized by VjOOQIC
OCTOBER TERM, 1893. 171
Baker v. Robinson.
V. Ins. Co.y in an opinion promulgated January 31,
1893, and not yet reported, says that when a cause is
submitted to the court without a jiiry ^*the same rigid
rules in regard to the admission and exclusion of evi-
dence ought not to be enforced as if the case had been
trifed before a jury, for it is not to be presumed that the
court would, in its deliberation and judgment, be influ-
enced by evidence" that might probably mislead a juiy.
The judgment will be aflBrmed. All concur.
A. W. Baker, Appellant, v. W. P. Robinson et aL,
Respondents.
Kansas City Court of Appeals, November 20, 1803.
Partnership: sale of partner's interest: action at law.
A partner may sell to his copartners his interest in the partnership
and recover the purchase price in an action at law, and this too,
whether snoh interest is incumbered or unincumbered by the con-
dition of the partnership or whether its amount is fixed or the price
thereof agreed upon.
Appeal from the Chariton Circuit Court. — Hon. 0. F.
Smith, Special Judge,
Eevebsed and remanded.
A. W. Johnson and Crawley <& Son for appellant.
(1) A sale by one partner to his copartners of his
entire interest in the assets and business of the firm,
works ipso facto a dissolution of the partnership.
Spaunhaust v. Link, 46 Mo. 197; Allen v. Logan^ 96
Mo. 591. (2) Previous to such dissolution the present
demand had no existence. It is not a demand arising
out of a partnership transaction, nor would an account-
ing or settlement of the partnership afifairs embrace it,
or affect it in any way. In^such cases the authorities
Digitized by VjOOQIC
)UEI APPEAL REPORTS,
Baker y. Robinson.
lat the rule forbidding one partner to
at law, has no application. Ham v.
); Whitehill v. Shichle, 43 Mo. 537;
61 Mo. 133; Powers v. Braley, 41 Mo.
/ V. Bobison, 52 Mich. 589; Mitchell
. 127; Pardee v. Markle, 111 Pa. St.
ley, 14 Phila. (Pa.) 206; Wells v.
. 447; Merriwether v. Hardeman, 51
(& Son for respondents.
uri the rule has been strictly adhered
)re has been no settlement of accounts
scertained, one partner cannot main-
?ainst another. These principles of
irtnerships are elementary and have
an unbroken line of decisions in all
Missouri, especially, the courts have
to the rule here announced. Stothert
112; Springer v. Cabell, 10 Mo. 640;
^utchen, 27 Mo, 436; Russell v. Grimes,
ott, AdmW, V. Caruth, 50 Mo. 120.
ed sale in this case was at most but
I to a settlement, ascertain the value
erest and ^'strike a balance,'^ but it
3y plaintiff's own admission, and the
ly sustained defendants' demurrer to
-Plaintiff seeks by this action at law
fendants the purchase price of his
I the partners in a firm known and
B Planing Mill Company.'' At the
nee for plaintiff, the court sustained
reto. Plaintiff took a nonsuit with
Digitized by VjOOQIC
OCTOBER TERM, 1893. 173
Baker y. Robinson.
leave ; and the court refusing to set it aside, he brings
the case here.
, The contention on the part of the defendants is
that, since plaintiflf and the defendants were partners,
and there has been no settlement of the partnership
aflfairs, no action at law will lie between the partners.
We have not so much fault to find with the diflferent
propositions of the law of partnership which is advanced
to us by defendants as we have with the attempt to
apply these propositions to facts which the evidence
tended to establish. There was evidence tending to
prove that plaintiflf and defendants entered into a part-
nership; that plainti^ put into the partnership fund
two lots, which he valued at $200, and $425 in money;
that one of the defendants put in a sum of money and
another of them another sum, while the two others put
in little or nothing aside from labor. After the part-
nership had been running for some considerable period
of time, plaintiflf concluded he would sell out his interest
and withdraw from the firm. He made known his
intentions to the other partners (these defendants) and
proposed to sell to them. Plaintiflf testified that: ''I
told them what I would take for my interest ; that was
what I put in; lots valued at $200, cash $425, making
$625, and reasonable wages for my labor. That was
my proposition, and they accepted it.'' That, there-
upon, plaintiflf retired from the firm and defendants
remained in possession of the property and prosecution
of the business for themselves — not considering or rec-
ognizing plaintiflf. any further. That they, shortly after
the purchase, published the following notice in the
Salisbury Press-Spectator:
''notice of retiring.
''Notice is hereby given to all that Mr. A. W.
Baker is no longer connected with the Star Planing
Digitized by VjOOQIC
I APPEAL REPORTS,
[iker T. Bobinson.
y, Mo., having sold his entire
lany. All outstanding accounts
tnpany and all debts must be paid
*'8tar Planing Mill Co.
ire facts which can be established
em as established on the case as
intiflE ought, unquestionably, to
lis lots, as agreed, and the $425
sum as can be shown to be the
s services. One partner may sell
interest in the partnership and
price in an action at law. It
irhether that interest be great or
incumbered by declining trade,
i unsettled accounts, or whether
isiness established on a wide and
I and earning large profits. This
ince of plaintiff's contention and
ed.
the value of his labor wa^ not
the value of the lots was not fixed
r plaintiff's action. There is no
selling and delivering his property
jO be thereafter fixed.
:ed, we are not unmindful of the
md equity as to the adjustment
tnership affairs, and of the right
• does not lie between partners ; but
io not arise in this' case so far as we
consider it. This case as made by
volves or concerns the partnership
not in any manner require an
^ill be reversed and the cause
ir.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 175
Harman v. City of St. Louis.
Henry Harman, Appellant, v. City of St. Louis
et al.y Respondents.
St. LouiB Court of Appeals, November 21, 1893.
Appellate Jurisdiction : action to which the city op st. loots is
A PARTY. The city of St. Louis is a political subdivision of this state,
and the supreme court, therefore, has exclusive jurisdiction of an
appeal in a cause wherein it is a substantial, though not the sole,
party.
Appeal from the St. Louis City Circuit Court. — Hon.
Daniel D. Fishee, Judge.
Transferred to supreme court.
Henry M. Post for appellant.
Wm. C. Marshall and J. P. Vastine for respond-
ents.
RoMBAUER, P. J. — The plaintiff brought this action
to recover from the city of St. Louis and the other
defendants damages caused to him by the erection and
continuance of certain frame buildings in the vicinity
of his property in violation of the city ordinances.
The defendants all demurred to the petition. The
demurrers were sustained, and, the plaintiff declining
to plead further, judgment was entered on the
demurrer against him. From this judgment the plain-
tiff appeals to this court.
The city of St. Louis is a political subdivision of
the state, and the supreme court has exclusive appel-
late jurisdiction of any cause wherein a political subdi-
vision of the state is a party. Such exclusive appellate
jurisdiction does not defend on the political subdivis-
56 175|
56 2571
Digitized by VjOOQIC
REPORTS,
defendant, but upon
ecided in Freeman v.
. 362, and transferred
L the ground that the
in. That cause has
pt, and we must con-
•etaining jurisdiction
3 supreme court has
lat the appeal herein
) this court,
transferred to the
do at once transmit
3opy of this order of
All concur.
Patbiok M. Staed
vember 21, 1893.
ORDER: EXACTION OF NON-
m was gpranted on condition
atutory form, and, further-
I party enjoined as tmstee
>8e interests were affected,
tly the injunction was dis-
I cancellation \}t the non-
as without merit.
: INTERFERENCE WITH PRO-
J., expressing no opinion,
jerfere with process of the
no jurisdiction to restrain
court, where the execution
a debtor holds an unjiaid
amount of the execution «
Digitized by VjOOQIC
OCTOBER TERM, 1893. 177
Einealy v. Staed.
3. : ENFORCEMENT OP DORMANT JUDGMENT: STATUS IN EQXnTY OF
HOLDER OF SUCH JUDGMENT. Heldf bj BoND, J., that a judgment which
has lain dormant for more than ten years does not entitle its owner
to any relief in equity beyond that of a general creditor of the judg-
ment-defendant, and, accordingly, that it is not a proper basis for an
injunction against the enforcement of another judgment obtained by
such defendant against such owner.
Appeal from the St. Louis City Circuit Court. — Hon.
Daniel D. Fisheb, Judge.
Affibmed.
Ford Smith for appellant.
(1) The motion to vacate so much of the order
granting the temporary injunction as required plaintiflE
to give bond to the sheriflE as trustee, and to cancel said
bond, should have been sustained. It imposed upon
plaintiflE conditions not imposed by statute, and not
warranted by law. It compelled plaintiflE to submit to
an illegal requirement or lose his legal rights. Rubel-
man Hardware Co. v. Greve^ 18 Mo. App. 6, 9, 10.
(2) Plaintiflf's judgment against Patrick Macklin is a
valid subsisting claim — a .debt — even if no execution
could issue on it. Equity will restrain an insolvent
debtor from enforcing a judgment against a creditor,
and compel him to set oflE the account against his judg-
ment. Payne y. London^ 1 Bibb, 518; Marshall v.
Cooper J 43 Md. 46; Baker v. Ryan, 67 Iowa, 708. It
will do so, even when the claim of the complainant in
the bill to enjoin the execution of the judgment is an
open account. Levy v. Steinbach, 43 Md. 212; Lindsay
V. Jackson, 2 Paige, 581; Boone v. Small, 3 Cranch
C. C. Rep. 628.
John B. Denipsey for respondents.
PlaintiflE's petition cannot be maintained under the
decision of the supreme court in Mullen v. Hewitt^ 103
Mo. 639.
Vol,. 05—13
Digitized by VjOOQIC
APPEAL EEPOETS.
aaly v. Staed.
-The plaintiflE's petition states
ng facts. In December, 1873,
a judgment against the defend-
for $626. This judgment, by
became the property of plain-
atiflf has ever since been the
3lly unpaid, except fifty dollars
its, with interest, to seventeen
re.
atrick Macklin and Ann, his
it, Haydel, as trustee for such
preme court of Missouri a judg-
le plaintiflE, the entire judgment
Of this judgment $480 were
irick Macklin, and the defend-
stantial interest in any of them,
e year 1886, and no administra-
on her estate. Patrick Macklin
nt ever since 1875.
)roceeds to state that the Fer-
)d by plaintiff, far exceeds in
3fendant Macklin for costs in
[) him and others by the supreme
:ecution was issued, the plaintiff
:o the supreme court to quash
b the supreme court overruled
arch 23, 1891, ordered an exe-
endant, Staed, who is sheriff of
who took no action thereon
f March, 1891; that the defend-
Qce of the defendant, Macklin,
[ execution on property of the
iff is willing to pay all costs in
[g to other persons than said
oon as their amounts are ascer-
itiff should be compelled to pay
Digitized by VjOOQIC
OCTOBER TERM, 1893. 179
Einealy v. StaecU
said execution, the said Ferguson judgment now owned
by him would be wholly lost to him owing to the insol-
vency of said Macklin, and that he has no remedy
except in equity.
*' Wherefore plaintiff prays that an account be taken
of the amount of said costs, in truth and in fact belong-
ing to, or accraing to, said Patrick Macklin, and that
said amount be credited to this {)laintiff on the costs
set forth on, and in, said execution and on said judg-
ment against said Macklin, and plaintiff be only
required to pay of said costs the balance remaining
after deducting the amount so belonging to, or accru-
ing to, said Patrick Macklin, and that said Staed he
restrained and enjoined from taking ^ making or maintain-
ing said levy under said execution^ or from enforcing the
samej if any levy has been made^ or from summoning
any pei-sons as garnishees thereunder, and be enjoined
from, in any manner^ proceeding to enforce said execution
or paying any money realized under said execution, if
any,' until further orders and decree of this court, and
for such other and further relief as may be just.'^
On this petition one of the circuit judges in vaca-
tion issued a restraining order against the defendant
sheriff. The order was made on condition that the
plaintiff, besides his ordinary injunction bond, give a
bond to the sheriff, as trustee for other parties than
Macklin entitled to costs on the injunction, to pay
them what was admittedly due to them as soon as the
exact amount would be ascertained. The plaintiff gave
such a bond, but afterwards moved that the same be
cancelled as unwarranted by law. The circuit court
overruled the motion, and the plaintiff excepted and
still excepts. The defendants thereafter filed a general
demurrer to the plaintiff's petition, which the court
sustained, and, the plaintiff declining to plead further,
judgment wa^ entered against him pji th^ demurrer,
Digitized by VjOOQIC
JRI APPEAL REPORTS,
Einealy v. Staed.
ment he prosecutes the present
first assignment of error relates to
►urt in refusing to cancel the addi-
[ from him as a condition precedent
inction. This assignment rests upon
ptio'n of the plaintiff's rights. It is
the statements of the petition, the
d to no injunction whatever, unless
e amount which was admittedly due.
idity of which was not questioned,
parties than Macklin stands con-
ground alone the court would have
refusing an injunction altogether.
57 Mo. 203-207; Dickhaus v. Older-
76-79. It is no answer to say that
ake a tender to pay such costs as
It was his duty to ascertain them,
, before he could ask for the e(|ui-
of the court, and the diflBculty of
no exoneration from the duty. The
n bond would have furnished no
•son not a party to the proceeding,
le subject-matter of the controversy
1889, sec. 5498), since conditions
action bond in excess of its statutory
nenforceable by anyone. Rubelman
rreve, 18 Mo. App. 6. Beyond this
) how the plaintiff, having obtained
injunction on certain terms, could
d still claim the benefit of the order,
merit whatever in the first assign-
i if the point were material,
ssignment of error presents a very
onceding that the facts stated in the
Tounds for the interpositipu of a
Digitized by VjOOQIC
OCTOBER TERM, 1893. 181
Einealy v. Staed.
court of equity^ on what principle can the circuit court
interfere with the process of the supreme court of the
state! The execution sought to be enjoined in this
case is not the execution of the circuit court of the
city of St. Louis, but that of the supreme court. It
was decided as early as Pettus v. Elffin, 11 Mo. 411,
that an induction cannot, on the application of a
defendant, issue from one court to enjoin an execution
from another, although the courts be of co-ordinate
jurisdiction. That has always been the law of this
state. In Mellier v. Bartlett, 89 Mo. 134, where the
question arose on a motion to quash. Judge Black,
who delivered the opinion, said: '*The general rule
undoubtedly is that every court has the exclusive
control of its process, and no othfer court has a right
to interfere with or control it,'' citing Nelson v. Brown ^
23 Mo. 19, and Keith v. PlemmonSj 28 Mo. 104. The
learned judge adds: ^^The principles which are at
the foundation of the cases before cited are, that each
court has the sole control of its process, and that the
sheriff of the county to which the execution is sent is,
as to that writ, the officer of the court from which the
writ emanated.'' The fact that the supreme court
cannot issue an original writ of injunction, as decided
in Lane v. CharlesSy 5 Mo. 285, does not invest any
other court with power to enjoin the process of the
supreme court ; it at most shows that cases may arise
where an equitable right may be lost for want of a
proper tribunal to give it effect. But no reason is
apparent why the supreme court could not have granted
relief in another form to the plaintiff (provided he was
entitled to it), as every court has an inherent power
to control its own process.
The want of jurisdiction affirmatively appears from
the allegations in the plaintiff's petition. The demurrer
thereto was, therefore, properly sustained, even though it
Digitized by VjOOQIC
URI APPEAL REPORTS,
Einealy v. Staed.
;hat ground. Jurisdiction of the court
latter of the action is never waived.
1889, section, 2047. As we encounter
question upon the threshhold and
re have neither the power nor the
r into the merits of the controversy,
rf this case it is immaterial whether
>i V. Hemtty 103 Mo. 639, furnishes
analogy for denying equitable relief
m the facts stated in the petition.
) is aflBrmed. Judge Biggs concurs,
irs in the result.
ONCURRING OPINION.
hink the ruling of the trial court in
ral demurrer to appellant's petition,
t it did not state a cause of action,
ed by this court on that ground.
illegations of the appellant's petition
je a judgment obtained against the
ik Macklin, more than ten, and nearly
ire the institution of the present suit,
equities are that Patrick Macklin is,
)lvent since 1875, and, therefore, the
jame the assignee of said judgment
unable to enforce execution thereof;
Macklin is the real owner of the bulk
$750 recently rendered against the
favor of Macklin and others, by the
this state for certain costs, which
lid Macklin is endeavoring to enforce
ant. The prayer is for an accounting
terest of Patrick Macklin in the joint
himself and others, and the applica-
it due Macklin personally under the
Digitized by VjOOQIC
OCi^OBEit TERM, 1895. M
Kinealy y. Staed.
judgment of the supreme court to the satisfaction pro
tanto of the judgment assigned to the appellant, and to
that end for an injunction against the enforcement of
said judgment of the supreme court.
It has been distinctly announced by the supreme
court that a judgment, which has lain dormant for
more than ten years, does not entitle its owner to any
relief in equity beyond that of a general creditor of the
defendant in the judgment. Mullen v. Hewitt^ 103 Mo.
639. This is decisive of the correctness of the ruling of
the trial court in sustaining a general demurrer to the
allegations of plaintiflE's petition. It is not necessary
in this case to discuss the question as to the power of
the circuit court, in the exercise of the full chancery
jurisdiction devolved upon it in this state, to enjoin a
judgment at law even of the supreme court in a proper
case, and for equitable defenses arising since their obten-
tion.
The aflSrmative of this proposition lis not lacking
in support. McClellan v. Crook, 4 Md. Ch. 398;
Humphreys v. Leggett, 9 How.'TJ. S. 297; affirmed, 21
How. QQj and 4 Otto' 658; Perkins v. Woodfolk, 8
Bax. (Tenn.) 411, 415; Smith v. Van Bebberj 1 Swan,
110, 114; Kinder v. Helm, 7 Heisk. 672; Palmer v.
Malone, 1 Heisk. 549; Greenfield v. Hutton, 1 Bax.
(Tenn.) 216; Montgomery v. Whitworth, 1 Tenn. Ch.
174; High on Injunctions, section 265, last clause;
Spelling on Extraordinary Relief, section 153. I am,
therefore, unwilling to decide this question until neces-
sary, and upon the fullest consideration.
For these reasons I concur in so much of the
opinion of my associates only as affirms the ruling of
he lower court. '
Digitized by VjOOQIC
II APPEAL REPORTS,
Barnett v. Nolte.
)ellant, v. W. IJolte, Respondent.
>f Appeals, November 21, 1893.
TT ON PROMISSORY NOTE: ELECTION OP THEORY
:>n a promissory note is brought before a jas-
i one whose name is written on the back of
the payee, the plaintiff may be required to
; on appeal, if he has not done so theretofore,
IS to charge the defendant — whether as joint
or guarantor^and is bound by his election,
DISCHARGE OF PARTY BY MATERIAL ALTERA-
beration of a promissory note discharges a
\ without his consent.
Louis City Circuit Court. — Hon.
;arri80N, Special Judge.
ppellant.
for respondent.
'. — The plaintiff, who is indorsee
, instituted suit thereon against the
iistice of the peace. The note sued
he justice as the only statement of
lS the defendant's name appeared
)te above that of the payee, and as
ared in evidence that it was put
3e signed his name, the plaintiff's
pon the trial of the cause in the
capacity he sought to charge the
id as indorser. The plaintiff offered
to show a presentation of the note
irity, or a notice of its dishonor to
court rendered judgment in favor
i the plaintiff appeals.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 185
Bamett v. Nolte.
It is apparent that the judgment was the only-
admissible conclusion of law upon the evidence. One
who writes his name on the back of a note, of which he
is neither payee nor indorsee, is prima facie a joint
maker, whether the note is negotiable or not. Powell
V. Thomas J 7 Mo. 440; Lewis v. Harvey, 18 Mo. 74;
Schneider v. Schiffman, 20 Mo. 571. He may show, how-
ever, against anyone, except an innocent holder for
value before maturity, that it was the understanding of
the parties, at the time, that he was to be held as indorser
or as guarantor or as surety only. Beidman v. Gray, 35
Mo. 282; Schneider V. Schiffm^an, supra-, Noll v. Oberhell-
manny 20 Mo. App. 336. The plaintiff, when he filed
the note before a justice as his only statement, could
have proceeded against the defendant upon it either as
maker or indorser or surety or guarantor, but he had
to elect in what capacity he sought to charge the defend-
ant. Bremen Bank v. Umrath, 42 Mo. App. 525. He
elected upon the trial to charge him as indorser, and is
bound by that election. Perry v. Barret, 18 Mo. 140.
Having failed to adduce sufficient evidence which would
thus charge the defendant, he must necessarily fail.
The plaintiff now contends that the defendant did
not defend on that theory in the circuit court. It is
immaterial what the theory of the defendant's evidence
was, as long as all the evidence fails to show any cause
of action upon the plaintiff's part. We may add, how-
ever, that, even if this insuperable objection were out
of the way, we could not disturb the judgment, since
there was substantial evidence to show that the note
had been materially altered without the defendant's
consent after he had indorsed it, which under the set-
tled law of this state discharged the defendant, if he so
elected. Haskell v. Champion, 30 Mo. 139; Evans v.
Foreman, 60 Mo. 449.
The judgment is affirmed. All concur.
Digitized by VjOOQIC
55 MISSOURI At»PEAL REPORTS,
Order of Railway Conductors v. Eoster.
OF Railway Conductors of America v. Ella
OSTER, Respondent, and Sarah E. Lally
and John Lally, Appellants.
LouiB Court of Appeals, November 21, 1893.
fit Societies: nature op insurance afforded. A benefit
sate differs from an ordinary policy of life insurance, in that it
) with reference to the conditions existing at the death of the
er whose life has been insured by it.
: : DESIGNATION OF BENEFICIARY. Accordingly, when
ktus of the beneficiary under such certificate is the main, if not
te, inducement to the insurance, — as where the certificate is in
>f the wife of the insured, and she is designated mainly by
elationship — the rights of such beneficiary lapse, if that status
ot exist at the time of the death of the insured.
: : INSURABLE INTEREST OP BENEFICIARY. And when
Y8 of the benefit society stipulate that the beneficiary must
on insurable interest in the life of the insured member, that
it must exist at the death of such member. Accordingly, a
ed wife who has remarried, and moreover has no living issoe
d insured member, is not under such laws entitled to the
ts.
from the St. Louis City Circuit Conrt. — Hon.
Leroy B. Valliant, Judge.
3D.
•, Christie & Bruce and Joseph S. Dobyns for
its.
policy of life insurance or a designation of
iry, valid in its inception, remains so, although
rable interest or relationship of the beneficiary
inless it is otherwise stipulated in the contract.''
n Mutual Benefit Societies, sec. 253, and cases
hnnecticuty etCj Ins. Co. v. Schaffety 94 TJ. S.
Digitized by VjOOQIC
0C1?0BER TERM, 1893. 187
Order of Bailway Conductors v. Koster.
457; McKeev. Ins. Co.,. 28 Mo. 383; Clark v. Allen,
11 R. I. 439; Dalbyv. Ins. Co., 15 C. B. 365; Campbell
V. Ins. Co.y 98 Mass. 381; Ins. Co. v. Baum, Ind. 236.
In respect to the doctrine of the cessation in insurable
interest, as to its effect upon the rights of the benefi-
ciary, benefit certificates are governed by the same rule
as insurance policies. Martin v. StubbingSy 126 111.
387; Elkhardt Mut. Aid Ass^n v. Houghton, 98 Ind.
149; Muttmly etc., Ass^n v. White, 9 N. W. Rep.
(Mich.), 497. The Iowa Statute under which the
plaintiff order was incorporated, authorizing, as it
does, the designation of a legatee or legal representa-
tive (administrator) as beneficiary, is not restrictive in
its operation. Martin v. Stubbings, 126 111. 387; Bloom-
ing ton Mut. etc., V. Blue, 120 111. 121; Masonic Ass^n
V. Bunch, 19 8. W. Rep. (Mo.), 29. The designation by
a member, A. B., of his beneficiary as *^Mrs. A. B.'' is
held to mean the wife living at the time of the desig-
nation, and not a subsequent wife who becomes his
widow. Bay v. Case, 43 Hun, 179; Richardson v.
Richardson, 75 Me. 570. The right of the beneficiary
depend upon contract, and not upon status. Niblack
on Mutual Benefit Societies, 241 ; Jackman v. Nelson,
17 N. E. Rep. (Mass.), 529; Duncan v. Central Verein,
7 Daly, 168; Story v. Williamsburg, etc., Ass^n^ 95
N. Y. 474.
Sale A Sale and F. H. Bacon for respondent.
The appellant, Mrs. John Lally, is iiot the bene-
ficiary designated in the certificate. She is nowhere
mentioned by name; the only designation being
"wife.^^ Bell v. Smalley, 45 N. J. Eq. 478; In re
Morrieson, 40 Ch. Div. 30. The certificate, so far as
the relationship of the beneficiary to the member is
concerned, speaks as of the time of the member's
Digitized by VjOOQIC
188 55 MISSOURI APPEAL REPORTS,
Order of Railway Condaotors v. Roster.
death. Under H. A. Koster^s certificate, payable to
his *'wife,'' the wife of John Lally is not the person
intended, and she does not take. Tyler v. Odd
FeIlows\ etc.y Ass^n^ 145 Mass. 134; Union Mut. Aid
Ass^n V. Montgomery, 70 Mich. 587; Chartrand v.
Brace, 26 Pac. Rep. 152. The designation of benefi-
ciary is an act testamentary in its character and should
therefore be construed as such. Masonic, etc., Ass^n
V. Bunch, 109 Mo. 560; Union Mut. Aid Ass^n v.
Montgomery, 70 Mich. 587; 38 N. W. Rep. 588;
National Aid Ass^n v. Kirgin, 28 Mo. App. 80;
Chartrand v. Brace, 26 Pac. Rep. 152; DuvaU v.
Goodson,^ 79 Ky. 244; Thomas v. Leake, 67 Tex. 469,
RoMBAUER, P. J. — This ia a contest between the
respondent and the appellants as interpleaders for a
certain fund paid by plaintiflE into court. The trial
court awarded the fund to Ella Koster. Sarah E.
Lally and her husband, John Lally, who prosecute this
appeal, assign for error that upon the evidence the
court should have awarded the fund to Sarah E. Lally.
We find the facts to be as follows. The plaintiff
is a mutual benefit association or order, organized
under a statute of the state of Iowa, which provides
among other things:
^'Section 7. No corporation or association organ-
ized or operating under this act shall issue any certifi-
cate of membership or policy to any person under the
age of fifteen years, nor over the age of sixty-five
years, nor unless the beneficiary under said certificate
shall be the husband, wife, relative, legal representa-
tive, heir or legatee of such insured member, nor shall
any such certificate be assigned, except an endowment
certificate; and any certificate issued or assignment
made in violation of this section shall be void. Any
member of any corporation, association or society,
Digitized by VjOOQIC
OCTOBER TERM, 1893. 189
Order of Railway Conductors v. Eoster.
operating under this act shall have the right at any
time, with the consent of such corporation, association
or society, to make a change in his beneficiary without
requiring the consent of such beneficiary.^^
The laws of the order contain the following pro-
visions:
** Article 2. Its object is to aid and benefit dis-
abled, and the families of deceased members of the
Order of Railway Conductors.''
** Article 18. An applicant may designate in his
application some person or persons to whom benefit
shall be paid in the event of his death, and the secre-
tary shall enter such designated name or names upon
the register of the department, and also upon the
certificato of membership. Any person' desiring to
change the name or names of the person or persons to
whom benefit is payable shall make the request in
writing upon a blank provided for that purpose, which
request must be certified by the division secretary under
the seal of the division, and forwarded to the secretary
with the certificate of membership. Upon receipt of
such request in proper form, the secretary shall make
the requested change on the register, provided no
benefit shall be made payable to any one not having an
insurable interest in the life of the member.^'
** Article 20. In case the designated payee of a
member should not survive him, the benefit shall be
paid to the first named who shall survive him, as
follows :
^^ First. In accordance with the provisions of the
lawful will of the deceased, should one be left.
^^ Second. To the widow of the deceased.
^^ Third. To the child or children of the deceased.
^^ Fourth. To the mother of the deceased.''
H. A. Koster made application for membership
in th^ prder in November, 1886, when the present
Digitized by VjtOOQIC
190 55 MISSOUEI APPEAL REPORTS,
Order of Bailway Conductors v. Eoster.
Sarah E. Lally was his wife. His application, among
other things, contained the following: *^In the event
of my death, I hereby direct that the sum, to which
my heir or heirs may be entitled to by my membership,
be paid to my wife, Mrs. H. A. Koster;'' also the
following: '*I agree to conform in every respect to the
by-laws, rules and regulations now in force, or which
may he lawjully adopted hereafter. ^^ When Koster
made this application, the last clause of article 18
hereinabove set out in italics was not in force. The
same was adopted only in January, 1891. That^ fact,
however, in view of section 7 of the statute, and that
part of the application of the assured which is
italicised above, is immaterial. The plaintiif on this
application issued to the assured a certificate, stating
among other tMngs: **In event of his death, benefit is
to be paid to Mrs. H. A., the person named in the
application, who bears the relationship of wife to
the member holding this certificate.'' Subsequently
the order becoming incorporated, this certificate was
recalled and another certificate issued in lieu thereof,
the material portions of which are as follows:
*'This is to certify that the Mutual Benefit Depart-
ment of the Order of Railway Conductors,^ in consider-
ation of the statements and representations made in
the application of H. A. Koster for membership
therein, a copy of which application is hereto attached,
and the sum of $2.50, and the payment of $1 for each
expense assessment, and the further payment to the
Mutual Benefit Department of the Order of Railway
Conductors of the sum of $1 for each and every claim
for the death or disability of a member of class *A,'
of the department for which an assessment is made,
so long as he shall remain a member of said class *A,'
said payments to be made within sixty days from the'
date of notice, do promise and agree to and with th^
Digitized by VjOOQIC
OCTOBER TERM, 1893. 191
Order of Bailwaj Condnotors y. Eoster.
said H. A. Koster, to pay or cause to be paid to
wife or in case the person or persons named
therein do not survive him, then as provided in article
20 of the by-laws governing the department, $1 for
every member of class 'A^ who shall pay the assess-
ment for the death of said H. A. Koster after due
notice and satisfactory evidence of such death is
received.'*
This certificate was in force at the date of H. A.
Koster 's death, which occurred March 26, 1891.
We further find that the Mrs. H. A. Koster named
in the application was the then Sarah E. Koster, now
Sarah E. Lally, and that she separated from Koster in
December, 1889, and obtained a decree of divorce from
him a vinculo matrimonii on the sixth of March, 1890,
such decree being silent on the question of alimony but
restoring to Mrs. Koster, at her request, her maiden
name. Within two months thereafter Mrs. Koster was
married to her present husband, Lally, and ever since
that date the feelings of Koster towards here were
exceedingly bitter. On March 4, 1891, while Koster
was residing with his sister Ella (one of the inter-
pleaders) in Vincennes, Indiana, he caused a letter of
the following tenor to be written by a friend to the
grand secretary of the order, who resided in Cedar
Rapids, Iowa:
* 'Enclosed please find my policy, which I wish
transferred from my wife to my sister, Ellen Koster.
Kindly return as early as possible and oblige," etc.
On the seventh of March the grand secretary
replied to him, acknowledging the receipt of the letter,
and adding:
*'I enclose herein a blank upon which please
make your request for change of beneficiary, and, after
having it certified by your secretary, return to me, and
the requested change will be promptly made, and your
Digitized by VjOOQIC
192 55 MISSOURI APPEAL REPORTS,
Order of Railway CJonductors v. Roster.
certificate returned to you through the secretary of your
division/'
The term your secretary used in this letter refers
to the division secretary of the division in which Koster
was. This secretary resided in Texarkana, Texas.
The letter of the grand secretary was by mistake
directed to Koster at Little JRock, Arkansas, which was
his former place of residence, and did not reach him at
Vincennes, Indiana, where he then was, until about the
sixteenth of March, 1890. Upon receiving the grand
secretary's letter, Koster filled the blanks in the certifi-
cate of request, indicating the change desired, signed
the certificate and put it in his pocket with the avowed
intention of taking it with him when he returned to
Little Rock, to which place he intended to repair
shortly. There is no credible evidence that this cer-
tificate of request was ever seen thereafter, and its sub-
sequent fate is a mere matter of conjecture. Koster
was suddenly taken worse on the twenty-fifth of March,
1891, and died on the day following. We find no evi-
dence of any change of intention on his part after he
caused the letter of March 4, 1891, to be written, — nor
on the other hand is there any evidence that the order
ever waived the requirement of a formal request for a
change of the beneficiary which it had a right to itisist
on under article 18 of its laws.
In applying the law to the facts thus found, we will
adopt the following part of the very apt language used
by the learned judge of the trial court in deciding the
case: **It will be seen that the articles of association
are broader than the laws of the order in respect of the
objects of the benevolence provided for, and we must
look to the laws of the order in preference to the
articles of association. The laws of the order cannot
go beyond the scope of the articles of association, but
they need not cover the whole scope. IJndor \\^
Digitized by VjOOQIC
OCTOBER TERM, 1893. 193
Order of Railway Condnotors v. Koster.
articles this order may make a law to provide not only
for the families, but also for the devisees of its deceased
members; but, if it sees fit, it may so shape its laws as
to limit its beneficiaries to the families only, or to the
widows only, or to the children only. If, therefore,
either one of these claimants appear in a character not
provided for in the - laws of the order, although
embraced in the terms of the articles of association,
then he or she is in the attitude towards the order
of .one for whom it was lawful for the order to
have made provision, but for whom no provision has
been made/'
**A benefit certificate of this kind has some of the
features of an insurance policy, but it also has its point
of difference, and, in the particular we are now con-
sidering, it is testamentary in its character. The rule
of the law of insurance, that, if one have an insurable
interest at the date of the policy, the policy is not
vitiated by termination of that interest, does not apply
in a case like this. This act is testamentaiy in its
character in the respect that it speaks at the death of
the member. As long as the lady, who is now Mrs.
Lally, filled the description given in the certificate she
was under its protection, but, when she ceased to fill
that description, her interest in the certificate ceased.
On the death of H. A. Koster the certificate, speaking
for the first time, called for his wife and there was none
to answer."
It is evident that under the facts as we find them
the law, which is coiTectly stated in the last paragraph
of the trial judge's opinion^ is decisive against Mrs.
Lally's claim. That a benefit certificate is different from
an ordinary life insurance policy, viz., that it is testa-
mentary in its character, is well settled and has been
repeatedly decided in this state. Masonic Benevolent Ass^n
V. Bunch, 109 Mo. 56(), 580; Eoi^essmen^$ Aid Society
Vol, 55—13
Digitized by VjOOQIC
PEAL KEPORTS,
nductors v. Koster.
p. 412; National American
p. 80. That proposition is
t)ut her coupsel claims that,
the beneficiary speaks from
it does not follow that a
t continue applicable to the
iime of death. But what is
r all? When the descriptive
ify the person, the fact that
)nger at the date of death is
Bficiary is the person and the
tus a mere identification of
atus of the beneficiary is th3
sment for the insurance, the
iptive designation and the
always remains, in the per-
tus.
)Y in this case we consider
Q the register, and the first
her for the purpose of ascer-
rhetlier we take the last cer-
In either event we must
The application says ^^my
be first certificate says *'Mrs.
the application, who bears
le member holding this cer-
Lcate says the money is to be
I these paper taken together
rson, namely the wife of H.
n each instance the main
iary, because Mrs. H. A.
1 H. A. Roster's wife. If
of the death, the certificate
iciary has been substituted
:iws of the order. Masonic
(?r//,13D.C. (2Mackey)70,
Digitized by VjOOQIC
OCTOBER TERM, 1893. 195
Order of Bailway Conduotors v. Koster.
In Taylor v. Odd Fellows^ Muttml Relief Ass^n^ 145
Mass. 136, the case involving the rights of a divorced
wife, the court declined to decide whether the validity
of a description is to be determined at the outset by the
relation then existing between the member and bene-
ficiary, but the court was clear that, to make the
description available after death, there must then be
such a relation to the deceased, as is contemplated by
the agreement and laws of the order.
Now, it cannot be contended that this divorced
wife, who had married another, could by any possible
construction be designated as the wife of the member
at the date of his death. Nor was she within the .con-
templation of the laws of the order. She had no
insurable interest in the life of Koster even under the
liberal view taken in McKee v. Insurance Company^
28 Mo. 383, 385. He was under no obligation to sup-
port her, and no children of the marriage were living.
At the date of the death of the member she fell
under no class for whom the laws of the order made
provision.
We need not decide the second branch of this case,
which relates to a substitution of another beneficiary
by the member. As we said in the case of McFarland
V. Creathy 35 Mo. App. 112, the only question before
us is whether the appellant has a right to the fund.
If she has not, it is, as far as her appeal is con-
cerned, inmiaterial what disposition the court made
of it.
With the concurrence of all the judges, the judg-
ment is affirmed.
Digitized by VjOOQIC
>PEAL REPORTS,
d V. Aal.
indent, v. Albert A. Aal,
3ilant.
Bala, November 21, 1803-
lousidered, and is to held justify the
? City Circuit Court. — Hon.
EiN, Judge.
isey for appellant,
respondent.
3 action was instituted before
B plaintiff's statement filed
that he entered into a con-
whereby the latter, in con-
nim, agreed to turn over to
ease for certain premises in
it the defendant broke that
age in the sum of $293, for
judgment.
judgment before the justice
ew in the circuit court again
25. The defendant again
lies no formal assignment of
brief that he claims that the
lot supported by substantial
other evidence, offered the
3y the defendait;
Digitized by VjOOQIC
OCTOBER TERM, 1893. 197
Brolaski v. Aal.
^'8t. Louis, January 19, 1892.
^'Received of Howard Brolaski $25, deposited for
the rent of the building, 409 North Broadway, accord-
ing to the following agreement: F. Siegel & Bro.
agree to turn over the lease on said building at same
price paid by them, rent to date from January 1, 1892.
Howard Brolaski to pay back bonus paid by F. Siegel
& Bro., as agreed.
"F. Siegel & Beg.
^'A. Aal.'^
The evidence concedes that this $25 was paid to
the defendant by the plaintifiE's agent, and there is no
evidence that it was ever returned. On the question
whether the plaintiff's agent knew, when he paid the
money, that the defendant was acting as agent of F.
Siegel & Bro. only, and not on his own behalf like-
wise, or whether he was acting both on his own behalf
and for F. Siegel & Bro., the evidence was conflict-
ing. That question was submitted by the court to the
jury on appropriate instructions. The court instructed
the jury in substance that, if the defendant contracted
as agent only, and plaintifiE knew the fact, or if F.
Siegel & Bro. or the defendant were not guilty of
any breach of the contract stated in the memorandum,
the plaintifiE could not recover. These instructions
stated the law correctly. The memorandum itself is
suflSciently ambiguous to admit parol evidence on the
main question involved. Ziegler v. Fallon^ 28 Mo.
App. 295, 299, and cases cited. On the face of it A.
Aal might be either an independent contractor, or a
member of the firm of F. Siegel & Bro., or a mere
agent for the latter. Nor was the memorandum the
foundation of the plaintifiE action ; it was but a mere
receipt ofiEered in evidence with his other proof.
We see no error in the record, and affirm the judg-
ment. All the judges concur.
Digitized by VjOOQIC
MISSOCJEI AttEAL REPORTS.
Bobyn v. Supreme Sitting Order of Iron Hall.
RoBYN, Respondent, v. Supreme Sitting
EB OF THE Iron Hall, Bbeoe Jones,
Receiver, Appellant.
>ui8 Court of Appeals, November 21, 1893.
Societies: ookstbugtion of gertifioate of insttrance.
oeitifioate provided en stipulated conditions for the pay-
iie holder of a sum of "not exceeding $1,000," but contained
rovision for the determination of the amount of the liability;
tie constitution or by-laws of the benefit society help out
cate in this regard. Held, that the certificate entitled the
bhe full amount named, to- wit, $1,000.
(7ADEQUACT OF CONSIDERATION FOR BENEFITS CONTRACTED
) certificate provided for the payment of said sum at the
ven years, and required as a condition thereto that the
r of it should pay the benefit society such assessments as
made during that period. The assessments made by the
iring these seven years against the holder of the certificate
to only $351. Held, that this fact could not operate in
of the claim under the certificate.
}m the St. Louis City Circuit Court. — Hon,
Daniel D. Fishee, Judge.
Nichols for appellant.
£ Muench for respondent.
, J. — This is an action upon a matured certi-
isurance, issued by the defendant order, for
'he certificate, which is dated on the twenty-
of July, 1885, is as follows:
19. $1,000.00.
^'relief fund certificate.
Supreme Sitting Order of the Iron Hall,
md in consideration of that Charles Robyn
Digitized by VjOOQIC j
October term, 1893. .199
Bobyn v. Supreme Sitting Order of Iron Hall.
has become a member of local branch, number 229,
Order of the Iron Hall, and has obligated himself to
obey all lawful commands of this Order, whether eman-
ating from the local branch of which he may be a
member, or from this Supreme Sitting, or from any
other duly constituted authority, and of the sum of
$2.50, which he had paid to said local branch as an
assessment on account of the relief fund of this order,
and of further assessments of a like amount to be
paid as may be regularly and lawfully called for, and
of an explicit compliance with all the laws, rules and
usages of this order, also all laws enacted, and especi-
ally with the conditions herein set forth, do grant
unto the said member this certificate, and declare him
to be entitled to all the rights and privileges properly
belonging to members of his rank* and etanding,
including a benefit of not exceeding
''ONE THOUSAND DOLLABS,
from the relief fund of this order, which sum shall be
paid in the manner, and upon the conditions herein-
after mentioned, to wit:
'*In case the said member shall continue to pay all
assessments, dues and demands, which may be legally
made against him, or against this certificate, for the
full term of seven years from its date, making all such
payments punctually within the prescribed time, and
shall in all particulars maintain himself in good stand-
ing in the order, then the said member shall be entitled
to a sum not exceeding the principal amount named
herein, less the amount which he has already received
as benefits from the order on account of sickness or
other disability, or otherwise."
The other conditions in the certificate need not
be set out.
Digitized by VjOOQIC
JI APPEAL REPORTS,
rexne Sitting Order of Iron Hall.
bhe petition that the plaintiff had
lU the terms and conditions of the
rtificate matured on the thirtieth
id that the amount named in the
to plaintiff, which the defendant
begun on the nineteenth day of
few days thereafter Breck Jones
rev for the defendant order. He
court to defend the action. After
inswer was to the effect that the
nt ; that the certificate was merely
mnity for a period of seven years ;
had not paid as a consideration for
a sum exceeding one-half of that
vidence tended to prove that he
ly benefits from the defendant
ing the seven years he had fully
all assessments that were levied
laintiff read in evidence the ccrti-
fered and read in evidence para-
i three, of article one of the con-
', which provides that an amount
}00 shall be paid to the holders of
r have held a continuous member-
seven years without suspension,
hat the sum total drawn from the
nembers shall never exceed, both
I other benefits, the sum named in
[) read in evidence section one of
of the order, to the effect that
5ipate in the relief fund, as they
either in the sum of $1,000, or
s according to the amount of the
Digitized by VjOOQIC
-■^Sk-"
OCT'OBElt TERM, 1893. SOl
Kobyn y. Supreme Sitting Order of Iron Hall.
assessments agreed to be paid; and the table of rates
and benefits exhibited in that section contains in the
last column, ''Benefit paid at the end of seven years,
$1,000,'^ which was the highest amount that any bene-
ficiary could receive.
Section 4, of the relief fund laws, which was also
read in evidence, provides: '*The sum as prescribed in
the member^s certificate shall be paid to the member
* . * 'in case of * * * maturity, and such pay-
ment shall be made as hereinafter prescribed and accord-
ing to the conditions set forth in said certificate. '^
At the close of the plaintiff's case the receiver
asked the court to declare as a matter of law that the
plaintiff could not recover. This instruction the court
refused. The receiver also asked the f611owing instruc-
tions, which were likewise refused:
**The court declares the law to be that, if it finds
for the plaintiff, it will assess his damages in an amount
equal to the assessments actually paid by him to defend-
ant under his said contract of membership, together
with interest thereon at the rate of six per cent, per
annum from the date of bringing this suit, in a sum,
however, not greater than one thousand dollars ($1,000)
less any amount or sum of money which he may have .
received during his said membership of defendant as
sick or other benefits.'^
**The court declares the law to be that, if it finds
for the plaintiff, it will assess his damages in an amount
equal to the assessments actually paid by him to defend-
ant under his said contract of membership, together,
with interest thereon at the rate of six per cent, per
annum from the date of the respective payments of said
assessments, in a sum, however, not gi*eater than one
thousand dollars ($1,000), less any amount or sum of
money he may have received, during his said member-
ship, of defendant as sick or other benefits."
Digitized by VjOOQIC
:SSOtJRl At»PEAL REPORTS,
n v. Supreme Sitting Order of Iron Hall.
n the court, sitting as a jury, found the
plaintiff, and entered a judgment against
for the amount of the certificate and six
•est thereon from the date of the institu-
t. The receiver has appealed,
idant's instructions as to the measure of
submitted on the theory that the certifi-
ing more than a contract of indemnity,
sequently the damage suffered must be
he amount paid in. In support of this it
there was no promise to pay anything;
s, there was no agreement to pay a speci-
b the language of the certificate, that the
I ^t the end of seven years be entitled to
:ceeding $1,000'' necessarily implied that
ight be for a smaller sum; that this lan-
ead in connection with the constitution
f the order, is susceptible of the construc-
3count was to be kept between the plain-
ier, and that at the maturity of the con-
ndant's liability was to be fixed by the
assessments paid by the plaintiff, not to
ver, $1,000, thus making the contract
indemnity.
confess that we have been unable to fuUy
le force of the argument made in support
1. When the certificate, the constitution,
^s of the orders are considered, it seems
lave an absolute contract of insurance on
m, in which the defendant agreed to pay
at the expiration of seven years $1,000,
)served the rules and regulations of the
lid pay all lawful assessment against him.
the language employed in the certificate,
lelf , would seem to imply a minimum and
ility ; but there is nothing indicating how
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Robyn v. Supreme Sitting Order of Iron Hall.
a minimum liability could be fixed. In the abs^
this, the fair inference to be drawn is that it was
stood that the plaintiflE should receive the full «
named in the certificate, provided he perforn
part of the agreement. Any other construction
make the insurance a cheat and a fraud. The
class of benefit certificates which provide that a
assessment against the members of the associati(
exceeding a stated amount, shall be paid to the
or beneficiary in each matured certificate. It hi
held that the liability on such a certificate was
facie the amount stated therein, and that to re^
the association must show that the avails, or th(
able avails, of such assessment would fall short
sum named in the certificate. May on Insurant
563a; O^Brien v. Home Benefit Society j 117 N. '
But in the case at bar no contingency is stated
would result in reducing this prima facie liabilil
it is reasonable to assume that nothing of the ki
contemplated.
The case of Lueders^ ExW v. Hartfordy etc.
Fed. Rep. 465, presented a similar state of
Touching the extent of the recovery, Judge Trea'
"In the absence of any proof to the contrary, tl
recoverable should be against the corporation i
maximum insured. Any other rule would mal
insurance scheme a mere delusion and snare. *
If the defendant's theory as to the true construe
the contract * * * is to obtain, then a poli
the present is of little worth. True, if a pers
juris J chooses to make a foolish contract, he mus
by its terms; but should not the contract be s
strued as to make its contemplated benefits ava
* * * This court cannot hold otherwise tha
when suit has to be brought, the recovery should
Digitized by VjOOQIC
It APPEAL REPORTS,
ad White Lime Company v. Bauman.
1, unless the defendant shows by
hat said sum should be reduced."
)nclude that the court did right in
it's instructions.
m years the plaintiff, by way of
to the company $351. It is now
;tion of the contract, which would
; at the end of seven years to pay
iconscionable and therefore non-
rd to understand how th6 defend-
tain itself on such a basis. But it
me; for there was no limit as to
iments, and there was nothing to
it from accumulating a sufficient
sessments and lapses to meet its
As it is, it does not lie in its
3 contract was unreasonable, since
performed it on his part by pay-
against him. The contention is
nd absolutely without merit,
p in the record, the judgment of
11 be affirmed. All the judges
D White I^ime Company, Eespond-
3. Bauman et al, Appellants.
)t Appeals, November 21, 1803.
LQENCY OP HUSBAND FOR WIPE. The evidenee
ed, and it is held to justify the submission to
ether a contract in writing, entered into by a
le for the erection of a building on land of
I by him as agent for the wife, so as to render
1 a mechanic's lien for materials furnished for
Digitized by VjOOQIC
■m'T'- X
OCTOBER TERM, 1893. 205
#
Carthage Marble and White Lime CompaDj v. Bauman.
2. : ENTIRETY OP JUDGMENT: EFFECT OP APPEAL. The judgment
in an action by a subcontractor to enforce a mechanic's lien is an
entirety. Accordingly, when in the trial court it is against both the
original contractor personally and the claim of lien, the reversal of it
by this court on appeal by the plaintiff vacates it altogether, and
necessitates a retrial of the cause in both respects.
3. : COMPETENCY OF ADMISSION BY ORIGINAL CONTRACTOR. In SUCh
an action the admission by the original contractor of the correctness
of the account in suit is competent evidence against him, and is there-
fore properly admitted against the objection of the landowner, though
the latter may have its effect limited by instruction
4. Instructions: definition of expressions in common use. Words
in ordinary use, and not intended in any technical sense, may be^
employed in instructions without definition. Accordingly, an instruc-
tion which submits an issue, whether a husband acted as the agent of
his wife in contracting for improvements on her land, is not erron-
eous because it fails to explain what is necessary to the establishment
of the agency.
Appeal from the St Louis City Circuit Court. — Hon.
Leroy B. Valliant, Judge.
Reveksed and remanded (with directions).
M. B. Jonas and Bassieur d Schnurmacher for
appellants.
(1) A husband has no power, as such, by a build-
ing contract to create a liability of his wife's legal estate
to a mechanic's lien. Mere knowledge or approbation
on her part, or 6ven directions and suggestions as to
the work during its progress, do not amount to either
an appointment of him as h6r agent or an adoption or
ratification of his contract. Nor will the fact that the
building is to be used as a residence for the wife raise
the presumption of authority on his part. Garnett v.
Berry. 3 Mo. App. 197; Hughes v. Anslyn, 7 Mo. App.
400; Barker v. Berry j 8 Mo. App. 446; Planing Mill
Co. V. Brundage, 25 Mo. App. 268; Meyer v. Broadwell,
83 Mo. 571 ; Carthage, etc. Lime Co. v. Bauman, 44 Mo.
App. 386; Chicago Lumber Co. v. Mahan, 53 Mo. App.
425} Conway v. Crook, 66 Md. 292; Hughes v. Peters j
Digitized by VjOOQIC
\PPEAL REPORTS,
^— ■
liite Lime Ck)mpan7 v. Bauman.
^ennesyy 9 Bradw. 18; 2 Joneg
(4; Hoffmann v. McFaddeny 19
The evidence in this case hav-
itonework was done under an
between the contractor and the
t raise an implied one on the
) the facts warrant the infer-
lier part. Planing Mill Co. v.
!68; Carthage, etc. Co. v. Bau-
(2) The court erred in giving
the plaintiflE without explain-
which would justify their flnd-
nade the contract with Born-
rs. Bauman. The court should
a mixed question of law and
I declared by the court, and the
State to use, etc. v. Rayburn,
ler V. Neece, 75 Mo. 383; Jor-
r3. (3) The court erred in per-
to the jury, as against these
nt of the contractor that the
ect for a balance of $670.34, it
ment was made long after he
ials and completed his work.
. 9; Deardorffv. Everhartt^ 74
nidtj 57 Mo. 211.
respondent.
anic's lien statute of this state,
of disability to contract for the
. Revised Statutes, 1889, sec.
may contract for such improve-
t, who may be her husband.
Bauman, 44 Mo. App. 386.
) in writing, and with the hus-
ears that the wif^ ie the real
Digitized by VjOOQIC
OCTOBER TERM, 1893. 207
Carthage Marble and White Lime Company v. Bauman.
party in interest for whom, and by whose authority, the
improvement is made, the wife's land will be bound.
Fischer v. Anslyn^ 30 Mo. App. 317; Carthage^ etc. Co.
V. Bauman, 44 Mo. App. 386; Chicago Lumber Co. v.
Mahan, 53 Mo. App. 425. (2) The reception in evi-
dence of the account signed by the original contractor
was not prejudicial error. (3) Appellant '« criticism of
the words *'as her agent'* written in the first instruction
given for respondent is without merit. The question
of agency was 'one of fact to be determined by the jury
from the evidence. And *he words *'as her agent"
being in common use, there was no necessity to explain
them further to the jury. Holland v. McCarty, 24 Mo.
App. 113.
Biggs, J. — The plaintiff seeks to enforce a mechan-
ics' lien against a building and lot belonging to the
defendant, Miriam Bauman, who is the wife of her
codefendant, Meyer Bauman. This is the second
appeal. (44 Mo. App. 386.)
The plaintiff claims to have furnished the stone
for building the house in controversy under a contract
with one Bomschein. On the first trial the plaintiff
was compelled to submit to a nonsuit as to the lien,
the court being of the opinion that it had failed to
introduce any substantial evidence that the work done
by Bomschein was done under a contract wi|;h Mrs.
Bauman. Judgment, however, was rendered against
Bomschein for $449. It appeared inferentially only
that the contract with Bomschein was made with ^
Meyer Bauman, but its nature and terms were not
established. We reversed the ruling of the court as
to the lien, as in our opinion the acts and conduct of
Mrs. Bauman, in reference to the* constraction of the
house, were such as to call for some explanation. On
a retrial it was developed that the contract with
Bomschein was in writing, and was made by Meyer
Digitized by VjOOQIC
[ISSOURI APPEAL REPORTS,
:e Marble and White Lime Company v. Baoman.
lis own name. Under the instructions of
e jury found that, in making the contract,
ed as the agent or representative of his
^y also found that the plaintiff was entitled
cs' lien on the house and lot for $518.90,
it was entered accordingly. The defendants
d.
ilose of the plaintiff's evidence, and also
)f ^11 the evidence, the defendants asked
n of nonsuit upon the theory that the evi-
iman's agency^was not suflBcient to author-
ssion to the jury. The court refused to
isuit, and of this the defendants chiefly
mdants by introducing evidence assuftied
lelping out the plaintiff's case. To that
1 be said that they waived their demurrer
itiff's evidence. Hence, in determining
3nt, we must look at all of the evidence.
Iroad, 96 Mo. 290.
intiff's evidence, bearing on the question
was substantially as follows: Joseph
was the superintendent of the building,
Mrs. Bauman was very often at the house
rk was progressing; that she first objected
ws, alleging that they were too small, and
Qted larger ones put in, but that, after
le architect, she seemed to be satisfied;
^e orders about the pantry and kitchen;
[ered certain changes made, and, in that
laid : ' ' We are paying big money for this,
aright."
Piesch had the contract for painting the
r testifying that he saw Mrs. Bauman
t the building, he said: ''She (Mrs.
Lve me directions about painting some
Digitized by VjOOQIC
OCTOBER TERM, 1893. 209
Carthage Marble and White Lime Ck)mpany v. Bauman.
floors and varnishing the floors. * * * Have seen
her examining the work. I did extra work through
Mrs. Bauman; she gave orders to do it."
W. S. Balsom, a carpenter, said that he worked
on the house four or five months, and that during the
time he often saw Mrs. Bauman on the premises, and
that she frequently had conversations with the archi-
tect; that she gave the witness directions about the
breakfast rooms and the closets, and that she gave the
foreman orders how the shelving in the pantry should
be fixed.
J. W. Blaine, who was employed in the building
as a painter, said that Mrs. Bauman gave orders about
the painting, and that she said ''that she wanted a
good job done.'^
On the other hand, Mr. and Mrs. Bauman both
testified substantially that in building the house
Bauman acted on his own responsibility ; that he did
not consult his wife, except to submit the plans to her
for her inspection; that in paying for the house he
drew against his private account; and that Mrs.
Bauman was in no way connected with any of the
contracts for building the house, nor was she known
to any of the contractors.
In view of the fact that the contracts for building
the house were in writing and in the name of Mr.
Bauman, the alleged acts of the wife concerning the
building, if they stood alone, might very well be recon-
ciled with a wifely interest in her husband's affairs.
But the plaintiff insists that the cross-examinations of
the defendants justify the inference that the house
was really paid for with Mrs. Bauman's money. It
appeal's from the testimony of both defendants that
in 1876 Mrs. Bauman was the owner of a residence on
Pine street; that about that time she sold it for
$16,000 cash; that Mr. Bauman used the money in
Vol. 55—14
Digitized by VjOOQIC
RI APPEAL REPORTS,
ind White Lime Company v. Baaman.
some business property on Olive
p^hich was taken in his individual
10 held; that in November, 1887,
the lot here in controversy, for
), taking, the title to his wife, and
expended $17,000 or $18,000 in
ments. While Bauman says that
»t and house he drew against his
ch we may assume to be true, yet
nate inference from his testimony,
wife, that the money arising from
rty in 1876 was regarded as belong-
hat Bauman invested it for her
purchasing the lot and in building
anding to her that money and the
Lsing from its investment. These
drawn by the trial judge, who is
md prudent, and we do not think
ustified in overruling him in this
witnesses and heard them testify,
p position to get at the true facts,
proven that Mrs. Bauman 's money
er alleged acts of participation and
ailding of it became quite signifi-
stifled the submission of the ques-
the jury. We will, therefore,
lent.
had been delivered, the plaintiff
it therefor, showing a balance due
n indorsed the account as being
e objections of the defendant the
plaintiflE to read this paper in evi-
the last trial both parties regarded
between the plaintiflE and Mrs.
he sole issue was lien or no lien.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 211
Carthage Marble and White Lime Company v. Bauman.
This, we assume, was on the idea that the first appeal
and the judgment of reversal therein in nowise affected
the judgment against Bornschein. If this were true,
the adnaission of the paper would have been a technical
error. Grace v. Neshitt, 109 Mo. 9. But, in our
opinion, counsel misconceived the effect of our judg-
ment of reversal. The judgment enforcing a mechanics'
lien in favor of a subcontractor is merely incidental to
a judgment in his favor against someone standing in a
contractual relation with the owner of the property.
Stdnkamper v. McManuSj 26 Mo. App. 51. The lien
cannot exist and, in the absence of statute, cannot V^e
enforced, apart from such judgment. Therefore, the
first appeal brought up for review the entire judgment,
and the reversal vacated it as an entirety. When we
consider that there can be but one final judgment in
the cause (Revised Statutes, 1889, section 2213;
McCord V. McCordj 77 Mo. 166; Caulfieldv. Farrish, 24
Mo. App. 110), the conclusion is unavoidable that there
could not be one judgment against Bornschein for the
debt, and another at a subsequent term enforcing the
lien. Again, the statute requires, in such cases, that
the judgment enforcing the lien shall be on condition
that the judgment for the debt be first made out of the
property of the contractor. This conclusively shows
that there can be but one judgment.
Our conclusion is that it was necessary on the
second trial for the plaintiff to make out its case against
Bornschein. Therefore, the stated account was compe-
tent evidence against Bornschein, and Mrs. Bauman
was entitled by instruction, if she had seen proper to
do so, to have had it so limited.
But, even on the theory on which the case was
tried, the admission of the paper in evidence was non-
prejudicial. If the lien had been adjudged for the bal-
ance claimed under the stated account, then there would
Digitized by VjOOQIC
PPEAL EEPORTS,
;e Lime Company v. Bauman.
complaint. On the contrary,
ace due to the plaintiflE from
the testimony of Bomschein
3d as a witness by the def end-
actness of the stated account
arged for certain portions of
The finding of the jury was
imony.
plaintiflE the court instructed
ad from the evidence **that
n, by and through her hus-
ice or with her consent and
for her benefit, made a con-
tc.
as error for the court to so
ig to the jury the facts that
that Mr. Bauman made the
IS the agent of his wife.
Dmpletely answered in the
Holland v, McCarty, 24 Mo.
i *' authority'' was used in an
led that the meaning of the
L defined by instructing the
) part of the defendant would
Judge RoMBAUER, in deliv-
3 court, said: '*^e have
of the English language in
no particular technical sense,
le jury. The word authority,
it was used, was used as a
[ meaning in common parl-
)sed of intelligent men (as
3 of the statute are bound to
I that the original judgment
;till in force, the judgment
Digitized by VjOOQIC
OCTOBER TERM, 1893/ 213
Langan v. Schlief.
entry was only for the enforcement of the lien,
have shown, this was a misconception of the si
the case. ' It follows that the judgment entry
respect is insufficient and erroneous. We will,
fore, reverse the judgment, and remand the caui
directions to the circuit court to enter a judgn
herein indicated as of date of the last judgment
viz., a judgment against Bornschein for $511.8^
judgment to be a lien on the property. Costs
appeal are taxed against the plaintiflE. All the
concur.
Louis Langan, Respondent, v. Fkederick Sc
Appellant.
St. Louis Court of Apptols, November 21, 1893
1. Landlord and Tenant: sufficiency op service op n<
QUIT. When the statute requires notice in writing, as in the
notice for the termination of a tenancy from month to m(
reading of a written notice to the person to be served <
satisfy the requirement
2. : . A landlord's notice to quit was addresse(
persons. It was served on one of them by the reading of it
and a copy of it was furthermore delivered to him for th
Held, that evidence of these facts warranted a finding of a
service on the person to whom the copy was thus delivered.
Appeal from the St. Louis City Circuit Court.-
Dankl Dillon, Judge.
Affirmed.
Z). P. Dyer for appellant.
Edmond A. B, Garesche and William L. M
for respondent.
RoMBAUER, P. J. — The following facts are i
ted by both parties. The premises in controver
Digitized by VjOOQIC
APPEAL REPORTS,
igan v. Schlief.
who first let them for a term
, to one Prill, and after the
let them to the plaintiJS Langan
s, commencing October 1, 1892.
ration of his term had let the
ant Schlief, who held over and
le as his tenant. Eeane, prior
rm to Langan, endeavored to
3f Schlief by a written notice.
Aibited to Schlief his own lease
? written demand from Schlief
Bmises. The demand not being
stituted the present action of
Bcovered judgment.
) prosecuted this appeal, assigns
Lotice to quit was never served
the statute requires, and hence
idence to support the judgment.
)mplained of.
plaintiflE offered in evidence the
le defendant's counsel objected
mmaterial to any of the issues
rt overruled the objection and
n read. It begins as follows:
red Schlieff, greeting. You and
otified,'' and then proceeds to
ipt terms.
irn on the notice is as follows:
tice in the city of St. Louis,
rst day of August, 1892, by
le within named Fred Schlief,
a true copy thereof to the said
tied Hugo Prilly the said Schlief
rvice on the within described
Digitized by VjOOQIC
OCTOBER TERM, 1893. 215
Langan v. Schlief.
This was all the evidence touching the service of
this notice, and the defendant contends that^ it has
no tendency to show that a notice in writing to terminate
the tenancy had ever been given to the defendant
Schlief. Whether this contention is correct is the
point for consideration.
We will concede the proposition contended for by
appellant, which is supported by the weight of author-
ity in other states, that, where the law requires notice
in writing, the reading of a writing to the person to be
notified is no compliance with the requirement. Hart
V. Gray^ 3 Sumner, 339 ; Williams v. Brummel, 4 Ark.
129; Fittsv. Whitney J 32 Vt. 589. An intimation to
the contrary is contained in Conway v. Campbell, 38
Mo. App. 475, but this point did not arise for decision,
and the expression was used obiter only. We also
concede the further proposition contended for, that in
unlawful detainer proceedings the plaintiflE should be
held to the proof of a strict compliance with all ante-
cedent conditions of a right of recovery, because the
consequences of his success subject the defendant to
high penalties. Yet, conceding these, we must con-
clude that there was evidence in this case tending to
show a compliance with the requirement of a notice in
writing to the defendant.
The notice which was read to the defendant Schlief
was an exact copy of the written notice which, accord-
ing to the constable's return, was delivered to him.
That notice was addressed to both Hugo Prill and
Fred Schlief. The defendant Schlief, therefore, knew
when the copy was delivered to him that it was a
writing addressed to him which he had a right to
read. In School District v. Holmes, 53 Mo. App. 487,
493, the evidence was that a notice of demand in an
unlawful detainer proceeding was taken to the defend-
ant's residence, where, at the defendant's request, a
Digitized by VjOOQIC
A.PPEAL REPORTS,
an v. Schlief .
lis wife, which was left toith her.
\ evidence tending to show a
2n Studdiford v. Kohn^ 46 Mo.
that any manner of service
)arly appeal's that the written
Bached the party sought to be
d by statute. A text writer,
speaking of this subject says
Irving the written notice will
iced to the hands of the party,
ed, in due time.'' Wade on
plied to the facts of this case
broad.
hold that there was evidence
requisite notice in writing to
lad been given, and that the
hat there was no evidence in
submitted to the jury, is not
from placing our decision on
yle, 99 Mo. 459, 471, although
shes an additional reason for
lent in the case at bar. It is
on made in this case to the
ot more specific than in that
ait. We do not wish to be
;hat evidence, which has no
T, can amount to proof of a
3 not been objected to.
notice of demand of posses-
is a service by copy, is not
y of such demand is sufficient,
ection 5124.
mng, the judgment is affirmed.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 217
Green v. Dougherty.
Charles Gbeen, Eespondent, v. Mathias Dougherty
et al.y Appellants.
St. Louis Court of Appeals, November 21, 1803.
1. Principal and Surety : discharge op latter. If the holder of a
judgment releases a lien obtained under it on property of the judg-
ment debtor, the sureties on a bond of the latter, given for the pay-
ment of the judgment, are thereby discharged to the extent of the
value of the property released.
2. Attachnients : effect of recovery of judgment on men op
ATTACHMENT. When the plaintiff in a suit by attachment recovers
judgment, the lien of the judgment merges that of a levy of the writ
of attachment on land, subject to the doctrine of relation in the
-determination of priorities. Accordingly, the lien of such levy is
lost, if the lien of the judgment is allowed to expire by limitation.
3. Judgrments : lien on land. The duration of the lien of a judg-
ment on land of the judgment debtor will not be extended through
the recall and stay of execution on motion of such debtor, and the
giving of bond, under section 2406 of the Revised Statutes of 1879,
for him. ""
Appeal from the Circuit Court of the City of St. Louis, —
Hon. Daniel D. Fisher, Judge.
Affirmed.
Valle Beyhurn for appellants.
G. A. Finkelnhnrg for respondent.
(1) The attachment upon the real estate was
merged into the judgment rendered in the case Feb-
ruary 16, 1888. After the rendition of the judgment
the lien theretofore existing under the attachment
ceased, and the lien of the judgment began to run.
Drake on Attachment, sec. 224a; Waples on Attach-
ment, p. 583. It follows that, when the present plain-
Digitized by VjOOQIC
ISOURI APPEAL REPORTS,
Green t. Doogherty.
) property from McKenna (March 21,
;ht it subject to a judgment lien, and
lien expired at the end of three years
the judgment was rendered; that is to
on the fifteenth day of February, 1891.
tes, 1889, sec. 6012. The lien of anr
IS revive on the expiration of the judg-
ike on Attachment, sec. 224a; Bagley v.
121. (2) The fact that the plaintiff in
t could not enforce his lien, owing to
execution, will not serve to extend his
V. Flanagan J 87 Mo. 670; Chouteau v.
io. 442. A judgment lien is purely
cannot be extended beyond the term
hristy v. Flanagan^ 87 Mo. 670, 672;
zh, 2 Mo. App. 459.
-This action is brought by the plaintiff
enforce the obligation arising out of an
)f the following bond:
men by these presents, that we, John
s McKenna, as principal, and we Joseph
M. Dougherty, as sureties, of the city of
state of Missouri, are held and firmly
nes Harrigan, of the city of St. Louis
Missouri, in the sum of four hundred
to be paid to said James Harrigan, his
inistrators or assigns, to the payment
nd ourselves, our heirs, executors and
firmly by these presents. Sealed with
lated the twenty-fifth day of May, A. D.
ition of this obligation is, that, whereas
rt, city of St. Louis, upon the appli-
s McKenna has stayed the execution
9d and forty-six (146) dollars in favor
Digitized by VjOOQIC
OCTOBER TERM, 1893. 219
Green v. Dougherty.
of said James Harrigan, and levied upon real estate of
said McEenna in said city. Now, if the said appli-
cation of said McKenna be finally determined against
him and he will pay the debt, damages and costs, to be
recovered by said execution, or render in execution all
his property liable to be seized and taken or sold by
such writ, or if the said sureties will do it for him, then
this obligation shall be void; otherwise it shall remain
in full fofee and effect.
^^JoHN Finn, [seal.]
^*Jos. P. Whyte, [seal.]
**M. Dougherty, [seal.]
^'Signed sealed and delivered in presence of
'Thillip H. Zepp, Clerk.
(Indorsed on the back.)
*'For value received I hereby assign all my right,
title and interest, in and also the within bond, this
twenty-eighth day of May, 1891, to Charles Green.
'* James Habeigan.
** Witness,
**Wm. E. Garvin/^
The answer contained a general denial, and as a
special defense it was averred that on the twenty-eighth
day of May, 1891, the plaintiflE herein paid to Harrigan
the full amount of the judgment and costs in the
attachment proceeding, and that, instead of entering
satisfaction of the judgment as he ought to have done,
Harrigan wrongfully and unlawfully assigned the judg-
ment to the plaintiff. The case was tried by the court
sitting as a jury, resulting in a judgment for plaintiff
in the sum of three hundred dollars. No exceptions
were saved as to the evidence, and no instractions were
given on behalf of either plaintiff or defendants. The
only point saved is the refusal of the circuit court to
give an instruction of nonsuit.
The leading or essential facts, being chiefly estab-
.lished by the records and proceedings in the attach-
Digitized by VjOOQIC
PPEAL REPORTS,
Dougherty.
le bond, are not the subject
er the following facts from
. On the eighth day of
I commenced his attachment
ad Finn, which action was
note alleged to have been
Finn, and by Finn indorsed
time this suit was begun
Qt, and he was thiJiowner of
ity of St. Louis. This prop-
le writ of attachment against
T served, and McKenna was
\. On the sixteenth day of
t was dismissed as to the
fault and final special judg-
Qa for $146. On the twenty-
[cKenna, acting presumably
8 of the Revised Statutes of
force, filed a petition to set
ment rendered against him,
> the note. A special execu-
sly issued on the judgment,
ly filed a motion to recall it.
Bd on condition that a bond
), of Eevised Statutes of
this order the bond in suit
and on the twenty-fifth
)nditional order was entered
On the eighth day of
was filed to vacate the
Dn, and on the twenty-third
er motion was sustained by
efore this latter order was
amber 22, 1888, McKenna
ependent suit to vacate the
i was not brought to trial
Digitized by VjOOQIC
OCTOBER TERM, 1893. 221
■ ■ — I
Green v. Dougherty.
until November 13, 1890, when upon a hearing of the
evidence the plaintiflE was nonsuited. A motion to set
aside the nonsuit was overruled on December 17, 1890.
On the third day of April, 1891, by the consent of
parties , the following judgment was entered in said
cause: *'Now at this day come said parties by their,
respective attorneys; thereupon, on motion of plain-
tiff (defendants consenting), it is ordered that defend-
ants' petition filed herein on May 24, 1888, be
dismissed, the plaintiff's special judgment herein, of
date February 16, 1888, stand absolute, and that
plaintiff have a general judgment in his favor and
against defendants for $146, with interest at the rate
of eight per cent, from February 16, 1888^ and his costs
herein, and have execution therefor." (Section 460 of
the Revised Statutes of 1879.) On the ninth day of
April, 1891, a special execution was issued under this
last judgment, and* on May 5, 1891, the real estate
originally attached was levied upon and advertised to
be sold on the twenty-eighth day of May, 1891. The
foregoing is the record evidence pertaining to the con-
troversy, concerning which there is no dispute.
In addition the plaintiff's evidence tended to prove
that in the year, 1889, he, for a. consideration of
$3,500, purchased from McKenna the real estate men-
tioned, and had received from him a good and suffi-
cient deed therefor, dated February 7, 1889, and
recorded March, 25, 1889; that, when the plaintiff was
notified of the levy under the last execution, he pur-
chased the judgment from Harrigan, which together
with the bond sued on was for a valuable consideration
assigned to him by Harrigan, and that he thereupon
stopped the' sale and instituted the present action.
The conditions of the bond are that McKenna
either pay the judgment and costs, or render in execu-
tion all of his property liable to be seized and taken or
Digitized by VjOOQIC
30URI APPEAL REPORTS,
Green v. Dougherty.
ixecution. While it is not claimed by
that McEenna has paid the debt, it is
e rendered in execution his property
) to seizure and sale under the execu-
was of much greater value than the
judgment, and that by order of the
aimed to have purchased the judgment,
s released from the levy, thereby reliev-
its from all liability on the bond,
principle is well established and recog-
te that, if a judgment creditor releases
ive secured by levy on the property of
)btor, the sureties of the latter are dis-
extent of the val^ie of the property so
r V. Bankj 78 Mo. 67. Applying this
, the question presents itself, whether
1 the hands of the plaintiflE was liable
t of the judgment! If not, then the
in no way prejudiced by the action of
itopping the sale.
»tedly true that the plaintiflE bought the
t to the lien of the original judgment
a, but that lien expired by limitation
day of February, 1891. That was the
fc the property. The attachment lien,
ely conditional or hypothetical, was
of the judgment (J)rake on Attach-
section 224a/ Waples on Attachment,
lid not revive on the expiration of the
Drake on Attachments, section 224a.
^rf, 37 Cal. 121. Mr. Drake says,
upra): '^The power to levy by virtue
Qt does not survive the recovery of
action, and no new right or interest in
f the defendant can be thereafter
t. And when, in a suit by attachment,
Digitized by VjOOQIC
OCTOBER TERM, 1893. 223
Green v. Dougherty.
the plaintifiE obtains a judgment which, by the existing
law, is a lien upon the property attached, the liei;i of
the attachment becomes merged in that of the judg-
ment, and^the only eflfect thereafter of the attachment
lien upon the property is to preserve the priority thereby
acquired, and this priority is maintained and enforced
under the judgment. If the plaintiff neglect, within
the lawful period of his judgment lien, to subject the
property to execution, the lien of the attachment does
not revive on the expiration of the judgment lien/^
It logically follows that, at the time McKenna's
petition to vacate was dismissed (April 5, 1891) and
the original judgment made absolute, the plaintiff held
the property free from all liens. It is no answer to say
that the lian against the real estate could not have
been enforced earlier. The bond could not extend the
lien of the judgment beyond the statutory period. It
has been so held in the case of an appeal, where a
supersedeas bond has been given. Christy v. Flanagan^
87 Mo. 670; Chouteau v. Nuckolls, 20 Mo. 442.
The other evidence tended to show that the plain-
tiff is the legal owner of the judgment, and that he
held the bond by a valid assignment. Under the views
expressed the breaches of the bond are obvious.
McKenna did not pay the judgment, and did not
render in execution the real estate owned by him at the
time the original judgment was entered; nor could he
do so, since he had sold it to the plaintiff and the judg-
ment lien thereon had expired. We will, therefore,
afiSrm the judgment. All the judges concur.
Digitized by VjOOQIC
>PEAL REPORTS,
Q Am. Mut. Life Ass'n.
mt, V. The German Ameri-
30CIATI0N, Respoudent.
leals, November 21. 1803.
p FORFEITURE. Waiver diflfers from
y on the intention of the party against
p EVIDENCE. When the failure of the
id his life insurance, but entitles him
one year upon payment of the delin-
eause and satisfactory proof of good
, after default but within the year,
I him of assessments, is not sufficient
feiture.
City Circuit Court., — Hon,
LLiANT, Judge.
her for appellant.
;urance policy, that it shall
nonpayment of premiums,
jction of the company, and
lanley v. Life Association of
npson V. Ins. Co. 52 Mo. 469.
legally established, will be
vored by the law, and the
0 seize hold of any circum-
^ction to waive the right of
Ins. Co. V. Unsell, 144 U. S.
Mo. 54; Froelich v. Ins. Co.
•e of k policy for nonpayment
;s will be deemed waived by
on the part of the insurer, of
Digitized by VjOOQIC
OCTOBER TERM, 1893. 225
Stiepel y. The German Am. Mat. Life Ass'n.
its continuing force or validity; such as a notice
requesting payment of the overdue premium ; a notice
of liability on a later assessment; and the like. CJii-
cago Life Ins. Co. v. Warner, 80 111. 410; Murray v.
Home Benefit Ass^n. 90 Cal. 402; Robinson v. Ins. Co.y
18 Hun, 395; Mut. Life Ins. Co. v. French, 30 Ohio St.
240; Bobyv. Ins. Co. 120 N. Y. 510; Martin v. Equit-
able Ace. Ass^n, 41 N. Y. S. 77; Titus v. Ins. Co.,
81 N. Y. 410; Elmer v. Mut. Benefit Life Ass'n, 47 N.
Y. S. 35; Stylow v. Ins. Co., 69 Wis. 224.
Chester H. Krum and Albert Blair for respondent.
Forfeitures because of nonpayment of premium
when due upon life policies are not regarded with the
same disfavor as those arising from breaches of other
conditions of the insurance. New York Life Ins. Co.
V. Statham, 93 U. S. 24; Thompson v. Ins. Co., 104 U.
S. 252. The assured was not led by a course of deal-
ings to believe that he could pay at any time whether
he was sick or well. The question presented by the
appellant's case is merely whether the assured was
restored by the respondent from a condition of volun-
tary default to one of full rights as a member or pol-
icy holder. It was manifest that he was not so restored.
Lantz V. Ins. Co., 159 Pa. St. 546; Marvin v. Ins. Co.,
85 N. Y. 282. The receipt of premium which is over-
due, on condition that assured is in good health, is not
a waiver. So the sending of circulai*s is not a recogni-
tion of membership in the sense of a waiver of forfeit-
ure for nonpayment of premiums. The company being
a mutual benefit association, it was even its duty to
advise a suspended member of condition of the associa-
tion. Ronald v. Mut. Reserve, 132 N. Y. 378; Bacon
on Benefit Societies, sec. 432; Schmidt v. Modern Wood-
men, 54 N, W. Eep. 264. The cases cited by the appel-
lant do not sustain her position.
Vol. 55 — 15
Digitized by VjOOQIC
RI APPEAL REPORTS,
i German Am. Mat. Life Ass'n.
J. — The plaintiflE sued to recover
of a life insurance policy or certif-
defendant on the life of her hus-
states the contract of insurance,
» and a f^eneral compliance with the
icy, and prays judgment.
s up a number of defenses, of
the purpose of deciding the point
Deal, only the following one is
iant admits that on the twenty-
st, 1889, said Julius R. Stiepel, on
ion thereto, was admitted as a
^iation, and that, on payment in
d annual premium, to-wit, $6, by
his delivery to defendant of his
the first four quarterly mortuary
on his policy, and on his promise
viz., on the twenty-second day of
*, to pay the fixed premium of $6,
rly mortuary calls as they should
, said certificate of membership or
)r $2,000 on the life of said Stiepel,
was issued by defendant to said
rs that, by the terms and condi-
and more particularly by special
three thereof, and by the terms
i application, which, by the terms
Qade a part thereof, said certificate
''ed upon condition that, if any of
ted therein to be made should not
1 the home office of this associa-
urlington, Iowa, or to an author-
lociation furnished with a receipt
Digitized by VjOOQIC
OCTOBER TERM, 1893. 227
StiQpel V. The German Am. Mut. Life Ass'n.
•by its president or secretary; then, in that case, said
certificate should be null and void, and all payments made
thereupon should he forfeited.
"Defendant avers that Julius R. Stiepel failed to
pay, on or before the day it became due, the second
annual fixed premium on his 6aid policy, viz: , the sum
of $6, which became due and payable on the twenty-
second day of August, 1890, although duly notified of
the maturity of said premium, and that, thereby, under
the special conditions aforesaid said policy became null
and void ; but defendant avers that, under the provision
of section 4, article 12, of the constitution of the asso-
ciation, and which is specially referred to in said appli-
cation, said section being as follows, viz: "Sec. 4.
Any member lapsing, his certificate may he reinstated in
the discretion of the executive committee at any time within
one year for good cause shown upon satisfactory proof of
good health, and payment of all delinquent dues and assess-
ments;^^ there remained to said Stiepel the privilege of
being reinstated to membership and to the benefit of
his policy, and the payments thereon, by making at
any time within one year of said default an application
therefor to the executive committee of the company,
by supplying satisfactory proof of health and by paying
all delinquent dues and assessments.
"Defendant avers that said Stiepel, having made
default, as aforesaid, to pay said second annual premium
on the twenty-second day of August, 1890, continued
in default for a long time, to-wit, the space of ten
weeks, and until he received bodily injuries or became
affected with disease such as precluded his restoration
to membership under the terms of said section 4, and
that he at no time after having made said default
made an application to be restored upon the terms of
said section 4,'' •
Digitized by VjOOQIC
SOURI APPEAL REPORTS,
[ V. The German Am. Mut. Life Ass'n.
denies the aflBrmative matter of the
3ads the following by way of waiver of
)lied upon by the defendant:
splying to said answer, plaintiff denies
irenty-second day of August, 1890, the
%me null and void for failure on the
id deceased or this plaintiflE to make
$6, as in the answer is averred,
atiflf denies that, because of any failure
at on said twenty-second day of August,
dant undertook to, or did, declare any
id policy. That, on the contrary, the
:nized the said policy as in full force and
long after, said twenty-second day of
and waived any right on its part to
ture of said policy, if any such right
notifying the said deceased on or about
90, that a duly authorized collector of
i call on him in St. Louis for the pur-
ing payment from him of the said
y notifying him at or about the said
vember, 1890, that he had until Decem-
make the said payment.
:her replying, plaintiff states that, as a
the defendant did receive from said
about November 30, 1890, and long
when defendant now alleges that said
me void, payment of said sum of $6,
lual expenses, dues, and of all other
ue upon said policy, and that defendant
:ained said moneys with full knowledge
conditions of the deceased husband of
time.''
rial the plaintiff gave in evidence the
lurance and the indorsements thereon,
L the clauses relied on by the defendant.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 229
Stiepel T. The German Am. Mut. Life Ass'n.
The plaintifiE also gave evidence showing that, when
the certificate was issued on August 22, 1889, the
defendant accepted from the assured his promissory
note, payable on or before December 1, 1889, in pay-
ment of his mortuary assessments for one year, and of
an admission fee of $6. The plaintiff gave no evidence
showing or tending to show that the annual assess-
ment of the assured due August 26, 1890, had been
paid. For the purpose of showing a waiver of the
forfeiture created by such nonpayment, the plaintiff
gave in evidence two circulars issued from the home
office of the company, the one tiaving no date and
being addressed, **to our members at St. Louis, '** the
other bearing date November 1, 1890, and being
addressed to the assured by name. There was no
direct evidence that the assured had ever seen these
papers, or either of them. The plaintiff testified that
she did see them before the death of the assured, on
November 12, 1890, and that they were found in the
yard where they had been carried by a dog. The first
of these papers was as follows:
"home office of the GERMAN AMERICAN MUTUAL LIFE
association.
"Burlington, Iowa, , 189 — .
"To our Members at St. Louis:
"In consideration of the large membership at
St. Louis, and in order to accommodate such of our
members as prefer paying to a collector, we have
arranged with our collector to call upon you in due
time, but, as our membership in your city is already
very large, and is growing very rapidly, the collectors
cannot call at every place on the very last day of pay-
ment, but will be obliged to start about the twentieth
of this month, in order to get through by the first of
next month. Therefore, we kindly ask you to hold
Digitized by VjOOQIC
5 MISSOURI APPEAL REPORTS,
Stiepel V. The German An). Mut. Life Ass'n.
3y in readiness for them from the twentieth
onth on.
ition. No one is authorized to pay to a eol-
^cept upon a receipt properly signed by the
and stamped with the seal of this association,
therwise, you do so at your own risk.
* 'Yours very truly,
*'F. H. A. Koch,
** Secretary.^'
second of these papers was in the following
ffice of the german american mutual life
association.
^'Burlington, Iowa, Nov. 1, 1890.
closed herewith I hand you notice of your
terly payment in this year, and, in doing so,
ised to assure the members that this associa-
a most prosperous condition; our member-
eadily increasing, and our death losses have
paratively small.
as far we have secured in an average sixty
ications per month, which I consider a very
rowth in membership. Since organization up
this association has never resisted a single
t to the contrary has paid every death claim,
omptly and in full, long before due. In this
ir association stands as the peer in the front
11 associations in the land. That's the kind
)any for you to insure with and to stand by.
11 buy your insurance, you don't want to buy
in connection with it, but want to buy pure
r your beloved ones.
ce organization we received over twenty-one
applications; out of this from four to six
dave been either rejected, or have lapsed their
Digitized by VjOOQIC
OCTOBER TERM, 1893. 231
Stiepel V. The German Am. Mut. Life Ass'n.
policy, which leaves us still a very nice membership in
force.
*^We have received in mortuary premiums a total
of eighteen thousand and forty-one dollars and forty-
seven cents ($18,041.47), out of which we paid for
death losses $10,760, leaving a net balance of $7,281.47
still on hand. This is an excellent showing, of which
any member may justly feel proud, and the officers
feel thankful for the success thus far attained.
''Thanking you most heartily for your prompt
payments in the past, I ask you kindly to be especially
prompt this time in making your payments before the
fifth day of December, which is the last day of grace,
as this payment comes in the last month of the year,
and should be paid early so that we 'may be able to
close our books at the proper time.
''A complete statement of the full year's business
in detail will be sent to each member after the close of
the year.
''Although our success thus far attained has been
very gratifying, yet, an encouragement on the part of
the members will never come amiss; and nothing is
more encouraging to the officers and the agents than
to know that all the members take an active part in
recommending this association to their friends. This
is your association as much as it is anybody's ; and,
whenever you speak a good word to your friends for
this association, you are building up your own interest.
How easy may each member secure one new appli-
cant per year, and thus double our membership each
year. May I not depend upon your earnest endeavor
to induce some one to join this association? We will
gladly pay you a liberal commission for each new mem-
ber that you secure. If you don't know how to go at
it, write to us for instruction. A good plan is to make
a list of the names of your friends, then make it an
Digitized by VjOOQIC
EAL REPORT^S,
jn. Mat. Life Ass'n.
your earliest convenience
nd, etc., etc., and, if you
, then send us his address
ing his view of insurance,
0 the rest, and, if he be
le a member, we will pay
e the pleasure of hearing
ibject at an early date, I
^*F. H. A. Koch,
** Secretary."
thirtieth day of Novem-
g his death his attorney
he secretary of the com-
to cover the note of the
md mortuary assessments,
mual expense dues which
, amounting to $6. The
tion to the fact that this
iree months, and that he
satisfactory certificate of
enclosed blanks for that
List be filled and returned
be put. in full force,
he attorney, the assured
}e offered by the plaintiff,
ury that she could not
k a nonsuit, and, after
vacate the same, she
the only question pre-
s whether the acts of the
f a character to furnish
)rfeiture of the policy,
Digitized by VjOOQIC
OCTOBER TERM. 1893. 233
Stiepel V. The German Am. Mut. Life Ass'n.
which by the express terms of the contract occurred
upon the nonpayment of the dues of August 22, 1890.
Waiver depends solely upon the intention of the
party against whom it is invoked, and is in that respect
essentially different from estoppel. Hence we attach
no importance to the fact that the evidence fails to show
that the two circulars issued by the defendant, and
above set out, were seen by the assured or read by him.
If the evidence adduced clearly tends to show an inten-
tion on the part of the defendant to waive the for-
feiture, it is immaterial for the purpose of establishing a
waiver whether such intention was communicated to the
assured or not. On the other hand it is equally imma-
terial, in determining the question of waiver, whether
the assured believed that the defendant intended to
waive the forfeiture, if it cannot be reasonable inferred
from its acts that such was its intention. While it is
said that the question of waiver is ordinarily a question
for the jury, this simply means that the sufficiency of
the evidence is a question for them. Whether there is
any evidence of a given fact must always remain a ques-
tion of law for the court.
Keeping the above distinction in view, we must
conclude there was no evidence of a waiver in this case,
the sufficiency of which the court could have submitted
to the jury. Notwithstanding the default of the pay-
ment in the August installment, the assured .still
remained sub modo a member of the defendant com-
pany. He might by the terms of the contract, upon
satisfactory proof of good health, have been reinstated
at any time within one year after such default. Section
4, above set out, recognizes that he is a member of the
company, notwithstanding such lapse. There is, there-
fore, no inconsistency in the action of the company in
addressing to him circulars as a member, and yet claim-
ing that he had ceased to be an unconditional member.
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Stiepel V. The German Am. Mut. Life Ass'n.
pect this case is essentially different from the
by the appellant, all of which are cases which
element. In Chicago Life Insurance Co. v.
3 111. 410, the premium fell due on June 28;
i failed to pay it and died the next day.,
the company wrote to him under date of
'*The .premium on your policy, ♦ * *
Qe 28. * * * If you wish to continue this
rce, you will please remit the above amount
ce by return mail.'' This clearly indicated
>n on part of the company to waive the for-
I contimce the policy upon a subsequent pay-
le premium. In " Murray v. Home Benefit
, 90 Cal. 402j^ the company solicited the pay-
erdue assessments, and gave notice of a sub-
cessment ; the policy contained no condition
itement on terms, and none were annexed to
ition. In Robinson v. Pacific Fire Ins, Co,,
►5, overdue premiums were demanded by the
rom the executors, and it was held that such
lived a forfeiture of the policy, which the
might have claimed on the ground that the
he assured worked, a change in the title. In
'Jo, V. French, 30 Ohio St. 240, the agent of
my took a check and note in payment of
m, adding to the note that its nonpayment
rk a forfeiture of the policy. The policy
io such condition. The court held there was
re. The question of waiver did not arise in
In Elmer v. Mutual Benefit Life Ass^n, 47
Jep. 35, the assessment was payable onOcto-
i the assured died on October 1. The court
recovery could not be defeated by failure to
isessment payable after the death of the
[n Stylow V, Ins. Co,, 69 Wis. 224, the policy
• to the one in the case at bar, providing for
Digitized by VjOOQIC
October term, 1893. 235
Stiepel V. The German Am. Mut. Life Ass'n.
a restoration only on payment of arrears and a certifi-
cate of health. It appeared in evidence, however, that
the company had collected sixty-three consecutive
assessments, all at a time when they were overdue
without requiring in any instance a certificate of health.
This was held such a course of conduct as to estop the
company from insisting on a forfeiture for nonpayment
of premium on the ^xact day. The case is one of
estoppel and not of waiver. On the other hand in
Schmidt v. Modern Woodmen, 54 N. W. Rep. 264, it
was held on a policy containing the clause of reinstate-
ment on terms that a member in default could not claim
a waiver and reinstatement without terms, although he
was called upon to pay a subsequent assessment by a
letter specially [directed to him. So it was held in
Bonald v. Mutual Reserve Ass^Uy 132 N. Y. 378, that
the fact of furnishing blanks to a defaulting mem-
ber's representatives, and giving them directions how
to fill them out, was a mere act of courtesy, and in
no way a waiver of a forfeiture which the company
claimed.
As the member in the case at bar remained a con-
ditional member notwithstanding his default, the send-
ing of circulars of the company to him, which simply
advised him of accruing assessments within the year
when his conditional right of reinstatement still existed,
and of the methods provided by the company for the
collection of such assessments, is no evidence of a
waiver of a forfeiture of unconditional membership.
The judgment is affirmed. All the judges concur.
Digitized by VjOOQIC
OURI APPEAL REPORTS,
Rich V. Fendler.
[, Respondent, v. Leon Fendler,
Appellant.
>urt of Appeals, November 21, 1893.
arvant: proof op incompetency op latter. A
in a stated capacity for a fixed term on condition
)tent thei'efor, was dismissed by the master after he
i for a month in the discharge of his duties but
f the employment. The master sought to justify
proof of the servants incompetency. Held, that
ervant*8 general reputation as a workman, and of
B satisfaction in other like employment, was not
J purpose.
Bllate: weighing the evidence in actions at
solution of an issue of fact in an action at law
I credibility of witnesses whose testimony is con-
will not review the verdict of the jury thereon on
is opposed to the weight of the evidence.
St. Louis City Circuit Court. — Hon.
Daniel Dillon, Judge.
mison for appellant.
er who hires a servant for a definite
a the faith of the latter's representa-
capacity in that line of employment
tie contract before the expiration of the
epresentations are untrue. Anstee v.
App. 665; 14 American & English
Law, 790; Squire v. Wright, 1 Mo.
I on Master and Servant [2 Ed.], 166.
act sued upon the defendant had the
at the plaintiff did not have the quali-
iarge the duties of said position, and
Digitized by VjOOQIC
rt.r>i^^y''r-:/f.
OCTOBER TERM, 1893. 237
Rich V. Fendler.
was not competent to fill said position ; and the court
erred in excluding the testimony offered on this point.
(2) Where the preponderance of evidence is so excess-
ive as to show that the trial court abused its discre-
tionary power in allowing the verdict to stand, the
verdict will be set aside by the appellate court. Schulte
V, Railroad^ 5 Mo. App. 578; Garrett v. Greenwell, 92
Mo. 125; Spohn v. Railroad, 87 Mo. 74; Whitesett v.
Ransom, 79 Mo. 258; Ackery v. Staehlin, 56 Mo. 561;
Hipsley v. Railroad, 88 Mo. 353.
Charles L, Hamm for respondent.
(1) This court will not review the weight of the
evidence. Gary v. Cole, 38 111. 236; Lalorv. McDon-
ald^ s AdmW, 44 Mo. App. 439; Pohlman v. Tilden, 44
Mo. App. 569. (2) The court properly excluded evi-
dence as to the competency and skillf ulness of plaintiff.
The question was not whether he was capable of per-
forming the duties devolving upon him under the con-
tract, but whether he did perform them, and the jury
found that he did. 7 American and English Ency-
clopedia of Law, p. 500, and cases there cited; Steven-
son V. Gelsthorpe, 27 Pac. Eep. 404.
Biggs, J. — This was an action for damages for an
alleged violation of the following contract:
^^St. Louis, August 17, 1892.
**This is to certify that I hereby engage Mr. Sol.
V. Rich, for the term of three months from this day
up to the seventeenth day of November, 1892, at a salary
of $20 per week, provided he is competent to fill the
position he is engaged for, — that is, as foreman in the
manufacturing department.
"(Signed) L. Fendlee.^'
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Rich V. Fendler.
lleged that under the foregoing contract the
atered the service of the defendant, and that
led to faithfully discharge the duties of the
ssigned to him until the tenth day of Sep-
592, when the defendant without cause dis-
lim from the employment; that afterwards
ff sought other employment, but was unable
t. The defense was that plaintiff wa^ care-
discharge of his duties ; that he was incom-
ill the position ; and that, when his attention
to his dereliction of duty, it was mutually
it the contract between the pai'ties should be
There was a verdict for the plaintiff, and
lant has appealed.
lie trial the plaintiff read the contract in
and he introduced other evidence tending to
alleged cause of action. The evidence of the
tended to prove that the plaintiff was care-
negligent in the discharge of the duties
to him, and that, when his attention was
lis failure to properly do the work assigned
e declared his willingness and intention to
c, to which the defendant assented. The
offered to prove by other witnesses, who
lainted with the plaintiff, that he did not
e necessary skill to discharge the duties of
f such a business as the defendant conducted,
g his general reputation as a workman, and
d undertaken similar work for other parties
liled to give satisfaction. The court excluded
ince, and the defendant assigns that for
re of the opinion that the court did right in
the evidence which the defendant offered.
iiff worked for the defendant for more than a
id we think that his competency or iucom-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 239
Rich V. Fendlep.
petency could be best determined by the manner in
which he actually discharged the duties assigned to
him. The question at issue was whether the plaintiff
did his work honestly, promptly and properly. In
determining this it certainly would not have been
relevant for the plaintiff to show that he was a mechanic
of good reputation, or that he had discharged similar
duties for some one else in a satisfactory manner.
Neither was it competent for the defendant to show the
contrary of this. In actions against physicians for
malpractice it has been held that evidence of the
general reputation of the physician was irrelevant;
that the unskilfulness of the physician must be deter-
mined by the manner in which he treated the particular
case, and that his general reputation, whether good or
bad, could cut no figure. Stevenson v. GelstJiorpe, 27
Pac. Rep. 404. So, in this case, it could make no
difference whether the plaintiff's general reputation as
a workman was good or bad, or whether he had failed
to perform similar duties for other parties in an
unskillful manner.
The other assignment is that the trial court abused
its discretionary powers in allowing the verdict to
stand, as the preponderance of the evidence for the
defendant is such as to indicate bias in the verdict.
The substance of such an assignment is that under all
the evidence the unavoidable inference is that the
verdict was the result of passion, prejudice or mistake,
and that, therefore, the trial court, in overruling the
motion for a new trial, abused its judicial discretion.
We have held that the verdict of a jury must be
regarded as the result of a mistake or prejudice, when
it is against all reasonable probabilities in the case.
In the present action the testimony of the defendant
on the main question was opposed by the testimony
of the plaintiff, that is, as to the manner in which the
Digitized by VjOOQIC
RI APPEAL REPORTS,
ill Livery Co. v. McKelvy.
the duties assigned to him. While
lony stood alone, and that of the
urably corroborated by other wit-
) was such that it is impossible for
istimony of the plaintiff could not
The solution of the question had to
Incredibility of the witnesses and
idence. Of the former the jurors
;es; and whether the conclusion
3 against the weight of the evidence
30U1I; to decide, and we can not
concurring, the judgment will be
TERY Company, Appellant, v. James
Ielvy, Respondent.
of Appeals, November 21, 1893.
INSTRUCTIONS. The burden of proof is not
f facts which establish a prima facie case. It
oughout the case; and, notwithstanding such
jury may accordingly be instinicted that it is on
; the outset.
erdriving: expert evidence. The plaintiff
ith of a horse, alleged to have been caused by
ht to establish this allegation by the opinion of
:hat purpose put to the expert a hypothetical
illy covered the facts shown in evidence, with
speed at which the horse was driven. Ileldf
lered the hypothetical case objectionable.
. Louis City Circuit Court. — Hon.
lEL Dillon, Judge.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 241
Marshall Livery Co. v. MoKelvy.
Collins d Jamison for appellant.
(1) It is a well established proposition of law that,
when personal property has been delivered by one party
to another in good condition, and the same is damaged "
while in the possession of the latter, the burden is on
the bailee of showing that he treated the property in a
proper manner while in his possession, and that the
loss or damage to it was not due to his negligence.
The burden of proving such negligence is not upon the .
bailot. Taussig v. SchieldSj 26 Mo. App. 327; Amotv.
Branconier y*14: Mo. App. 431; Weiser v. Chessleyy 53
Mo. 547; Collins v. 5enne«,46N. Y. 490; Edwards on
Bailment, sec. 62 ; Beardsley v. Bichardson^ 11 Wend.
25; McNahh v.Lockhart, 18 Ga. 495. (2) The lowel-
court also erred in rejecting the expert evidence offered
by plaintiff, to the effect that the horse died from exces-
sive driving.
J. B. Myers for respondent.
Biggs, J. — The plaintiff hired to the defendant a
horse and buggy. It was alleged that, at the time the
horse was delivered to the defendant, it was in a healthy
condition, and that the defendant ^^negligently treated
the horse, and drove the same to such an unusual and
excessive extent, that said horse died from the effects
thereof,'^ etc.
The plaintiff's evidence tended to show that the
horse was delivered to the defendant at about 1 :30 p. m. ;
that, at the time, the animal was apparently in good
condition; that it died about 9:30 p. M. ; and that,
when it was first seen by the plaintiff's witnesses, which
was about half an hour before its death, it was sweat-
ing profusely.
The defendant's evidence tended to prove that the
horse was driven at a moderate pace, not exceeding six
Vol. 55—16
Digitized by Google
1
RI APPEAL REPORTS,
ill Livery Co. v. MoEelvy.
>ur; that it was rested and watered
: the afternoon, and that the animal
cheated. Under the instructions,
issues for the defendant, and the
►f the defendant the court instructed
^^ The court instructs the juiy that
is on the plaintiff to establish to
tisf action hy preponderance of proof
d to exercise ordinary care in driv-
the horse while in his charge ; and,
failure to exercise such care caused
are sued for; and, unless the jury
le evidence of both such facts, the
the defendant.'^
mplains of this instruction. It is
that plaintiff made a prima facie
I evidence tending to prove that it
[ to the defendant in an apparently
nd that the burden was then cast
to show by a preponderance of evi-
se from negligence in the use of the
ion loses sight of the distinction
of proof and the burden of evi-
remains throughout the trial where
it in the first instance, while the
Q side to side according to the state
V. Long, 44 Mo. App. 141; Heine-
N". Y. 448; Central Bridge Corpora-
ay (Mass.) 132; Scott v. Woody 81
Bichj 142 Mass. 356; Powers v. Silr
171 ; Wilder v. Cowles, 100 Mass.
ary for the plaintiff to allege and
e of the horse the defendant. was
gent act, and that the death of the
of such act. These were the con-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 243
Marshall Livery Co. v. MoEelvy.
stitutive facts of tlie cause of action. A prima facie case
was made by the introduction of evidence tending to
prove that the horse, at the time of the delivery to the
defendant, was apparently in good condition. If the
evidence had closed at this point, the plaintiflE would
have been entitled to recover, provided the jurors were
satisfied from its evidence that the horse was in a
healthy condition at the time of its delivery to defend-
ant. Therefore, at this stage of the proceeding, the
burden of evidence was cast on the defendant to show by
some substantial evidence that he exercised ordinary
care in the use of the animal. When this burden was
met, then the final question for the jury was whether
the whole evidence preponderated in favor of the plain-
tifE as to the constitutive facts of its cause of action, i.
6., that the defendant was negligent in the use of the
horse, and that such negligence was the proximate
cause of its death. The burden of proving these issues
by a preponderance of evidence was imposed on the
plaintiflE by the pleadings, and we can conceive of no
principle, recognized in our code of civil procedure,
that would relieve the plaintiflE of this onus.
In the case of Hdnemann v. Heard, silpra, it was
said: *'It was error to refuse to charge that the burden
of proving negligence was upon the plaintiflEs. * * *
The charge against the defendants was, that they did
not exercise proper care and diligence in the business
of their agency. This was denied, and whether they
did or not was the question to be decided. Upon this
question the plaintiflEs held the affirmative throughout
the trial, and their relation to the question never
changed. During the progress of a trial, it often hap-
pens that a party gives evidence tending to establish his
allegation, sufficient it may be to establish it prima fade j
and it is sometimes said the burden of proof is then
shifted. All that is meant by this is, that there is a
necessity of evidence to answer the piima facie case, or
Digitized by VjOOQIC
PPEAL REPORTS,
y Co. V. MoKelvy.
len of maintaining the affirm-
i in the action is upon the
ch constitutes the issue, and
ghout the trial."
Bridge Corporation v. Butler^
I of this language: ^*The bur-
it of evidence are two very
[•mer remains on the party
1 of his case, and does not
the cause; the latter shifts
Dgress of a trial, according to
the proofs oflEered in support
to be established."
;. Wood, supra, the court, in
between the burden of meet-
the burden of producing a
\e, said: **The two burdens
nay shift back and forth with
itimony. The other remains
n it is cast by the pleadings —
dy who has the affirmative of
>n of the principle which we
iourt of Massachusetts, in the
144 Mass. 107, said: ^^ While
n action upon a promissory
lal parties, is upon the prom-
lat it was given for a valuable
ion of the note and proof of
establish a prima facie case
E to a verdict. But the bur-
ation still remains upon the
' this presumption, and, if
e case on this point on behalf
itiff must show, by a prepon-
Digitized by VjOOQIC
^iV,
OCTOBER TERM, 1893. 245
Marshall Livery Co. v. McKelvy.
derance of the whole evidence, that the note was given
for a valuable consideration.^^
It is useless to quote further from the cases. We
are clearly of the opinion that the instruction is free
from the objection urged against it. What was said by
this court and the supreme court ( Taussig v. SchieldSj
26 Mo. App. 327; Amot v. Branconierj 14 Mo. App.
431 ; Wiser v. Chesley, 53 Mo. 547) concerning the bur-
den of proof did not refer to the burden of producing a
preponderance of evidence, which must in every case
rest on the party holding the affirmative of the issue.
The allegations of negligence were that the plain-
tiff *^so negligently treated said horse, and drove the
same to such an unusual and excessive extent,'^ etc. In
the defendant's instructions the jury were told that the
verdict must be for him, unless he failed to use ordinary
care in driving and caring for the horse. It is insisted
that the instructions confined the jury to the consider-
ation of the alleged act of overdriving. There is noth-
ing in this objection. The language of the instructions
is broad enough to embrace any act of negligence con-
cerning the horse. Besides, there was no evidence tend-
ing to prove any act of negligence, other than unusual
or excessive driving.
In rebuttal the plaintiff introduced as a witness Dr.
James, a veterinary surgeon, for the purpose of elicit-
ing his opinion of the cause of the death of the horse.
Plaintiff's counsel stated to the witness a hypothetical
case, which covered substantially the facts as shown by
the evidence, except the rate of speed at which the
horse was driven. The defendant objected to the suf-
ficiency of the question for the above reason. The
court declined to allow the witness to answer. As here-
tofore stated, the plaintiff's evidence, if it proved any-
thing, tended to show a case of unusual and excessive
driving,' hence it was necessary to an intelligent opinion
Digitized by VjOOQIC
' t-ii
)URI APPEAL REPORTS,
Gill V. Reed.
} tlie rate of speed should be stated.
having failed to supply the omission,
t in refusing to allow the witness to
ne other matters presented in the brief
deem it necessary to discuss, as the
)e changed. We will, therefore, aflSrm
LU the judges concur.
Respondent, v. Chables S. Reed,
Appellant.
irt of Appeals, November 21. 1893.
PROMISE TO PAT FOR GOODS SOLD TO ANOTHER
ONS. To show that a promise to pay for goods
to a third party was original and not within the
; is essential, if the purchase was not a joint one,
the goods should have been ^ven solely to the
Id, that an instruction which submitted such an
V7as not sufficiently definite and clear.
St. Louis City Circuit Court. — ^HoN.
iiEL D. FiSHEE, Judge.
MANDED.
wis for appellant.
Ivihill for respondent.
lis is an action upon an account for
of jewelry. The defendant's answer
ial and a plea of the statute of frauds,
fc in the evidence as to the transaction
) account arose. The plaintiflE stated
t and one Orth came to his place of
31, 1892, and that said Orth picked
Digitized by VjOOQIC
OCTOBER TERM, 1893/ 247
Gill V. Reed.
out two pairs of diamond earrings, one diamond
bracelet and one emerald ring (articles set out in the
account sued on) to take home to show to his wife;
that the plaintiff thereupon took the defendant in his
back room and said to him that, if he wanted to take
the goods, it was all right, but that Orth could not take
them, and that defendant replied several times: * 'Ain't
I good enough for them,^^ to which plaintiflE answered:
•'Certainly, you can have two or three times that
amount, and you know it;'' that the goods, after being
cleaned, were sent by the plaintiflE's store boy to Mr.
Orth's number, which the defendant gave. The
plaintiff admitted that he was to allow one-half ($45)
of the profit of this sale to the defendant.
The defendant denied all of the foregoing statements
as to the delivery or sale of the goods upon his credit,
and stated that he had no other connection with the
matter than to introduce the buyer, Mr. Orth, to the
plaintiff in pursuance of an agreement with the plain-
tiff, whereby the defendant was to receive one-half 6f •
the profits on all sales to persons brought by him to
the plaintiff's store. The defendant's statements were
corroborated substantially by the only other witness
and by the attendant circumstances. There was evi-
dence of an^ entry on plaintiff's books in the hand-
writing of one of his clerks, headed as follows: ''Mr.
Charles Reed, per Joseph Orth, No. 417, N. 4th street,
Oct. 31st," then giving the articles and price of each.
There was also evidence that the plaintiff's partner
subsequently furnished the defendant the following
statement from the plaintiff's books:
"St. Louis, Nov. 12, 1892.
"Jfefr. Joseph Orthj
"No. 417 N. 4th street.
"Bought of W. A. Gill, watches, diamonds, jew-
elry, etc., 616 Olive street," then mentioning the
articles and prices sued f or.^
Digitized by VjOOQIC
30URI APPEAL REPORTS,
Gill v. Beed.
ny disclosed that Orth absconded, and,
unpaid, plaintiff sued the defendant
i the trial the jury returned a verdict
Tors complained of on this appeal by
•e; first, that the judgment for plaintiff
)y the evidence; second, that the court
ruction given for plaintiff,
tion complained of is as follows, to-wit:
instructs the jury that, if they believe
ee that the goods, wares and merchan-
in evidence were sold or delivered to
the request of the defendant, and on
\) account, on or about the thirty-first
1892, and that the said goods, wares
B, were charged to the defendant; and
BE looked to the defendant for the pay-
if you find such to be the fact from the
the jury will find for the plaintiff for
est at the rate of six per cent, from the
ovember, 1892.''
show that a promise to pay for goods
ed to another is original and not within
auds, it is essential that the promisor
m a joint purchaser of the goods, or
for their sale should have been given
One or the other of these elements is
I an original promise. Bottman v. Fix,
1. It is also elementary that a delivery
mport a sale. In the above instruction
iold that, if the goods ^'were sold or
r. Orth upon credit given the defendant,
I against him. This was a fatal error
dence. The weight of the evidence
that the articles sued for were merely
h to be taken home and shown to his
Digitized by VjOOQIC
OCTOBER TERM, 1893. 249
Lancaster v. Elliot.
wife, who was expected to make a selection from them
for future purchase; that at the time of this delivery
the defendant, when questioned about it, said: "Ain't
I good enough,'^ and that, about ten days thereafter,
when told that a bill had been rendered Mr. Orth for
the goods, the defendant then said: '*I will pay you on
the fifteenth for those goods.'' It is evident that this
view of the evidence would not support an action for
the sale of the goods to defendant upon his sole credit
or as a joint purchaser, and yet by the use of the dis-
junctive "or" instead of the copulative "and" in the
above instruction the jury might have been misled into
a finding against defendant on insufficient evidence. It
is, in fact, questionable whether the evidence adduced
had any tendency to show a consummated sale to any
one.
The instruction is also objectionable in not setting
forth with sufficient clearness that the credit must have
been extended solely to the defendant upon the
h3T)othesis of a sale to him alone, and not as joint pur-
chaser.
For these reasons the judgment herein is reversed
and the cause remanded. All the judges concur.
55
£49
55
»Z
f>5
24Q
r 6-2
452
55
249
l?l
118
Gona'Lancasteb, Appellant, v. Henby Elliot etal.y
Respondents.
St. Louis Court of Appeals, November 21, 1893.
1. Divorce: interest on payments for maintenance. When a
decree of divorce adjudges the payment of fixed installments of '55 249
money frem the husband to the wife for the maintenance of their _?4 i2?
child, each installment bears interest from the time when it is I ^^ 3^^
payable. "sTl^
2. Discharge of Contract Under Seal: consideration. Aeon-
tract under seal may be discharged^ before or after breach, by parol
for valuable consideration; and a legal consideration for an agree-
ment is furnished by the least advantage under it to the promisor
or the least detriment to the promisee.
86 625
Digitized by VjOOQIC
SSOURI APPEAL REPORTS,
r
Lancaster v. Elliot.
he St. Louis City Circuit Court. — Hon.
AMES E. WiTHBow, Judge.
Wood (& Tansey for appellant.
\ no consideration for the agreement of
885. Lancaster v. Elliot^ 42 Mo. App.
inson for respondents.
ment was fully executed by the parties
er it, and it needs no other or further
:o support it. Bishop on Contracts, sec.
partial execution of it was sufficient.
Further, the acceptance of benefits under
and his conduct in acting under it, estop
dng its validity. Bishop on Contracts,
Boggs v. Olcott, 40 111. 303 ; Wiggins v.
lo. 389; Dean v. Walker, 107 111. 540.
ly be discharged for a valuable consider-
•ol agreement, or without other consid-
irol agreement fully executed ; or a parol
■f be substituted for it, or rights may be
it by parol when the respective parol
ve been fully executed as this one was
ier it. Bishop on Contracts, sees. 134,
)4; Green V. ^eZfe, 2 Cal. 584; Dearborn
m. 48; Dickerson v. Ripley ^ 6 Ind. 128;
ole, 11 Vt. 549.
-This is an action upon a bond given in
ceeding between the appellant and the
ia M. Lancaster. The bond sued on
)y defendant in due form, to-wit:
Digitized by VjOOQIC
OCTOBER TERM, 1893. 251
Lancaster v. Elliot.
**Know all men by these presents, that we, Ida M.
Lancaster, as principal, and Henry Elliot and Henry
Elliot, Jr., as sureties, are held and firmly bound unto
Gona Lancaster in the sum of $1,000, for the payment
of which, well and' truly to be made, we bind ourselves,
our heirs, executors and administrators jointly and
severally by these presents. Sealed with our seals, and
dated this sixteenth day of July, 1884.
**The condition of the above obligation is such that,
whereas, on the seventeenth day of July, 1884, a decree
was rendered in cause numbered 64570 in the circuit
court of the city of St. Louis; now, if said Ida M.
Lancaster shall hereafter well and truly preserve and
perform upon her part said decree in all respects, then
this obligation to be void, otherwise of full force and
virtue. And the damages to said Gona, by reason of
any breach thereof, are agreed to be liquidated and
adjusted at the amount of this bond.'^
The portion of the decree covered by the above
bond is as follows, to-wit:
''It is further ordered and adjudged by the court
that the defendant pay for the maintenance of Gladys
Lancaster, the minor child of said parties, on the first
Saturday of each month hereafter to the said plaintiff
at the East St. Louis bank, in East St. Louis, Illinois,^
the sum of $30 a month, the first payment being made
this day; and that should said $30 a month, or any
part theerof , be diverted from the maintenance of said
child at any time hereafter, the said allowance shall
cease. It is further ordered by the court that the
plaintiff shall have the custody of said child, but that
said child shall not be carried to, or kept in. East
St. Louis, Illinois, before the first of October, 1884,
and that the defendant shall have the right and priv-
ilege to visit and see the said child on Tuesday, Thurs-
day and Saturday of each week for the space of two
Digitized by VjOOQIC
JRI APPEAL REPORTS,
Lanoaster v. Elliot.
said days, during the afternoon, at
iintiflE.''
lleged were a refusal by respondent,
, to permit appellant to see their
I respondents admitted the bond,
, and affirmatively pleaded: Firsts
the appellant, Gona Lancaster, and
la M. Lancaster, to be substituted
)n in the files of the court, and to
;ree of divorce between the parties
lat by an agreement between said
3 October 13, 1885, in reference to
le and manner in which appellant
d, Gladys, and the payment of ali-
nes provided by said decree and the
I were entirely superseded, and the
; referred to in these two defenses
eit:
T St. Louis, October 13, 1885.
er.
at any rights you may have under
rcuit court of the city of St. Louis,
granting me a divorce, be relin-
)wing particulars, viz. : Firsts that
given by me for the observance of
idrawn from the files of the court
md, that I shall not be required to
; the child, Gladys, is in bad health;
II see the child, Gladys, two hours
;ernoon, on three days of each week,
ys, Saturday, enter the front door
option room in whatever house the
ter may live or reside; fourth, that
Digitized by VjOOQIC
OCTOBER TERM, 1893. 253
Lancaster v. ^lliot.
you at once pay all back monthly allowances provided
by said decree, and that the said monthly allowances
still be continued. This stipulation to be put on file
as part of the decree in said cause; and, in considera-
tion thereof, I revoke my right to proceed against yoq
for disregarding the terms of said decree.
**Ida M. Lancasteb.
* ^Accepted.
**GoNA Lancasteb.''
This case was tried by the court sitting as a jury,
who found for the defendants. By stipulation of
parties, the case was submitted upon the evidence con-
tained in transcript numbered 4786 in this court, and
a further admission set forth in said stipulation, ^'that
defendant, Ida M. Lancaster, instituted after October,
1885, a suit against plaintiff, Gona Lancaster, for $30
per month for thirty-three months for amount ordered
in the decree of divorce in evidence herein to be paid
monthly by said Gona to said Ida for support of their
child, Gladys, and recovered therein a judgment for
the sum of $990 for said thirty-three months; that
said Ida did not file a motion for a new trial therein or
appeal from said judgment, but that said Gona
appealed therefrom, and the judgment was affirmed,
and he satisfied the same by payment, and that there
was no other consideration for the bond sued on, or
the agreement of October 13, 1885, or the letters
written by the one to the other, than what may be
shown by the evidence and testimony in said transcript
numbered 4786.''
This case has been before this court upon two
prior appeals. When it was here the first time, this
court held that the trial court erred in nonsuiting the
appellant because of his offering in evidence, under the
issues then joined, the paper dated October 13, 1885,
signed by himself and the respondent, Ida M. Lan-
Digitized by VjOOQIC
[SSOUBI APPEAL REPORTS,
Lancaster v. Elliot.
ground of that holding by this court was
.8 no evidence then in the record, showing
er had been accepted as his contract by
See 28 Mo. App. 86. When this cause
second time, the record embraced a cor-
between Gona and Ida M. Lancaster,
ptember 4, 1885, and ending October 13,
Yas not in evidence on the first trial of
Jpon a consideration of this addition to
liis court held on the second appeal (42
,511), that there was **a complete contract
er 13, 1885, supra) ^ as soon as she (res-
. M. Lancaster), mailed to the plaintiff
le offer in the shape agreed to by him;"
J being the law, the fact that the contract
)r seal would not invalidate it even as a
ided it was supported by a sufficient
This court thereupon reversed this
exclusion of the evidence of correspon-
1 the former husband and wife.
question left for determination on this
ither or not under the present record there
evidence of a sufficient consideration for
entered into October 13, 1885, between
ia Lancaster. For if this question be
be affirmative, the judgment of the trial
therefore for the right party, should be
jective of the technical correctness of the
>f law given on the trial. Walsh v. St.
ion and Music Hall Ass^n^ 101 Mo. 534.
3 the consideration of a contract was laid
ge Scott in Marks v. Bank of Missouri^
*'If the least benefit or advantage be
le promisor from the promisee or a third
jhe promisee sustain any, the least, injury
it will constitute a sufficient consideration
Digitized by VjOOQIC
OCTOBER TERM, 1893. 255
Lancaster v. Elliot.
to render the a^eement valid.'' AflSrmed in City of
St. Louis V. Gas Co., 70 Mo. 116. *^The canceling
of a contract, or the relinquishment of rights under it,
is a valid consideration for entering into a new one.
On this, among other grounds, the substitution of con-
tracts is sustained.'' Bishop on Contracts, section 68.
A contract under seal may be discharged, before or
after breach, by parol for a valuable consideration, or
rescinded by a parol agreement fully executed. Bishop
on Contracts, section 134, et seq. * 'Where a contract
is not expressed in precise terms, the facts and circum-
stances surrounding the subject-matter it contains may
be looked to in aid of construction ; and the . acts of
parties to the instrument are entitled to great weight."
B^lch V. Miller, 32 Mo. App. 397.
The conceded facts in this case are that, at the
time of the making of the contract between Gona and
Ida Lancaster set out in the paper dated October 13,
1885, supra, the appellant deposited the exact aggre-
gate two hundred and ten dollars of the principal sums
(excluding interest) of the monthly allowances ($30
each), which he was required to pay his former wife,
to her credit at East St. Louis. It is also admitted
that after his withdrawal of this sum, wjien Ida Lan-
caster sued him for all allowances then due her, she
confined her suit to, and recovered, the exact amount
($990j which was due for thirty-three months at the rate
of $30 per month. This was a binding construction
by the accordant act of both parties to the agreement of
October 13, 1885, supra, whereby that contract was
shown not to have contemplated the payment of
interest on the part of Gona Lancaster on the past due
allowances to which Ada Lancaster was entitled under
the decree of divorce. The suit brought by Jda M.
Lancaster was in part execution of her rights under the
Digitized by VjOOQIC
PEAL REPOKTS,
lis v. Robinson.
ctly limited to its terms, as
L by Gona and herself,
, when this case was here
), that Mrs. Lancaster was
om Gona Lancaster interest
I owing by him at the time
e alimony was payable by
in this state, and the rights
iecree have to be measured
As, under the laws dl this
interest on overdue instal-
rial that there is no evidence
I of Illinois on that subject,
right was a sufficient con-
>ntract. The result is that
13, 1885, supra, is a valid
he respondents on the bond
lent herein in their favor is
mcur.
Ddent, V. John Robinson,
lUant.
als, November 21, 1893.
BY OITT OP ST. LOUIS FOB EKFOROE-
The supreme court has exclusive
.use wherein a political subdivision
jr, and, therefore, of an action by the
lalty or fine for the violation of one
7ourt of Criminal Correction.
LiBOBNE, Judge,
ME COUBT.
Digitized by VjOOQIC
OCTOBER TERM, 1893, 257
Kennedy v. Broyles.
Biggs, J. — Under the constitutional amendment,
establishing and liniiting the appellate jurisdiction of
this court, the supreme court has exclusive appellate
jurisdiction of any cause wherein a political subdivis-
ion of the state is a party. The city of St. Louis is a
political subdivision of the state, and, as it is the sub-
stantial party in the present action, we think that the
appeal was improvidently taken to this court. City of
St. Louis V. Bowler y 94 Mo. 630; Freeman v. St. Louis
Quarry Go., 30 Mo. App. 362; Earman v. City of St.
LouiSj ante, p. 175. The case of City of St, Louis
V. Bowler, supra, like the present case, was a suit to
recover the penalty or fine for the alleged violation
of a city ordinance. It was transferred by this court
under a general order as required by the last constitu-
tional amendment defining and regulatmg the juris-
diction of this court. An order will, therefore, be
entered transferring this cause to the supreme court, and
that the clerk of this court transmit the record with a
copy of this order of transfer to the clerk of that court.
All the judges concur.
Minnie Kennedy, Respondent, v. Obediah Broyles,
Appellant.
E:an8aB City Court of Appeals, December 4, 1893.
1. Forcible Entry and Detainer: EVIDENCE. The evidence in this
ease for forcible entry and detainer reviewed and found not to support
a finding in favor of plaintiff, as it shows defendant was in peaceable
-possession under plaintiff's husband.
2. Homestectd: husband and wipe: wipe's claim. Until the wife's
claim of homestead is made, acknowledged and filed for record, the
husband's right to convey the title and possession is unaffected.
Vol. 55—17 .
Digitized by VjOOQIC
[)URI APPEAL REPORTS,
Kennedy v. Broyles.
r and Detainer: possession: husband and
tiusband permitted the defendant to enter under
self quit the premises with his affects, having
mie away, defendant was in the sole peaceable
ubsequent entry for the plaintiff, the wife, was a
lAnn Circuit Court. — Hon. Q-. D,
BuBGESS, Judge.
IS for appellant.
plainant, being the wife of Wm. C.
legal capacity to maintain this action,
led the legal title aod was in the actual
land in his own right, and while such
sessed he sold the land to the defend-
lis purchase and in pursuance of his
upon and took the possession thereof.
. Kennedy made the sale and transfer
; wife did not have any possession, or
>n, separate from and independent of
md. Her rights there were dependent
these he had transferred to the defend-
■ action with respect to the possession
ned to her, nor in such case could she
Bfore, it follows that the demurrer to
3 evidence should have been sustained.
34 Mo. App. 208. (2) The complain-
herself of the right given her by the
i Statutes, 1889, sec. 5435, p. 1302) to
r homestead claim. Shores v. Shores ^
Ashery72 Mo. 27. If the said WiUiam
}he right to sell and convey his title to
ainly was invested with authority to
ission to defendant, as he agreed and
Digitized by VjOOQIC
OCTOBER TERM, 1893. ' 259
Kennedy v. Broyles.
contracted to do. And, even if the husband had been
precluded by the statute from selling the land, yet he
could have rented it or leased it, and thus have trans-
ferred the possession to defendant. Thompson on
Homesteads, sec. 471.
E. B. Stephens for respondent.
Ellison, J. — This is an action of forcible entry
and detainer for eighty acres of land. Plaintiff recov-
ered below.
It appears that plaintiflE's husband owned the land
in dispute, and on the fifteenth of April, 1891, he sold
and conveyed it by deed to defendant, defendant pay-
ing him in cash and in assumption of a mortgage then
on the land. He says that Kennedy '*gave him pos-
session,'^ and that he entered next day, the sixteenth,
* 'under his purchase,'' and begun to repair the fences.
That, on April 21, he entered again, he again worked
at repairing the fences on the place, and on May 2 he
began plowing, Kennedy having in the meantime taken
his eflfects out of the house and left the premises. On
the night of May 2 the house was burned. On May 11
plaintiff instituted this action. So far, it is clear enough
that defendant was in the actual peaceable possession
under his deed from the owner at the time this suit was
begun.
But it further appears that on the twentieth of
April Kennedy took this plaintiff to her father's home
and there left her — abandoned her ; and that he removed
his personal property from the house and premises that
day. That she remained with her father, but left in
the house some wearing apparel and a feather bed
belonging to her, which was burned in the house. It
further appears that plaintiff's father nailed up the gate
and procured locks and locked the house for her. It
Digitized by VjOOQIC
[ APPEAL REPORTS,
anedy v. Broyles.
:>n the third day after Kennedy
n April 23, she notified defend^
enter the premises. It does not
biflf knew that her husband had
idant prior to his taking her to
she knew he was intending to
andon her.
at the foregoing facts which are
disputed abstract filed with us,
gment which was given for plain-
aomestead, and as such it would
a written claim which the wife
:e under the provisions of section
js, 1889, which would have pre-
iisband, and consequent depriva-
it, until such claim is made and
isband's right to convey the title
Eected. Shores v. Shores, 34 Mo.
age of the statute is: **And any
lie her claim to the tract or lot of
and her husband, or by her, if .
band, as a homestead ; said claim
;t or lot claimed, that she is the
whose name the said tract or lot
id said claim shall be acknowl-
some officer authorized to take
[nent of instruments of writing,
nd be filed in the recorder's office,
y of the recorder to receive and
;er the filing of such claims, duly
sband shall be debarred froin, and
lortgaging or alienating the home-
whatever, and every such sale,
I is hereby declared null and void ;
3uch claim, as aforesaid, with the
; notice to all persons of the con-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 261
Kennedy v. Broyles.
tents thereof, and all subsequent purchasers and mort-
gagors shall be deemed, in law and equity, to purchase
with notice.''
The husband having, then, the full legal right to
sell and convey the homestead and to deliver the pos-
gession, it remains to be seen whether he did so. In
the first place, he conveyed it and accepted the pur-
chase money. Defendant says he turned over the pos-
session. He did at least permit defendant to enter the
premises on the next day after the sale, for the purpose
of repairing, and did take his wife from the premises and
remove his property, the defendant again entering and
working the next day thereafter. There is but one
conclusion to be drawn from these facts. It does not
affect the legal aspect of the case to grant in plaintiff's
favor more than the record shows (it being silent). It
may be granted that her husband abandoned her with-
out cause and that he had not told her that he had
sold the land and authorized the purchaser to enter.
Her husband moved her and himself out and left the
premises to defendant under his deed. The moment
the husband permitted the defendant to enter under
the deed and himself quit the premises with his effects,
having already taken his wife away, defendant was in
the sole peaceable possession. And when plaintiff's
father the next day went upon the premises and locked
the doors of the house he was simply entering on
defendant's peaceable possession and was no more than
any other temporaiy intruder who should commit
trespass. It is clear that defendant has not forcibly
entered upon plaintiff's possession, since j)laintiff had
no possession to enter upon. The demurrer to the
evidence interposed by defendant's counsel should have
been given. The judgment is reversed. All concur.
Digitized by VjOOQIC
II APPEAL REPORTS,
e of Missouri v. Hubbell.
[SSOURi, Respondent, v. 0. P.
BELL, Appellant.
b of Appeals, December 4, 1803.
iiQNMENT. Where there is no arraignment
QUBt be a reversal of the judgment of con vie-
SELF-DEFENSE. On the evidence in this case
is whether defendant was justified in carry-
Bsary self -defense; and the instructions should
undy Circuit Court. — Hon. G. D.
jRGESS, Judge.
DED.
^.arher & Knight for appellant.
red in given instruction numbered
state. Said instruction ignored
the case. State v. Roberts, 39
'he court erred in refusing to give
d 3 and 4 on behalf of defendant.
[o. App. 127; State v. Larkins, 24
There was no arraignment of
the justice's court or circuit court,
; be reversed. State v. Geiger, 45
spondent.
sfendant was charged, by informa-
tice of the peace, with carrying,
on, a pistol, alleged to have been
eadly weapon. Being adjudged
Digitized by VjOOQIC
OCTOBER TERM, 1893. 263
The State of Missouri v. Hubbell.
guilty he appealed to the circuit court, where on a
trial by jury he was convicted, and now appeals to
this court.
I. It appears from the record that defendant was
not arraigned nor did he plead to the charge contained
in the information. Thiis must be held as fatal to the
judgment. Until an arraignment, and plea entered,
there was no issue to try.
State V. Saunders, 53 Mo. 234; State v. Montgomery j
63 Mo. 296; State v. Geiger^ 45 Mo. App. 112; State v.
West,MUo.UO.
II. Since this case must be remanded for a new
trial we will add that we can see but one real question
to be tried by the jury. The evidence, without contra-
diction, shows that the defendant at the time was carry-
ing a concealed deadly weapon. It was a loaded
revolver, and he himself testifies that it was being earned
by him for use as a weapon. The accused then was
apparently violating the statute prohibiting the carry-
ing of concealed weapons. Section 3502, Revised
Statutes, 1889. The only question is, was he justified
in carrying the pistol. under the provisions of section
3503, which states that *4t shall be a good defense to
the charge of carrying such weapon, if the defendant
shall show that * * * he had good reasons to carry
the same in the necessary defense of his person, home,
or property.'' There was some evidence tending to
establish such defense, and which, too, the court prop-
erly submitted to the jury under instruction number 1,
given at defendant's instance. The one instruction
given for the state; together with defendant's number
1 was all the law that seems to have been required.
Under the evidence shown in the record defendant's
number 2 should have been refused.
Judgment revei'sed and cause remanded. All
concur.
Digitized by VjOOQIC
UEI APPEAL REPORTS,
11 B. and S. CompaDy v. Bain.
ENDALL Boot and Shoe Company,
Error, v. Jesse F. Bain et al.j
Plaintiffs in Error.
>urt of Appeals, December 4, 1803.
3D8 FOB RENT. An Unacknowledged and unre-
Ling for a lien on the goods in the building as a
, will create no lien on such goods against third
knowledge of it.
ice: EVIDENCE: EXCEPTIONS. Objections to the
ce cannot be noticed on appeal unless exceptions
Mercer Circuit Court. — ^HoN. G. D.
Burgess, Judge.
ght for plaintiffs in error.
:oods had not been removed from
ses they were subject to the payment
or on Landlord and Tenant [5 Ed.],
yHara v. Jones, 46 lU. 288. (2)
covenants in the lease, defendant's
BS is the full amount of the unpaid
rm of the lease, otherwise the meas-
s the difference between the rent
s to receive under the lease, and the
eived from the subsequent tenants,
ages in order to re-rent. Respine v.
>. (89 Cal. 464) 967; Ledoux v. Jones,
Bloomer v. Merrill, 29 How. Pr. 259;
son, 1 Texas, App. 1102; Aver v.
p. (99 Pa. St. 370) 114; Gear on
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Kendall B. and S. Company v. Bain.
on Landlord and Tenant, sees. 128, 176; Fi
Damages, 523; Buck v. Lewis, 46 Mo. App. 227;
V. Clarhj 29 Am. S. Rep. 625 and note. (
lease read in evidence between defendant Hall
W. Campion, created a valid lien or mortgage
the property in the storeroom, and plaintiff,
notice thereof, took subject to this lien, althou
recorded. McCafferty v. Wooden, 22 Am. R(
and note; Hadden tr. Knickerbocker, 22 Am. R
Ferkins v. Gibson, 24 Am. Rep. 644; Wisner v
paugh, 71 N. Y. 113 ; Fejavary v. Broesch, 35 An
261; Wright v. Bircher, 5 Mo. App. 322; Atti
Hoskinson, 37 Mo. App. 132 ; Pennock et al. v.
How. Pr. 177 ; United States v. Railroad, 12 Wa
Buttv. Ellett, 19 Wall. 544; Everman v. Babb, !
Rep. 682.
Karnes, Holmes <& Krauthofftov defendant ii
(1) The lease from Hall to Campion didnoi
a valid lien or mortgage on the property in the
room. It was neither acknowledged or record(
Campion retained the possession of the goods
therefore void at law as against a purchaser fror
pion in possession, even though the purchaser I
the existence of the lease. Heywood v. Wa
Camp. 291, 295; Rawlings v. Bean, 80 Mo. 614
V. Pyn, 1 East. 4; Hughes v. Menefee, 29 Mo. Ai
203; Moreau v. Detchemendy, 18 Mo. 522; Revise
utes, 1889, sec. 5176; 1 Jones on Liens, sec. 544
V. County of Bates, 61 Mo. 391, 393. (2) The e^
is conclusive that plaintiff was in possession oi
erty at the time of the levy, and hence the ju(
awarding it the possession thereof should be af
Where the verdict of the jury is so manifestly
Digitized by VjOOQIC
\
L REPORTS,
ny T. Bain.
be reversed. Revised
raid V. Barker J 96 Mo.
!31, 334.
pought an action of
rhich they claimed the
ssion to, a lot of mer-
n, is the sheriflE land
nder a writ of attach-
1. There was a verdict
he had an interest in
$45, and he appeals to
on another occasion
». 581.
was indebted to plain-
for the purchase price
v^ in coDtroversy), that
i that they sent their
the indebtedness by
^rchandise in question.
that Campion would
agent for them and did
led them up and had
of them, into the rear
But where they were
I attachment aforesaid.
founded on a claim
he building; Campion
defendant Hall for a
not nearly expired at
lis lease provided that
n on the goods which
time to time for the
lowledged or recorded
mding to show that
nd of its provisions,.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 267
Kendall B. and 8. Company v. Bain.
There was evidence tending to show that Campion
turned the goods over to plaintiff's agent with the
understanding that plaintiff was to pay defendant Hall
the rent then due, amounting to $45.
Defendant Hall's claim is that he was not only
entitled to the rents already due when the goods were
sold to plaintiff, but to the rents which would there-
after become due under the lease. He claims that he
had a lien on the goods by reason of the provision in
the lease to that effect. . The trial court refused to
adopt that theory and instructed the jury, at the
instance of plaintiff, that if they found for defendants
they could only find the amount of rent due at the
time of the commencement of the suit.
It is very clear that the lease being neither acknowl-
edged or recorded created no lien on the goods, even
against those who had knowledge of it. This phase
of defendant's case is so fully covered by our decision
in Hughes v. Menefee, 29 Mo. App. 192, that the
reasons therein stated need not be again set down here.
There is no] doubt that whatever assumption of rent
there was by plaintiff, was of rent then due, and
indeed it might be well argued that this was but the
personal obligation of plaintiff to pay that amount of
the rent as an indebtedness of plaintiff, and in no way
attaching itself to this property. This, however, is
not in the case, and is not decided, as plaintiff is not
complaining. Defendant Hall having no lien on the
property as against this plaintiff cannot effect this
plaintiff in its claim as purchaser. He cannot charge
the property as against them whatever he might do as
against Campion himself. We entertain no doubt as
to the correctness of the view taken by the trial court
of this part of defendant's case.
Defendants objected to certain testimony being
admitted by the triaJ court. The record fails to show
Digitized by VjOOQIC
IISSOURI APPEAL REPORTS,
Anderson v. Anderson.
3d any exceptions to the ruling, and we
3fore notice the complaint. Sawyers v,
0. App. 472.
;ructions given for plaintifiE are in harmony
as determined by this court when the case
the former appeal. The judgment will be
il concur.
DERSON, Appellant, v. Robert S. Anderson,
Respondent.
Zlity Court of Appeals, December 4, 1803.
lLIMONY: constructive servicb. An action to dissolve
relation is a quasi suit in rem, the marriage status being
d on constructive service and nonappearance of the
le most that can be done is to abrogate the marriage
le relief of plaintiff; but there can be no personal judg-
lony against the defendant.
— : : MOLLipyiNQ judgment: process. When
I constructive service only been a decree of divorce
lOut any judgment of alimony, whether at a subsequent
irt can modify such decree by making an allowance for
?r€. Held, however, that to such supplementary pro-
defendant must be brought in by regular process, or
earance.
3tice: WAVIER of process: deposition. The mere
[efendant at the time and place of plaintiff's taking of
T^ithout any participation therein, will not amount to a
vice of process, though notice of their taking was given
: dissolution: attorneys* fees as damages. Rea-
aeys' fee for procuring the dissolution of an injunction
insidered in the assessment of damages on plaintiff's
e amount to be allowed therefor is limited to fees paid
for procuring the dissolution and do not include fees
iding the entire case; and where the injunction is, as in
y incidental to the main contention and is dissolved by
on the main controversy, counsel fees for the dissolu-
ecoverable in an action on the bond.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 269
Anderson v. Anderson.
Appeal from the Nodaway Circuit Court, — Hon. Cybus
A. Anthony, Judge.
Affirmed in part; reversed in part..
Chas. H. Anderson for appellant.
(1) The court erred in sustaining defendant's
motion to set aside the order for temporary alimony,
and in not making plaintiff an allowance to cover costs
herein. As to the alimony pendente lite the plaintiff is
entitled to such an allowance without regard to the
result of the main suit. The court grants this allow-
ance on a prima fade case madet>ut. Harriot v. Rail-
road, 8 Abbott's Pr. 284; State ex rel. v. Seddon, 93
Mo. 520; Walker v. Pritchard et al, 135 111. 103; Blair
V. Reading et al., 99 111. 615; Noble v. Arnold, 23 Ohio
St. 264; Riddle v. Cheadle, 25 Ohio St. 278; Langworthy
V. McKelvey, 25 Iowa, 48. (2) In this supplemental
proceeding, in which personal service is had on the
defendant within the jurisdiction of the court, the
jurisdiction of the court is extended to the same limit
it would have acquired had personal service been had
on the defendant in the original divorce case. In
support of this position we cite the case of an attach-
ment against a nonresident of the state, where service
has been by publication and no appearance. The
application must be an incident to the divorce case.
Doyle V. Doyle, 26 Mo. 545. We have made it such.
The application is properly made by a motion in the
divorce case. Chester v. Chester, 17 Mo. App. 657;
Covell V. Covell, 2 Prob. & Div. Law Rep. 411 ; Bank-
ston V. Bankston, 27 Miss. 692; Wilde v. Wilde, 36
Iowa, 319; Lyons V. Lyons, 21 Conn. 185. An order
for alimony can only be made by the court having
jurisdiction of the divorce case. Bennett v. Southard^
Digitized by VjOOQIC
PEAL REPORTS,
Anderson.
Vorthington, 24 Ark. 522;
437; Fisckli v. Fischlie^ 1
?<er, supra. In this respect
requirements. Reasonable
ate, which is usually five
B days notice of application
tes, 1889, section 5493. As
ig sufficient in a summary
Ilowing cases: George v.
ide on Law of Notice, sec.
Notice, sec. 1187, citing;
[on. 146; Jenkins v. State,
iaw of Notice, sec. 1190.
ie, the fact of the defend-
larance at the taking of the
fing that he would consent
the deponent said, is suffi-
iiction of the person of the
le court complete jurisdic-
tes V. Scott Bros., 26 Mo.
70., 75 Mo. 433. Entry of
inot be retracted. Cooley
35. Appearance to a cause
t to process and service.
; Eldred v. Black, 17 Wall.
. 461 ; Kritzer v. Smith, 21
^o. 351; Tuller v. Beck, 15
levised Statutes, 1889, see.
lo. 332; Revised Statutes,
K Schmidt, 26 Mo. 235;
326. (3) Below will be
England and the United
independent applications
and applications incidental
5. Covell V, Covell, 2 Prob.
estmeath v. Westmeathy 3
Digitized by VjOOQIC
OCTOBER TERM, 1883.
Anderson v. Anderson.
Knapp, 42; Turner v. Turnery 44 Ala. 437; j
Rogers J 15 B. Monroe (Ky.) 364; Shotwell v.
1 Sm. & M. Ch. 51; jLawson v. Shotwell, 27 M
BanksUm v. Bankston, 27 Miss. 692; Vemer v
62 Miss. 260; McFarland v. McFarland, 64 M
1 S. Rep. 508; Blythe v. Blythe, 25 Iowa,'266; j
Plainer, 23 N. W. Rep. (Iowa, 1885), 764;
Wilde, 36 Iowa, 319; McKarracher v. McKar
Yeates (Penn.), 56; Prescott v. Prescott, 59
Gilley v. Gilley, 79 Me. 292; 9 Atl. Rep. 623;
son V. Wilson, 8 Yerg. (Tenn.) 67, 1835; C
Chester, supra; Hooper v. Hooper, 19 Mo. 355;
V. Simpson, 31 Mo. 24; Daniels v, Daniels, 9 C
10 Pac. Rep. 657, and cases cited; Davis v.
S. W. Rep. 822; Bowman v. Worthington
Galland v. Galland, 38 Cal. 265; Wilson v. W
Cal. 399; Woods v. Waddle, 26 Am. Law ]
Niles V. Vanderzer, 14 ^ow. Pr. 547; Ah
Mitchell, 8 Abbott's Pr. 123.
William C. Allison for respondent.
Gill, J.— In the year 1884, the plaint
Anderson, begun her suit for a divorce from th(
ant, Robert S. Anderson. In the petition d
was charged with desertion, that he was a noi
of the state, and constructive service of notice
by publication. This ex parte suit was heard i:
1885, and the plaintiff was divorced. No alin
asked and none awarded. Five years there
June, 1890) plaintiff filed her motion asking t
to allow and decree her suitable alimony and i
ance out of the estate of the defendant. In tl
cation the plaintiff set out the facts as to the
petition and decree of divorce and that she die
alimony at that time because the defendant ^
Digitized by VjOOQIC
SOUEI APPEAL REPORTS,
Anderson v. Anderson.
but went on to state that since that
luired property, of considerable value,
d father. In her application plaintiff
lefendant was a spendthrift and of reck-
sited habits, and she prayed an order
from disposing of or encumbering his
er motion was finally heard, etc.
s prior to the filing of her motion, plain-
id served on the defendant at St. Louis
ng of her intention to file said applica-
>daway court, on the sixteenth day of
lis notice was directed to R. S. Ander-
I Mary M. Anderson, per Charles H.
attorney. It appears to have been
d party, who made oath to such service.
)0, the court, in pursuance of the pjain-
in the absence of the defendant, heard
that day by the plaintiff, made an order
raining the defendant from disposing
allowed plaintiff $500 as alimony pen-
rdered the case set for a final hearing
3. This order was on June 24, 1890,
rfendant. At the following November
ay court, on motion of defendant, set
for temporary alimony, dissolved the
lismissed plaintiff's petition, all on the
court had no jurisdiction of the person
t. Defendant, in making this motion
Bssly limited his appearance to the pur-
udgtoent of the lower court, refusing to
Ws application for alimony, an appeal
n to dissolve the marriage relation is a
-/ the marriage status is the res. The
laintiff locates this status so as to give
Digitized by VjOOQIC
OCTOBER TERM, 1893. 273
Anderson v. Anderson.
jurisdiction to the local court ; but the courts are not
authorized under our statute law to destroy this mar-
riage statm until the publication of notice to the defend-
ant; and, when this constructive notice is had, the court
may proceed to hear and determine whether or not this
marriage relation shall be abolished or continued. On
such constructive service of notice, and nonappearance
of the defendant, the most that can be done by the
court where the cause is pending is, upon a proper
showing, to abrogate the marriage relation and relieve
the plaintiflE of this bond of union. There can be no
personal judgment for alimony against the defendant,
for he is not in person before the court. It was so set-
tled in this state twenty years ago. Ellison v. Martin^
53 Mo. 75; 2 Bishop on Marriages and Divorces, sec.
79. Now, in this case, when in 1885 Mrs. Anderson
prosecuted to judgment her action for divoce, she was
not, and could not be, awarded the allowance of
alimony, because there was not in the presence of the
court anything upon which to act — the defendant was
not there, the matrimonial res only was there.
But here was an effort, in 1890 (five years after the
original decree of divorce), to open up the case by a
supplemental motion and have alimony adjudged
against the defendant. We take it that plaintiff was
incited to this supplemental proceeding by a section of
our statutory divorce law. That section provides for
the allowance of alimony when a divorce shall be
adjudged, etc., and then states that '*the court, on the
application of either party, may make such alteration,
from time to time, as to the allowance of alimony and
maintenance as maybe proper, '^ etc. Revised Statutes,
1889, sec. 4505.
It may be well contended that this power given to
the court to subsequently alter its decree as to alimony
only exists where there was original jurisdiction to
Vol. 55—18
Digitized by VjOOQIC
PPEAL EEPOETS,
V. Anderson.
1 cases like this, where there
as to alimony (and in the
I none), then there was an
ler or modify any such decree
however, we shall not decide ;
jposition of this case. It is
if the court could not origi-
Uowing plaintiff alimony —
not personally served with
► the action — then manifestly
er now, unless the defendant
eeding was legally brought
ver the person of a defend-
1 the manner pointed out by
ppearance of the defendant
litting himself to its juris-
?leading and Practice, sec.
ilo. 246; Thompson V. Allen,
process for bringing in a
vorce suits as in other ci\'il
d Statutes, 1889. The pro-
mce of a defendant in the
ing out of the court a writ of
ct a command in the name
n the defendant to appear
complaint. Revised Statutes,
8950; Constitution of Mo.,
3gal process served on the
ding. The plaintiff simply
) (signed by her attorney)
in day file her petition or
e of alimony. This is not
he statute for securing the
efendant in the cause. And
ppear before the court he
Digitized by VjOOQIC
OCTQBER TERM, 1893. 275
Anderson v. Anderson.
was not there, in the legal sense of the term; and any
judicial determination as to the matter of alimony
against such defendant would have been without
authority or legal sanction, null and void.
There was nothing in the matter of depositions
taken by the plaintiff, on notice to defendant, that
could in any way be construed as an appearance by the
defendant. That defendant was present in person
at the time and place of the taking of plaintiff's deposi-
tions did not commit him to the jurisdiction of the
court. He took no part whatever in taking such depo-
sitions ; made no objections to the evidence 5 examined
or cross-examined no witness, did nothing, said noth-
ing that should in any way be construed in law as an
admission that he was subject to the juridiction of the
court.
We conclude, then, that, the lower court properly
declined to entertain this application for alimony and
rightly denied the motion therefor.
II. But we hold the court committed error in the
assessment of damages on the injunction bond. From
the record it appears that after the court had deter-
mined that it would not entertain the application for
alimony, for the want of jurisdiction so to do, it pro--
ceeded on defendant's motion to, and did, enter a
further formal judgment dissolving the auxiliary injunc-
tion, and assessed as damages the defendant's counsel
fees for the entire cause.
While reasonable attorney's fees for procuring the
dissolution of an injunction are rightly considered in
the assessment of damages on the plaintiff's bond, yet
the amount to be allowed therefor is limited to the fees
paid the attorney for procuring the dissolution and do
not include fees paid for defending the entire case.
The '^true test," says a reputable author, *'with regard
to the allowance of counsel fees as damages would
Digitized'by VjOOQIC
MISSOURI APPEAL REPORTS,
Anderson v. Anderson.
that if they are necessarily incurred in pro-
)lution of the injunction, when that is the
ought by the action, they may be recovered,
njunction is only ancillary to the principal
e action and the liability for counsel fees is
defending the action generally, the dissolu-
injunction being only incidental to that
1 such fees cannot be recovered. Thus
►rincipal pui'pose of the action was to adju-
^stion of title, and an interlocutory injunc-
itained, but no motion was ever made or
ts dissolution, and the case was finally tried
irits upon the question of title and decided
defendants, and the injunction was there-
ved by virtue of the judgment upon the
)versy, it was held that counsel fees for the
could not be recovered in an action on the
High on Injunctions [3 Ed.], sec. 1686.
^^alker v. Pritchard, 135 111. 109; Weaver v.
.356; Noble V. Arnold, 23 Ohio St. 264;
V. McKelvey, 25 Iowa, 51.
I't wish to be understood that where there
ry injunction sued out of the main case,
? no attorneys' fees allowed as damages in
ion thereof. But we hold, as was declared
;. McKinzie (23 Iowa), * 'that while reason-
nsation for legal services in procuring a
le injunction might be recovered as damages
, but that this would not allow attorneys'
nding the entire action, but alo*ne for pro-
issolution of the writ or releasing the prop-
3 operation ; and this is as far as we think
uld go.'' This limit as to the allowance of
in frequently recognized. In addition to
rities, see also, Skrainka v. Oertelj 14 Mo*
Digitized by VjOOQIC
OCTOBER TERM, 1893.
He!m Brewing Company v. Hazen:
App. 474-482; Bohan v. Casey, 5 Mo. App. 1
Blair v. Reading, 9? 111. 615.
Now, the attorney's fees in the ease at bar
altogether in the litigation of the main cont
to- wit, whether or not plaintiff was entitled to a
and that qiiestion being determined adversely
plaintiff, because of the want of jurisdiction
court, dismissal necessarily followed, and along
the injunction fell. A motion to dissolve was i
sary; the disposition of the main question 11
ipso facto, relieved the defendant of the injunctio
$100 as counsel fees charged as damages aga
plaintiff and her sureties we think were imj
allowed.
It results, then, that we affirm tlie judgmer
lower court wherein alimony was denied the p
but reverse the same as to said assessment of c
on the injunction bond. The costs of this
will be equally divided between the partis
other costs are adjudged against the plainti
concur.
Fred Heim BREWiNa Company, Appellant, i
A. Hazen et ah, Eespondents.
KansaB City Court of Appeals, November 6 and D
4, 1893.
Principal and Surety: alteration op instrument: b
CHARGE. Changing a simple contract to a specialty by a
word ''seal" in a scrawl after the names of the obligors is s
ation of the instrument as to discharge the surety. The s
are discussed and distinguished and the holding reaflirmed
for a rehearing.
Appeal from the Gentry Circuit Court. — Hon. C
Goodman, Judge.
Affirmed.
Digitized by VjOOQIC
5S0URI APPEAL REPORTS,
leim Brewing Company v. Hazen.
leshire for appellant.
rincipal question in this case is, whether
ng of the word seal to the sureties' sig-
an alteration of the bond as to avoid it
sureties. The evidence in this case is
, that the bond was received at Kansas
intiflE and obligee in the identical form
sued upon, and, if the seal was added
3S signed, such additions were made by
her than the obligee. State to use v.
212; Brown v. Baker, 64 Mo. 167; State
tfo. 152; State v. Hewett, 72 Mo. 603;
rer,74: Mo. 154; State v. McGonigUy 101
ell V. Potter, 108 Mo. 352 ; Bagott v. State,
Martin v. Thomas, 24 How. 315; Smith v.
I Wall. 219; Bracken Co. Com. v. Dunn,
edlin v. Platte Co., 8 Mo. 235; Bank v.
. 178; Morrison v. Garth, 78 Mo. 434 j
ohlbrecher et al., 22 Mo. 596; Andretcs v.
W. Rep. 449; 1 Greenleaf on Evidence,
Lses cited in Andrews v. Calloway, supra;
i Evidence, sees. 567, 568; Brentz on
[ Guaranty, sec. 356, p. 479; 2 Parsons
Bills, p. 582; Truett v. Wainswright, 4
Fullerton v. Sturges, 4 Ohio St. 529.
h (& Peery and W. F. Dalbey for respond-
istrument sued upon in this case is
petition to be a bond, or writing obli-
)d under the hands and seals of the
1 this state no instrument is a bond,
sued upon as a bond, unless it has
Digitized by VjOOQIC
OCTOBER TERM, 1893. 279
Helm Brewing Company y. Hazen.
attached to it a seal, or what is the same thing, the
word ^*seal'' with a scrawl around it. State ex rel. v.
Thompson, 49 Mo. 189; Dairy Co. v. Lauer, 16 Mo.
App. 4; Corbin v. Cassell, 48 Mo. App. 626. The evi-
dence is overwhelming and uncontradicted, that when
these defendants executed said instrument and deliv-
ered it to Nauruth, it had no seal attached to any
signature upon it. Therefore, when they parted with
the possession of it, it was not a bond or writing under
seal; whereas, now it is a bond in due form, importing
upon its face a consideration; and it is sued upon as
such, and, if it were not in its present form, it could
not be offered in evidence under the petition in this
cause. (See cases above cited.) Therefore, the alter-
ation of said instrument by the addition of seals to the
signatures of the obligors, was a material alteration,
and is made material by the form of action brought
upon it. When these defendants, who were sureties
on said instrument, signed it and delivered it to
Nauruth to be sent by mail to the plaintiff, it was as
to them a delivery of the instrument. Nauruth, under
the evidence, may well be considered the agent of
plaintiff to receive said bond. 2 Greenleaf on Evi-
dence, sec. 297; Ellis v. Railroad, 40 Mo. App. 170;
Huey V. Huey, 65 Mo. 689; Hammerslaugh v. Chattham,
84 Mo. 13; Lunt v. Silver, 5 Mo. App. 186. But the
plaintiff, by bringing this suit and declaring on this
instrument as a bond executed under seal, has ratified
the act of the person, whoever he was, who attached
the seals to this instrument. The case is, in all respects,
like Bank v. Umrath, 42 Mo. App. 525. By suing on
the instrument in its altered form, and asserting a
right by reason of the alteration, the plaintiff has
adopted and ratified the act of the person who altered
it. (2) Appellant's counsel, in his brief, assumes that,
if the alteration was made without the knowledge or
Digitized by VjOOQIC
)URI APPEAL REPORTS,
1 Brewing Company v. Hazen.
intiflf, it is no defense. Such is not,
n, the Uw of Missouri. If Gustave
I possession of this instrument, and
the plaintiff, altered it by attaching
ie signatures to it without the knowl-
l the sureties to the instrument, then
them, although the plaintiff had no
alteration. Haskell v. Champion, 30
V, Michael, 33 Mo. 398; Trigg v.
45; Britton v. DierkeVy 46 Mo. 591;
, 60 Mo. 450; Bank v. Dunn, 62 Mo.
drong, 62 Mo. 59; Moore v. Htitrhin-
Bank v. Fricke. 75 Mo. 180; Morrison
438; Preshury v. Campbell, 33 Mo.
>Ahman, 79 Mo. 101 ; Bank v.^ Packing
00; Lunt V. Silver, 5 Mo. App. 186;
fman, 22 Mo. App. 509; Moore v.
p. 684; Lammers v. Machine Co., 23
urnham v. Gasnell, 47 Mo. App. 639;
► Mo. App. 157; Bank v. Bosserman,
e, Gustave Naurath, was engaged in
inberry, Missouri, and he bought his
3laintiff brewing company. To secure
bills for beer the brewing company
to furnish it a bond with satisfactory
he did and delivered it the instru-
)n, purporting to be a bond in the
00, under the hand and seals of
rincipal, and defendants Hazen, Bis-
ens, Burnley and Gennug as sureties,
mtly defaulted in the matter of the
, left the country, and plaintiff there-
1 action on the alleged bond to recover
h deficiency. The sureties defend on
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Heim Brewing Company v. Hazen.
the ground that after they and said Naurath 1
the writing, it was materially altered witl
knowledge or consent, by attaching to the
«ach and all of the obligors the word ''sea
scroll around the same. The issue thus mad
before the court without a jury, and from a
in defendant's favor plaintiff appealed.
Disregarding points made by the appella
sel as to the court's declaration of law, and
some errors and inconsistencies therein, yet,
undisputed facts of this case, we must hold
ment to be clearly for the right party, and,
affirm the same. That this instrument, wh
by the principal and his sureties, was not u
but was in form only a simple contract, canno
tioned — the evidence in that regard is all
And that the seals were added to each name
character of the instrument thereby changed
out any knowledge or consent of these defen
ties, is also uncontrovertably shown by the
Whether such alteration in the nature of the ii
was made by Naurath, while the same was ii
session, or was made by the plaintiff aftel* c
it, can make no difference. In either event g
ation was unauthorized and such as to disc
sureties. This is the law of this state, as sho
numerous cases cited in brief of defendants' (
The courts will not tolerate any un«
change in the surety's undertaking. As wel
Justice Story: ''To the extent, and in the mc
under the circumstances pointed out in the i
he is bound, and no further. It is not suffi*
he may sustain no injury by a change in the
or that it may be for his benefit. He has t
stand upon the very terms of his contract ;
does not assent to any variation of it, and an
Digitized by VjOOQIC
)URI APPEAL REPORTS,
n Brewing Company v, Hazen.
s fatal. '^ Miller v. Stuart, 9 Wheat.
.S.)317.
) a case where the sureties signed, not
>le contract in writing as distinguished
and this was subsequently, without
3ss 01- implied, changed to a bond by
eir respective signatures. This, too,
oration. The instrument they signed
gnity as the one sued on ; the bond,
imparted a consideration, while the
ich they affixed their signatures did
Stoiy, the sureties can only be held
i by the very terms pointed out in the
following decisions in point: Trigg
. 245; Haskell v. Champion, 30 Mo.
cheat, 33 Mo. 398; Capital Bank v.
). 59; State v. McGonigal, 101 Mo.
and does not belong to the class of
, etc. V. Potter, 63 Mo. 212, is a sam-
plaintiflf's counsel seems to rely. In
he surety, was not allowed to defeat
lUeged ground that the principal had
Potter, signed, to get one Bothrick,
unless it was also shown that the
of such an agreement. It was there
was estopped from making such a
Sherwood, delivering the opinion of
^'Here the surety * * * had
dpal with an apparent authority to
and there was nothing on the face of
y of the attending circumstances, to
who accepted it that there was any
rhich should preclude the acceptance
the surety is alone in fault in the
warranted trust in Turley, the prin-
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 283
Helm Brewing Company v. Hazen.
Neither is this one of those cases where the sureties
signed and delivered to the principal an instrument
with blanks to be filled, and where it has been held that
the parties thus executing the paper thereby authorized
the party in whose hands they placed it to fill in such
blanks. The instrument which these defendants gave
into the hands of Naurath was complete on its face, and
there were no spaces left to be filled. They saw proper
not to aflSx their respective seals, but to execute only a
simple contract ; and there was no authority, expressed
or implied, in Naurath to make it a different contract.
Capital Bank v. Armstrong, supra, p. 67; Ivory v.
Micheal, supra, p. 400; Agawan Bank v. Sears, 4
Gray, 95:
Holding these views on the main questions raised
in the record, it becomes unnecessary to discuss others
now unimportant.
Judgment affirmed. All concur.
ON MOTION FOB BEHEABING.
Since announcing the foregoing opinion, we have
been induced — ^because of a motion for rehearing filed
by plaintiff's learned counsel — ^to give the case a more
extended investigation, and after a careful review of
numerous authorities, some of which are cited by
counsel and many others disclosed by our own research,
we yet feel constrained to adhere to the position we
have already taken. The defense here, it must be
admitted, is rather technical than meritorious. But
sureties are entitled to technical defenses; they are
favorites of the law. As often declared they will not
be held to answer for anything, or in any manner,
except as they specifically agreed. If sureties enter
into an agreement in the nature of a promissory note
or mere simple contract in writing, they cannot be
Digitized by VjOOQIC
)URI APPEAL REPORTS,
I Brewing Company v. Hazen.
specialty created through an unau-
of the instrument they signed.
iDsel again insists that the alteration
nment will not discharge the non-
unless such change was made after
igee or by his knowledge or privity,
case, it seems to be contended, that
rincipal, changed the nature of the
ad been signed by the sureties, and
vledge or consent, then such altera-
;e unless such change was made after
rewing company, or was made with
onsent.
e law of this state. We find some
' jurisdictions that so hold. These
L the ground that it is a mere spolia-
; that, as between the surety obligor
hom the promise is made, the prin-
mger to the contract and for whose
ation of the instrament the obligee
, and that he may recover on the
ood without change. The strongest
ter, which we have been able to find,
V. Sturgis, 4 Ohio St. (N. S.) 529.
d, the courts in this state make no
d hold the surety discharged whether
lade by the principal while the paper
ds or by the obligee or payee after
V. Dierker, 46 Mo. 591; Trigg v.
t5; Ivory v. Micheal, 33 Mo. 398;
Irmstrong^ 62 Mo. 59; Robinson v.
App. 510; 2 Brandt on Suretyship
5d.], sec. 388; Baylies on Sureties
;ec. 17, ch. 12; Morrison v. Garth^
? V. McGonigle, 101 Mo. 353, and
Bossermanj 52 Mo. App. 269, in no
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 285
Helm Brewing Company v. Hazen.
way disturb the ruling in the foregoing cases. The
exact point we have here was not then before the court.
The cases, in so far as the facts agree, are in entire
harmony. The most that can be said of the McGonigle
case is that the court intimated that if the principal in
the bond had himself erased the name of one of the
sureties and substituted that of another without the
knowledge of the obligee (and also without the knowl-
edge or consent of the other sureties), then the sureties
should not be discharged. This was not the case in
hand, and the remark so made by the learned judge
who wrote the opinion may be regarded as mere
dictum. But, admitting it to be the law (and we have
no disposition to question it) and yet we are not shaken
in our opinion of the law of this case. When a party
signs a writing obligatoiy as one of a number of
sureties for another and gives it into the hands of the
principal, such principal, with the paper in charge, is
clothed with apparent authority to do all things
necessary to complete the instrument and get thereon
the necessary sureties; and hence anything that he
may do within the apparent limits of his agency may,
as between parties equally innocent, be held as binding.
But this does not cover the case at bar. These
defendants signed a perfect and completed instrument
and gave it into the hands of Naurath the principal.
It was not a writing under seal, but the principal or
this plaintiflE altered the paper so as to make it a sealed
instrument. He had authority to present this instru-
ment to the brewing company, and none other. He
was not authorized to commit forgery by changing it
in form and substance.
What was said in Bank v. Sears, 4 Gray, 95 is
pertinent here. That was a suit against a surety on a
note altered by raising it in amount, and the court
says: **The position assumed by the plaintiffs, that the
Digitized by VjOOQIC
PEAL REPORTS,
V. Arnold.
r principal to take the note
i, gave confidence to him,
onduct in altering the note,
I sought to be applied is not
e sureties assume a certain
3nt of which is clearly and
they sign. To that extent
Tedit to the principal, but
party receiving a note gives
the party from whom he
litted to remain in precisely
ed themselves." Smith v.
See, also, State v. Craig ^
ng is overruled.
in Error, v. P. 0. Arnold,
in Error.
peals. December 4, 1803*
i OF THEORY. The appellant must
to the trial conrt, and stand in the
he presents below.
ouit Court. — Hon. James M.
r, Judge.
McAnaw for plaintiff in
lie transfers title when the
^oice. Blackburn on Sales,
Sales, p. 125. (2) Vendor
Digitized by VjOOQIC
OCTOBER TERM, 1893, 287
Querbaok v. Arnold.
lost his lien when he parted with possession. Black-
bum on Sales, star, p. 124; Benjamin on Sales, sec.
1182. (3) Recaption of goods rescinds the contract,
when made in pursualice of such offer on part of
vendor.
Tho8. E. Turney for defendant in error.
(1^ In actions at law the finding of facts by the
trial judge are as binding upon the appellate court as
are the finding of facts by a jury. Handlan v. McManus^
100 Mo. 124. It is ODly claimed that the weight of
the testimony shows the sale to have been condi-
tional. This court would not reverse, even if it believed
the claim to be well founded. Walton v. Railroad^ 40
Mo. App. 544; City of St. Louis v. Lannigan, 97 Mo.
175. An examination of the testimony will show that
the claim is not well founded. (2) A case cannot
be tried on one theoiy below and on an entirely differ-
ent one in the appellate court. Capital Band v. Arm-
strong, 62 Mo. 59; Walker v. Owen, 79 Mo. 563; Nance
V. Metcalfe 19 Mo. App. 183 ; Com v. City of Camerony
19 Mo. App. 573; Fell v. Mining Co., 23 Mo. App.
216. Every declaration of law asked by the plaintiff
was given by the trial court. No declaration was
asked by the defendant.
Ellison, J. — ^This an action for money had and
received. The answer was a general denial. The
trial was without the aid of a jury and the finding of
the court was for the defendant.
It appears that plaintiff and defendant were nego-
tiating for the sale of defendant's stock of hardware to
plaintiff. That an invoice was made and possession
turned over to plaintiff and retail sales carried on by him
for several days. That, the invoice amounting to more
Digitized by VjOOQIC
II APPEAL REPORTS,
> State V. Plummer.
went to Illinois to see if he could
' to pay for the stock. He ascer-
not and so wrote to defendant.
I charge of the store. At the
[otiation for the sale, and before
begun, plaintiflE paid defendant
se. It is this sum for which this
tried by the circuit court, so far
I the record, was whether the sale
conditional. This was the theory
:ied the cause. He asked declara-
solely to such theory. The court
J but found against him on the
ibandons that theory in this court
f the judgment on other grounds.
Perhaps no question has been
ed by the appellate courts of this
pellant must abide by the case he
court, and stand here upon the
re.
1 be aflBrmed. All concur.
jsouBi, Respondent, v. James
MER, Appellant.
of Appeals, November 6, 1893.
:a: filinq information. It is enough that
Bd witli the jnstioe, and the defendant
eon, and it is then sent up to the circuit
the justice's minutes fail to state its filing
county: evidence. This record sufficiently
^fore whom the proceeding began and the
'ied were both justices of the county where
i the evidence sustains the conviction.
Digitized by VjOOQIC ^
^
OCTOBER TERM, 1893. 289
The State v. Plummer.
Appeal from the Clinton Circuit Court. — Hon. W. S.
Hebndon, Judge.
Affirmed.
jP. B. Ellis and Roland Hughes for appellant.
(1) The court erred in overruling the defendant's
motion to quash the transcript in this cause. There
are no file marks on the paper purporting to be an
information. The court only acquires jurisdiction by
an information being filed. The filing of the informa-
tion must be noted by the officer whose duty it is to
have the custody thereof. If the prosecution is by a
private citizen, he can file his affidavit with the proper
officer. The prosecuting attorney must then file an
information based upon said affidavit. This is the
only way the court can get jurisdiction of a defendant
in a misdemeanor. (Revised Statutes, 1889, sec. 4329.)
The only thing that is shown by the record in this
case is that the prosecuting witness filed an affidavit.
The transcript nowhere shows that an information
was ever filed. If the record does not show the filing
of an information, then the court had no jurisdiction.
State V. Kelin, 79 Mo. 515; State v. Brisco, 80 Mo. 643;
Ex parley Thomas ^ 10 Mo. App. 24; State v. Wonderlpy
17 Mo. App. 598; Revised Statutes, 1889, sec. 4365.
(2) The second error complained of by defendant is
that the transcript of the justice, Wm. Carr, from
whom the change of venue was taken, fails to show
that the justice sent the case to any justice of Clinton
county, Missouri. The only reference in the transcript
is that he sent the cause to Watts of Turney. Can the
court take judicial knowledge of Turney being in
Clinton, county, Missouri! Record must show that
the venue was changed to some justice in another
Vol. 55—19
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
The State v. Plammer.
lip. Revised Statutes, sec. 4344; State v. Metzevj
65; Ewing v. Donnelly j 20 Mo. App. 6; Peddi-
Bailroady 85 Mo. 161.
hn A, Cross for respondent.
) The information in this case in legal effect
)d with the justice of the peace, under section
Revised Statutes, 1889, when it was properly
by the prosecuting attorney and delivered to,
Dsited with, the justice of the peace, charging
endant with a criminal offense. State v. Clark,
432; State v. Couperhaven, 39 Mo. 430; Gh^bb
IS, 57 Mo. 83; Baker v. Henry, 63 Mo. 517;
Gates, 68 Mo. 22; State v. Pitts, 58 Mo. 556;
\ Gowen, 7 Eng. Ark. 62. (2) The informa-
ing properly signed and lodged with the justice,
ough no filing was indorsed thereon by the
that fact will not affect the jurisdiction of the
►r the validity of the information. State v. Clark,
State V. Gates, supra, and cases cited; State v.
ipra; Olin v. Zeigler, 46 Mo. App. 193; Bensley
>erle, 20 Mo. App. 648; Thompson v. Marshall,
App. 145; Revised Statutes, 1889, sec. 4366.
LiL, J. — Defendant was tried, and found guilty,
court below for disturbing a congregation
i in religious worship, contrary to section 3785,
I Statutes, 1889. The prosecution was begun
W. H. Carr, a justice of the peace in Clinton
; a change of venue was awarded to D. P. Watts,
' justice, where on trial defendant was found
and thereupon he appealed to the circuit court,
there resulted adversely, and the cause is here
ndant's appeal.
In the circuit court, defendant unsuccessfully
the court to quash the information on the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 291
The State v. Plammer.
alleged ground that the justice who tried the cause
had no jurisdiction, ^^because/' it is said, ^^said infor-
mation nor transcript does not show that any informa-
tion was ever filed in said court.'' This action of the
trial court is complained of as error.
There is no merit whatever in the contention.
The transcript of the justices, along with the papers
sent up, show, unequivocally, that an affidavit charg-
ing the offense was duly filed with Justice Carr; that a
warrant thereon was issued and the defendant brought
in; that the prosecuting attorney thereupon lodged
with the justiciB his information, and that a trial was
had on this information before Watts, justice of the
peace, where the jury found defendant guilty as
charged in the information and from a judgment
entered in accordance therewith before Justice Watts,
defendant appealed to the circuit court.
It is true that in the justice's minutes it is not
directly stated that the information was filed, nor is
the information marked filed on the back thereof.
Still, the information is shown to have been lodged,
with the justice, the defendant was arraigned, pleaded
thereto, was tried thereon and found guilty as therein
charged. And this same information was certified up,
and deposited in the office of the circuit appellate court.
This was enough in such prosecution before a justice
of the peace. That the paper, or information, was not
marked *^filed" by the justice is of no consequence,
since the lodgment thereof with the justice was such
a filing as will answer the demands of the statute.
Building <& Planing Mill Co. v. Huberj 42 Mo. App.
432.
Nor do we discover any merit in the claim that it
does not appear that Watts, to whom the case was
sent on change of venue, was a justice of the peace of
the same county wherein the proceeding was begun.
Digitized by VjOOQIC
OURI APPEAL REPORTS,
State ex rel. v. Meek.
•om the face of the proceedings that
} were both justices of the peace in
This was sufficient,
his evidence we find it ample to sustain
tie offense charged in the information,
efore, rightly declined to sustain a
testimony. Judgment affirmed. All
Missouri ex rel, Samuel M. Wood,
V. Benjamin T. Meek, Appellant.
]lourt of Appeals, December 4, 1808.
ction: title to office: school commissioner.
Iving the title to the office of county school eom-
reme court, and not the court of appeals, has appel-
DeKalb Circuit Court. — Hon. C. H. S.
Goodman, Judge.
supreme court.
J for appellant.
lo and J. F. Harwood for respondent.
— This proceeding is by writ of gwo
>y it is sought to oust defendant from
nty school commissioner for DeKalb
wer court entered judgment of ouster,
ppeals.
cases of which the supreme court of
exclusive appellate jurisdiction under
: article 6, section 12, of the consti-
ied in 3884, are those which involve
Digitized by VjOOQIC
OCTOBER TERM, 1893.
City of St. Joseph ex rel. v. Hax.
'*the title to any office under this state J
vision is of broader significance than thj
vision in the same section of the constii
gives the supreme court jurisdiction of
*'any state officer is a party/' The forn
is said to be ''not unlike that of section
which provides that all officers, both civil
'under the authority of this state/ shall
cribed oath of office/' State ex rel. L
Bomhauer, 101 Mo. 502. It has been
deputy constable would fall under the d(
an officer "under the authority of this s1
V. Dierberger, 90 Mo. 369. It must, ther
that the office of county school commis
office "under this state,'' and as such, in
ving the title to such office, this court has
jurisdiction. The case will, therefore, be
to the supreme court. All concur.
CiTT OP St. Joseph ex rel. Wm. E. Gibsc
ent, V. George Hax, Appellani
Kan8€U9 City Court of Appeals, Decembei
Stipulation : abidinq result. It was stipulated that
abide the result of F. case appealed to the supren
that case was detennined on its merits. F. case wi
its merits, though no point was made on a question of
this case cannot farther be prosecuted on the ques
which might have been settled in F. case.
Appeal from the Buchanan Circuit Court.—
Houston, Special Judge.
Affibmed.
JS. (7. Zimmerman and S. S. Shull f(
Digitized by VjOOQIC
1 APPEAL REPORTS.
^. Joseph ex rel. v. Haz.
respondent.
it of the supreme court of Mis-
ase was a judgment upon the
ming of the stipulation between
urt did not err in refusing to sus-
arrest. City of St. Joseph v.
JRailroadv. Stephens^ 36 Mo. 150;
165 ; Landis v. Hamilton^ 77 Mo.
>eman on Judgments, sees. 260,
on Judgments, sees. 694, 704;
Denio, 545; Galbraith v. Newton^
albraith v. Newton, 45 Mo. App.
s is an action instituted upon a
unt of the building of a sewer in
. There was a finding for plain-
er cent, interest on the tax bill
that rate. Defendant thereupon
new trial and in arrest of judg-
n a cause tried in the lower court
lere was plaintiff against Edward
liich involved the same questions
e — the judgment in that cause,
fteen per cent. That case was
ne court of this state on appeal
en stipulated by the parties that
ial and in arrest in this cause
;he case to abide the result of the
)reme court, provided that court
on its merits. That court did
the case on its merits and
t, though it seems no point was
of interest which the judgment
Digitized by VjOOQIC
OCTOBER TERM, 1893. 295
City of St. Joseph ex rel. v. Hax.
This case then comingontobe disposed o
ant withdrew his motion for new trial. Pla
the stipulation referred to and the decisic
supreme court aforesaid. The trial court tl
ruled the motion in arrest and defendant ;
this court, making the point here that the
should not bear fifteen per cent, interest.
From a consideration of the agreemer
cause there can be no doubt but that the Fa
appealed to the supreme court, and this <
regarded by the parties as involving the same
and that to save trouble and expense it was a^
the final disposition of this case on the motior
trial and in the arrest of judgment should be i
over, not to be called up until after the decis:
Farrell case. The judgment in that case inv
very matter in dispute in this case and the a
that this case should abide the result of that
properly acted upon by the trial court. [
questions to be raised now which might have i
sented in the other case, but were not, would
late the evident intention and meaning of th
tion. A stipulation would be of slight mom
that was necessary to avoid it would be to
requisition the ingenuity of counsel to raise i
question. There is no reason apparent to
defendant should be relieved of his stipulat:
Galbreath v. Bodgers^ 30 Mo. App. 401; lb
App. 324.
The judgment below will, therefore, be
All concur. -
Digitized by VjOOQIC
[ISSOURI APPEAL REPORTS,
Seaman v. Paddock.
Seaman, Appellant, v. Hakby J. Paddock,
Respondent.
ity Court of Appeals, December 4, 1803.
RENDERING IMPOSSIBLE TO PERFORM: DAMAGES. The
t a party to a contract may break it by rendering the
of its condition impossible, is applied to a recognizance
mporary stay of execution, and it is held, that where the
iuch obligation suffered the property seized under such
be subsequently sold under an execution enforcing a
ereby rendering it impossible to turn out the property to
locution upon the dissolution of the stay order, he suf-
!h of his bond, and he and his sureties would be corn-
form the other alternative of their obligation, to- wit, pay
costs to be recovered bj the execution, and even if it
>le to render said property in execution at the time the
was entered into, still it remained for them to pay the
ts ; and in this case the terms of the contract fixed the
amages.
the Buchanan Circuit Court. — Hon. A. M.
Woodson, Judge.
\J> REMANDED.
Hke for appellant.
3ndants^ bond bound them to pay the exe-
OT render in execution all the property of
ed or liable to seizure under the execution.
ites, sec. 4968. They stand in Paddock's
all V. Dempseyj 43 Mo. App. 374; Mill
y V. Hovey, 21 Pick. 443; 3 American and
rclopedia of Law, 900, 903, 907, and notes,
mce of the second condition has become
thout the fault of the obligee, and defend-
to perform the first condition is absolute.
Digitized by VjOOQIC
OUTOUEE TEEM, 1893. 297
Seaman v.- Paddock.
Jacquinet v, BautroUy 19 La. Ann. 30; Brown v. Ins Co.,
1 C. & E. 853. (3) The property was not ^'rendered
in execution'^ by seizing and selling it under an execu-
tion in favor of another party whose lien was not filed
and suit brought when plaintiffi's sale was stayed. See
proviso J Revised Statutes, 6727. The lienjf or which sale
was made was not on same footing. State ex rel. v.
Drew, 43 Mo. App. 368. (4) Before breach, defendants
had the election to perform either condition; after
breach, their right of election was gone, and the obligee
was entitled to payment in money. Marlor v. Railroad,
21 Fed. Rep. 385, and citations; 6 Encyclopedia of
Law, 251; Corbin v. Fairbanks, 56 Vt. 538; Waggoner
V. Cox, 40 Ohio St. 539; Collins v. Whigham, 58 Ala.
438; Coke Litt. 145a. See, especially, M^Nittv. Clark,
7 Johns. (N. Y.)465.
J. M. Johnson and Vories & Vories for respondent.
(1) The liens of Seaman and the lumber company
both being for material used in the construction of the
same improvement are upon an equal footing without
reference to the date of filing lien, and either would be
entitled to a pro rata share of the proceeds of sale under
either lien. Revised Statutes, 1889, sec. 6727; State
ex rel v. Drew, 43 Mo. App. 362-368. (2) Paddock
having no other property than that which the liens of
Seaman and the lumber company were against, render-
ing that property in execution under either of said liens
was a full compliance with the bond. Revised Statutes,
1889, sec. 4968; Revised Statutes, 1889, sec. 6727;
State ex rel. v. Drew, supra. (3) There being no
charge in appeUant's petition alleging unfair conduct
at the sale or in procuring the sale, the amount for
which the property sold is its value, and evidence
offered to prove unfairness in the sale is properly
excluded.
Digitized by VjOOQIC
ISSOURI APPEAL REPORTS,
Seaman r. Paddock.
?. J. — ^This was a suit on a penal bond^
^utes, section 4968. It appears from the
J us that the plaintiff recovered a judgment
ndant Paddock for $191.80 debt, and
which were declared to be a lien and spe--
pon a certain frame building and structure
Kensington Rink,'' situate on a certain
nd in St. Joseph. It was not against the
le purpose of the action was to enforce
aim for a lien for work and labor and
•nished in improving said rink building,
of said proceedings and judgment, duly
}he justice, was filed in the office of the
drcuit court of Buchanan, on the fifth day
r, 1891 ; that, later on, an execution was
d transcript judgment and placed in the
sheriff, who levied the same on the said
;; still later on the defendant. Paddock,
led a motion to quash said execution and
5 same to one of the judges of said court
ippeared that said execution ought to be
thereupon the defendant. Paddock, with
> defendants as his sureties, entered into a
in the sum of $500, conditioned as
laid section 4968. The order stayir/g the
;h the motion and recognizance was duly
le circuit court to be heard in term. After-
)tion was by the court sustained, and from
t thereon an appeal was prosecuted here,
. 465, when that judgment was reversed
5, 1892.
er appears that on August 3, 1891, the
Moss Lumber Company filed a mechanics'
0 in the office of the circuit clerk of Buch-
against said rink building and the lease-
of the defendant, Paddock, in the lands
Digitized by VjOOQIC
OCTOBER TERM, 1893. 299
Seaman «T. Paddock.
on which the same was situated ; that afterwards a suit
was instituted in fisaid circuit court to foreclose said
mechanics' lien, in which judgment was rendered on
the twenty-fourth day of November, 1891, declaring
said sum to be* a lien .against said rink building and
the leasehold interest of the defendant, Paddock, in the
lot on which it was situate; that afterwards, on the
eleventh day of February, 1892, the sheriflf, under an
execution issued to him under said last named judg-
ment, sold said rink building and the said leasehold
interest to the defendant, Moss, for $100.
It nowhere appears what the precise term of Pad-
dock's lease was, or how long it had to run at the
time the plaintiff's execution was stayed, nor is any-
thing shown in respect to the value of such unexpired
lease. The statements of counsel contained in their
respective briefs differ as to whether the execution of
the lumber company was levied upon the leasehold
estate or not, and as the appealing plaintiff has only
filed a certified copy of the record entry of the judg-
ment appealed from, showing the time, month and year
upon which the same was rendered with the order
gi-anting the appeal as authorized by section 2253, we
are unable to determine the disputed fact.
The case was submitted to a jury whosfi finding
was for the plaintiff for $4.76, upon the theory of an
instruction given for defendants — the only one given
in the case — to the effect that, under the pleadings and
evidence in this case, the plaintiff is entitled to recover
the proportion of the amount of the sum realized from
the sale of the building in evidence under the Dough-
erty & Moss Lumber Company's execution, to-wit, $100,
that plaintiff's judgment, to-wit, $191.85, bears to the
total sum of plaintiff's judgment, added to the amount
of judgments in favor of Dougherty & Moss Lumber
Company of $1,320, after deducting from said sum of
Digitized by VjOOQIC
liSSOURI APPEAL REPORTS,
Seaman v. Paddock.
I amount of costs in the case of Seaman v.
nt, $19.75, and the costs in said Dougherty
ber Company v. Paddock case, amounting
i on said sum you will allow interest at
. per annum from February 11, 1892, to
nent went according to the verdict and
•laintifl has appealed.
jrms of the recognizance it was expressly
; if the application of Paddock to stay the
cution should be finally determined dgainst
would pay the plaintiff's debt, and costs
3d by such execution or render in execu-
•operty liable to be seized and sold by such
that his sureties, the other defendants,
)r him.
iceded all around that neither defendant
the other defendants, his sureties, have
her of the alternative conditions of their
There is prima facie a breach of the
the recognizance. And the question pre-
3cision is whether performance has been
it has been, defendants are not liable; if it
are.
hanics' lien on which there was a judg-
losure obtained by the lumber company,
against the rink building, but also against
interest of Paddock in the ground on
k building was situated, and was prior in
,cquired by the plaintiff by the filing of
transcript judgment. The former was
e latter. A sale under the former passed
f Paddock in the leasehold. At the time
led for, and obtained, a stay of plaintiff's
had an interest in the leasehold. This was
3 under plaintiff's execution. It may, or
B been of great value. The plaintiff, but
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Seaman v. Paddock.
for the act of Paddock in procuring a wrongfi]
the execution, could have subjected the latte
hold interest to the satisfaction of his debt
under the execution.
But the defendants contend that the lease
sold by the sheriflE under the execution of th€
company which was no act of theirs, and ti
they are in no way responsible. It is true,
that the act of the sheriff in selling the leasehc
out of the power of defendants, or either of
thereafter render the same in execution. Bu
be borne in mind that the act of the sheriflE i
said leasehold under the execution of the
company was occasioned by the omission of th(
ant, Paddock, to satisfy the same, and theref
act of the sheriflE was that of defendant Paddc
far as plaintiflE was concerned. Brown v. Hat
Mo. App. 75; Kennedy v. Dodson, 44 Mo. A
Paddock made it impossible for himself or his
to render in execution his interest in the 1
according to the obligation of his recognizanc
omission to satisfy the execution of the luml
pany, and thereby occasioning the sale thereo
sheriflE, and further by obtaining and perpetus
stay of plaintiflE's execution by entering into tl
nizance sued on. The principle is elementa
party to a contract may break it by rendering
formance of the conditions thereof impossibh
V. Bowers, 23 Pick. 455; Wolf v. Marsh, 54 (
Dill V. Pope, 29 Kan. 289; Newcomb v. Bra
Mass. 161; Packer v. Seward, 34 Vt. 127. li
become impossible for the reasons we have st
the defendants to render in execution the pro
the defendant, Paddock, according to one of tl
tions of the recognizance, there was nothing
Digitized by VjOOQIC
URI APPEAL REPORTS,
Seaman v. Paddock.
1
3 perform the other, viz., pay the
a debts and costs.
it when the condition of a bond is to
ings, if one cannot be performed,
me impossible by the acts of the
• is bound to perform the other. Mill
Hovey, 21 Pick. 443; Jacquinet v.
Lnn. 30. But if the performance of
tion in said recognizance, which
ts to render in execution the prop-
Paddock, if the application for the
hould finally be determined against
le at the time the recognizance was
it remained for the defendants but
st alternative condition. Finder v.
ing that the defendants have com-
the conditions of the recognizance
3 we have been able to discover, they
o show any legal excuse, the defense
its have tendered the plaintiflE his
le proceeds arising from the sale of
jT under the execution of the lumber
:, constitutes no sort of defense to
on. Upon no principle can this be
se for the defendants' breach of their
bllows that the defendants' instruc-
and should not have been given.
J question to be considered is as to '
mages resulting from the breach of
This is a suit on a recognizance with
w fixes the rule by which the dam-
ated in case of forfeiture. Page v.
the rule may be in other cases, here
express terms of their own recogni-
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Hickman v. Hickman.
zance have agreed that if the application for the
the execution should be finally determined t
Paddock, and they did not thereupon render in
tion his property that they would pay the ^*del
costs to be recovered by plaintiff's execution.'^
plaintiff's first instruction was in accord with thi
of the quantum of damages to which plainti:
entitled to recover, and so it ought to have been
The judgment will be reversed and the
remanded. All concur/
John M. Hickman, Sr., Plaintiff, v. John M. Hic
Jr., Appellant, Thomas J. Hickman et al.j
Respondents.
Kansas City Court of Appeals, November 5 and De<
4, 1893.
1. Deed: consideration: parol evidence. The oonsiderati
deed is ordin^ly open and not concluded by that which is
and additional consideration may be shown, but it must not 1:
sistent with the tenns of the deed itself.
2. : GENERAL WARRANTY: PAROL AGREEMENT: RESERVA
POSSESSION. A contemporaneous oral agreement that the grai
general warranty deed is to remain in possession of the prem
enjoy the profits thereof, is inconsistent with the deed itself
ing to convey the title, and is in contradiction to the cc
therein.
3. Saled : what is bought. Arguendo, the sale of a thing
from its very nature, the obligation on the part of a seller to e
the purchaser the possession and enjoyment of the thing boi
right to possess and enjoy being really that which is purchas<
4. Deed: consideration: parol agreement: resulting tru
motion for rehearing, the authorities are further reviewed
foregoing propositions again asserted, and it is further held,
consideration of a deed cannot be so questioned by parol as
the effect to create a resulting trust in the grantor.
Digitized by VjOOQIC
ISSOURI APPEAL REPORTS,
Hickman y. Hickman.
the Buchanan Circuit Court. — Hon. A. M.
Woodson^ Judge.
£ Mosman for appellant.
Bndant, in his amendment to his answer
in issue the new matter, introduced by
ent into said **cross bill,'' specifically
ention of the court to the deed and to the
recovery on the grounds stated in said
ould be had under said deed. Defendants,
Richard Hickman, introduced in evidence
this defendant for the land. This deed
such contract as that stated by John M.
bis evidence, in relation to his codefend-
l for eight years the possession of forty-
this land. This evidence was in direct
to the deed, for it by its terms the posses-
entire land was delivered to John M.
To rale of evidence is bettei: settled than
ieclares that parol evidence cannot be
^ntradict the terms of valid written instru-
f V. Iron Works, 104 Mo. 198, 199. Such
tre held to supersede all prior contracts
e same subject-matter, whether verbal or
in the absence of fraud or mistake, the
ely presumes that the whole engagement
it and manner of the undertaking is con-
n. Chrisman v. Hodges, 75 Mo. 413;
rter, 103 Mo. 140; State ex rel. v, Hoshaw,
We objected to the investigation of these
les when first presented, and strenuously
tpplication of said codef endants for leave
ir cross bill, but our objections were over-
Digitized by Googlc
OCTOBER TERM, 1893.
Hickman v. Hickman.
ruled and our opposition disregarded. We
the court erred in both of said rulings.
Mall (& Pike and Franklin Porter for res]
**The consideration expressed in a deed i
parol explanation for most purposes.'^ Bobl
89 Mo. 419. The evidence was within i
Williams v. Bailroad, 112 Mo. 485.
STATEMENT BY ELLISON, J.
This was a suit brought by John Hickr
against Thomas J. Hickman, and Richard
man, to enforce a vendor^s lien for the unpaid
of the purchase money due from said Ric
Thomas to him, against the land in the handi
brother and codefeiidant, John M. Hickm
had purchased it of his codefendants. Th€
charged that John M. Hickman purchased wi
that a part of the purchase price was stil
by his vendors, and prayed judgment againsi
J. Hickman and Richard Gt. Hickman for th<
of the debt, and that the same be declared a
upon the land of the defendant John M. I
and that it be ordered to be sold to satisfy t
The separate answer of defendant, John
man, was a general denial.
Defendants, John J. Hickman and Ri(
Hickman, answered, admitting all the alleg
plaintiflE's petition, and, with the consent of
first had and obtained, proceeded to set up in
pleading a cross action in their favor and aga
codefendant, John M. Hickman, charging t
had sold and conveyed the land mentione
petition to defendant, John M. Hickman, for i
of $6,850; that he had paid $3,743.30, by dis
Vol. 55—20
Digitized by VjOOQIC
rSSOUEI APPEAL REPORTS,
Hickman v. Hickman.
ace on the land; and that the balance,
lains wholly due and unpaid, for which
interest thereon, they asked judgment
Tohn M. Hickman.
it,- John M. Hickman, filed his motion to
'OSS bill from the files, which was over-
it, John' M. Hickman, then filed an
id cross bill, in which he admitted that
said land of his codef endants and received
)r, and denied that he ever at any time
y the land at the price stated, or ever
Y such sum for the land. He charged
I was about to be sold under a mortgage ;
Bfendants were afraid that it would not
►unt due on the mortgage as the purchase
; and defendant charged that he had
ormed in full his agreement, and def end-
leaded a general denial to all the aver-
cross bill.
^ving been waived and the evidence being
, the plaintiflE and defendants submitted
liar the matters to the judgment of the
eupon the court announced its decision
laintiflE, John M. Hickman, Sr., upon the
n stated in the petition, and also in favor
M. Hickman upon the cross bill filed by
its. Whereupon, the defendants, Thomas
,rd Hickman, prayed the court for per-
lend their cross bill so as to conform to
given in the case. Defendant, John M.
Bcted, for the reason that it introduced a
ely different cause of action from that
the cross bill ; that they could not declare
■ action and recover upon another; that the
jh was wholly irrelevant, was objected to
Digitized by VjOOQIC
OCTOBER TERM, 1893. 307
Hickman v. Hickman.
at the time because irrelevant and immaterial, and
because the judgment could not be attacked in this
collateral way. Which objections were overruled and
defendants were permitted to amend their cross bill
by adding the following: *^That defendant, John
Milton Hickman, also, in addition to said consideration,
agreed that these defendants should remain in posses-
sion of the south forty-five acres of the land above des-
cribed, for the period of eight years from said date,
and to have the full use and enjoyment thereof, to
make all they could out of it. That in violation of his
agreement with them the said Milton ejected them from
the premises, and in April, 1891, ousted them there-
from, and has ever since kept them out of the use and
occupation of said land, to their damage in the sum of
$1,200.''
Defendant, John M. Hickman, duly excepted to
the ruling of the court permitting said amendment,
and thereupon amended his answer to the cross bill,
as follows, to-wit: *' Defendant, John M. Hickman, for
answer to the amended cross bill of his codefendants,
seeking a recovery on the ground that they had been
deprived of the possession of from forty to forty-five
acres of land, which it is alleged, under the contract
of sale, they were entitled to the possession of for eight
years, say, that in an action brought by him against
said defendants, in division number 2, of this court,
he was awarded possession of said land by the judg-
ment of said court; that said action was tried upon
its merits, after a full investigation of all the matters
and things set up in said amended cross bill, on which
a recovery is now sought, and said judgment remains
un appealed from and conclusive upon the parties, and
this defendant pleads the same in bar of any recovery
upon the facts in said amended cross bill stated.
Defendant further says that under the deed from said
Digitized by VjOOQIC
SSOUBI APPEAL EEPORTS,
Hickman v. Hickman.
o this defendant, no recovery can be had
er in said amended cross bill stated."
rs being a^ain submitted to the court, it
fendant, John M. Hickman, had agreed
efendants have possession of the house
acres oflE the south side of said land for
ht years ; that he had ejected them from
thereof, on March 5, 1892, by process
ce the judgment of the circuit court in
Qght by him against his codefendants,
rental value of said premises was $765.
9 court found for the defendants, Thomas
.nd Richard Gt. Hickman, and against
aan, for said sum of $765, with interest
d declared that the same be a lien on
that the same be sold to satisfy the same.
r. — By reference to the statement in this
seen that defendant, John M. Hickman.
lands described of his codefendants,
Richard; that Thomas and Richard
m a general warranty deed in fee simple
ses in which deed the consideration is
►e *^the sum of $6,850, to them in hand
id party of the second part, the receipt
eby confessed and acknowledged.'^ To
cross bill, defendants, Thomas and
permitted to show that there was an
asideration for the conveyance, not
he deed, viz., that said John M. Hick-
tee, was to permit Thomas and Richard
}08session and use of forty-five acres of
yed for eight years from the date of the
refused to so permit them, but on the
i them therefrom to their damage in the
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Hickman v. Hickman.
sum of $765. And the court found for d(
Thomas and Richard under this evidence.
It is quite true that the consideration in
ordinary open and not concluded by that
recited. We went over this ground in Jackst
road, — Mo. . You may show addition;
eration to that recited in the deed, but it m
inconsistent with the terms of the deed iti
additional consideration which the court here
to be shown was inconsistent with the conv
the title as expressed in the deed. The dee<
reservation purported to grant the land itsei
which that implies.
Such a deed is, in effect, a deed to the ]
and enjoyment of the premises. "The sale <
imports, from its very nature, an obligation o
of the seller to secure to the purchaser the ]
and enjoyment of the thing bought, the right
and enjoy being really that which is purchased.^'
V. Desire, 23 Mo. 151. It is "an ancient max
law that no title is completely good, unless th
possession be joined with the right of properl
right is then denominated a double right, jus d\
or droit-droit. And when to this double
actual possession is also united, when there i
ing to the expression of Fleta, juris et seisinae c
then, and then only, is the title complete
2 Blackstone, 199.
Besides this, the deed here contained co
.indefeasible seisin in fee simple ; as also the
of quiet enjoyment which means, as its ten
that it shall be lawful for the grantee to
enter at any and all times and to enjoy the sh
profits of the estate without let or hindrance
grantor, or other persons claiming under
Washburn on Real Property, 660 (side page).
Digitized by VjOOQIC
lAL REPORTS,
skman.
a contemporaneous oral
I general warranty deed
the premises conveyed
>f, is inconsistent with
3nvey the title, and is in
s therein as herein indi-
ement under the guise of
Id be in the face of the
I. It would nullify the
is allowable to show by
) in a deed is not to have
conveyed for eight years,
to show the term to be
>ut a step from an entire
estate. ^ 'Where the
ipect to the interest or
''eyed, is sought to be
idmissible . ' ^ Henderson
I the aforesaid additional
resaid, and the evidence
iproperly allowed. The
concur.
aEHEAKING.
id to grant a rehearing
it the opinion is not in
nk V. Aully 80 Mo. 199.
[pie of law that the con-.
be explained or contra-
ince in that was said not
deed. The action was
a room occupied by the
>ng period after convey-
B. The court expressly
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Hickman v. Hickman.
conceded that '*a reservation of real estate
be made by deed.'^ And then proceeded to
''The question is not what the parties couL
what did they do.^^ The court then adds tl
plaintiff in that case without a reservation
made in the deed granted to defendant certs
leges (that of occupying the room) it is quit
after years have gone by, to raise the point i
the reservation of those privileges should hj
made in the deed with all the formality inci
technical reservation. That the court never
to say that you may restrict the operation of
as a conveyance of the absolute title by pa
mony, under the guise of inquiring into the c
tion, is quite evident from the expressions of t
both before and since the Aull case. ''^
operation of the deed, in respect to the in
estate purporting to be conveyed, is soug]
affected, such testimony is inadmissible.'^ I
V. Henderson, 13 Mo. 151. Judge Sherwood,
of parol proof of consideration in McConnell v,
63 Mo. 464, says that: ''It is not permitted bj
so vary or control the operative words of th(
to defeat it as a conveyance. '' And so
expression, in effect, to the same thing in Li
JEsteSy 99 Mo. 808. And so Black, J., speakir
court in Bobb v. Bobb, 89 Mo. 419, says thai
against the recitation of the consideratio]
cannot be had for the purpose of defeating tl
tive words of the deed, citing Henderson v. H
supra.
That proof in the case at bar that the
were to remain in possession, occupancy an
ment of the fruits of the property they had a
conveyed by deed to the grantee was proof oi
vation, there cannot be the slightest dou
Digitized by VjOOQIC
OURI APPEAL REPORTS.
Pearson v. Glllett.
of the deed was, of course, to place
le possession and profits of the land ;
nitted was a restriction of this effect
d having this effect it should not have
The rule permitting evidence to vary
of a deed is limited to such evidence
ith the operative effect and purpose of
legal import cannot be varied.^'
r, 30 111. 511; Godfrey v. Beardsleyj
, 414 ; Grount v. Townsend, 2 Denio,
^hattuck, 4 N, H. 230; Rhine v. Ellen,
ringtonv. Barr^ 36 N. H. 86; Good-
3 Me. 147.
is forever estopped to deny his deed for
)ses therein mentioned. '' So far as the
by its terms to pass a right, it cannot
McCrea v. Purmontj 16 Wend. 460,
ted. All of the foregoing cases agree
ition cannot be so questioned by parol
Eect to create a resulting trust in the
lis is, in effect, what is sought to be
this case. The motion will be over-
r. Respondent, v. F. L. Q-illett,
, Appellant.
ourt of Appeals, November 6, 1893.
ppeal: affidavit: appearance. The circuit
t jurisdiction with a justice of the peace in an
ihagea for injuries to plaintiffs crops; and where
>n appeal and files the paper in the circuit clerk's
s appear and go to trial on the merits without
>peal affidavit or the jurisdiction, it must be con-
ion of the jurisdiction of the court and a waiver
iug the appeal.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 313'
Pea^on v. Gillett.
2. Trial Practice : reopening case. It is all proper for
court to permit the reopening of the evidence when once cloi
ends of justice at the time appear to require it.
3. Appellate Practice : objection and exception. Obje
exception must be preserved in the bill of exceptions to \«
the consideration of objections to admission of evidenc
appellate court.
4. : TRIAL BEFORE COURT. Where the trial was before
without instructions and the evidence supports the finding^ t
late couit will presume the trial court entertained a correct
the law and not disturb the judgment.
On Motion for Behearing,
5. Jurisdiction: JUSTICE OP PEACE: affidavit: abstract.
appellant abstract does not contain the affidavit for an at
filed with the justice, yet, as the justice's transcript states
filed, and defendant's plea in abatement in the circi
denies the allegations of the affidavit, the contention
affidavit was filed to authorize the attachment must be
founded.
6. Attachment: JURISDICTION: tort: statute: civil acti
Missouri statute furnishes a remedy by attachment in all civi
whether resting on contract or sounding in tort.
Appeal from Boone Circtiit Court. — Hon. Joi
HocKADAY, Judge.
Affirmed.
Gordon, Gordon <& Gordon for appellant.'
(1) The circuit court obtained no jurisdici
the subject-matter of this cause by appeal fro
justice, because the aflBdavit for appeal fails tc
whether the appeiJ is from the merits or judgme
ing cost. Revised Statutes,1889, sec. 6330 ; Wh
V, Cole d Rodger s J 49 Mo. App. 428; Sper
Beasletfy 48 Mo. App. 97. (2) The circuit
obtained no jurisdiction of the subject-matter
cause by appeal, because the record of the justi<
to show that an aflBdavit and bond for appeal wa
Digitized by VjOOQIC
PPEAL REPORTS,
L V. Gillett.
appeal granted, or that the
as procured by proceedings
re V. Staeckler, 49 Mo. App,
i no jurisdiction of the sub-
for the reason that no affi-
justice to authorize him to
)nt. Bank v. Garton, 40 Mo.
3s cited; Norman v. Hom^
)pellant could not waive, and
. of the subject matter of the
ed for the first time in the
Statutes, 1889, sec. 2047;
97; Proctor v, Mailroadj 42
Somes, 102 Mo. 235, and
on V. McPikej 41 Mo. App.
ice or circuit court has juris-
ittachment on a demand for
lept where the damages arise
a felony, misdemeanor or
Revised Statutes, 1889. sec.
ng & Co. V. Collins, 38 Mo.
hts and Remedies, sec. 3506;
636.
Sebastian and Sam. C. Major
t may permit the reopening
s evidence when once closed,
le time appear to require it.
3; Guenther v. Railroad, 95
invite the attention of the
5, made by appellant, that
a appeal was made by appel-
To a proper determination
attention of the court to the
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Pearson v. Gillett.
record in the case. The transcript of the j
ishows the following entry made on his dc
granted this January 4, 1893.'^ This is
of record on his docket that the law
^*Duty of Justice Allowing Appeal/^ Ee
1889, sec. 6332. The justice shall then 1
of appellate court, a transcript of his
together with all other papers relating to
appellee was thus fully advised that the a]
taken from the merits, and both the
appellee summoned their witnesses, appe
answered ready and proceeded with t
court had undoubted jurisdiction over tl
ter of this suit; jurisdiction over the
must come from the law ; and the circ
concurrent original jurisdiction with the
peace of this action. Revised Statutes, '.
And the voluntary appearance answering :
ceeding with the trial by appellant, he cai
that the court obtained jurisdiction of tl
V. Railroad J 61 Mo. 78; Bohn v. Devlin,
Orear v. Clough, 52 Mo. 55, 118; Griffen
53 Mo. 430; Peters v. Railroad, 59 Mo. 4
Railroad, 77 Mo. 362 ; Bates v. Scott 1
App. 428; Pry v. Railroad, 73 Mo. 1
exceptions to this universal rule, are tl^a
where the circuit court has not original, 1
late, jurisdiction, — such cases as forcil
detainer. McQiiid v. Lamb, 19 Mo. Ap]
V. Cabanne, 11 Mo. App. 114; Robinsot
Mo. 117. In order to authorize an appe
reverse a judgment in a case commei
justice of the peace, for want of jurisd
appear that the question of jurisdiction ^
passed upon in the circuit court. Batch
Mo. 403; Bridge Co. v. Railroad, 72 Mo
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Pearson v.'Gillett.
L Mo. 623; Nail v. Railroad, 97 Mo. 68;
dvester, 99 Mo. 277.
P. J. — This was an action by attachment
by the plaintiff against the defendant and
lefore a justice of the peace to recover dam-
iries to the plaintiflE's crops,
ion was dismissed before the justice as to
e remaining defendant filed no plea in
There was a trial on the merits which
udgment for the plaintiff, and from which
ippealed to the circuit court, where the
as permitted to file a plea in abatement,
had before the court on both the plea in
nd the merits, which resulted in a judgment
indant on the issue made by the plea in
md in favor of the plaintiff on the merits,
of $130, and from which latter judgment
it took an appeal here.
3ndant has assigned several grounds for the
the judgment. The first which we shall
it the circuit court obtained no jurisdiction
3t-matt^r of the cause by appeal from the
le reason that the affidavit for the appeal
7 whether the appeal is from the merits or
nt taxing costs. Revised Statutes, see.
eding that the affidavit is defective in the
Qdicated, still we must think the objection
iction not well taken. The circuit court, it
med, had concurrent original jurisdiction
^ice of the peace over the subject-matter
ion. Revised Statutes, sec. 3318. The
3 that the justice by an entry on his docket
appeal and thereafter filed in the office of
the circuit court a transcript of his docket
her with all other papers relating to the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 317
Pearson v. Gillett.
suit, in conformity to the statutory requirements.
Revised Statutes, sees. 6332, 6337. Now, suppose The
affidavit was defective ; yet, since the defendant volun-
tarily appeared in the circuit court and went to trial on
the merits without making any objection to the suffi-
ciency of the affidavit or the defect of jurisdiction, this
must be construed as an admission by him that he was
subject to the jurisdiction of the courtin the case and as
a waiver of all previous defects in the manner of taking
the appeal.
The case is not different than if the complaint had
been originally filed in the circuit court and the defend-
ant had voluntarily appeared thereto and proceeded to
trial without the previous service of notice or process.
After judgment he could not be heard to controvert the
jurisdiction of the court. Sampson v, Thompson ,
decided at the present term. Page v. Railroad, 61 Mo.
78; Bohnv. Devlin, 28 Mo. 319; Orear v. Clough, 52
Mo. 55, 118; Griffen v. VanMeeter, 53 Mo. 430; Peters
V. Bailroad, 59M.O. 4t06] KronsUv. Railroad, 77 Mo.
362; Bates v. Scott Bros., 26 Mo. App. 428; Pry v.
Railroad, Id Mo. 127] Griffin v. SOmual, 6 Mo. 52;
McQuillan's Pleading and Practice, sec. 331. The
jurisdictional point must be ruled against defendant.
It is always proper for the trial court to permit
the reopening of plaintiff's or defendant's evidence
when once closed, if the ends of justice at the time
appear to require it {Taylor v. Cayce, 97 Mo. 243) ; and
so it is not perceived that the action of the trial court
complained of in this regard was improper.
As to the objection that the plaintiff should not
have been permitted to prove the actual possession or
ownership of the land upon which the trespass was
committed because it had not been alleged in the state-
ment of his cause of action, it is sufficient to say that
no such objection was taken at the trial and made the
Digitized by VjOOQIC
»EAL REPORTS,
GiUett.
preserved in the bill oi
hink the statement suffi-
ip and possession of the
likewise be ruled against
e court without the* inter-
structions were asked or
J to have been some sub-
t the judgment, we must
i-tained a correct -view of
sturb its judgment.
insists that the judgment
L in abatement should be
therein mentioned. But
en and preserved to the
b to the disposition of any
tnch of the case, there is
nent of the circuit court
REHEARING.
lave given due oonsidera-
^ction urged against the
)r in his oral argument or
upon the same adversely
for the first time suggests
isdiction of ''the subject
^ason, first, there was no
re the justice upon which
Qd, second^ihKi the action
3r unliquidated damages.
lc first of these objections
record discloses that this
3 transcript, viz:
Digitized by VjOOQIC
OCTOBER TERM, 1893. 319
Pearson v. Gillett.
*^The above petition was filed with the justice,
December 7, 1892; summons issued, returnable on the
twenty-fourth day of December, 1892, and on the
fourth day of December, 1892, affidavit and bond filed
with the justice, and an attachment writ was issued,
returnable on the twenty-fourth day of December, 1892.
December 24, plaintiff dismissed his cause of action on
the merits against defendant, Gt. C. Smith, and, no
plea in abatement being filed in behalf of the other
defendant, F. L. Gillett, the cause proceeded to trial
upon the merits, before a jury of six competent men.
After hearing all the evidence and argument the jury
returned into court the following verdict: 'We, the
jury, give plaintiff $65. J. L. Burroughs, Foreman.^ ''
Now the defendant has not seen proper to set forth
in his abstract the affidavit filed before the justice of
the peace ; but in the counter-abstract of the plaintiff
it appears that when the cause reached the circuit
court the defendant then in pursuance of the leave
granted him for that purpose filed his plea in abate-
ment wherein he denied ''the truth of the facts alleged
in the plaintiff's affidavit for attachment herein'^ and
further denied that "he is a nonresident of the state or
that he is about to remove his property or effects out
this state with intent to defraud, hinder or delay his
creditors.^' So that the contention that there was no
affidavit filed before the justice to authorize the issue
of the attachment process, must be held unfounded.
And, as to the other ground of objection, it may
be stated that in the absence of statutory provision
allowing attachments to issue in actions founded on
tort that such actions will not lie. Drake on Attach-
ment [6 Ed.], section 10. But the statute of this
state furnishes the remedy in all civil actions whether
resting on contract or sounding in tort. Revised
Statutes, 1889, sec. 521 ; Eevised Statutes, 1879, sec.
Digitized by VjOOQIC
ISSOUBI APPEAL EEPORTS,
Carpet Co. v. Hatton.
I Statutes, 1865, sec. 1, p. 561; Eevised
)5, sec. 1, p. 238; Eevised Statutes, 1849,
; Finlay v. Brysofij 84 Mo. 664; Hotiston
7 Mo. App. 15; Deering v. Collins , 38 Mo.
is said by us by way of exposition of the
section 521, Revised Statutes, in Houston
supra, need not be' repeated here. The
lere expressed was that the words "any
as employed in that section were broad
ensive enough to embrace all actions at
resting on contract or sounding in tort.
these views, it results that the motion
ed.
DUNKER & ReNARD CaRPET COMPANY,
it, V. W. H. *Hatton, Defendant; M. A.
Interpleader and Jlespondent.
Lty Court of Appeals, December 4i 1893.
t Conveyances: evidenok: instbtjotions. The
this case fails to show fraud, and the instraotions, if
6 so in being unnecessarily liberal to plaintiff.
IS : TRIAL BEFORE COURT. In a trial before the oonrt,
3tnes8 is not required in the instructions as is demanded
the Boone Circuit Court. — ^Hon. Jno. A.
HocKADAY, Judge.
3bastian for appellant.
larations of law given by the court at
)f the interpleader show that the case was
iie wrong theory, and the finding shows
Digitized by VjOOQIC
OCTOBER TERM, 1893. 321
Carpet Co. v. Hatton.
that it was followed by an erroneous verdict. It is
trae the court gave the decaration of the law oflEered
. by the defendant in the interplea. McNichols v,
Bublemanj 13 Mo. App. 515; Seger^s Sons v. Thomas
Bros.y 107 Mo. 635. How the trial court could declare
the law of this case to embrace both doctrines when
they have nothing in common and are entirely distinct,
is a mystery to me. ''Each instruction must be cor-
rect in itself, and all must be consistent with each
other, and the whole taken together must present but
one doctrine.'^ Modisett v. McPUce^ 74 Mo. 636;
Thomas v. Babb, 45 Mo. 384.
Gordon^ Gordon <& Gordon for respondent.
V
(1) The court committed no error in giving
instruction numbered 3 for interpleader. Forrester v.
Moore^ 77 Mo. 651; Shelly v. Boothe, 73 Mo. 74; Homes
V. Braidwood, 82 Mo. 610; Albert v. Besel, 88 Mo. 152;
Foster v. Planing Mill Co., 92 Mo. 88; Sexton v. Ander-
son, 95 Mo. 379; Deering <& Co. v. Collins <& Son, 38
Mo. App. 79; State to use v. Laurie, 1 Mo. App. 379;
Coffin Co. V. Eubleman, 15 Mo. App. 287. (2) This
court will not reverse a judgment because one of the
instructions given might be technically erroneous, pro-
vided the instructions given, all taken together, fairly
present the law on both sides of the C6tse to the jury,
or court sitting as a jury, and the whole in a manner
that is not calculated to mislead. Spillane v. Railroad,
111 Mo. 564; Bank v. Hatch, 98 Mo. 378; Muehlhamen
V. Railroad, 91 Mo. 346; Whalen v. Railroad, 60 Mo.
327; Karle v. Railroad, 55 Mo. 482. (3) Where the
trial court is intrusted with both facts and law, the
appellate court must assume the facts to be as the trial
court found them, and has only the power to review
the law declared by said court. Swayze v. Bride, 34
Vol. 55—21
Digitized by VjOOQIC
MISSOURI APPEAL EEPORTS,
Carpet Co. v. Hatton.
416; Taylor v. Penquitey 35 Mo. App. 403,
les V. Fender y 82 Mo. 509; Hamilton v. Bogges^
I.
ON, J. — Plaintiff brought this suit by attach-
levied upon a small stock of merchandise as
illy of defendant. Interpleader filed her
for the property, and, on a trial before the
out a jury, recovered. Plaintiffs appeal,
oas that interpleader was surety for defend-
le sum of $500, which defendant owed the
National Bank of Columbia. That she
bis surety through several renewals up to the
f February, 1893. The bank demanded pay-
l defendant executed and delivered to her,
'sement or indemnity, his note due one day
secured by a chattel mortgage on the goods
versy. This mortgage was duly recorded,
was thereafter had under its provisions in
3, the interpleader becoming the purchaser,
laimed that the debt for which interpleader
was not real ; or that she had not assumed
i she did not afterwards pay it. There was
anding to show a proper foreclosure (without
the chattel mortgage, and we are at a loss
J just ground of complaint by plaintiff as to
J made by the lower court.
is a contention here that the court gave
IS of law for the respective parties which are
it. It must be remembered, however, that
ras heard by the court without a jury, and
trictness is not required in instructions that
demanded were they presented to a jury,
rations given for interpleader were proper,
3re was anything approaching error, it was
;he declaration asked by plaintiff, that is to
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Grordon v. Ismay.
say, he was treated with more liberality by
than was altogether necessary. The effec
declarations, when read together, was to find
tiff if there was any fraud on the part of in
whether her claim was founded on a title as i
or as absolute owner. If there was any incc
in the declaration it was all in favor of plaint
ought not to complain. In our opinion, the 1
could scarcely have found otherwise than it d
We have given attention to the differei
tions made here by plaintiff, both at the oral
and in the brief, especially as to how ini
claimed the goods, and we find ourselves
say that any error has been committed. ^
the judgment. All concur.
Scott D. Gordon, Respondent, v. Louis ]
Defendant; Ambrose Ismay, Interplea
and Appellant.
Kansas City Court of Appeals, December 4, :
Appellate Practice: evidence: fraud. Fraud does nc
shown by direct testimony, and may be inferred from cij
though it must be proved and never presumed; and vi
evidence thereof, as in this case, the finding of the lo¥
not be disturbed.
Appeal from the Boone Circuit Court. — Hon.
HooKADAY, Judge.
Apfibmed.
Bailey d Tincher and C. B. Sebastian for i
(1) The evidence shows that interplej
taken possession of the property in controv
the conditions of the mortgage had been brc
Digitized by VjOOQIC
\
MISSOURI APPEAL REPORTS,
Gordon v. Ismay.
ght to hold it until his interest was satisfied.
Vess Co. V. Roede^'y 44 Mo. App. 324; Bank
29 Mo. App. 384. (2) Under the law given
irt the finding must have been upon the
that the mortgage was not accepted in good
the purpose of securing an honest debt.
0 evidence to sustain the finding, and our
»urt and this court have uniformly ruled that
nsupported by substantial evidence will not
to stand. Reno v. Kingsbury, 39 Mo. App.
/ V. Fitzgerald, 94 Mo. 207; Long v. Moon^
4.
yi, Gordon d Gordon for respondent.
here the trial court is intrusted with both
law, the appellate court must assume the
as the trial court found them, and has only
to review the law declared by said court.
Bride, 34 Mo. App. 416; Taylor v. Penquite^
pp. 403 and 525; Gaines v. Fender, 82 Mo.
Itonv. BoggeSy 63 Mo. 252. (2) Fraud, it is
be proved and cannot be presumed, and
positive evidence is not necessary to estab-
may be inferred from the facts and circum-
evidence, pertinent and bearing upon the
issue. Renney v. Williams, 89 Mo. 145.
)N, J. — Plaintiff brought an attachment suit
fendant in which the attachment writ was
1 a lot of brick and other personal property
e property of defendant. Interpleader filed
m claiming the property under a chattel
executed to him by the defendant in the
securing an indebtedness which defendant
to be owing to him. The issue tried on the
as as to the bona fides of the debt secured by
Digitized by VjOOQIC
OCTOBER TERM, 1893. 325
The State of Missouri y. Mohr.
this mortgage; plain tiflE alleging that the mortgage
was made in fraud of creditors, and that, the fraud was
known to, and participated in, by the interpleader.
The trial was submitted to the court without a jury.
All declarations asked by interpleader were given.
None were asked by plaintiff. The finding and judg-
ment was for plaintiff.
We are asked by interpleader to reverse this judg-
ment on the ground that there was no evidence what-
ever to sustain it. A careful examination of the
testimony has failed to impress us with interpleader's
view. ,The fraud charged here does not necessarily
have to be shown by direct testimony. It may be
inferred from circumstances shown in evidence.
While fraud will not be presumed and must be proven
by the party holding the aflSrmative, yet it is a subject
for legitimate inference which may arise from facts dis-
closed by the case. With this statement it is sufficient
to say, without going into a tedious detail of the evi-
dence, that there was evidence in the cause tending to
support the finding, and we will affirm the judgment.
All concur.
The State of Missouki, Respondent, v. George
MoHR, Appellant.
Kansas City Court of Appeals, November 6 and Decem-
ber 4, 1893.
1. Gfuninff: indictment: idem bonans. "Mohr'' and "Moores" are
not idem aonans, and an indictment charging "Mohr" with permitting
gaming in a room of which "Moores'' had possession and control, is
bad.
2. Idem Sonans : rule. Names are idem sonans when the attentive
ear finds difficulty in distinguishing them when pronounced in ordi-
nary usage.
Digitized by VjOOQIC
MISSOURI APPEAL EEPORTS,
The State of Missouri v. Mohr.
On Motion for Behearing,
: INDICTMENT. Whether an indictment for permitting the
of a gaming device would be sufficient by simply alleging
ouse was occupied by the defendant, qutere; and whether
f is tantamount to control, qucBre; but the indictment in
negatives defendant's control by alleging possession and
another.
►w the Callaway Circuit Court. — Hon. John
A. HooKADAY, Judge.
d: TincJier for appellant.
dictment charges that, *^one George Mohr''
1 a room in which the said ** George Moores''
ssession, etc. * 'George Mohr'' and '* George
•e not ^^Idem Sonans;^^ are different persons,
s the indictment is bad. 16 American and
icyclopedia, p. 122.
Walker and Morton Jourdan for respondent.
idictment in this case clearly charges the
vhich the defendant has been convicted, and
Bnt should be affirmed.
)N, J. — Defendant was indicted, tried and
mder section 3810, Revised Statutes, 1889, for
permitting a gaming device to be used for
a building in his possession and control,
nent charged that ^'George Mohr on'' etc.,
^'did unlawfully permit a certain gambling
1., ''to be used for the purpose of gaming, in
iiilding there situate and in a certain room
I building by him occupied, and of whick
:n said building he, the said George Moores^
lere had the possession and control," etc.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 327
The State of Missouri v. Mohr.
Are **Mohr'^ and ^'Moores'^ idem sonansf We are
of the opinion that they are not. It matters little how
names are spelled, they are idem sonans, within the mean-
ing of the authorities,4f the attentive ear finds difficulty
in distinguishing them when pronounced in ordinary
usage. Chamberlain v. Blodgett, 96 Mo. 484. If there
is no such difficulty they are not of the same sound.
There is no difficulty whatever in distinguishing the
pronunciation of the two names set forth in this indict-
ment. The addition of the letter ''s'^ in the latter
name makes it different in fact and in sound from the
first.
In The King v. Samuel Shakespeare, 10 East. 83,
where the defendant was indicted as Samuel Shakepear,
it was held fatal. Lord Ellenbobough said: **That the
final 'e' might not make a material difference, but the
omission of the "s' in the middle makes it a differently
sounding name from the true one.'' The namesi Frank
and Franks were held not to be the same name nor
alike in sound. Parchman v. State, 2 Texas App. 228.
So of Wood and Woods, NeiderlucJc v. State, 21 Texas
App. 320. So of Wilkin and Wilkins, in Brown v. State,
(Court of App. Texas, 1889). And so of Humphrey
and Humphreys, in Humphrey v. Whitten, 17 Ala. 30.
The misdemeanor as defined by the statute is the
setting up a gaming device in any house of which the
defendant has ''at the time the possession and control."
In this indictment the possession and control is alleged
to be in a George Moores, who is not the defendant.
There was, therefore, no misdemeanor charged and a
conviction cannot be sustained.
Other points were made by defendant which are
not necessary to notice. Many of them could not be
noticed, as they were not saved by an exception to order
overruling the motion for a new trial.
Reversed. All concur.
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
The State of Missouri v. Mohr.
ON MOTION FOR REHEARING.
3N, J. — The statute on which this indictment
?ection 3810, is as follows: * 'Every person
permit any gaming table, bank or device to
or used for the purpose of gaming in any
ilding, shed, booth, shelter, lot or other
0 him belonging or by him occupied, or of
lath at the time the possession or control,
jonviction, be adjudged guilty of a misde-
d punished by imprisonment in the county
khouse for not more than one year nor less
' days, or by fine not exceeding $500 or less
low contended by the state that the indict-
r is sufficient by stopping at the words '*by
ied'' and rejecting as surplusage the words
aediately follow them, viz: *'and of which
in said building he, the said George Moores,
dere had the possession and control." Pass-
question, whether the rule as to surplusage
plication to a defect of the nature here com-
, we will dispose of the motion on grounds
in the opinion. It will be noticed that the
1 the indictment are not levelled at the party
the device himself, but at the party who per-
)e done in a house. State v. Gilmore, 98 Mo.
It is not necessary to say, as contended by
hat this indictment would have been suffi-
imply alleging that the house was occupied
Budant. It may be (though we do not say)
ge that the house was occupied by defendant
tantamount, under the statute, to saying it
his control. But certain it is that to permit
o be done in a house means the power to
> house ; and whether saying that one occu-
Digitized by VjOOQIC
OCTOBER TERM, 1893.
The State of Missouri v. Mohr.
pies a house or room, without more, is equi\?
saying he is in control of it, need not be decide
in this case the indictment itself negatives that
ant was in control by expressly alleging the
have been in the possession and under the cc
another party.
The motion should be overruled.
The State of Missouri, Respondent, v.
Mohr, 'Appellant.
Kansas City Court of Appeals, December 4, 1£
1. Gamingr: n^DicTMENT, objections to. It is not fatal to an
nnder section 3810, Revised Statute, 1889, for permitti
device on premises, that it charges the device was ''calli
of cards, instead of *'was" a pack of cards.
2. : : GAMING DEVICE. A pack of cards is a gam;
and an indictment is not bad for using the word ''gamblin
of ''gaming."
•3. Common Qanxing House: room of house. Acomn
house may be set up and kept in a single room of a hou
rooms, and the indictment need not allege the other r
unoccupied.
Appeal from the Callaway Circuit Court. — He
A. HocKADAY, Judge.
Affibmed.
Bailey <& Tincher for appellant.
(1) It will be observed from the indictm«
the ^^gambling device" is not named. The in(
says, **a certain gambling device 'called' a
cards.'' The indictment should allege that th
ling device *was' a pack of cards. (2) The im
charges that the device was ** called a pack of
If the device had been alleged to have been a
Digitized by VjOOQIC
MISSOURI APPEAL REPOETS,
The State of Missouri y. Mohr.
indictment would yet be bad, for, *'a pack
\ not a gaming table, bank or device within
? of section 3808, nor 3810, Statutes, 1889.
ilmore, 98 Mo. 206. (3) The indictment
id unlawfully permit a certain gambling
Che statute *4s any gaming table,'' etc. A
ible, bank or device,'' is a very different
a * 'gambling device" as described in the
(4) The indictment charges the permis-
ambling device in a room of a house, the
being in the possession and control of
To tring the charge within section 3810,
Lent should negative the fact that the bal-
house was occupied. Sisk v. State (Tex)^
ep. 647.
Walker and Morton J our dan for respondent.
iictment in this case clearly charges the-
hich the defendant has been convicted, and
Qt should be aflSrmed.
N, J. — The defendant was convicted under
I, Revised Statute, 1889, for permitting *'a
bling device called a pack of cards, designed
>r the purpose of playing games of chance
and property, to be used for the purpose of
1 certain building there situated, and in a
a in the said building by him occupied, and
id room in said building he, the said George
and there had the possession and control."
f the objections urged here, like those in a
ainst this defendant, decided at this term^
loticed, for the reason that no exceptions
at the trial. We will, therefore, pass tathe
►f the indictment.
Digitized by VjOOQIC
OCTOBER TERM, 1893. - 331
The State of Missouri v. Mohr.
I. The first objection is that the indictment s
have alleged that the gambling device was a pa
cards instead of alleging that it was ^' called'^ a pa
cards. This is not a good objection.
II. It is next objected that a pack of cards :
a gaming device within the meaning of section
This is not a valid objection, and it has been sc
under statutes, so far as this objection is conce
like the present law. State v. Scaggs,'33 Mo. 92;
Herryford, 19 Mo. 377.
III. The next objection urged is that as the st
reads, ** any gaming * * * device,'^ and the ii
ment uses the words ' 'gambling device,'' it is in
cient. This objection is not well taken. A ga
device and a gambling device are, in the sense o
statute, one and the same thing. State v. Dysc
Mo. App. 297.
IV. It is next contended that as the indict
charges the device to have been permitted in a roc
a certain house, which room was in the control
possession of- defendant, that it should have al
that the balance of the house was not occupied,
contention is not sound and the authority cited i
support is not applicable. We ruled in State v. M
53 Mo. App. 571, that a common gaming house e
be set up and kept in a single room of a house of i
rooms.
The indictment being under section 3810
objection founded upon the hypothesis that it was v
section 3808 is not tenable.
A thorough examination of the record satisfi(
that the judgment should be affirmed, and it i
ordered. All concur.
Digitized by VjOOQIC
55 282
71 218
55 m
158b 73|
332 55 MISSOURI APPEAL REPORTS,
The State of Missouri v. Morse.
The State of Missouri, Appellant, v. J. D. Morse,
Respondent.
Kanscui City Court of Appeals, December 4, 1893.
1. Information: supficency op information: surplusage. An
information under section 3592, Revised Statutes, 1889, whieh
charges the defendant did willfully and maliciously out down, break
and injure a portion of a certain fence, while it contains words
descriptive of the offense, in addition to those employed in the
statute, but as they neither enlarge or diminish the meaning of the
statutory words, they may be rejected as surplusage.
2. : SUFFICIENCY OP COMPLAINT. The same technical accuracy
is not required in a complaint as in an information, and though the
former does not use the statutory words, yet if it use words of equiva-
lent import, it authorizes the filing of an information.
3. : AFFIDAVIT. It is no objection to an information that it fails
to charge that it is based upon an affidavit.
Appeal from the Audrain Circuit Court. — Hon. E. M.
Hughes, Judge.
Reversed and remanded.
Robert Shackelford and Geo. Robertson for appellant.
(1) The information is suflScient under section 4329,
Revised Statutes, 1889. State v. Ramsey, 52 Mo. App.
668; State V.Webby ^7 Mo. App. 599. (2) The infor-
mation is suflScient and charges an oflEense under either
section 3592 or 3593, Revised Statutes, 1889. This
information follows the language of the statute of the
first section cited and is, therefore, good. State v.
Tissing, 74 Mo. 72; State v. Anderson, 81 Mo. 78.
Where the exact words of the statute are not used and
words of equivalent import are used, this is suflScient.
State V. Ware, 62 Mo. 597; State v. Watson, 65 Mo.
115; State V. West, 21 Mo. App. 309.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
The State of Missoari v. Morse.
W. W. Fry for respondent.
(1) The information is based on sectic
Revised Statutes, 1889. The offence is cutting
'^belonging to and inclosing landfe not hii
Neither the affidavit nor information charge
was done '^wantonly and without right.'' T
might have belonged to Harper all on his lane
the same time enclosed lands of defendant,
not charge an offense under section 3592. *'T:
must belong to and enclose lands not defen
State V, Coy, 47 Mo.. App. 187. (2) There i
variance between the affidavit and the info:
An affidavit must set forth the offense with t
certainty as is necessary in an information.
Comettj 45 Mo. App. 95; State v. Gartmelly
280; State v. Coy, 47 Mo. App. 187; City of
Elder, 47 Mo. App. 164. The affidavit charges
wire fences on affiant's farm; the informati
he cut a certain fence enclosing the farm. Th
does not charge that it did not enclose def
land, etc. A sufficient information will nc
defective affidavit. State v, Cornett, supra ]
Davidson, 46 Mo. App. 9. (3) The informat
to charge that it is based upon an affidavit fi]
the justice or delivered to the prosecuting 8
Revised Statutes, 1889, sec. 4329; State v. Rai
106 Mo. 135.
Smith, P. J. — One Thomas R. Harper flle<
plaint before the justice alleging that the d<
'*did maliciously, wrongfully and unlawfully
wire fences" on his farm in a certain section, t
and range. At a day subsequently the pro
attorney filed with^the justice an information (
that the defendant did unlawfully, willfully a
Digitized by VjOOQIC
]
MISSOURI APPEAL REPORTS,
The €tate of Missouri v. Morse.
down, break and injure a portion of a wire
g the property belonging to one Thomas R.
ich enclosed the farm and crops of the said
. Harper and situated in certain section,
nd range, in which the said J. D. Morse had
I no interest.
efendant in the circuit court filed a motion
le information based on grounds which we
otly notice. The court sustained the motion
udgment accordingly, and from which the
ppealed.
contended that the information charges no
)wn to the law. It was 'no doubt based upon
92, Revised Statutes. It charges that the
did ^'willfully and maliciously cut'down,
injure a portion of a certain wire fence
to one Thomas R. Harper," etc. This was
descriptive of the offense under the section
jd to. The information in State v. McCoy y
p. 187, was framed upon section 3593, where
ge employed is different from that in section
is true the information contains words
of the offense in addition to those employed
ite; but, as these neither enlarge or diminish
ng of the statutory words, they may be
surplusage, leaving the offense described in
ge of the section which is all that is required.
mseyj 52 Mo. App. 668.
7 appears inferentially from the record that
lation was founded on the complaint. It
ippear that the defendant was arrested on
iint. The information was not filed until
> days after the complaint. It may be that
a was filed upon the knowledge, information
>f the prosecuting attorney independent of
lint. But, however this may be, we are of
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Chicago, S. F. & G. B'y Co. v. Eabank.
the opinion that the complaint sufficiently ch
offense to authorize the filing of the inf<
founded thereon. We do not think that t
technical accuracy is required in describing ai
in the complaint as in the information. If a a
fail to use the exact words of the statute in <
the offense, but employs words of equivalent
this ought to be sufficient to authorize the pre
attorney to file an information founded
State V. Ware, 62 Mo. 597; State v. Watson,
115; State v. West, 21 Mo. App. 309.
The objection that the information fails t
that it is based upon an affidavit filed with th
or delivered to the prosecuting attorney, is su
answered by the cases of State v. Webb, 47 ]V
599; State v. Ransberger, 106 Mo. 135.
It follows that the judgment should be
and the cause remanded. All concur.
Chicago, Santa Fe & California Railw
PANY, Appellant, v. Keuben Eubank, Respoi
Kansas City Court of Appeals, December 4, ]
Appellate Jurisdiction: cqi^demnation proceeding:
UOYD. A proceeding to condemn land for a railroad ri(
involves title to real estate, and the supreme court hai
appellate jurisdiction and is required to exercise exclusi^
tending control over the trial court in such causes.
Appeal from the Chariton Circuit Court, — Hoi
Burgess, Judge.
Tbansferred to supreme court.
Gardiner Lathrop, I. H. Kinley and S. PI
for appellant.
The exact question here presented was
adversely to the respondent by the supreme
Digitized by VjOOQIC
3S0URI APPEAL EEPORTS,
lioago, 8. F. & C. R'y Co. v. Eubank.
lailroad v. Fowler, 20 S. W. Rep. 1069.
eld that the land owner is not entitled
the award, since he has the right ta
any time. For this reason we ask that
of the circuit court be reversed and the
d, with directions to enter judgment for
iurJcs, Thos. Shackelford and Crawley <&
ident.
having failed to file such an abstract of
is required by rule 15 of this court,
)mits that the appeal should be dismissed.
. Clarkj decided at October term, 1892,
[not reported). Travis v. Ins. Co., 47
Merrill V. Trust Co., 46 Mo. App. 237;
15, 44 Mo. App. 626; Grundy v. Rogers,
465; Christopher v. White, 42 Mo. App.
loward, 41 Mo. App. 488; Bank v. David-
ipp. 421; Shaw V, Bryan, 39 Mo. App.
V. Nichols, 39 Mo. App. 291; City of
onnor, 36 Mo. App. 594; In re Redding
o. App. 425 ; Ghiinn v. Boas, 31 Mo. App.
V. Railroad, 23 Mo. App. 76; Coy v.
[o. App. 462; Hausmann v. Hope, 20 Mo.
J. — This was a condemnation proceed-
by the plaintiff in 1887 to acquire a right
3 railroad. The court appointed com-
10 assessed the damages at $1,600. The
ixceptions to the report and demanded a
liis was denied and an appeal was taken
3 court, where the right to a jury trial
and the cause remanded. In October,
as impaneled, and after a portion of the
Digitized by VjOOQIC
\ .V
OCTOBER TERM, 1893. 337
Chicago, S. F. & C. R'y Co. v. Eubank.
evidence was heard, the plaintiff withdrew its excep-
tions. The defendant asked that interest be allowed
upon the award from the date of the appropriation
to the date of the trial, and this request was granted
by the court, against plaintiff's objection, and the
interest made a part of the judgment. After an
unsuccessful motion for a new trial this appeal was
taken.
It has been ruled in a number of instances, both
by the St. Louis court of appeals and by us, that a
proceeding by a railroad company to condemn land for
its right of way is a suit involving title to real estate
within the meaning of section 12, article 6, of the con-
stitution of this state. Railroad v. Leeiight, 44 Mo.
App. 212; MusicJcv. Railroad j 43 Mo. App. 326; Hughes
V. Mermodj4A Mo. App. 288; Railway v. McGregor j
53 Mo. App. 366. In this class of cases the supreme
court has not only exclusive jurisdiction, but by the
terms of section five of the amendment to the con-
stitution adopted in 1884, that court is required to exer-
cise exclusive superintending control over the action of
trial courts in respect to such cases. Railroad v. Mc-
Gregor j supra; State ex rel. Huston v, Ganzhorn^ 52 Mo.
App. 220; State ex rel. Auditorumv. Allen, 45 Mo. App.
551; State ex rel. Blakemore v. Romhauer, 101 Mo. 499.
It is therefore manifest that this case is of the class
which is excluded by the terms of the constitution
from our appellate jurisdiction. We have no juris-
diction to review the action of the trial court on appeal
or writ of error in a case of this kind.
We will, therefore, order the record to be trans-
ferred to the supreme court, where there is jurisdiction
to entertain the appeal.
Vol. 55—22
Digitized by VjOOQIC
338 55 MISSOURI APPEAL REPORTS,
Myers v. Miller.
N 56 388
r 72 HI I
S^ 55 338l
F, f 83 2991
|i John Myers, Respondent, v. A. C. Miller,
U Appellant.
L
^v KanBas City Court of Appeals. December 4, 1893.
*„, 1. Jud^rments: collateral attack: strangers: inferior court.
^ When a court has jarisdiction' of the parties and the subject-matter, .
!, the judgment is binding and effectual upon all the parties and their
4 privies and cannot be questioned in a collateral proceeding, and this
^ rule obtains as well in cases in justices' courts and other statutory
I courts as in courts of record; but such rule does not extend to
r strangers, who may set up the defense of fraud in obtaining it when-
ever it is attempted by it to affect their rights.
?, 2. : : EVIDENCE. The evidence in this case is sufficient to
^ take the question of fraud in obtaining the judgment, on which appel-
lant relied, to the jury, and support the finding.
3. Appellate Praotioe: trdll bofore court: instructions A
> ' judgment wi^ not be reversed because the trial court, sitting as a jury,
fails to declare the law as full as it might have done ; especially so,
-^ when the instructions given announce correct rules of law applicable
% to the facts and the whole evidence justifies the finding.
4. Forcible Entry and Detainer: judgment: instruction.
: Instructions given and refused in reference to forcible entry and
detainer, and a judgment setup in defense, are considered.
[: Appeal from the Carroll Circuit Court. — Hon. E. J,
Broadus, Judge.
Affirmed.
Kinley & Kinley for appellant.
(1) If Gilliam owned and was in the actual posses-
sion of the land up to the time it washed away, and
\ then, upon its re-formation exercised dominion over it,
claiming it, used it for cutting poles and tobacco sticks
from till 1887, when he located the lines around the
land, had the lines cleared away to show where they
Digitized by VjOOQIC
OCTOBER TERM, 1893. 339
Myers v. Miller.
were, and to fence, located the corners, and began
clearing the land, he was in such actual possession
thereof that Eeece's intrusion and occupancy in the
spring of 1888 was a forcible entry upon Gilliam's pos-
session. Bartlett v. Draper ^ 23 Mo. 407; King^s AdWfW
V. St Louis Gas Light Co.y 36 Mo. 34-39; Miller v.
Northup, 49 Mo. 397-400; Bradley v. West, 69 Mo.
59-63, and cases cited; Willis v. Stevens, 24 Mo. Af)p.
494. (2) If Reece had acquired possession of the land
in controversy by a forcible entry on Gilliam's posses-
sion, aiid afterward conveyed his claim to plaintiff, no
greater right to possession was vested in plaintiff than
Reece had; and if Reece was in possession of the land
when Gilliam instituted his suit in forcible entry and
detainer against Reece before Farrington, then neither
Myers nor anyone else should have been made parties,
nor could Reece have avoided his liability to an action
in forcible entry by attempting to convey the land.
The only person against whom the action could be
maintained is the party in actual possession. Orrick v.
Public Schools, 32 Mo. 315. (3) The judgment in
favor of Gilliam against Reece, before justice Farring-
ton for restitution of the land, being regular with
personal service on Reece, could not be collaterally
attacked by Myers in any event. Hardin v. Lee, 51
Mo. 241 ; Johns v. Flatten, 55 Iowa, 665 ; Winn v. Cory,
48 Mo. 349. This judgment could not be attacked col-
laterally for any reason by Reece, nor could it be so
attacked by Recce's grantee. Myers who was claiming
under the quitclaim deed from Reece to Myers and
Coffey, which conveyance was after Recce's forcible
entry and was taken by plaintiff with full knowledge of
Eeece being a trespasser, and that Gilliam had sued
him. State v. Evans, 83 Mo. 319; Yates v. Johnson, 17
Mo. 213; Sachsev. Clinging smith, 97 Mo. 406; Karnes
V. Alexander y 92 Mo. 660, and cases cited; Jeffries v.
Digitized by VjOOQIC
>5 MISSOURI APPEAL REPORTS,
Myers v. Miller.
51 Mo. 215-221 ; State ex reh v. Bonegan, 12
K 190; 8. <)., 83 Mo. 374; Sloan v. Mitchell, 84
; McClanahan v. West, 100 Mo. 309; Fulkerson
port, 70 Mo. 541; Hope v. Blair, 105 Mo. 105;
?. Fish, 1 Pick. (Mass.) 435; Exendine v.
76 Mo. 416; Johnson v. Beazley, 65 Mo. 250;
V. Brown, 91 Mo. 429. (4) The court erred
tting the respondent to attack the judgment in
Gilliam v. Beece before justice Farrington col-
, even if fraud and collusion were proven, of
owever, there is no evidence. Mason v. Mes-
\ al., 17 Iowa, 261, third part of opinion on
5; Smith V, Smith, 22 Iowa, 516; Cooper v.
s Lessee, 10 Wallace (U. S.), 308; State v.
3 Mo. 319; McClanahan v. West, 100 Mo. 309 ;
et's Collateral Attack, sees. 12, 16, 17, also
resumptions. (5) There was absolutely no
to support the second instruction given on
: plaintiff. Both Gilliam and Eeece testified
s no agreement or collusion between them con-
the suit before Farrington. Instructions should
on some evidence in the case, not on coun-
picions, pages 41-47, 56, 57, 58 of abstract.
V. Quarles, 46 Mo. 423; Forrester v. ScavilU,
68; Kennedy v. Kennedy, 57 Mo. 73; Worley
m, lb. 233; Bogers v. Bogers, 87 Mo. 257;
!;. Wood, 88 Mo. 76; Fhilpott v. Penn, 91 Mo.
lammond & Son for respondent.
The undisputed facts in this case are that
id Coffey after their purchase of the land in
rgy from Eeece, July 21, 1890, leased it to
it, Miller, and the other tenants named in the
d in evidence by plaintiff. Their term did not
Digitized by VjOOQIC
OCTOBER TERM, 1893. 341
Myers v. Miller.
expire until January 1, 1891. At the expiration of
their lease, or whenever they left the premises, the
right of possession immediately devolved upon Myers
and Coffey. Miller, the defendant, could not lawfully
surrender the possession to anyone else during his
term or at its expiration, nor could he accept a lease
form anyone else. Gooch v, Harmon, 30 Mo. App. 450;
May V. Luckett, 48 Mo. 472. (2) At the time of the
institution of the forcible entry suit of Gilliam v. Beece,
November 26, 1890, in Egypt township, Reece was not
in possession of any part of the land in controversy in
this suit. His possession was confined to his cabin and
five acres around it, not included in this suit. Miller
and the other lessees of Myers and Coffey were in the
actual possession of the land in controversy, their crops
not yet having all been removed and their lease not
having expired. They were not *'the servants or under
control'' of Reece in any way, and, therefore, could not
be ''expelled and removed" under a writ of restitution
against Reece, though it had been a legal writ. 2
Revised Statutes, sec. 5163. The court in giving
instructions numbered 1 and 2 in behalf of plaintiff,
and in rendering judgment, necessarily found the facts
as above stated. (3) The Egyptian judgment having
been obtained by collusion between Gilliam, Reece and
defendant Miller, Gilliam acquired no right under it,
and the possession of Miller obtained from Gilliam
could not be set up to defeat plaintiff in this action.
Upon the facts as found by the court, instruction num-
ber 3 for plaintiff was properly given. It is contended,
however, that the judgment cannot be attacked in this
collateral proceeding, ''even if fraud and collusion
were proven." As between third parties or strangers
whose prior rights are sought to be affected by such
judgments, the whole weight of authority is in favor
of collateral attack. Meadows v. Duchess of King-
Digitized by VjOOQIC
[ISSOtJRI APPEAL REPORTS,
Myers v. Miller.
759; 1 Chitty's Pleading, [10 Am. Ed.]
. 2, 1166; Callahan V. Griswold, 9 Mo. 792;
Judgments [3 Ed.], p. 377; Frader v.
1. 180. Our contention on this point is
sustained by the following, among many
ithorities. Bigelow on Estoppel [5 Ed.],
Ogle V. Baker, 21 Am. St. Rep. 887; Earl
Becher, 3 CI. & Fin. 479; Webster v. Beid,
S.) 487; Hackett v. Manlove, 14 Cal. 85;
McBridej 6 Ga. 178; Freyandallv. Bald-
325; DeArmond v. Adams, 25 Ind. 458;
V. Sidensparker, 52 Me. 481} Pierce v.
ass. 242; Bergeman v. Eutcheson, 60 Miss.
9. V. Wilson, 34 N. Y. 409; Meeker v.
0. App. 239.
P. J. — This was an action of unlawful
he undisputed facts showed that the land
[•sy was originally situated in Chariton
that in 1856 the Missouri river begun to
)n it so that by 1868 it was entirely washed
le year 1878 it was re-formed by the action
of the Missouri and Grand rivers. When
t was found situate on the west side of
by reason of which it became embraced
rritorial limits of Carroll county.
as a trial in the circuit court, which resulted
for the plaintiff, and from which defend-
aled.
indant by his appeal assails the judgment
he ground that the trial court erred in
I law to be that if it, sitting as a jury,
he evidence that the judgment and writ
in the forcible entry suit of Oilliam v.
3secuted by collusion between said Gilliam
ithout notice to. Myers and Coflfey, then
Digitized by VjOOQIC
October TERM, i893. 34S
Myers 7. Miller.
Gilliam acquired no right under said judgment and
writ to the possession of the land described in the
complaint as against Myers, and the possession of
Miller obtained from Gilliam cannot be set up to defeat
plaintiff's recovery. We are thus called upon to decide
whether this theory of the case announced by the trial
court accords with the law.
It is conceded that the justice, by whom the judg-
ment was rendered, had jurisdiction of the parties and
the subject-matter of the action, and that the judgment
was regular on its face, so that the vital question
involved is^ whether the judgment was open to collat-
eral attack by plaintiff. The rule to be deduced from
the cases in this state is, when a court has jurisdiction
of the parties and the subject-matter, the judgment is
binding and effectual upon all the parties and their
privies, and that it cannot be questioned by them in a
collateral proceeding. Yates v. Johnsotiy 87 Mo. 213 ;
Forder v. Davis, 38 Mo. 108; Pentz v. Kuester, 41 Mo.
447; Gray v. Bowles , 74 Mo. 419; Karnes v. Alexander j
92 Mo. 660; Haggard v. Bailroad, 63 Mo. 302; Baker
V. Baker, 70 Mo. 136; Carpenter v. King, 42 Mo. 219;
State V. Evans, 83 Mo. 319; Johnson v. Beazley, 65 Mo.
250; Lewis v. Gray, 66 Mo. 614; Fulkerson v. Daven-
port, 70 Mo. 546; Henry v. McKerdie, 78 Mo. 416;
Scott V. Crews, 72 Mo.. 263; State v. Weatherby, 45 Mo.
17; Jeffries v. Wright, 51 Mo, 220. Nor are the judg-
ments of justices of the peace or other statutory courts,
where jurisdiction appears to have attached, any more
subject to collateral attack than those of courts of
record. Jeffries v. Wright, 51 Mo. 215-221; State
ex rel. v. Donegan, 12 Mo. App. 190; s. c, 83 Mo. 374;
Sloan V. 3Btchell, 84 Mo. 546; McClanahan v. West,
100 Mo. 309; Fulkerson v. Davenport, 70 Mo. 541;
Hope V. Blair, 105 Mo. 105 ; Exendine v. Morris, 76
Digitized by VjOOQIC
) MISSOURI APPEAL REPORTS,
Myers v. Miller.
Johnson v. Bea^ley, supra; Bowden v. Brown j
19.
may not such a judgment be collaterally
:or fraud in its procurement by one who is a
;o itt As was remarked by the judge who
the opinion in McClanahan v. West^ 100 Mo.
uthorities differ on the point whether a judg-
be attacked for fraud, or whether it alone
)ne by a direct proceeding. In Vanfleet oa
Attack, section 13, it is stated that in eject-
defendant cannot raise the question that a
red by plaintiff was procured by fraud or
d so in regard to a judgment. And a similar
of the law has been announced by the
jourt of Iowa {Mason v. Messing ery 17 Iowa,
Ih V. Smithy 22 Iowa, 272), and perhaps by
ate courts of some of the other states. But,
Y respectable authorities hold that this rule
ending to parties and privies does not exist
igers to the judgment. Since the latter have
0 vacate or reverse it by a proceeding for that
t results from the necessity of the case they
a general rule be permitted to s^t up the
fraud in obtaining it whenever it is attempted
tect their rights. Bigelow on Estoppel [5 Ed] ,
7; Freeman on Judgments, sees. 334-336;
m/m, 2 Watts, 354; State v. Little, 1 N. H.
chisonv. White, 54 Tex. 78; Sidensparker v.
ker, 52 Me. 481; Granger v. Cram, 32 Me.
npson^s Appeal, 57 Pa. St. 175; Frazier v.
111. 180.
upreme court of the United States in Webster
L Howard, 437, which was an action of eject-
ire the plaintiff in the trial court gave in
L sheriff's deed and also the judgments and
1 on which it was founded, and the defendant
Digitized by VjOOQIC
October term, i893. 345
Myers v. Miller.
offered to prove that the judgment, execution and
sheriff's deed were procured by fraud of the plaintiff,
which offer was rejected by the court, — the defendant
being a stranger to the judgment he sought thus to
attack collaterally, — in the opinion of the court, which
was delivered by Justice McClain, said that the '* dis-
trict court erred in overruling the evidence offered by
defendant to prove fraud in the judgments, executions,
sheriff's sales and deed. When a judgment is brought
collaterally before the court as evidence, it may be
shown to be void upon its face by want of notice to the
I)erson against whom judgment is rendered, or for
fraud.'' Gaines v. Relfj 12 How. 472, is to the same
effect.
In the consideration of the rule embodied in the
declaration of the trial court to which we have already
referred, we are entirely relieved of the embarrassment
which the conflicting authorities just cited otherwise
might have occasioned us by the ruling made by the
supreme court of this state in Callahan v. Griswoldj
9 Mo. 457, where it was declared by so eminent a jurist
as Judge Napton that ''the judgment of a court of
competent jurisdiction cannot be impeached collater-
ally in another court in an action between the same
parties, etc. The party must apply to the court which
pronounced the judgment to have it vacated. This
principle does not prevent a party who was a stranger to
the proceeding and had no opportunity to defend against
such judgment from showing that it was procured by
fraud and that an unconscientious use is about to be
made of it." It must, therefore, be ruled that the
theory declared by the trial court was correct if the
evidence adduced tended to support its hypothesis.
There was introduced evidence which tended to
show that Myers and Coffey, after their purchase from
the Keyte heirs, had instituted a suit in ejectment
Digitized by VjOOQIC
55 MISSOURI At»PEAL REPOETS,
Myers y. Miller.
Reece in the Carroll circuit court, and this suit
ttled by their purchase of Reece's claim and
it the time of their purchase from Reece he
sed all of the land, except about five acres, to a
' of different tenants, among them the defend-
Uer; and after Reece made his deed, he and all
mts became the tenants of Myers and Coffey
^nuary 1, 1891, the tenants by written lease, and
►y positive agreement. So that from and after
Dty-fourth day of July, 1890, they, Myers and
were in the absolute possession of the entire
' their said tenants; Reece himself only occu-
bout five acres in the west forty, the remaining
-five acres being occupied by defendant, Miller,
other tenants, all of whom had grown crops on
d in the year 1890, which crops were not all
i until about the first of January, 1891.
is was the situation on the twenty-fifth day of
3er, 1890, when Mr. Gilliam, who then had an
nt suit pending in the Chariton circuit court, on
of venue from Carroll circuit court, went to
reme western side of Carroll county, between
nd forty miles from where the land is situated
the parties resided, passing over three or four
ps, and the county seat, and there instituted a
forcible entry and detainer against Reece for the
ighty acres. The testimony shows that outside
adant Miller, who told Reece that *'a suit was
7tton up,^^ Gilliam, wife, and possibly his part-
klr. Griffin, no one else within thirty miles of
his land lies was permitted to know anything
le suit.
ice did not notify Myers of tlie commencement
uit by Gilliam against him. He suffered judg-
go by default. The judgment was rendered on
ly and on Monday following a writ of restitu-
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 347
Myers v. Miller.
tion was placed in the hands of the constable, who, in
company with Gilliam, went to put Keece out. He was
found at his cahin with the defendant. Miller, who
thei'e in conversation with Gilliam stated that if he,
Gilliam, got the land back that he, Miller, wanted to
rent it. The constable read the writ to Keece. Reece
then gave Gilliam the, keys to the cabin. Some of
Recce's household goods were in and some out of the
cabin. Gilliam then locked the cabin door. Reece
then proposed to rent of Gilliam, and then the latter
gave him back the keys. The matter ended by Reece
remaining peaceably in possession of his cabin and by
Miller, who then held a lease from Myers and Coffey
not yet expired, becoming Gilliam's tenant. Gilliam
paid all the costs.
We cannot, therefore, say there was no evidence
to justify the finding by the court that the judgment
was procured by fraud, ^hese facts and circum-
stances were such as to authorize the inference
of fraud. What was said in Walser v. Graham^ 45
Mo. App. 629, applies to the conduct of Reece in
respect to the plaintiff, under whom he, as tenant, was
holding at the time he was sued by Gilliam.
As a legal proposition it is likely correct, as the
defendant contends, that if it was a fact Gilliam owned
and was in the actual possession of the land up to the
time it washed away, and then upon its re-formation
exercised dominion over it, claiming it, using it for
cutting poles and tobacco sticks from it till 1887, when
he located the lines around the land, had lines cleared
away to show where they were, and to fence, located
the corners, and began clearing the land, he was in
such actual possessson thereof that Recce's intrusion
and occupancy in the spring of 1888, was a forcible
entry upon Gilliam's possession; and that if Reece had
acquired possession by a forcible entry on Gilliam's
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Myers v. Miller.
and afterwards conveyed his claim to plain-
ater right to possession was vested in plain-
leece had; and if Reece was in possession
I when Gilliam instituted his suit in forcible
detainer against Reece before Farrington,
bT Myers nor any one else should have been
es, nor could Reece have avoided his liability
n in forcible entry by attempting to convey
The court was not asked to so declare the
may presume the court entertained this view
, in the absence of any declaration showing
ry. It may have found the facts did not
s theory, or it may have concluded from the*
lat Enlow, under whom Reece claimed, was
rson to take possession of the land after its
, and that Reece had not, therefore, invaded
3ion of Gilliam at all. The evidence as to
iliam or Enlow was first to take possession
s in quo was so conflicting as to have justi-
iding either way.
jment will not be reversed because that trial
g as a jury fails to declare the law as full as
ave done, especially so if the declarations
given announce correct rules of law appli-
3 facts which the evidence tends to prove,
Lole evidence justifies the finding.
>ws from what has been said that the declara-
requested by defendant to the effect that,
ook possession of the premises in question
t December 10, 1890, by virtue of a writ of
ed by justice of the peace, Farrington, a
he peace of Egypt township, Carroll county,
1 the suit of Thomas E. Gilliam v. Wm. W.
I writ having been issued by virtue of a
>f forcible entiy and detainer, wherein per-
le was had on said Reece in a suit by said
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Book Island Plow Co. v. Lang & Gray.
Gilliam v. said Reece, and that said Gilliam
possession by the constable, and when said G
put in possession of said land by the co
execution of said writ, no one was in possess
land, except said Keece, and the crops
removed therefrom, and that said Gilliam
rented said land to said Miller, and he was hi
land under said leasing by Gilliam, then the
tlie court must be for defendant, and that
is not guilty as charged in the complaint, we
refused.
The judgment will be aflBrmed. All cor
Rock Island Plow Company, Appellant, y
Gray, Defendants; C. Fink, Interpleadf
Respondent.
Kansas City Court of Appeals, December 4
1. Assignment: partners mat make: who object.
partner is not authorized, by virtue of the partnership ]
to make a voluntary assignment for the firm, yet he m
the express assent and direction of the other members ;
partners alone have the right to complain of such assign
firm creditors.
2. : FILING OP DEED: ATTACHMENT. A plaintiff in
instituted and tried after the execution and delivery o
assignment and the possession of the assignee thereund
it is filed for record, does not acquire a right superior to
3. '•—: fraud: estoppel. The evidence in this case &
on the part of assignor or assignee, and there is no ei
case, since none is pleaded.
Appeal from the Carroll Circuit Court. — B
Broadus, Judge. '
Af?ibm^d.
Digitized by VjOOQIC
)5 MISSOURI APPEAL REPORTS,
Book Island Plow Co. v. Lang & Gray.
ier (& Morris for appellants.
The evidence was sufficient to justify a sub-
of the question of fraud to the jury. If the
participated in the fraud, then the assignment
. Prior and subsequent illegal actions of the
o the deed of assignment are proper to be sub-
D the jury as evidence of the fraudulent intent
irties at the date of the assignment. Stute to
V. Benoistj 37 Mo. 501, 514; Goodwin v. Kerr,
!76; Adler v. Lang^ 21 Mo. App. 516; Hazell v.
5 Mo. 60; Hatcher v. Winters ^ 71 Mo. 30;
use, etc. V, Adler, 97 Mo. 413; Crow v. Beards-
JLo. 345; Gates v. Leleaume, 19 Mo. 25; Wise
r, 23 Mo. 273; Reed v. Pelletier, 28 Mo. 173;
use V. Patrick, 49 Mo. 548. (2) One partner
Qake a valid assignment of partnership property
the express direction, assent and authority of
r. No such authority can be implied from the
hip relation. That Lang had such authority
ray, nowhere satisfactorily appears from the
I. His communication with his partner tends
that he had no such authority. A subsequent
on cannot relate back so as to interfere with
ing leins. Burrill on Assignment, sees. 79, 84,
J44; Drake v. Rogers, 6 Mo. 317; Hughes v.
5 Mo. 463; Hook v. Stone, 34 Mo. 329; Candy
talker, 46 Mo. App. 482 ; Wilcox v, Jackson, 7
.; Loeb V. Pierpoint, 58 Iowa, 469; Stein v.
L3 Minn. 412; Dunklin v. Kimbell, 50 Ala. 251;
V. Chandler, 40 Kan. 516; Collier v. Hannah,
253; 1 Bates on Partnership, sees. 338, 339; 1
n and English Encyclopedia of Law, p. 847, et
. 17, p. 1045, 1047, 1048, and cases cited. (3)
to the assigned property did not pass nor the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 351
Book Island Plow Co. v. Lang & Gray.
beneficial interest of creditors attach until the deed of
assignment was filed in the recorder's office. Kevised
Statutes, 1889, sec. 424; 'Marks Appeal, 85 Pa. St.
239; Rendleman v. Willard, 15 Mo. App. 375; Hughes
V. Ellison^ 5 Mo. 484; Chalfin v. Eosenbergy 42 Mo.
349; Strong v. Carrier ^ 17 Conn. 319; Burrill on
Assignment, ^secs. 252, 296, 297, and pp. 381, 382, 383
and 389. (4) The assignment was not made nor
accepted in good faith. Immediate possession must
follow a deed of assignment. Possession by the
assignor after assignment will render it void as to
attaching creditors. Merely signed the deed, if the
deed is withheld from the record, is not accepting the
trust. There must be a bona fide delivery and such
change of possession as is observable without inquiry
and such as will apprise the community that a change
has taken place. Burrill on Assignments, sec. 265,
268, 270, 273, 277, 280, 296 and 4T)0; Woolson v. Pipher,
100 Ind. 306; Crosby v. Hilly er, 4 Wend. 280; Kuy-
kendall v. McDonald, 15 Mo. 416; Brooks v. Wimer, 20
Mo. 503; Hatcher v. Winter, 71 Mo. 35; Bishop v.
O'Connell, 56Mo.l68; Wrightv. McCormick, 67 Mo A26;
2 Kent's Commentaries, 529, note e; Bump on Fraud-
ulent Conveyances, 210, 212, 132, 136, 174. (5) Inter-
pleader, by his own action, is estopped from setting up
any claim, as against plaintiff, to attached property.
To the sheriff, before the levy, he disclaimed any inter-
est in the whole transaction, and by word and action
invited the plaintiff to make the levy. He cannot be
permitted now to set up a claim inconsistent with his
claims made before the levy. 3 Bigelow on Estoppel,
484; Guffeyv. O'Beiley, 88 Mo. 418; Taylor v. Elliott,
3 Mo. 172; Bice v. Bunce, 49 Mo. 231; Lawrence v.
Owens J 39 Mo. App. 318; Olden v. Hendricks, 100 Mo.
533.
Digitized by VjOOQIC
5 MISSOURI APPEAL REPORTS,
Bock Island Plow Co. v. Lang & Gray.
Jones and J. L. Minnis for respondent.
The action of the court below in taking the
the jury was proper. Under the evidence in
it would have been the plain duty of the trial
i the jury on the pioof found for the plaintiff,
warded a new trial. In such a case it is the
le trial court to decline to submit the cause to
nent of the jury. Hausmann v. Hope, 20 Mo.
; Jackson et al. v, Hardin et al, 83 Mo. 175;
Hamilton, 77 Mo. 554. (2) There was no
whatever, showing or tending to show that
Gray or either of them had any fraudulent
n making the assignment, or that Fink had
3ction with, knowledge or information of, any
t purpose of assignors, if any there was.
el. Levi v. Alder, 97 Mo. 413; Hausmann v.
ra; Crow v. "Beardly, 68 Mo. 435. (3) The
it being free from fraud in its inception, no
it acts or declarations made by the parties
ill invalidate it. Douglass v. Cissna, 17 Mo.
Winn V. Madden, 18 Mo. App. 261 ; Goodwin
0 Mo. 276; Bascomv. Rainwater, 30 Mo. App.
The assignee's possession of the goods at the
e levy was presumptive evidence of title which
(butted by plaintiflE. Vogel v. City of St. Louis,
ipp. 116; State exrel. v. Hope, 88 Mo. 430;
Marks, 20 Mo. App. 369; Phillips v. Shall,
)p. 38. (5) Appellant cannot question Lang's
to make the assignment on behalf of his
copartner, Gray, is the only one who could
issue. Eppright v. Nickerson, 78 Mo. 482;
Ulingwood, 86 Mo. 273; Descombes v. Woods,
)2; Hughes v. Ellison, 5 Mo. 463; Drake v.
Mo. 317; Hutchinson v. Green, 91 Mo. 376.
stimony that he had special authority from
Digitized by VjOOQIC
OCTOBER TERM, 1893,
Rook Island Plow Co. v. Lang & Gra
Gray to make the assignment is clear a
The Blank & Bro. Candy Co. v. Walker
482. (6) The beneficial interest in
assigned passed to, and vested in, the cre(3
ery of the deed of assignment. Plaintifl
the assignment before its suit was brouj
deed was not recorded before the levy wi
no difference. Winn v. Madden, supra
Frank, 37 Mo. App. 272. (7) The assi
accepted the trust and covenanted ''to
form the duties of assignee" by signing '
erts V. Moseley, 51 Mo. 282; Eindleman
Mo. App. 375, at p. 381. (8) Facts rel
estoppel in pais must be specially pie;
plaintiff did not set up in its answer th
relied upon as an estoppel they will not ]
ered. Miller v Anderson, 19 Mo. App
Bray v. Marshall, 75 Mo. 327; Noble v.
235, at p. 242.
UiLL,J.— On April 16, 1892, the plai
pany commenced an attachment suit agai
Lang & Gray, and had the sheriff levy
hardware and farming implements at th(
in Carroll county. In due season rei
interpleaded, claiming the goods by virti
assignment made and delivered to him b
April 15, the day preceding the attachn
of this issue between the plow company
alleged assignee, the jury under a perer
tion from the court found for the interplc
a judgment in accordance with the verd
has appealed.
I. It will be seen from the foregoii
ment that this controversy is betweei
attaching creditor, and the interpleader,
Vol. 55—23
Digitized by VjOOQIC
55 MISSOURI APPEAL REPOBTS,
Rock Island Plow Co. v. Lang & Gray.
s under a voluntary assignment executed in point
me prior to the attachment. At the time the
ff seized the goods the store and its contents
in the exclusive possession of the assignee.
PlaintiflEs attacks the assignment, first, because it
in fact only executed by Lang, one of the alleged
nors— that Gray, the other partner, did not join in
nstrument. This objection is fully met by the show-
hat Lang, in making the assignment for and in
If of the firm, acted with full authority from Gray.
?ms that Lang lived at Hale, where the firm did
less; that Gray resided at St. Charles, Missouri,
:hat before making the deed of assignment the two
lers consulted over the condition of the firm's
less and Lang was unquestionably authorized by
to make the deed of assignment for the firm.
}r the authority, then, of Blank <&Bro. Candy Co. v.
:er, 46 Mo. App. 482, the assignment was valid,
dere held, that, though one partner was not author-
by virtue of the copartnership relation alone, to
) a voluntary assignment for the firm, yet he might
with the express assent and direction of the other
bers. More than this, it seems that the plaintiflE
3t object to this alleged want of authority in Lang
ike the assignment for the firm of Lang & Gray.
ng as Gray does not object, creditors have no right
)mplain. This seems to have been the ruling
le supreme court in Eppright v. Nickerson, 78
t82.
The further point is made that, as the attachment
evied before the deed of assignment was filed for
d in the recorder's office, the title had not paissed
3 interpleader, and that, therefore, plaintiflE has a
ior right to the assignee. This point, too, must
led against the plaintiflE. The evidence discloses
;he deed of assignment was duly executed on the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 355
Bock Island Plow Co. v. Lang & Gray.
morning of April 15, was delivered to Fink the assignee
the afternoon of that day; that he, after affixing his
signature and thereby manifesting his aqceptanee of
the trust, went into immediate possession of the stock
closed the store and posted a notice on the door — and
of all this the plaintiflE had full knowledge before suing
out the attachment. The assignment then w ;o
such creditor with knowledge of the facts c^ 3,
and the title as to it was in the assignee. It was so
ruled by this court in Winn v. Madden, 18 Mo. App.
261.
The further assault made on this assignment
because of fraud, we consider without any merit. The
only basis for this charge which we can discover from
reading the testimony comes from the vacillating con-
duct of Lang, the assignor, when, at the request of the
assignee, he went to Carrollton to place the deed of
assignment on record. It seems that after executing
the deed and placing Fink in possession of the store,
Lang, at Fink's request, went to the county seat to file
the instrument in the proper office. On arriving there he
was by plaintiff's agent inveigled into some delay; was
induced to consider the propriety of making a deed of
trust, etc., so that about twenty-four hours was passed
before the deed was deposited for record. In the mean-
time plaintiff's agent took advantage of the delay and
sued out the attachment. There was not in all Lang's
conduct anything which tended even to show that he
was contemplating any fraud or advantage over his
creditors. The delay, under the circumstances, all came
from suggestions of plaintiff's agent, who was striving
apparently to secure an advantage over the other cred-
itors. It was Lang's desire, clearly, to save his property
for the joint benefit of all creditors and not permit it to
go to the exclusive use of one. In this the law will pro-
tect his acts.
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
The State of Missouri v. White.
:her was there any conduct on the part of the
that should estop him in making a claim to
ods. The sheriflE was not induced to act, or to
ction, because of anything said to him by Fink
went to Hale to attach the goods. Besides, this
question in the case, for the reason that no
was pleaded.
our opinion there was nothing at the trial
n tended to overthrow this assignment; the
roperly directed a verdict for interpleader,
judgment is therefore aflSrmed. All concur.
TE OP Missouri, Appellant, v. Daniel White,
Respondent.
Lsas City Court of Appeals, December 4, 1893.
nation: filing of complaint. If an information discloses
aoe that it is not made upon "the knowledge^ information or
of the prosecuting attorney, but upon the complaint, either
ifore a justice or delivered to the prosecuting attorney, it must
me case be founded upon such complaint, and in the other
»anied by it, or otherwise the information should be quashed.
ilTH, P. J.)
; : PROSECUTING ATTORNEY. The prosecuting attorney
ot only the position of the attorney general or solicitor general
and, by virtue of which he may institute a criminal informa-
his will, without the oath of himself or the affidavit of a
%Ttj, but also the position of the coroner as well, whereby he
B an information at the suggestion or instigation of a private
in the shape of an affidavit, such affidavit should contain all
I necessary to criminate the defendant, and should be returned
urt with information so that the defendant and the court may
sufficiency and that the information follows it.
from the Sullivan Circuit Court. — Hon. W. W.
RucKER, Judge.
D.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 357
The State of Missouri v. White.
B. F. Pierce^ J. W. Clapp and D. M. Wilson for
appellant.
(1) The validity of the information, sufficient in
form and substance, and signed by the proper officer,
is not affected by appending to it the affidavit of the
prosecuting witness. State v. Zeppenfield^ 12 Mo. App.
573; State v. Buck, 43 Mo. App. 443. (2) Where the
sworn complaint of one having actual knowledge of the
commission of an oflEense is deposited by him with
the prosecuting attorney, it is not necessary for it to
accompany the information and be filed with the
justice. The prosecuting attorney has the right to
retain it in his possession, if he so choose, and a refer-
ence to it in the information is sufficient. Revised
Statutes, 1889, sec. 4329; State v. Fletchall, 31 Mo.
App. 297; State v. Humble, 34 Mo. App. 343; State v.
Hatfield, 40 Mo. App. 358. (3) A prosecuting attor-
ney has the constitutional right to file of his own motion
an information before a justice of the peace, independ-
ent of, and if need be, in opposition to, any statutory
requirements. He is the sole judge of what misde-
meanors he will prosecute. He is not bound to disclose
where he obtains his knowledge. His power remains
as at common law and without control ; and any act
of the legislature that attempts to restrict his rights, or
to prescribe the manner of -his using them, or that
requires him to disclose the source of his knowledge of
the commission of a crime is unconstitutional. State
V. Ransbergery 42 Mo. App. 466; State v. Fletchall, 31
Mo. App. 27; Ex parte Thomas, 10 Mo. App. 24. (4)
If the law, however, requires the affidavit of Robert
H. Burrus to be filed with the justice, it is submitted
that that requirement has been complied with, within
the meaning of the statute. The information has
appended to it, the affidavit of Burrus that the facts
Digitized by VjOOQIC
358 55 MISSOURI APPEAL REPORTS.
The State of Missouri v. White.
set out in the information are true. That affidavit
accompanied the information and was filed with it.
The information can, therefore, be well said to be
founded on that affidavit, and is a substantial compli-
ance with the statute.
Jno. 31. Swallow and Childers Bros, for respondent.
(1) The motion to quash was aimed at the infor-
mation. The information was not good at common
law, nor under the statute. Revised Statutes, 1889^
sec. 4329; State v. Eansberger, 106 Mo. 135; State v.
Harris J 30 Mo. App. 82 ; State v. Bistig, 30 Mo. App.
360; State v. Hatfield, 40 Mo. App. 358; State v. Buck,
43 Mo. App. 443; State v. Shaw, 26 Mo. App. 383;
State V. Davidson, 44 Mo. App. 513; State v. Davidson,
46 Mo. App. 9; State v. McCarver, 46 Mo. App, 650;
State V. Webb, 47 Mo. App. 599. (2) The information
shows that it was based on an affidavit ; the affidavit
indorsed thereon does not charge an offense. No other
affidavit was filed with the justice. The justice had no
jurisdiction for the reason that the record was incom-
plete without the affidavit of Burrus. The justice having
no jurisdiction, the circuit court could acquire none
by appeal. No consent of the party accused can give
the justice jurisdiction. 1 Bishop on Criminal Prac-
tice [3 Ed.], sees. 316, 893 and 1350. (3) The affi-
davit made by Burrus and filed with the prosecuting
attorney, should have been filed with the justice and
made a part of the record. State v. Harris, 30 Mo.
App. 82; State v. Shaw, 26 Mo. App. 383; State v.
McCarver, 47 Mo. App. 650; State v. Davidson, 46 Mo.
App. 9; State v. Foey, 53 Mo. 336. (4) Section 4329,
Revised Statutes, 1889, does not hamper the prosecuting
attorney. We think that section, clearly defined,
Bimply means that whenever he has knowledge of the
Digitized by VjOOQIC
OCTOBER TERM, 1893.
The State of Missouri v. White.
commission of an offense, then he basis his
on his own knowledge. But if ^n aflSdavit
to him, he makes information, not of his
edge, but upon aflBdavit, and that alBB
accompany the information. If the info
made of his own knowledge, then there :
complaint. State v. Buck, 43 Mo. App. 44^
Smith, P. J. — It appears from the reco:
that one Burrus made a complaint verified
before a justice of the peace, setting forth
White had committed an assault and bfe
which said complaint was delivered to the
attorney of Sullivan county, the county
offense was alleged to have been comm
prosecuting attorney thereupon filed with i
the peace having jurisdiction of the off ens
mation charging upon * 'information, based
davit of Robert H. Burrus, that Daniel W]
day of February, 1893, at Sullivan c<
souri, on the said Robt. H. Burrus unlawful
an assault, and him, the said Burrus, thei
unlawfully did strike, beat, wound and ill
other wrongs to him, the said Burrus, the
unlawfully did, against the peace and dig
state. B. F. Pierce,
'^ Prosecuting At
''Robert H. Burrus, being duly swori
the facts stated in the within information a
''Robert E
"Subscribed and sworn to before me, tl
of April, 1893.
"S. M. Gr]
The information, it was admitted, was
panied by the complaint made by Burrus, n<
the justice, but was retained by the proseci
ney.
Digitized by VjOOQIC
URI APPEAL REPORTS,
I
State of Missouri v. White. j
t, having been convicted on the
the justice, prosecuted his appeal to
here he filed a motion to quash the
the ground that it purported to be
^it of one Robert Burrus and not on
)rmation or belief of the prosecuting
in fact, no such complaint was filed
^ore whom the case was pending, as
The motion was sustained by the
nt entered accordingly, from which
led here.
that the single question which we
ide is, whether the objection to the
le prosecuting attorney had not filed
ilaint that had been delivered to him
ilidity. It will be further seen by
329, Revised Statutes, that it is there
m any person has actual knowledge
3 been committed that may be pros-
ion, he may make complaint verified
mation before any oflScer authorized
LS, setting forth the offense as pro-
»n, and file the same with the justice
ng jurisdiction of the offense, or
le prosecuting attorney, andwhen-
g attorney has knowledge, informa-
: an offense has been committed,
5tice of the peace in his county, or
thereof by complaint made and
aforesaid, he shall forthwith file an
L justice having jurisdiction of the
on or accompanied by such complaint,
laiv, 26 Mo. App. 383, it was held
laint be filed with the justice or
Digitized by VjOOQIC
**;: OCTOBER TERM, 1893. 361
The State of Missouri v. White.
•deposited with the prosecuting attorney, the latter
officer cannot file an information unless it be based
upon his own knowledge, information or belief. And
when such complaint be deposited with the prosecuting
attorney, the information when filed must be accom-
panied by it. This seems to us to be a fair interpre-
tation of the import and meaning of the language of
the statute. Any other construction of this statute
would render its requirement wholly nugatory. So
that if an information disclose on its face that it is not
made upon '*the knowledge, information or belief of
the prosecuting attorney, but upon the complaint, either
filed before a justice or delivered to the prosecuting
attorney, it must in the one case be founded on such
complaint and in the other accompanied by it.
As to what effect an insufficient complaint would
have upon a sufficient information, is a question that
does not arise in this case, as the complaint is conceded
to be sufficient. But since the complaint, though valid,
did not accompany the information as required by
statute in such case, we think the circuit court did not
err in quashing it.
The judgment will, therefore, be affirmed. All
concur.
SEPARATE OPINION.
Ellison, J. — One of the contentions urged here
by the state is, that since, as was decided in State v.
Bansberger, 42 Mo. App. 466; s. c, 106 Mo. 135, the
prosecuting attorney may at his own discretion and
will, without oath or affidavit of a third party, file
an information against an accused, the fact that
an affidavit was made in this case and is referred
to in the information may be rejected as mere
surplusage, the information being sufficient, as is
contended, without an affidavit. It is true that the
Digitized by VjOOQIC
EEPOitTS,
Vhite.
) constitution is the
d as such the prose-
respect, the position
general of England,
on at his will, with-
Lvit of a third party ;
e referred to. This
and to be the law
grant leave to the
ition (which he said
the court) on the
; wholly within the
1 he should exercise
Burr. 2089; Rex v.
aformation by the
il without oath, and
information known
also an information
itself,'' filed by the
office (the standing^
. the king's namie,
. the aflBdavit of a
08, 309; Bacon on
Qal Law, 856, 858;
ne, 541; Begem v,
renting attorneys in
y be said to perform,
general or solicitor
3wn oflBcer as well,
ion at the suggestion
in the shape of an
When he thus acta
the substance of
1 matters necessary
. Chitty's Criminal
Digitized by VjOOQIC
OCTOBER TERM, 1893.
The State of Missouri v. White.
Law, 858. And so we decided in State v
Mo. App. 94, and State v. Davidson, 46 ]
This being true, how is it to be know
affidavit upon which the state's attorney hi
base the prosecution, is sufficient unless it
In the case at bar the prosecuting attorney
information that it is based upon the affida\
Burrus, and yet the affidavit itself is not f
and its sufficiency cannot be known by th
or the court. The affidavit, if produced, a
show the commission of a crime or mi
indeed, its allegations might state the par
of that with which it attempts to charge hi
The prosecuting attorney for good reas
desire to exercise his power and discretio
motion the machinery of the criminal 1
being moved thereto by some complainan
the responsibility may rest if the prosecu
prove to be merely the result of mistake (
be otherwise ill founded, and on whom th<
be fastened as is provided in sections ^
4358, Revised Statutes, 1889.
It is therefore clear that when the
attorney chooses to base the information u]
davit of an individual, such affidavit mus
information to be well based — must set
offense charged — and, that it may seem th
been done, it must be in court as provi(
statute.
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Harding v. Manard.
ARDiNG, Respondent, v. Daniel H. Manard,
Appellant.
} City Court of Appeals, December 4. 1893.
e Practice: evidence: instructions. Where the two
the parties supported by evidence are submitted to the
tractions covering in the clearest manner both theories,
nt is in no condition to complain.
ons: WAGERING CONTRACT. Instructions relating to a
9 and presenting the issue of a wagering contract are set
proved in the opinion.
UVERY OP POSSESSION. If the vendor agrees to transfer
;e property in the thing to the vendee for a money price,
t is complete and binding, the vendee is entitled to the
ittel and the vendor to the price ; and no actual, manual
possession is necessary.
: BAILEE. When the goods are in the possession of a
ibsolutd sale confers an immediate and valid title upon the
without any formal delivery of possession ; and the bailee's
becomes the purchaser's possession.
m the Linn Circuit Court, — Hon. Gt. D.
Burgess, Judge.
(& Johnson for appellant.
e hog transaction between the parties was
Bring agreement. No delivery of the pos-
;itle to the hogs was ever intended under
>f the contract, to pass from Harding to
^he suit is brought for the difference only,
I contract price of $4.10 per hundred **home
id the amount the hogs brought in Chicago.
acts are void. Johnson v. Kaune, 21 Mo.
ockrell v. Thompson^ 85 Mo. 510; Williams
Digitized by VjOOQIC
OCTOBER TERM, 1893. 365
Harding v. Manard.
V, Tiedeman, 6 Mo. App. 275; Kent v. Mittenl
Mo. App. 507; Buckingham v. Fitchj 18 Mo.
3 American and English Encyclopedia of L
Wagering Contracts, bottom page 873, ar
Tiedeman on Sales, sec. 302, bottom pages
and notes. Crawford v. SpeMcer, 92 Mo. 49J
V. Fonda, 44 Mo. App. 634, 644,645; Hayden
35 Mo. App. 418. (2) Respondent's instruct
ber 1 tells the jury that if $10 earnest money
to bind the bargain, then the contract of saU
was valid — ^wholly ignoring the questions of
and manner of settlement, and all other
involving the validity of the contract relied
earnest money of $10 could only take the ca
the statute of frauds; but would not make
contract void as against public policy. The
of good faith and intention ought to have I
mitted to the jury. Wright v. Fonda, sup\
instruction given excludes from the jury tl
raised on the evidence by the other side ; and
an issue as to earnest money not in dispi
instructions given for appellant does not cure
Ellis V. Wagner, 24 Mo. App. 407; Hayner v. (
29 Mo. App. 676; Singer Company v, Eudso
App. 145; State v. Neuert, 2 Mo. App. 295;
V. Trumbe, 52 Mo, 35; Budd v. Hoffaker, 52
Porter v, Harrison, 52 Mo. 524; State v. Rai
Mo. 472; Jones v. Jones, 57 Mo. 138.
A. W, Mullins for respondent.
(1) The contract between plaintifiE and d
was legal and valid. The payment of $10 bj
ant to plaintiflE in part payment of the purcl
of the hogs and to bind the bargain, full
requirement of the statute (sec. 5187, p. 1258
1889), to give validity to the sale. And, in
Digitized by VjOOQIC
3URI APPEAL REPORTS,
Harding v. Manard.
)f the property, actual delivery thereof
ing to the defendant Manard was not
saiy. Tiedeman on Sales, sec. 84;
, 25 Mo. App. 428; Nance v. Metcalf,
; Martin v. Ashland Mill Co., 49 Mo.
V, Arthur J 61 Mo. 386; Williams v.
) Mo. 201; Cunningham v. Ashbrook,
ing V. Turner, 2 Johns. 13, 16. (2)
ed his stock in charge of J. J. Botts
who in his own name had forwarded
id for the Chicago market. Under
Lces the plaintiff sold the hogs to
rell settled rule of law is that: **When
he possession of a bailee or agent of
apleted or absolute sale confers an
ilid title to the purchaser without any
of the possession; the possession of
t then becomes that of the purchaser,
merely as a transfer of a right of
the goods themselves." Erwin v,
llgear v. Walsh, 24 Mo. App. 134, 144 ;
Watson, 22 Mo. App. 546, 652, 553;
s' AdmW, supra.
jfendant Manard has appealed to this
dgment against him for $70.38, an
lie plaintiff Harding on a sale of one
mteen hogs. The evidence discloses
E facts: On the evening of April 4,
10 was a Linn county farmer, brought
iville and the same were shipped to
name of Botts a regular dealer and
On April 6, while the hogs were in
greed with Harding for the purchase
rate of $4.10 per hundred, a<5Cording
point of shipment, less whatever the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 367
■■ ■
Harding v. Manard.
hogs might be '^docked" at Chicago, and defendant
paid $10 to bind the bargain. It was agreed that
Botts should dispose of the hogs at Chicago and account
to Manard for the proceeds. Botts was immediately
informed of Manard's purchase and of his duty to turn
over the proceeds to Manard. When the hogs were
sold in Chicago, Botts did account to Manard, and by
Manard's direction the net amount received from the
Chicago sale was paid over to Harding. The aggre-
gate weight of the hogs at the place of shipping, less
eighty- pounds **dockage" at Chicago, was sixteen
thousand, three hundred and seventy-five pounds.
This multiplied by the agreed price of $4.10 per hun-
dred amounted to $671 .37. Deducting from this the $10
advanced and the Chicago draft of $590.99, which, bv
order of Manard, Botts had turned over to Harding,
left a balance due the plaintiff of $70.38, which defend-
ant refused to pay and for which this suit was brought
with the result above stated.
The defendant seeks to escape liability on the
charge that the agreement had between him and the
plaintiff was a wagering contract, and such as the courts
will not enforce. It is claimed by Manard that it was
not the intention of Harding and himself, of the one to
sell, and the other to buy, the car load of hogs, but
that it was a mere gambling on the fluctuation of the
market at Chicago.
Admitting now that there was some evidence to
sustain defendant's contention, and yet he is in no
condition to complain here. The two theories, to-wit,
of actual bargain and sale of the hogs as is claimed by
Harding, or that it was a mere wagering agreement, as
asserted by Manard, were, on instructions sufficiently
favorable to the defendant,^ submitted to the jury, and
they have found for the plaintiff. The court gave two
instructions, covering in the clearest manner both
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Harding v. Manard.
The jury were told, in the first place, that if
i that on April 6, 1892, the plaintiflE con-
d sold to the defendant a car load of hogs
intiflf had shipped to Chicago at the price of
hundred, according to the weight at Mead-
re they were shipped); that defendant paid
e of the contract $10 to bind the bargain, and
pay the remainder of said contract price
; but that defendant had failed and refused
) the extent and amount of $70.38, then the
lid find for the plaintiff for said amount,
ver defendant's theory of the case the court
id the jury, **that although the alleged con-
een plaintiff and defendant was apparently,
I, for the purchase of the hogs at the price
3r hundred pounds; yet, if they further find
le evidence that the trade, in reality, was by
s intended to be only a speculation in the
;he hogs in the Chicago market; and that
es understood and intended, at the time of
e alleged contract, that the plaintiff was not
, nor defendant to receive, the possession
s ; but that the hogs should be sold in Chicago
ff's commission man, and that the parties
in settle the transaction by the payment, the
other, of the difference between the net price
the hogs should be sold in Chicago, and the
hundred pounds, or that the defendant
J plaintiff such difference in case said hogs
t less than the $4.10 per hundred pounds,
ler find from the evidence that the sum
this action is for such difference, then the
annot recover, and the verdict must be for
lant."
last instruction was most favorable for the
It presented for decision every fact upon.
Digitized by VjOOQIC
w*^pf^
OCTOBER TERM, 1893.
Harding v. Manard.
which defendant could ground a defense. No
mf^nual delivery of the hogs to the defendant w
essary to the transfer of title as between the cont
parties. If the vendor agrees with the vendee t<
fer the absolute property in the thing to the ven
a money price, the contract is complete and bine
the parties. The vendee becomes entitled to tl
cific chattel, and the vendor has a right to th
'agreed upon. Nance i\ Metcalfj 19 Mo. Apj
Hamilton v. Clarky 25 Mo. App. 436; Tieden
Sales, sec. 84.
And again, as was said in Erwin v. Arthur j
387: *'When the goods are in the possession
bailee or agent of the seller, a complete or a
sale confers an immediate and valid title to tl
chaser without any formal delivery of the poss
The possession of the bailee or agent then b
that of the purchaser, and operates not mere]
transfer of a right of action, but of the goods
selves.'^ Hence it follows that when Hardin
Manard agreed upon terms of sale of hogs, whic
then in possession of Botts (Harding's bailee or i
there was an immediate transfer of title, and
possession became that of the vendee, Manard.
This cause seems to have been fairly trie
verdict and judgment jfinds ample support in tl
dence, and we will not, therefore, disturb it. Juc
aflBrmed. All concur.
Vol. 55—24
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
At wood V. At wood.
Atwood, Respondent, v. Maby A. Atwood,
Appellant.
U9 City Court of Appeals, December 4, 1893.
ractice: order op publication: affidavit: presubip-
hen a court of general jurisdiction has jurisdiction over tha
atter, it will be presumed that in acquiring jurisdiction over
1 it has acted correctly; and an order of publication reciting
ppearing to the satisfaction of the clerk that defendant was
lent/' a sufficient affidavit will be presumed.
contradiction OF: PAROL EVIDENCE. Though the recital
or matter of fact in a record, order or judgment will not
the face of the thing itself, which being produced shows
ry, yet in the absence of such production^ the record cannot
iicted by a witness' memory of the contents of the absent
m the Buchanan District Court. — Hon. A. M.
Woodson, Judge.
(& Varies for appellant.
t is necessary that order of publication
;e grounds upon which it is based. Wade
[2 Ed.], sec, 1055; Patteson's Missouri Form
182. (2) In all cases where constructive
lad in lieu of that which is personal, there
strict compliance with statutory provisions
ions. Schell v. Lelandj 45 Mo. 292; Palmer
?r, 33 Pac. Rep. 132 ; Brown on Jurisdictions,
Charles v. MorroWy 99 Mo. 638, and cases
Ipin V. PagCj 18 Wall. 350. Settlemeir i\
7 U. 8. 449. (3) The recitals in order of
I, **It appearing to the satisfaction of the
Digitized by VjOOQIC
OCTOBER TERM, 1893,
AtwoodV. Atwood.
<5lerk the defendant is a nonresident, el
presumption that legal evidence of noD
produced; but when the entire record
contrary, the presumption is overcome
ceeding void. Manning v. Heady ^ 64 Wig
V, Cincinnati, 18 Ohio, 331. (4) It t
<?laimed that either petition or aflSdavit st;
cient to obtain order of publication on g
residence, and this being so, there beij
.sustain order, decree is void. Higgins v,
Mo. 462. (5) As the recital of perso
judgment or decree may be overthrow]
trolled by the return of service made
the recital m decree of publication is
order of pjiblication itself, ai:id the recit
publication is conclusive as to gi'ounds
as much so as recitals of personal serv
€loud V. Inhabitants, 86 Mo. 357; Adi
95 Mo. 501. As to return by sheriflE.
roadj 83 Mo. 617; Decker v. Armstrong,
Affidavit must conform to and support or
tion. Palmer v. McMaster, 33 Pac. Rep
on Jurisdiction of Courts, sec. 51 and ot
Sherwood (& Allen for respondent.
(1) The first assignment of error c
i:ained. If witness Martin's evidence w
of course no complaint can be made
Martin's evidence was incompetent, st
sitting as a court of equity, did not err in
it. Davis V. Kline, 96 Mo. 401; Bush
Mo. App. 8. (2) If not concluded b
statutes, if the decree is impeached,
impeached by the record. Evidence deh
ivill not do in a divorce judgment in thi
Digitized by VjOOQIC
^
rRI APPEAL REPORTS,
Atwood V. Atwood.
Childs V. Childs, 11 Mo. App. 398.
I, with respect to this aflSdavit, does
ree, even if not a divorce judgment.
\, 97 Mo. 179, cited and approved
. Sparks, 22 S. W. Rep. (Mo.) 902.
Mo. 18 'y Peacock V. Bell, 1 Saunders,
, 17 Wend. 486; Cloud v. Pierce
'mith V. Smith, 48 Mo. App. 612.
not do to impeach a decree of
Childs, supra; Bascom v. Bascom,
126. The modern rule is one of
he trial court. Leonard v. Sparks,
3.) 899; State v, Dugan, 110 Mo.
Marriage, Divorce and Separation,
'. Lanigan, supra; Gates v, Tiisten,
timony of witness S. M. Carson
7Q or disprove anything, even if
in this case. The evidence must
ve. 2 Bishop on Marriage, Divorce
1561.
ef end ant filed a motion to set aside
) of divorce rendered in plaintiff's
The motion was heard by the court
■endant appeals.
the divorce was granted near two
this motion, and that in the mean-
gain maiTied, It further appeared
^ nothing of the divorce proceed-
fore filing her motion,
•f divorce was founded upon a good
on. The service was by order of
letition itself was silent as to the
nonresident, or being beyond the
)cess. An order of publication was
)f the circuit court for Buchanan
Digitized by VjOOQIC
OCTOBER TERM. 1893. 373
Atwood V. Atwood.
county in vacation. The order as entered by the clerk
stated that: *'It appearing to the satisfaction of the
clerk of this court that said defendant, Mary A. Atwood,
is a nonresident of the state of Missouri, and does not
reside therein, it is ordered that said nonresident defend-
ant be notified by publication, as required by law, that
said plaintiflE has commenced his suit,'' etc. A proof of
publication, in accordance with the order, was shown to
be with the record files. The decree itself was silent as
to such proof. No aflBdavit for order of publication
was found upon the record books or among the papers
in the cause. The clerk stated in testimony that the
petition and order of publication he believed to be the
only papers filed in the cause, though there might
have been an affidavit filed and afterwards lost ; that
he had no personal recollection of the matter, and
only testified from the records produced, and his
custom and manner of performing his duties as clerk.
The attorney who acted for plaintiflE in obtaining his
divorce was introduced as a witness, and testified
ttiat he wrote, and saw plaintiff swear to, an affidavit
for order of publication before the clerk ; that the affi-
davit stated, in substance, as ground for the order, that
the defendant ^^had concealed herself from his knowl-
edge in such a way that it would be impossible to get
legal process upon her.''
The point of attack on the decree is, that there was
no affidavit authorizing the order of publication we have
recited above, and that, therefore, the court rendering
the decree was without jurisdiction of defendant.
The fact that no affidavit was found upon the
record, or among the papers, is not conclusive, by any
means, in an attack upon a judgment depending upon
such affidavit for its validity, that none had ever been
filed. When a court of general jurisdiction has juris-
diction over the subject matter, it will be presumed
Digitized by VjOOQIC
\
JOURI APPEAL REPORTS,
Atwood V. Atwood.
ter of acquiring jurisdiction over the
ted correctly. As, **if a statute require
.vit to be filed prior to the rendition
vill be presumed, in the absence of any
)wing upon the subject, that such affi-
'' Freeman on Judgments, sec. 124.
, with approval, by Black, J. , in Adams
\. 501, a case where no affidavit for an
tion was shown by the record. In this
: publication leaves the inference that
filed; it recites that, *4t appearing to
Df the clerk of this court, that defend-
resident of the state of Missouri.'^
an oflficial act is shown to have been
ar substantially regular, formal requi-
lidity of the act are constantly pre-
\s V. Cowles, supra. The foregoing
E defendant's case as made out by her.
be claimed that an affidavit was shown
de, and that it was insufficient to sup-
n that it alleged concealment so as to
ice of process, whereas the order recites
[t is true that it may be affirmed as a
the recital of a thing or matter of fact
ir or judgment, will not control in the
? itself, which, being produced, shows
{ut in this case the affidavit itself was
Only the testimony of a witness as to
tcoUect of the affidavit. This the court
aing the fact, to be insufficient, and we
for interfering with that conclusion,
made as to the court's action in admit-
rat to which no exception was saved.
he opinion that the trial court made a
»n of the motion, and we will affirm the
concur.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 375
Holschen v. Fehlig.
J. H. Holschen, Appellant, v. Fbank Fehlig,
Eespofident.
St. Loiiis Court of Appeals, December 5, 1893.
The Evidence in this cause is considered, and is held not to indisput-
ably establish a right on the part of the plaintiff to recover.
Appeal from the St. Louis City Circuit Court. — Hon.
J. A. Habrison, Special Judge. '
Apfirmed.
Robert L. McLaran for appellant.
C A. Schnake for respondent.
Rombauer, p. J. — The plaintiflf, who is a real
estate agent, sued the defendant for commissions
which he claimed to have earned in the sale of defend-
ant's house. The court tried the cause without a jury
and rendered a judgment for the defendant. The plain-
tiff assigns for sole error in this court that ^^there was
no substantial evidence to support the judgment. '^
The burden of proof in this case was with the
plaintiff; hence an assignment of error, that '^there
was no substantial evidence to support a judgment for
the defendantj^^ involves a contradiction in terms. We
have, however, treated the assignment as if it intended
to charge that the plaintiff was entitled to recover on
the undisputed facts. With that view, we have read
over the evidence, and find that the facts are contro-
Digitized by VjOOQIC
376 55 MISSOURI APPEAL REPORTS,
Weil V. Willard.
verted throughout. The plaintiflE gave evidence tending
to show that he was the j)rocuring cause of the sale.
The defendant gave evidence tending to show that not
the plaintiflE, but a third person, was the cause; and,
moreover, that the defendant had paid commissions to
such third person upon plaintiflE's disclaimer of them.
It must be evident that the 'finding of the trial court in
that state of the record cannot be disturbed, and that
no question of law is presented for our consideration
on this appeal.
All the judges concurrii^g, the judgment is
aflSrmed.
Julius Weil, Appellant, v. W. Q-. Willabd,
f 55 3761 Respondent.
55 370'
,wj97( St. Louis Court of Appeals, December 6, 1893.
65 376'
-^ — s^' Statute of Frauds: memorandum op sale op land: supplving depi-
94 621 ciency by parol evidence. The memorandum of a contract for the
66 — 876^ **^® ^^ ^^^^ ^® insuflBcient under the statute of frauds, if the land
97 166 cannot be identified from its terms, aided by its references to external
97 164 standards of description. To have the effect of identification, the
98 270 external standard thus referred to must have been known or existing
at, or before, the making of the contract; a provision merely for future
occupancy will not suffice. Nor can the failure of the memorandum
to thus definitely locate the land be obviated by parol evidence.
Appeal from the St. Louis City Circuit Court. — Hon. J.
A. Harrison, Special Judge.
Affirmed.
Sale & Sale for appellant.
jR. B. Meriwether for respondent.
Bond, J. — This action is for a breach of the follow-
ing contract executed between the parties hereto, to-wit:
Digitized by VjOOQIC
OCTOBER TERM, 1893. 377
Weil V. Willard.
^'St. Louis, May 18, 1892.
''Received of W. O. Willard the sum of $50 in
part payment for a certain parcel of improved property
lying in city block number 258, and having a^ front of
twenty- nine feet on the east side of Tenth street by a
depth of one hundred and thirty-two feet, six inches,
which property is this day sold to him for the total sum
of $4,700, payable on terms of $1,000 in cash, and the
remainder in one year, with interest at five per cent,
per annum, payable annually, said deferred payments
to be secured by deed of trust. It is agreed by and
between the undersigned that the title to said property
is perfect and will be conveyed free from liens and
incumbrances, except as to taxes' for the year 1892,
which the undersigned purchaser agrees to pay. If,
upon examination, the title proves to be defective and
can not be made good within a reasonable time, the
sale shall be oflf and the earnest money returned.
''Agreed that Julius Weil have privilege to occupy
said premises for the period of four months or less, at
$30 per month rent, up to the time used.
"The said W. O. Willard is accorded twenty-five
days time from this date in which to have the title
investigated.
"Signed and sealed in duplicate by the parties
hereto, Wm. Gt. Willard. [seal]
"Julius Weil. [seal]''
The appellant alleges tender of performance of said
contract on his part, and refusal by the respondent to
accept such performance, whereupon the appellant
asked for damages in the sum of $750.
The answer of respondent was, first, a general
denial; secondly y a plea of the statute of frauds.
'The case was tried without a jury. The court gave
judgment sustaining the defense of the statute, from
which an appeal Was taken.' The only error assigned
Digitized by VjOOQIC
fg^^^^'-m^^f-
378 55 MISSOURI APPEAL REPORTS,
Weil V. Willard.
is the action of the court in holding the contract sued
on insufficient under the statute of frauds.
The statute in question invalidates all sales of land^
* ^unless the agreement * * * or some memoran-
dum or note thereof shall be in writing and signed by
the party to be charged therewith.'^ Revised Statutes,
1889, sec. 5186. The rule of construction of this lan-
guage is expressed by the supreme court in the follow-
ing terms.
**A11 the authorities are agreed that the memoran-
dum must state the contract with reasonable certainty,
so that its essential terms can be ascertained from the
writing itself without a resort to parol evidence.^'
Ringer v. HoUzclaWj 112 Mo. 522.
Accordingly, the law is that contracts required by
the statute to be in writing, unlike other written con-
tracts, can not, when incomplete on their facCj be aided
or completed by parol evidence. The reason of the
distinction is that contracts not required to be in writ-
ing would be good, if resting altogether in parol.
Therefore, when it is apparent that a part only of such
contracts have been reduced to writing, no rule of law
is contravened by the reception of parol evidence of the
remainder. On the other hand, if the contract is one
within the statute of frauds, and the agreement or
memorandum is incomplete or deficient as to any essen-
tial part thereof, parol evidence can not be received to
supply the omission, for this would nullify the terms of
the statute. Ringer v. Holtzclaw, 112 Mo. 523; Miller
V, Goodrich Bros. Banking Co.y 53 Mo. App. 430;
Rucker v. Harrington, 52 Mo. App. 481.
The only question made in this case is as to the
sufficiency of the description of the property contained
in the contract. The descriptive words are as foUoVs:
*'A certain parcel of improved property lying in city
block, number 258, and having a frfint of twenty-nine
Digitized by VjOOQIC
OCTOBER TERM, 1893. 37^
Weil V. Willard.
feet on the east side of Tenth street by a depth of
one hundred and thirty-two feet and six inches. ' ' This
description gives the frontage, depth, the side of the
street and the city block of an improved lot. ^ It does
not give the width of the entire lot, nor its location in
the block, nor its boundaries, nor its point of begin-
ning, nor the city or state wherein it is situated, unless
these may be inferred from the dating at the head of
the contract, to-wit, St. Louis, May 18, 1892.
A valid contract for the sale of land must so
describe it that it may be identified, or must refer to
some ''external standard" of description, whereby it
can be identified by extrinsic evidence. Fox v. Court-
ney, HI Mo. 150; Smith V. Shell, 82 Mo. 215; Shroeder
V. Taaffe, 11 Mo. App. 267, aflBiming King v. Wood,
7 Mo. 389; Briggs v. Munchon, 56 Mo. 474; Springer
V. Kleinsorge, 83 Mo. 152.
We do not understand appellant to claim that the
description, supra, of the .land sold by its terms identi-
fies the "land. But the contention is that in another
clause of the contract there is a reference to an exter-
nal matter, sufficient to describe and identify the land.
This clause is, to-wit: ''Agreed that said Julius Weil
have privilege to occupy said premises for the period of
four months or less, at $30 per month rent, up to time
used."
This clause does not in terms refer to an occu-
pancy of the lot in question as a residence by Julius
Weil before the making of the contract supra. Nor
does it stat^ whether he is in the future to occupy it as
a residence or a place of busiuess. It merely says, in
substance, that he is to pay $30 per month for the
occupancy thereafter of the lot sold to the respondent.
This adds no new feature to the previous description of
the lot set forth in the contract. A reference in the
contract to its future occupancy cannot aflEord an
Digitized by VjOOQIC
50URI APPEAL REPORTS,
Weil V. Willard.
d whereby to identify the boundaries
le lot of ground at the time of the mak-
ract. In order to have the effect of
and sold, the external matters referred
)se must be in themselves suflBciently
ist have been known and existing at
making of the contract. The clause
:ion is incomplete and deficient in not
that the lot sold was the one whereon
resided, or used in carrying on a par-
m business at the time of its sale. The
le or other equivalent statements was
I essential matter of description by
3e, and cannot be cured by parol evi-
e seen that contracts required by the
to be in writing cannot be pieced out
ssential statements omitted therefrom.
I supra. As is said by the supreme
ascription cannot be supplied altogether
writing must be a guide to -find the
tain suflBcient particulars to point out
the tract from any other.'' Fox v.
L bent of judicial opinion in this state
) statute of frauds. This purpose has
by the recent overruling of two cases
ndency. Ringer v. Holtzclaw, 112 Mo.
. Petzoldy 104 Mo. 409.
think there is either such a direct
;he lot sold in the contract, or such a
1 to external matters, as would * 'point
uish the tract from any other." We,
I the judgment of the trial court. All
Digitized by VjOOQIC
OCTOBER TEEM, 1893.
Burris v. Shrewsbury Park Improvement
Louis G. Burbis, Eespondeiit, v. Shre
Land and Improvement Company, -A
St. Louis Court of Appeals, December
1. Contracts: right of rescission. The breach
not warrant the rescission thereof by a party, if it
his own default.
2. : INDEPENDENT CONTRACTS. When a contra
ment to be made at a time which may happen bef<
nant of the payee is to be performed, such covenai
payment are independent covenants.
3. Practice, Appellate : judgment on agreed stj
When a cause is submitted to the trial court on ai
of facts, and the proper judgment thereon is a mere
it is the duty of this court to render such judgment
should have rendered, if that of the trial court is foi
Appeal from the St. Louis City Circuit
Daniel D. Fisher, Judge.
Reversed and remanded.
J. M. Holmes for appellant.
(1) A mere threat of noncompliance
before ,the time for compliance on his pa
will not , relieve the other party from a pe
tender of performance of his portion of
when such performance is a condition
such compliance. Daniels v. Newton, 11
(2) Plaintiff had no right to demand a
tendering notes secured by deed of trust
to fall due under the term of the contract.
Gittinffs, 19 Ohio, 347; Williams v. Hea
363; Gazley v. Price, 16 Johns. 267; Dum
4 Seld. 308; Lester v. Jewet, 1 Kan. 45
Mellier, 59 Mo. 526.
Digitized by VjOOQIC
MISSOURI At»PEAL REPORTS,
Burris v. Shrewsbury Park ImprovemeDt Co.
I (& Mott for respondent.
ifore appellant could rightfully forfeit the
b must have executed and delivered, or
execute and deliver, the warranty deed,
acing respondent in default. And this is
er the covenants be construed as dependent
ient. This, appellant never did. Gerrard
OMo. 161; Rector v. Purday, 1 Mo. 131;
'lemens, 7 Mo. 367; Grant v. Johnstofiy 5
Leonard v. Bates, 1 Black, 172; Kane v.
ick. 281. (2) Appellant's notification on
lat the contract was at an end and a fortiori
on April 29, to execute the warranty deed,
)ndent offered to execute and deliver the
deed of trust, and its further notification,
le, that it had forfeited the contract, and
dent had no further rights under it, was a
n of the contract, and gave respondent the
at it as at an end, and sue for a breach or to
money paid. Norrington v. Wright, 115 U. S.
ton V. Milling Co., 16 Q. B. Div. 460;
Afe Ins. Co. v. McAden, 109 Pa. St. 39;
ight, L. R. 7 Ex. 112; 3 American and
cyclopedia of Law, p. 904. (3) It was not
)r respondent to actually produce the notes
: trust. It was only necessary for him to
er to perform, and a refusal by appellant to
1 its covenant. Price v. Vanstone, 40 Mo.
Benjamin on Sales, sec. 592; Ibid, Bennett's
)9; Garred v. Doniphan, 10 Mo. 161; Denny
Mo. 450; Turner v. Mellier, 59 Mo. 526.
mt's covenant to make sidewalk and plant
3w of trees should have been performed
Lsonable time ; from November 24, 1890, to
892, was an unreasonable time under the
ses. '
Digitized by VjOOQIC
OCTOBER TERM, 1893. 383
Burris v. Shrewsbury Park Improvement Co.
Bond, J. — This suit was begun before a justice of
the peace to recover $110, paid by respondent under
the agreement hereinafter set forth, which was alleged
to have been broken by appellant.
The parts of the agreement (exhibit A) between
the parties to this suit, which bear upon their rights,
are as follows:
*'This is to certify that the Shrewsbury Park Land
and Improvement Company, a corporation, has, this
twenty-fourth day of November, 1890, sold to Louis Gt.
Burris, for the sum of four hundred (400) dollars, lot
number ten (10), block twenty-three (23), in fourth
subdivision of said park, in St. Louis county, Missouri,
upon the following terms: Cash paid at this time ten
(10) dollars, receipt of which is hereby acknowledged,
and the remainder, three hundred and ninety (390)
dollars, to be paid as follows, to-wit:
'•The sum of ten (10) dollars on the twenty-fourth
day of each month thereafter, ac the office of this com-
pany until one hundred (100) dollars has been paid, at
which time said company will execute a sufficient
general warranty deed, conveying said property to the
said purchaser; and he agrees to execute to said com-
pany thirty (30) notes for the deferred payments, each
for the sum of ten (10) dollars, payable monthly there-
after, and secured by a deed of trust, in the usual form,
on said property. Said waiTanty deed to contain the
following provisions, intended for the protection of the
purchaser. (Here follow certain clauses not necessary
to be set out. )
*'Said Shrewsbury Park Land and Improvement
Company hereby agrees at its own expense to pave
streets in front of said property with good substantial
macadam and gravel ; also to make sidewalks and to
plant a double row of good trees.
Digitized by VjOOQIC
384 55 MISSOURI APPEAL REPORTS,
. ' *
Burns v. Shrewsbury Park Improvement Co.
'*It is agreed that, if the purchaser shall not faith-
fully comply with the provisions of this contract, after
the lapse of sixty days from such failure this contract
shall become null and void without notice, unless a
further extension is obtained from an officer of the
company in writing, and that time shall be the essence
of this contract. '^
The trial of the case was had in the circuit court
upon an agreed statement of facts, viz. :
'4t is stipulated and agreed that the following
facts are to be taken as admitted in the above cause,
and the said cause is submitted upon this agreed state-
ment and the petition and pleadings filed in the justice
court.
*'That plaintiff and defendant duly entered into
the agreement hereto attached and marked exhibit
^*A" (contract supra).
**That plaintiff, in pursuance of the terms of said
agreement by him to be performed, paid defendant the
sum of $10 for each and every month after the date of
said agreement upon the twenty-fourth day thereof,
until plaintiff had paid and defendant had received
the sum of $100 in addition to the sum of $10 paid by
plaintiff, the receipt of which last sum is acknowledged
by defendant in said exhibit '*A,'' the last payment
being September 24, 1891.
^ 'That, on the eighteenth day of October, 1891,
plaintiff sent to Mr. Gorman, agent of defendant, the
following letter:
'St. Louis, October 18, 1891.
^Mr. J. E. Gorman:
'Dear Sir: — I am afraid I will not be able to keep np
my payment on lot. Is there any way I can get at least
part of the money back that I have paid in on it! Do
you think the company would pay me half what I
Digitized by VjOOQIC
OCTOBER TERM, 1893. 385
Barris v. Shrewsbury Park Improvement Co,
have paid in, and take it off my hands! Please see
what you can do about this matter, and let me know.
'Yours respectfully,
'L. Gt. BuRKis, 923 N. 19th 8t.^
''That on or about the tenth day of April, 1892,
defendant notified plaintiff that he was in default of
his payments under said exhibit ''A,'' and that unless
he continued said payments, it would declare said
exhibit ''A'' forfeited, and that all and singular the
several sums of money paid by him thereon would
become the property of defendant absolutely.
''That on or about the twentieth day of April,
1892, defendant told plaintiff that the agreement,
marked exhibit "A," had been declared forfeited by
defendant, and that the several sums of money paid by
plaintiff to it became thereby the property of defend-
ant, who refused to return the same or any part thereof
to plaintiff.
"That on or about April 29, 1892, plaintiff
demanded of defendant that it execute and deliver to
him a sufficient general warranty deed conveying the
premises described in exhibit "A,'' and that plaintiff
notified defendant that he stood ready, willing and able
to execute and deliver on his part to defendant twenty-
nine notes of $10 each for deferred payments, payable
monthly thereafter, and that he would duly execute
and deliver to defendant a deed of trust, in the usual
form, on said property, securing said notes, all in con-
formity with the requirements imposed upon him by
said exhibit "A,'^ but did not produce or tender such
deed or notes. That defendant then notified him
that it had long before that declared the said exhibit
"A,'' forfeited, and that plaintiff had no rights there-
under, and that it refused to execute and deliver said
warranty deed so demanded by plaintiff. Plaintiff
thereupon demanded of defendant a return of the said
Vol. 55—25
^ Digitized by VjOOQIC
386 55 MISSOURI APPEAL REPORTS,
Barris v. Shrewsbury Park Improyement Co.
several sums of money paid by him to it, which
defendant refused to do either in whole or in part.
''That plaintiff on said twenty-ninth day of April,
1892, demanded that defendant make sidewalks, and
plant a double row of trees in front of said lot as agreed
by the terms of exhibit ''A,'^ which defendant refused
to do, the fact .being at that date that the street in
front of said lot was paved with good and substantial
macadam and gravel, as required by the terms of the
contract, but the sidewalk was not laid nor were the
trees planted. . That at the time of said demand there
was no house on the street on which the said lot
fronted beyond said lot, and that said lot itself was
vacant.
''That said sidewalk since the institution of this
suit has been laid and said double row of trees
planted.
"That defendant at no time prior to the institution
of this suit ever executed and tendered to plaintiff a deed
for the property mentioned in exhibit "A.''
"That defendant did at the trial of this cause in
the justice court tender a good and sufficient warranty
deed to the property described in exhibit "A,'' and
tendered for his execution notes for the payments
called for by the terms of exhibit "A," which had not
been paid, together with a deed of trust, in the usual
form, securing the same, but plaintiff refused to accept
said deed or execute said notes and deed of trust. ^'
This case having been tried upon an agreed state
oif facts, it is our duty to apply the conclusions of the
law as if the facts stated had been found by a special
verdict. South Missotm Land Co. v. CombSj 53 Mo.
App. 298.
The cause of action filed by respondent before the
justice set forth the contract between the parties for
the sale of a lot of ground, supra^ alleging performance
Digitized by V7OOQIC
-p-sir
OCTOBER TERM, 1893. 387
Burris v. Shrewsbury Park Improvement Co.
by the respondent of all the provisions, etc., of the con-
tract, and, futher, a demand of a deed and tender of
notes and trust deed by the respondent, and failure of
the appellant to comply with said demand, and also
nonperformance on it^ part of other terms of the con-
tract, and a declaration by defendant on April 29,
1892, of a forfeiture to itself of payments made by the
i*espondent; wherefore respondent prayed for judgment
for said sums paid by him under said contract.
It is obvious that the respondent's action is predi-
cated on the assumption that the contract described in
his petition was rescinded, and that he was therefore
entitled to recover back the money paid thereunder.
Contracts under seal may be rescinded by an executed
parol agreement, or by an executory parol agreement,
provided the latter is founded upon a consideration.
Lancaster v. Elliott^ ante p. 249; Pratt v. Morrow ^
45 Mo. 404. Neither of these methods of rescission
was adopted in this case. The only grounds alleged
by respondent in support of his theory of a rescission
of the contract are: First. That on April 29, 1892,
he demanded a deed and offered his notes' and trust
deed therefor, and that the same was refused by appe-
lant. Second. That the appellant declared the contract
forfeited on April 20, 1892, and appropriated the pay-
ments made theretofore by the respondent under claim
of a right to forfeit said contract. Third. That appel-
lant unreasonably delayed compliance with its contract
obligation to make streets and sidewalks and plant
trees.
It is perfectly plain that, after the payment of ten
of the eleven installments of the purchase money, the
respondent was entitled to demand a deed to the lot,
and was bound to execute for it his notes and deed of
trust as prescribed in his contract. Nor did it affect
his obligation in this respect whether it was the duty of
Digitized by VjOOQIC
[ISSOURI APPEAL REPORTS,
ivris y. Shrewsbury Park Improvement Co.
offer the deed in the first instance, or to
Qand. In either case he could not have
jed without giving his notes, and his trust
ot for the unpaid purchase money. This
m concurrent with Ms right to a delivery of
e recovered in an action for breach of
ontract to give a deed, it would have been
respondent to show that he performed or
perform all the simultaneous conditions
lim by the agreement. The same princi-
3 a rescission of contracts. A party can
if the breach is occasioned by his own
ise at bar the evidence is that the respond-
29, 1892, offered to accept a deed from
t for the lot, and to give therefor his
s) twenty-nine notes, due monthly there-
l by a deed of trust on the land. It also is
lis proffer was made by respondent, he was
his monthly payments for several months,
s he did not offer to pay, but proposed to
3 for the same due monthly thereafter. It
when this offer was made by the respond-
een notified of a forfeiture of his contract
}ecause of his nonpayments, under the con-
re than sixty days.
these circumstances we hold that the
id not tender a discharge of his covenant,
ince with his contract. He could not do
luing his default as to nonpayment of past
installments. At best, to have constituted
with his covenant and contract, he should
payment in cash for all past delinquencies,
for future payments, duly secured by a
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Burris v. Shrewsbury Park Improvement (
trust deed on the land. The appellant ^
warranted in declining this oflfer of Apr
because it was not a full or sufficient tende
perform the contract.
II. For argument's sake we will grant
feiture attempted to be declared by appelh
20, 1892, was not preclusive of the respoi
to perform his contract. The question s
it become, under the proof in this case, the
right in the respondent to treat the
rescinded, and to sue for the money paid
The agreed statement of facts shows tt
feiture was only declared many months aftej
had written the appellant that he (responc
he would be unable to make his monthh
as required in his contract, and after he ha^
up to the time of the attempted forfeitui
make any monthly payments. The contrac
provision, made it his duty to pay promptly
the sum of ten dollars under penalty of
Even if the forfeiture so declared by the a]
nugatory, still it was caused by the respond
nonpayment and violation of his contra
not, therefore, be relied upon by him as i
Alden v. Goddard, 73 Me. 345.
III. The clause in the contract obligatij
to plant trees and lay sidewalks is, bj
of the agreement, an independent co^
a condition subsequent. For failure to j
covenant within a reasonable time, the
might sue for its breach, but he could n
failure rescind the contract. The rule as tc
ter of the covenants in a contract is, that,
ment is required from one at a time,
happen before the covenant of another h
Digitized by VjOOQIC
n APPEAL REPORTS,
ee y. Knapp & Co.
venant is independent. Seers v.
5 Couchv. Ingersoll, 2 Pick. 300;
xbee^s AdmWSy 6 Ohio, 312 ; Taylor
)414.
' the plaintiff has lies in enforcing,
, the contract. 0\Fallon v. Ken-
eltonv. Smithy 65 Mo. 315; Bisp
363.
s submitted on an agreed state-
e proper judgment thereon is a
aw, it is our duty to render such
court should have rendered. The
and the cause remanded to the
actions to enter a judgment for
ncur.
lBeth Lee, Respondents, v. Pub-
SInapp & Company, Appellant.
>f Appeals, December 5, 1803.
FACT. When the evidence in an action at
rarrants the deduction of different rational
v^ince solely of the jury to reconcile it, or to
) inferences is to be drawn from it. ThU rule
e to issues in regard to the existence of
8 TO PRESUMPTION. When in an action for
injury there is substantial evidence of con-
he part of the person injured, it is error to
ere is a legal presumption that he exercised
Digitized by VjOOQIC
OCTOBER TEB
Lee v. Knapp <
3. Elevators: standard of oare :
the course of discussioD, that, in det
an elevator has exercised due diligen
for its intended uses, the usage of (
and that such diligence does not, as i
fact that the elevator is such as is oi
by reasonably prudent men.
Appeal from the St. Louis Circ
E. WiTHROW,
Bevebsed and bemanded.
A. d J. F. Lee for appellai
Virgil Mule and A. B. Tayi
Bond, J. — This is an acti
compensation for services of a
occasioned in the use of an
defendant.
The negligence alleged in t
defective and negligent constru
reason of ''an open space bel
elevator car and the door of
dimensions as to ''create a danj
which the passengers upon said
fall.'^ Second. '^That in the ri
it shook and was unsteady.''
charge of said elevator an inexj
The answer was a genen
contributory negligence. The
judgment for $1,600 in favor (
court, from which the defendar
The errors assigned are:
should have sustained appell
evidence. Second. That the cc
following instruction, viz. :
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Lee v. Enapp & Co.
30urt instructs the jury that there is a legal
Q in this case that the deceased, Robert E.
the exercise of ordinary care at the time of
md death, and the burden of proving to the
of the jury that said deceased was not
uch care, before this case can be defeated on
of contributory negligence upon the part
jsed, is upon the defendant.'^
st assignment of error imposes upon us the
mining so much of the evidence as related
jruction of the elevator openings, its steadi-
pation, and the circumstances attending the
the son of plaintiffs.
Qstruction of the elevator, and its appear-
stopped at one of the five landings, is shown
)ined cut:
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^
>5 MISSOURI APPEAL REPORTS,
Lee V. Knapp & Co.
cage of the elevator is about six feet square j
mce from the hall on each floor is through an
sixteen and one-half inches deep, three feet
I eight feet high. This entrance has the form
II hall of these dimensions, divided by a door
B larger halls on each floor of the building.
IS an unprotected outlet from the elevator cage
smaller hall, whenever the cage passed or
in front of said small hall.
Ii reference to the motion of the elevator cage
;s operation, the evidence of the two witnesses
appellant was that there was a lateral motion
evators of this sort, in order that the guides
)t bind ; that it was not considered a shaking
and would not shake a man off. The testi-
respondents' two witnesses on that point was
• their evidence as to the accident. Andrew
, fourteen years old, a report boy of the
Union Telegraph Company, knew the deceased
the two months that the latter had been
g messages and associated press dispatches for
raph company, and was on the elevator with
he night of his death. This witness on direct
Aon said: **Me and the elevator boy and this
I boy was going up in the elevator, and this
boy was standing in a small corner. Any-
Id fall out of it, it is so small ; it is about that
licating). There was no part of the elevator
). He was standing in the corner, when he
e elevator; I was in the next corner, the next
; the elevator boy was standing eater-cornered
and the little Lee boy, while the elevator was
, he stepped off, I suppose.^'
State just what you saw! A. I heard the little
Uer. I looked down and saw him with one
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I'
OCTOBER TERM, 1
Lee v. Knapp & Co.
foot at the corner where he was star
him on his face and hands.
Q. Where was he resting his fac
On the little platform that came in fi
Q. Where were his feet at the
the elevator ; one foot was on the ele^
Q. What did you do? A. Wh
looked there and saw his foot and m
and just as I made the grab for it he
space and went to the bottom.
Q. Will you explain to the jury
this space, I mean the space when
upt A. It was that high from the pla
he went through the space, he swunj
Q. Illustrate it? A. I don't kn<
by illustrate it.
Q. That is a fact, I am too lofty
to the jury how that space was made,
he fell? A. When the elevator go
fourth floor, there is a space left, ai
fall out if he wanted to.
Q. How big is that space? A. ^
the space was about that high (indici
Q. As the elevator passed up t
anything, was there to prevent a pers
falling off the elevator into space?
place, the door was too far back.
Q. You didn't see the boy at the
No, sir.
Q. As the elevator passed by the
the elevator boy standing in the e
there to prevent him from falling int
if he lost his balance? A. I don't kc
Q. Did you know of anything?
platform coming from the door, tl:
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55 MISSOURI APPEAL REPORTS,
Lee v. Knapp & Co.
Q. Show the jury how his body and his stomach
I — his breast was resting? A. One of his feet was
le elevator, the elevator came right straight up, and
opped him into the space from the door. Just as
opped him, his other foot came off and he went
t to the bottom, as soon as I made a grab.
Q. How far did he fall? A. , From the fourth floor
le first.
Q. How did the elevator run? A. It used to shake
1 it would run.
Q. Could you describe to the jury how much it
k? A. I can't describe that.
Q. Did you ever ride on an elevator that shook as
as that one? A, No, I never rode on any elevator
shook that way.
Q. What was the elevator boy doing at the tiaie?
?he elevator boy was speaking to me.
Q. Do you remember what you were speaking
t? A. No, sir.
Q. When your attention was called to the boy by
outcry, I will ask you whether his head, as he lay
at moment, was higher or lower than the floor of
levator? A. It was lower.
Q. One of his legs you say was on the floor of the
itor? A. Yes, sir.
Q. Where were his hands? A. On the floor of the
, on the platform coming out from the door.^'
3n cross-examination he said, upon inquiry as to
tatement before the coroner, that he gave testimony
I on the day following the accident, and told every-
; he knew about it, and exactly as it occurred. He
testified on cross-examination, to-wit: **Q. See if
remember this. Don't you remember that you
the little boy, Willie Lee, wanted to get oflE on the
floor, and, when he reached the fourth floor, he
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OCTOBER TERM, 1893.
Lee V. Enapp & Go.
thought he was on the fifth, and tried to get
you remember saying that? A. Yes, sir/^
After stating that he did not remembei
other questions and answers, he was further
gated as to his examination before the coronet
*' *Q. Do you know how he came to fall!
elevator was going, and I suppose it turnec
onto his face. The elevator was going up to
floor, and, while the elevator was going, he
right out of the elevator onto the fourth, and
got caught in one of the corners and he fell on
and the elevator kept going, and he gave a litt
and I made a grab for his foot and 1 tried to s
but he was gone before I could. ^ Was that
put to you, and did you give that answer? A,
I answered that question, I think I told the
that.
Q. You think you told him more than tha
think I told him what you read there.
Q. Now, I want to see if you remember tl
tion? ^Q. How fast was the elevator going
ain't a very fast elevator, you can't make it'go
on Third street could go up and down five tim
that would be going up once ; it is not a very
vator at all.' Did the coroner ask you that c
and did you give that answer! A. Yes, sir.
Q, Does that elevator always go slow!
sir; you cannot make it go any faster. Did
that too? ^. Yes, sir.''
Charles Willis, the elevator boy, sixteen
age, testified in chief.
^*Q. Now, describe that elevator to the jui
kind of an elevator was it? A. It was a large,
shaky kind of a thing.
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398 55 MISSOURI APPEAL REPORTS,
Lee y. Enapp & Go.
Q. To what extent would it shake t A. That I
don't know, exactly; it has been so long since I was in
it.
Q. At that timet A, That I don't know; it shook
considerable anyway? •
Q. Now, will you describe to the jury that space
that would be by the side of the elevator as it passed
these doors at the different stories! A. The way it
was there, it would be a space of about three feet one
way and about sixteen inches the other, cross-ways.
Q. About how high! A. Eight feet or seven and
a half.
Q. About three feet wide? A. Yes, sir.
Q. And sixteen inches, in depth? A. Yes, sir.
Q, As the elevator floor passed this space, if a
person on the elevator floor should fall or stumble,
what was there to catch him, to prevent him going into
this space? A. Nothing.
Q. Tell the juiy now the first thing you knew of
the accident to the boy? A. The first thing I knew
was when Willie hollowed. I stopped the elevator, and
the little fellow, Andrew, was trying to get hold of
Willie's foot; I could not get hold of it before he
slipped off of the elevator and fell through the shaft,
because Andrew was between me and Willie.
Q. Describe how he was when you first saw him
after hearing him scream? A. I could not see anything
of him but his foot and part of his leg.
Q. Where was his foot? A. Hanging on the
elevator floor.
Q. His body protruded through the space in the
door? A. Yes, sir.
Q. You didn't see him when he fellt A. No, sir.
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OCTOBER TEEM, 1893. 399
Lee V. Enapp & Co.
Q. At the moment you saw the bo.dy in the
position you have described to the jury, about how
high wafi the floor of the elevator above the entrance
of the door way? A. About three feet by the time I
stopped, the elevator was not over three feet and a
half.
Q. You stopped it as quick as you could. A. Yes,
sir.
Q. If you had been looking at the boy when he
fell, you could have stopped the elevator in time to
have saved him? A. I think I could, yes, sir.
Q. What were you doing at the time? A. I was
standing up, looking for the knot in the rope that
came down to prevent the elevator hitting the
top. The last time I saw Willie he was standing in the
corner of the elevator.
Q. Before you heard the boy cry out, where had
you last seen him standing? A. Right in the corner by
the side of the door, the left-hand side of the elevator
door.
Q. Do you remember anything occurring' on that
trip, on the trip that the boy got hurt, anything about
his trying to take the elevator rope, anything of that
sort? A. I only know when I was going up, after I
passed the second floor, he put his hand on it, and
said he didn't think I could stop it with one hand — I
don^t think he got any hold ; then he took his hand
off the rope.
Q. Did he do anything? A. No; he walked into
the corner, and, when I turned my back on him, I
don't know how he got to the door.''
On cross-examination this witness stated to-wit:
**C. This was a slow elevator? A. Yes, sir.
Q. You say that elevator was unsteady? A. Yes,
sir.
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55 MISSOURI APPEAL REPORTS,
Lee y. Enapp & Co.
I want to know the extent of its unsteadiness,
iip between four walls? A. Yes, sir.
The walls were close around itt A. Yes, sir,
I clutches on each side never fitted very tight.
The clutches on each side? A. Yes, sir.
Never fitted tight? A. Yes, sir, and that
it to shake.
All the time it was shaking, it was going
A, Yes, sir; it was not a fast elevator.
It could not have shaken enough to throw a
mn the hole! ^. No. There was a piece of
>rn as smooth as glass; the least jar there would
im slip.
If he had been standing on it. A. Yes, sir.
You don't think it shook enough to shake
y off? A. Not unless they had a poor balance.
What was the necessity of standing on the
A. None, unless they were in a hurry to get off
as it stopped.
If he was going to get off and opened the door
, he might take the position. There was no
;y of his doing it then? A. No, sir.
Do you remember of the little boy on the third
linking he was on the fourth floor? A. No, I
:now he thought that.
Do you remember, when he was on the third floor,
matching hold of the rope and trying to stop it
e hand, and then his saying he could not do it
fourth floor when he was only on the third?
t was between the second and third he put his
lere. He said he didn't think he could stop it
:ourth floor with one hand.
Where was he then? A. Between the second
•d.
You remember giving your testimony before
>ner, don't you? A. Yes, sir.
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OCTOBER TERM, 1893.
Lee V. Enapp & Co.
Q. 1 will ask you if you remember thej
questions :
^Q. Now, tell aU you know about the
I stopped the elevator on the third floor, an
was ready to start, he said let's see if he coi
with one hand.
Q. Who said! A. Little Robert Lee
could not pull it. I pulled the rope and I s
elevator up, and, when we got to the fourtl
aimed to step off on the little platform thai
and then tried to step back again while th
was in motion, but it was too high for hii
only got one foot on the elevator, and that
fastened in the side of the guard, had it fi
the guard somewhere, and I did not see hin
elevator going up ; that pulled his foot up h
he hollered, and I stopped the elevator as c
could as soon as he hollered. And then t
tried to catch .
Q. What followed! A. Andrew AylM
to catch hold of his foot, and his foot slip]
the elevator, and he rolled off of the door dow:
the shaft.' Do you remember those quesi
answers! A. I said I suppose he tried to si
never saw him.
Q. That was a supposition of yours! A,
Q. You didn't actually see him! A. No
Q. But you did stop it as soon as you
A. Yes, sir; before I saw his foot — as soon a
him hollow.
Q. What made him try to get out! A.
know; I suppose he mistook the fourth floe
fifth.
Q. Do you remember that! A. Yes, sir.
Vol. 55—26
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\
5 MISSOURI APPEAL REPORTS,
Lee y. Knapp & Co.
What makes you think that? A. Well, they
abit of getting out because the elevator always
)lf on the fifth floor. A. Yes, sir/'
n the foregoing evidence the jury could have
TO inferences: First. They might have given
to the statements made before the coroner,
ned on the trial by witness Aylward, that the
boy, Lee, * ^wanted to get off on the fifth
d, when he reached the fourth floor, he
lie was on the fifth and tried to get off ;^^ and,
rther statement of this witness (admitted to
a made before the coroner), that *'the elevator
5, and I suppose it turned it (sic) on his face,
ator was going up to the fifth floor, and,
elevator was going, he walked right out of the
nto the fourth, and his foot caught on one of
TS and he fell on his face ; and the elevator
ing, and he gave a little hollo, and I made
r his foot and I tried to save him, but he was
)reIcould.'' Had the jury relied upon this
they might have reasonably inferred there-
the testimony given on the trial shows the
themselves did) that the deceased mistook
;h floor for the fifth, and voluntarily got oflE
le the elevator was moving, and caught his
le guard in trying to get back on the elevator
lad discovered that it was not going to stop,
thereby injured.
id. The jury might have discredited the evi-
en by this witness before the coroner on the
«ring the occurrence and affirmed on the trial,
1 their entire belief to the other statements
Is made on the trial by the two witnesses,
and Willis, to the effect that they did not
;ee the deceased until they heard him hollo,
beheld him with one foot on the elevator and
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OCTOBER TERM, 1893. 403
Lee V. Knapp & Co.
the remainder of his body on the landing outside of
the cage. To have adopted this view, the jury would
have been compelled to confine their consideration to
a part only of the testimony, and must have drawn
from this portion an inference that the deceased lost
his footing by the shaking or unsteadiness of the ele-
vator cage, and thus fell or was thrown on the outside
landing. Although. the two witnesses for the respond-
ents stated also on the trial that they did not see how
the boy got on the outside landing, one of them
(Aylwark) said, '^he stepped off, I suppose,'^ and the
other witness (Willis) said, **I suppose he tried to step
off; I never saw him,'' thus showing that neither of
these witnesses supposed he fell, or was thrown, off the
elevator by its shakiness, but, on the contrary, dis-
tinctly negatived this view in their own condusions
from what they saw.
In actions at law the jury are the sole judges of
the weight of testimony and the credibility of witnes^ses.
In such cases where the evidence is conflicting, or is
susceptible of being the basis of different rational infer-
ences, then it is the sole province of the jury to recon-
cile it, or to adopt that particular rational inference
which, in their judgment, justly arises. These princi-
ples constrain us to hold, under the testimony in this
case, that the trial court did not err in leaving it to the
jury to say whether the deceased negligently stepped
off the elevator or was thrown therefrom by the
unsteadiness of the car.
The complaint as to the instruction supra is that
the court therein told the jury ^*that there is a legal
presumption that the deceased, Robert E. Lee, was in
the exercise of ordinary care at the time'' of the acci-
dent. The objection to this statement in the instruc-
tion is that it misled the jury under the evidence and
legitimate inferences. The law is that in case of an
Digitized by VjOOQIC
) MISSOUEI APPEAL REPORTS,
Lee V. Knapp & Co.
?rf injury caused to one by negligently con-
Qachinery, or a negligent opening in the side-
)tlier negligent contrivance, a rebuttable pre-
that the party injured thereby was at the
cising ordinary care may be indulged. If,
there is substantial evidence of the manner
s of the injury, such presumption ceases to
lis is in accordance with the facts of the case,
3tual decision of the supreme court in Buesch-
Louis Gas Light Co., 73 Mo. 233, and it is
9 doctrine as now maintained by the supreme
iieir subsequent decisions, and is supported by
id the weight of authority in other states.
V, Railroad, 98 Mo. 183; Bapp v. Railroad
\Io, 423; Whitaker v. Morrison, 44 Am. Dec.
rson on Presumptive Evidence, rule 120, p.
Itsett V. Railroad, 25 N. W. Rep. 104:', Rail-
ebbing, 52 Md. 504. In Buesching v-. St. Louis
'Co., supra, it is said: ''Slight circumstances,
in the absence of direct evidence, may over-
presumption of freedom from negligence
law indulges." In that case there was no
whatever showing how the accident occurred.
3 case of Moberly v. Bailroad Co., 98 Mo. 183,
ice was conflicting on the issue of plaintiff's
i. In that case the court, in speaking of an
a similar to the one under consideration, used
ing language:
ruction numbered 5, given at plaintiff's
should not have told the jury that the law
that plaintiff exercised ordinary care, while
? the question of his care or negligence as an
le presumption that everyone exercises ordi-
obtains in the absence of evidence to the con-
iit there was abundant evidence from which
negligence on the occasion in question might
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OCTOBER TERM, 1893. 405
Lee T. Enapp & Co.
have been fairly found. With that evidence before
them, it was calculated to give the jury a wrong
impression of its effect to say that a presumption of
care then existed in plaintiff's favor.''
This ruling was affirmed in Rapp v. Bailroad, 106
Mo. 423. In that case, also, there was evidence from^
which plaintiff's negligence might have reasonably been
found by the jury. It was therefore held that an
instruction, embodying a presumption that he was in
the exercise of ordinary care, should not have been
given.
The doctrine of these cases is that a disputable pre-
sumption, permitted to be drawn in the absence of all
evidence of the facts and circumstances, should not log-
ically be given in a charge' to the jury after evidence
has supervened. The reason of the rule is that, afier
evidencCj the jury should determine the case on the
evidence, unbiased by a presumption which might have
been drawn before evidence.
In the case at bar there was evidence from which
the jury might have rationally inferred that the deceased
boy was neither shaken nor fell off the cage of the ele-
vator, but that he voluntarily tried to get off and gjet
back while it was in motion, and before it had reached
the proper landing. The existence of such evidence is
the ground upon which the supreme court in the two
cases last cited held an instruction like the one before
uis reversible error. We hold, therefore, that the trial
court erred in giving, under the evidence in this case,
the instruction whereby the jury were told that there
was a legal presumption that the deceased was exercis-
ing ordinary care at the time of the accident.
The two cases, Porter v. Bailroad, 71 Mo. 72, and
Muirhead v. Railroad^ 19 Mo. App. 646, cited by
respondent in support of the instruction, are not in
point. The instructions in those cases merely stated
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[JRI APPEAL REPORTS,
reiner, Flack & Co. v. Orr.
cable to contracts of service, whereby
d to assume the risks naturally inci-
hich he undertakes. The propriety
furnishes no analogy for the giving
•resumption (disputable) of due care
ose negligence is an issue touching
aflict of evidence,
must be retried, the court should
trial, an inaccuracy in one of the
or appellant, where the jury were
3rence of negligence can be made
.nt in regard to said elevator, if you
Dce that it is such as is ordinarily
ses by reasonably prudent persons
le kind of business.'' Mere usage
e sole criterion. It is the duty of
to make them reasonably safe for
ley are to be put ; and, in so doing,
3 that degree of care employed by
; men in attaining the same end.
'der, 52 Mo. App. 43.
here given, the judgment is reversed
tided. All the judges concur.
& Co., Appellants, v. Isaac Obr,
of L. C. Wilson, Respondent.
^ of Appeals, December 5, 1898.
tots: SALES OP GRAIN ON MARGINS WITHOUT
Since the Act of 1889 (Revised Statutes, 1889,
iracts for the sale of grain are void, if one of
IS not intend to receive or deliver the commod-
er party is aware of his intent — whether he
hat statute also affects middlemen.
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OCTOBER TEEM, 1893.
Schreiner, Flack & Co. v. Orr.
2. : : EVIDENCE OF INTENT NOT TO RE
The intent of a party to the contract, that there f
of the commodity, may be gathered from all the
stances. And held, that the evidence in this os
inference.
3. Praotioe, Appellate: failure of transcript
OP rejectpd evidence op appellant. The coui
ruling of the trial court in excluding a writing offe
the appellant, when the writing is not embodied in
its effect is, therefore, not disclosed.
Appeal from the St. Louis City Circuit
Leroy B. Valliant, Judge
Affirmed.
Charles F. Joy and Charles M. Nap
lants.
F. J. McMaster for respondent.
The court committed no error in t
tions to the instruction offered by appe
giving the instructions offered by responc
V. Ccesar, 53 Mo. App. 271; Hill v. Jol
App. 393; Crawford v. Spencer ^ 92 Mo. 4
Bond, J. — The appellants filed in the
for allowance a note for $500, made to i
Wilson, respondent's intestate, on the fi
May, 1890. This claim was allowed ii
court, from which decision the responde
tor appealed to the circuit court, where
rendered in his f^vor. The defense to 1
in the probate and circuit courts, was the
for an illegal consideration, i. 6., for s|
the differences in the market value of
and sold without any intention of deliv(
dence tended to show that the appellants i
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MISSOURI APPEAL REPORTS,
Schreiner, Flaok & Co.^. Oir.
heat on account of said Wilson for delivery
hat year ; that these transactions were closed
ipril preceding ; that no wheat was received
Ison, or delivered to him; that the wheat in
Laving been bought for July delivery, could
vered until that month, at which time it was
y the appellants to certain parties to whom
sold ; that most of the trades made by Mr.
'ough appellants were made upon his own
these cases the evidence did not show the
th whom he was dealing ; but that, when his
) made by appellants, they were placed with
I firms, who were engaged in the business of
rain on consignment, and buying and selling
lelivery; and that all of his trades, whether
mself directly, or by appellants as his agents,
I on appellants' books, and were guaranteed
:s made by appellants with other parties to
t.
>pellants oflEered in evidence a printed notice
ut in the record), which they claimed to
owing how their deliveries of the July wheat
i sold by them for Mr. Wilson were made,
excluded this form of notice from the evi-
which exception was saved. The evidence
. to show that, prior to his dealiings with
L. Q. Wilson had speculated on 'Change;
IS a traveling salesman, earning a salary of
DO, the year before his death; and that he
mected with the milling business, and had
ise for the grain. The account of his trans-
set forth on appellants' ledger, disclosed
i to them $300 at the beginning of his deal-
owed various credits to him on grain bought
it the date of such items. The evidence
it no wheat was ever actually delivered to
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Sohreiner, Flack & Co. v. Orr.
The errors assigned by appellants ar(
Firsty the modification by the court
ing. instruction, prayed by appellants, b
thereto, against his exception, of the iti
to-wit:
*'The jury are instructed that a sale
delivered in the future is valid, even thor
option as to the time of delivery, and,
seller has no other means of getting the
go into the market and buy them; bui
guise of such a contract, valid on its face
pose and intention of both parties is m<
late on the rise and fall in prices of su
the goods are not to be delivered, but o;
paid between the contract and market pi
a contract is a wager, and is void. But i1
to render the contract void that one party
by it a speculation in prices ; it must t
both parties did not intend to deliver t
that both contemplated and intended a
•differences in prices only.
• **Upon the foregoing exposition o
^.pplicable to the defense set up in this c
•SLTQ instructed that, before the defense
recovery here, it has the burden of prov
the deceased, Wilson, and also the parti
and to whom he bought and sold, intend
of the goods, and were only speculating c
fall of prices, or that . it was the under sta
Wilson and the plaintiffs that there was
delivery hut such speculation only.^^
And the giving for the respondent of
instruction :
''The court instructs the jury that, il
from the evidence in this case that Le^
employed the plaintiffs to buy and s
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410 55 MISSOURI APPEAL REPORTS,
Schreiner, Flaok & Co. v. Orr.
intending to receive or deliver the article bought or sold,
but only for the purpose of speculating in the future
price of such grain, and that plaintiffs were privy to
such intent or purpose, and that, under the contracts
which plaintiffs may have actually made with third
parties in filling such orders, no grain was intended
actually to be received or delivered by either of the
parties to such contracts, but that it was the intention
of both said parties merely to settle for the difference
in price, and that the note sued on was given in settle-
ment of such difference in price, then plaintiff cannot
recover in this action, and the jury will find for the
defendant. And the jury is also instructed that, in
ascertaining the intent of the parties to the contracts or
purchase and sale mentioned in the evidence in this
case, they are not limited to the assertions of parties on
one side or the other, but that all the attending cir-
cumstances connected with the transaction must be
looked into.
^'The court instructs the jury that, if they believe
from the evidence that, at the time Lewis 0. Wilson
instructed plaintiffs to buy and sell the grain mentioned
in evidence in this case, it was mutually agreed and
understood between them that no grain was to be
delivered or received in the settlement of such pur-
chases and sales, but they were to be settled by the
payment of differences, then plaintiff is not entitled
to recover, and you will find for the defendant. ''
Second. The exclusion by the court of the evidence
offered by appellants to show the form and method of
their deliveries of the July wheat, bought and sold for
Wilson.
I. Touching the objection made by appellants to
the modification of their instruction by the addition of
the words in italics to-wit: *'or that it was the under-
standing between Wilson and the plaintiffs that there was
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r
OCTPBER TEEM, 1893. 411
Sohreiner, Flack & Co. v, Orr.
to he no such delivery , hut such speculation only^^^ we
say that the act to prohibit fictitious and gambling
transactions in agricultural products, etc., approved
March 9, 1889, Revised Statutes, 1889, sees. 3931, 3936,
was held by this court to have been designed to alter
the law as it stood before this enactment, *^that in order
to make a contract unlawful as a wagering contract, all
the parties thereto must have intended not to receive
or deliver the commodity purchased or sold 5^' and to
establish, by the statute in question the law that, to
render such contracts void, it should only be necessary
that one of the parties did not intend to receive or
deliver the commodity bought or sold, and that the
other party knew of this intent, whether he shared in
it or not. We also held that the statute aflfected mid-
dlemen. Mulford V. Ccesarj 53 Mo. App. 274, etc. It
is obvious, therefore, that, inasmuch as the record shows
that all the transactions out of which the indebtedness
arose took place after the passage of the above act, the
trial court did not err in modifying the instruction
requested by appellants so as to conform to the legisla-
tive rule. These observations also show that the court
did not err in embracing the same principle in respond-
ent's instruction.
II. It is urged by appellants that the evidence
does not sustain the hypothesis of respondent's
instruction, * 'that it was mutually agreed and under-
stood between them (appellants and Wilson) that no
grain was to be delivered or received in the settlement
of such purchases and sales, but that they were to be
settled by the payment of differences.'^
This is an action at law; it is sufficient, therefore,
to sustain the finding of the jury that there should
have been some substantial evidence in its support. It
has been repeatedly held by the appellate courts of this
state that **all the attending circumstances" of a con-
Digitized by VjOOQIC
55 MISSOURI APPEAL EEPORTS,
Sanday ifcirror Co. v. Galvin.
r purchase or sale for future delivery, as well
tatements of the parties, are. evidentiary. We
hold from the circumstances of the contracts,
s and doings of the parties thereunder, and
lative situations, that there was no substantial
om which the jury could have justly inferred
fsras the intention of Wilson and appellants that
lould not be a delivery. The finding of the jury
issue, under the facts and circumstances shown
[•ecord, is not reviewable by us.
. Appellants insist that the court erred in exclud-
1 the evidence a form of notice of delivery, used in
very of the wheat at the maturity of their con-
This notice is not made part of the record j and
lot apprised of its terms or contents. We can-
irefore, adjudge its legal effect. As we have
paper before us, we cannot say that it tended
' what appellants did with the wheat in ques-
)r can we hold that the trial court erred in
igit.
3 result is that the judgment herein is affirmed,
judges concur.
MiRROB Company of St. Louis, Appellant, v.
[ES M. &ALVIN., Respondent; Sunday Mirrob
iPANY OF St. Louis, Eespondent, v. James M.
.viN, Appellant.
;. Louis Court of Appeals, December 5, 1893.
3hment: debt fraudulently contracted. The conTersion
ley, though fraudulent on the part of the tort feasor, will not
;ute a fraudulent contraction of a debt within the purview of
.tute defining the grounds of attachment.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Sunday Mirror Co. v. Galvin.
2. Assignment of Ohose in Action : absence c
I FER. A corporation was formed to carry on the 1
I nership. It was intended to transfer all the assets
to the corporation in partial payment of its capi
formal transfer was executed. Though no other ps
the articles of incorporation recited that half of the
' been paid. Held, that members of the partnership,
I incorporators, were estopped from disputing the t
tion to the property thus intended for it. ,
I 3. : ASSIGNABIUTY OP CONTRACT RIGHTS. 2
stipulates for the support of a newspaper for a pub
rest on a personal cchifidence. The owners of th
therefore assign their rights under it to a corporat;
duct the newspaper.
Appeal from the St. Louis City Circuit
John A. Hakbison, Special Juc
Affirmed.
2). P. Dyer for plaintiff.
Charles F. Joy and D. B. Kribhen for
(1) '^OldandNew St. Louis'^ was
and it and the contract, from their very i
not be assigned by Fanning & Galvin wit
sent of Mather & Blood. Boy kin v. Ca
App. 495; Lansdenv, McCarthy, 45 Mo. 1(
etc., Co.v.Belden, 127 U. S. 379; Boat
sioners v. Diehold, 133 U. S. 473. (2) '
fails to show the assent of Mather & ]
assignment of a contract, the nature of w^
a credit extended to, and a trust and confic
in, the persons of Fanning & Galvin ; henc
vest in the assignee in such contract or a
without the consent of the other parties, i
will lie thereon in favor of the assignee,
above cited.
Biggs, J. — This is an action for mc
received, with an attachment in aid.
Digitized by VjOOQIC
414 55 MISSOURI APPEAL REPOETS,
Sunday Mirror Co. v. Galvin'.
appeals from a judgment against it on the plea in
abatement. The defendant appeals from a judgment
against him on a trial of the merits.
The petition states substantially the following
facts > In the month of February, 1891, the defendant
and one M. A. Fanning entered into a copartnership
for the purpose of printing and publishing a weekly
newspaper in the city of St. Louis, to be called the
Sunday Mirror The style of the firm was Fanning
& Galvin. Each party contributed about $1,500 to the
capital of the concern. The necessary materials were
purchased, and the publication of the paper com-
menced. In October, 1.891, Fanning & Galvin afi
publishers of this paper entered into a contract with
Mather & Blood, who were publishing a history of the
city of St. Louis in book form under the title of ^^Old
and New St. Louis. '^ The agreement reads: **This
agreement, made and entered into between Messrs.
Fanning & Galvin, publishers of the Sunday Mirror
of St. Louis, of the first part, and Mather & Blood of
the second part, for the publishing of the history of
the city of St. Louis in book form, under the title
of *^01d and New St. Louis, '^ under the auspices and
in the co-operative name of the Sunday Mirror
upon the following provisions:
^^ First. In consideration of twenty-five per cent,
of the net profits (over and above all expenses), the
said Fanning & Galvin, of the first part, do hereby
agree to give Mather & Blood, of the second part,
their full support, and use of the co-operative name
of the Swfiday Mirror in any way pertaining to and
securing of business for the said work. J
^^ Second. Mather & Blood, of the second part, do
hereby agree to attend to all details in the management
of securing business and publishing of said work ; and
do further agree to make all collections in the name of
Digitized by VjOOQIC
OCTOBER TERM, 1893. 415
Sanday Mirror Co. v. Galvin.
said Fanning & Galvin, who agree to cash all checks
at any time called for, retaining twenty-five per cent,
of such collections as a guarantee until the final settle-
ment, unless otherwise required to be used in making
the publication or printing of said work. Mather &
Blood do further agree to make a full statement of
business done at any time called for by said Fanning
& Galvin.'^
This contract was in force on the twenty-fifth day
of February, 1892, when Fanning and Galvin agreed to
organize a corporation, to be known as *^The Sunday
Mirror Company,'' with a capital stock $50,000, divided
into five hundred shares of $100 each. Fanning and
Galvin subscribed for all of the shares, except two or
thtee which were given to other parties in order to
effect the incorporation; and it was agreed that the
entire capital stock should be paid by a transfer to the
proposed corporation of all the assets of the firm of
Fanning & Galvin. In pursuance of this agreement,
articles of incorporation were drawn up and were
acknowledged by the defendant and the other stock-
holders, in which- they certified that one-half of the
capital stock, to-wit, $25,000, was paid in money. ^The
defendant was named as a member of the board of
directors. A certificate of incorporation was issued on
March 8, 1892, and thereafter the new company became
the owner of all of the assets of Fanning & Galvin
including the emoluments (if any) arising from the
contract with Mather & Blood, to which the latter
consented. At the time the corporation was formed.
Fanning & Galvin had deposited with the Laclede
National Bank, in the name of the firm, all money
received by them under the contract with Mather &
Blood, and they had given to the latter checks for
seventy-five percent, of such collections, retaining, them-
selves, twenty-five per cent., as provided by the terms of
Digitized by VjOOQIC
[^SOUEI APPEAL REPORTS,
Sunday Mirror Co. v. Galvin.
After the incorporation of the plaintiff^
Dunt was permitted to remain in the name
: Galvin, and all moneys thereafter col-
plaintiflE on account of the contract with
ood, and from all other sources, were
B credit of this account. Prior to the
, Fanning had control of the editorial
f the paper and the defendant was the
lager, both parties having authority to.
against the bank account of the firm.
)rporation, Fanning was elected president,
idant secretary and treasurer, of the cor-
duties and powers of neither being in any
anner changed. On the twenty-first day
892, another contract with Mather &
3stituted for the first one, so that the plain-
leive fifty per cent, instead of twenty-five
le net profits arising from the publication
. In this respect only was the old con-
[ or changed. The modified contract was
the name of Fanning & Galvin. The
ness of the plaintiflE was conducted, as
I name of the firm of Fanning & Galvin,
•d day of June, 1893, when the account
th the Laclede National Bank, and a new
in plaintiff's name with the St. Louis
k. A few days prior to the last mentioned
idant commenced negotiations with George
lesale of his stock, which resulted in a pur-
p on June 1 for $4,000 cash. At the time
ions commenced the plaintiff had accumu-
bout $2,000 from collections under the con-
her & Blood, which it had a right under the
tain. During the pendency of the nego-
it, on May 28, the defendant, by check,
,000 from the bank account, standing in
Digitized by VjOOQIC
OCTOBER TEEM, 1893. . 417
Sand ay Mirror Co. v. Galvin.
the name of Fanning & Galvin, to his individual
account in the same bank, which he afterwards checked
out and put into his pocket. The defendant concealed
this from Dyer and the officers of the plaintiff until
after he had gotten the money from Dyer. A short
time previous to this the defendant had also, without
the consent of plaintiff, withdrawn from the bank the
additional sum of $2,000, the money of the plaintiff,
and he also converted it to his own use.
Upon this alleged state of facts the plaintiff brought
the action, and in the affidavit for attachment it was
stated that the debt sued for was fraudulently contracted.
This was the only ground for attachment.
On the trial of the plea in abatement, which was
submitted to the court sitting as a jury, and also on the
subsequent trial on the merits, the plaintiff's evidence
tended to prove the facts alleged in the petition, and
its evidence also tended to show that the defendant, in
the negotiations with Dyer for the purchase of his
stock, represented to him that the contract with Mather
& Blood was an asset of the corporation, and that a
considerable amount of money had been collected
under that contract, and was then on deposit in bank.
At the close of the trial on the plea in abatement
the court gave the following instruction, to which the
plaintiff excepted : '* Although the court, sitting as a
jury, may find and believe from the evidence that the
$1,000 mentioned in evidence was the property of the
plaintiff, and that defendant wrongfully and fraudu-
lently drew the same out of bank and converted it to
his own use, still, if the court further finds and believes
from the evidence that plaintiff never consented or
agreed to the drawing out and conversion of said money
by defendant, but protested against the same as soon
as known to it, and, upon discovering that defendant
had drawn out and converted said money, demanded
Vol. 55—27,
Digitized by VjOOQIC
55 MISSOUEI APPEAL REPORTS,
Sunday Mirror Co. v. Galvin.
L that- he should return the same, and, upon his
) or refusal so to do, thereupon began this suit,
he finding and judgment must be for the defend-
hereupon the court found the issue for the
lant and entered a judgment dissolving the
ment.
is contended by counsel for defendant that the
?tion and the finding thereunder were in con-
y with the decision of the supreme court in the
: Finlay v. Bryson, 84 Mo. 664. In this statement
lociates fully concur.
le two cases cannot very well be distinguished as
r essential facts touching the right of attachment,
ore, I am not prepared to dissent from the con-
i reached by the other members of the court,
e application of the governing principle to the
1 the Finlay-Bryson case is so unsatisfactory to
at I deem it neither out of place nor indelicate
•ess my dissatisfaction.
nlay delivered to Bryson four mules (the prop-
: Finlay), with directions to sell them and to
} the proceeds of sale to Finlay's credit. Bryson
he sale and received the money, but instead of
ting it he subsequently converted it. He also,
same time, and without any authority whatever,
ew from Finlay's deposit other money amount-
50, and he likewise converted it. Commissioner
decided that these facts failed to show that
t had been fraudulently contracted'^ within the
ig of the attachment law. The reasoning of the
I commissioner is to the eflEect that, where the
en of the complaint lies in tortj there can be no
thin the meaning of the attachment law. Thus,
right of recovery is based solely on the wrong-
iversion of property, the right of recovery does
Digitized by VjOOQIC
OCTOBEE TEEM, 1893.
Sunday Mirror Co. v. Galvin.
not rest in debt, but is one for damages resul
the wrongful acts of the wrongdoer. The
deduced from the decision is that, to aut
atta<?hment for a debt fraudulently contractec
duct of the defendant must have culminated h
I can very well understand how the concl
reached that the money withdrawn from hi
not be treated as the foundation for a debt pr
to that money, the act of Bryson was a tort,
simple. It is true that Finlay could have waiv4
and sued in assumpsit for the money, as he di
it would not have been quite logical ta have
him to have made the tort, which he had wi
ground of his right of attachment. But I ai
to understand how the same rule could be
apply to the money received by Bryson for t
He sold the mules as an agent, and the m
received the proceeds he became the debtor c
How the subsequent conversion of the mone]
the character of the transaction I can not con
therefore, at the time Bryson received the i
had made up his mind to convert it, these fa
present a clear case of a del}t fraudulently c
So, in the case at bar, all the evidei
that the defendant, as the secretary and treasi
plaintiff, and also as a member of the firm of
& Q-alvin, had the right to draw checks a^
plaintiff's bank account (which was kept in
of Fanning & Galvin), and to receive tl
thereon. Neither the signing nor the cashii
check was wrongful of itself. Therefore, if t
withdrawn by the defendant belonged to the
or if it had the right under the contract wit
& Blood to retain it, and the defendant w
with the preconceived design to deprive the p
Digitized by VjOOQIC
) MISSOURI APPEAL REPORTS,
Sunday Mirror Co. v. Galvin. .
cannot understand upon what theory there is
nd that it was not fraudulently contracted,
il be observed that the instruction as written
upon the idea, that the act of Galvin in with-
he money was of itself wrongful and unauthor-
ere is no foundation in the evidence for any
othesis. But as the Bryson case is to be
this would make no diflference, for there
3ceived the money for the mules under direct
from Finlay.
le instruction is the only matter complained
trial of the plea in abatement, it follows that
lent of the circuit court dissolving the attach-
be affirmed.
le other branch of the oase the contention of
iant is that under the law and the evidence
tiflE was not entitled to a judgment. The
rests on three propositions: First. That the
with Mather & Blood was not an asset of
ration. Second, That there is no evidence
isfer from Fanning & Galvin. Third. That
) evidence that Mather & Blood consented to
e.
Lefendant admits that the capital stock of the
3rporation consisted only of the assets of the
anning & Galvin as the owners and publish-
Sunday Mirror. The contract with Mather
shows on its face that the * consideration,
)ved them, was to secure the co-operative
Df the newspaper in aid of their enterprise,
he personal influence and aid of Fanning &
ide from their connection and control of the
his refutes the idea that the contract was
nt and wholly disconnected from the business
g & Galvin as publishers.
; is urged that there is nothing in the record
Digitized by VjOOQIC
OCTOBER TE
Sunday Mirror Co
to show a formal transfer of i
the assets of the firm of Fa
plaintiff. This is true. But 1
the capital stock of the plai
paid by a transfer of all the
executed the articles of inc(
certified that one-half of the ca]
five thousand dollars, had bee
a state of facts the defendan
estopped from denying that 1
Galvin, which alone represent
plaintiff, and which outside
paper were not worth one-fifth
the concern was capitalized, I
The authorities cited in s
osition show merely that, wl
contract rest upon a personal i
of the contracting parties, he
formance to a stranger withou
contracting party. As we ha^
Mather & Blood was one in ^
fldence was reposed in Fan:
viduals. The object of Mathe
the influence of the paper,
possible difference to them wh
lished by Fanning & Galvi
formed by them for that pr
contains substantial evidenc
were advised of, and consente
issue was submitted to the
favor of the plaintiff, which ]
room for complaint.
Our conclusion is that th
of the c£^se is entirely withou
will, therefore, be affirmed wit
as asked by plaintiff. All the
Digitized by VjOOQIC
422 • 55 MISSOURI APPEAL REPORTS,
Ames V. Hnse.
Henbt Ames, Appellant, v. William L. Huse et al.^
1 56 422] Respondents,
I 59 4351 ^
St. Louis Court of Appeals, December 5, 1898..
Subrogation: partial [payment by surety. So long as a debt
has not been entirely paid, the partial payment of it by a surety will
not entitle him, by way of subrogation, to any of the collaterals
in the hands of the creditor by which it is secured.
Appeal from the St. Louis City Circuit Court — Hon.
James E. Withrow, Judge.
Affibmed.
Hiram J. Qrover for appellant.
Where at the time of the assignment a debt of
the assignor is secured by collaterals, and is subse-
quently partly paid to the creditor by moneys realized
from the collateral before a dividend on the debtor's
estate is made, such creditor is not entitled to a dividend
on the full amount of his indebtedness, but only on
that portion which remains after deducting the moneys
received from the collaterals. National Bank v. Lana-
han, 66 Md. 461; Armory v. Francis, 16 Mass. 308;
Bank v. Railroad, 124 Mass. 518; Hamor v. Railroad,
133 Mass. 315, 316; Bristol Bank v. Woodward, 137
Mass. 412; Franklin National Bank v. First National
. Bank, 138 Mass. 515; Wurtjsf v. Hart, 13 Iowa, 515;
Moore v. Dunn, 92 N. C. 63-67; Bank v. Alexander, 85
N. C. 352; Midgley v. Slocomb, 32 How.Pr. 423; Bell v.
Fleming, 12 N. J. Eq. 13-22, 25-30; Irons v. Manufac-
turing Bank, 27 Fed. Eep. 591, 597; Thibaudou v. Ben-
ning, 5 Montreal L. R. Q. B. 425; Ontario Bank v.
Chapin, 20 Can. S. C. 152 ; Burrill on Assignments, sec.
440, p. 103 and note; Revised Statutes, 1889, sec. 190.
Digitized by VjOOQIC I
M"fl' '
OCTOBEE TERM, 1893.
Ames y. Huse.
lAonberger d Shepley, Walter B. Douglas i
H. Scudder for respondents.
A surety is not entitled to subrogation i
claim upon which he is surety has been pai(
Matthews V. Smtzler, 46 Mo. 301; Sheldon on
tion [2 Ed.], sees. 70, 127 ; Kyner v. Kyner^ 6 Wj
Bank v. Benedict^ 15 Conn. 437; Barnett v. Bit
N. H. 152; McNee v. Legget, 48 Miss. 139;
V. Stuart, 78 Ind. 424, 433.
Biggs, J. — The plaintiflE has appealed fro
judgment on a demurrer to his petition. In 1
ion of the circuit court, it failed to state a
action. As no point is made on the form of
tion, it is unnecessary to set it out in full,
statement of the facts upon which the suppo
of action is based will suffice.
In 1884 the Lindell Hotel Association
several notes, amounting to about $20,000.
and Charles Scudder were accommodation
thereon. The notes were transferred for vak
maturity to the defendant bank, and were b]
sented for payment at maturity, and were ]
for nonpayment, of which the plaintiflE, as
was duly notified. In the meantime the hotel
tion had made a general assignment for the 1
its creditors. The assignee allowed the notes
of the bank for their full value, to-wit, $2:
Afterwards the bank sued the plaintiflE as inc
the notes, and recovered judgment against hin
full amount, which judgment he settled and
mised for $11,105.40, leaving a like amoun
original debt due from the hotel association ai
der. Several years afterward, to-wit, in Octob
the assignee declared a dividend out of the n
Digitized by VjOOQIC
)5 MISSOURI APPEAL REPORTS,
Ames V. Huse.
:ned estate of twelve per cent, on the amounts
owed claims, and the share of the state bank,
d on the full amount allowed, was $2,578.96,
mount the plaintiff alleged the assignee was
pay to the bank.
I the foregoing state of facts the plaintiff claims
ring paid fifty per cent, of the amount of the
J is entitled to equity to be subrogated to fifty
of the dividend,
law of subrogation or substitution has no appli-
this case for the reason that, at the time the
was declared, one-half of the original debt
:he defendant bank remained unpaid. The
ule is well undei^stoodthat, when a surety pays
of his principal, he may for his indemnity be
ed into the place of the creditor as to all col-
►r funds held by the creditor, and applicable to
ayment of the debt. But it is equally well
ed that this right does not exist until the whole
aid, upon the idea that the creditor has the
;he full benefit of all securities held by him
debt is fully satisfied.
le case of Matthews v. Switder, 46 Mo. 301,
itiff held three notes against a third party,
at successive periods, which were secured by
trust on land. After the notes had all matured
s had under the deed of trust, and the pro-
died to the payment of the notes last matur-
3 being nothing left to apply on the first. The
t was surety on the note first maturing, and
ras brought against him on that note. The
^as that he was entitled to have the proceeds
e applied to the payment of the note first fall-
The court held that this position was unten-
, in deciding the case, said: ^*The substan-
ion here is, shall the original creditor, who
Digitized by VjOOQIC
OCTOBER TEEM, 1893.
Ames V. Hase.
holds all the notes, have the full benefil
securities which he took for his own prot
was not satisfied with the security of the d
and therefore required an additional name
the notes. * * * In the meantime he
dered no security, and done nothing to p:
right of the surety upon the note. And si
is not paid, he now calls upon the surety tc
the unpaid balance,'^ etc. It was suggei
argument that, if Switzler, prior to the tri
paid the note on which he was surety, he
have had the right to be subrogated and tc
nified first out of the mortgaged property
idea that he would have occupied the pos
independent holder of the note, first ms
answer to this suggestion it was said: **T
of subrogation or substitution has no applic
case, i'he creditor has not been paid, and.
either paid or secured, the surety has no
substituted in his place.''
In the case of Allison v. Siitherlin, 5
the plaintiff was subrogated to the rights c
iter as to certain real estate belonging to hi
and which was held as security for the d
distinctly appears that the plaintiff had pai(
debt.
In Bavik v. Benedict^ 15 Conn. 437,
thus stated: ^^Though a surety who ha
debt of his principal may be subrogated int
of the creditor as to all the securities and fi
hands applicable to such debt, yet, an acco
indorser or surety is not entitled to the ben(
securities or funds until the whole debt is pi
In Gannett v. Blodgett, 39 N. H. 150, it ^
substantially that a surety cannot, eithe]
equity, call for an assignment of the claim <
Digitized by VjOOQIC
OURI APPEAL REPORTS,
Ames y. Huse.
rincipal, or be clothed by operation of
of equity with the rights of an assignee
less he has paid the entire claim of
it a pro tanto assignment by way of
brogation is not known or allowed.
Leggett, 48 Miss. 139, it was decided
' pays the judgment debt of his prin- j
lys part of it and the principal the
subrogated to all the benefits which
)y means of the judgment against the
he court said that the rule was other-
ty has made only part payment and
ins unpaid^ because, in that case, the
tirely divested the rights of the cred-
I no authority declaring a contrary
n we conceive how any such could
cable to the facts stated in the peti-
ied on as establishing the plaintiff's
part of the dividend are to the effect
indebtedness due from an assigned
)y collaterals, and such debt is subse-
art by money realized from the sale
before a dividend is declared, the
itled to a dividend on the full amount
aand, but only on the amount actually
the dividend is declared. Bank v.
461; Armory o. Francis, 16 Mass.
\rt, 13 Iowa, 515; Moore v. Dunn, 92
Fleming, 12 N. J. Eq. 13; Irons v.
d. Rep. 591. The law of these cases,
il the authorities cited, is only made
opinions show, where the collaterals
I to the debtor, — upon the principle
of an assigned estate are the equita-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 427
EiUoren v. Meehan.
ble owners of the property, that such estate had "been
diminished to the extent of the value of the securities
held by the preferred creditor, and that it would be
inequitable to allow such creditor to share ratably in
the remaining assets according to the face value of his
allowed claim. Obviously, this rule cannot obtain
where the debtor holds outside security. But, conced-
ing everything contended for on this point, what would
it argue in the plaintiff's favorl The creditors only^
who held allowed demands, could complain of the
excessive dividend in favor of the bank. The plaintiflE
did not have the amount paid by him allowed by the
assignee, and the latter could only declare and pay
dividends upon ** allowed demands.'' (Revised Stat-
utes, 1889, sec. 457.) Therefore, there could be no
pretense for the plaintiff's alleged equities, except upon
the theory that, as against the assigned estate, the
bank was entitled to a dividend on the full amount of
its claim, and that, as the plaintiff had previously paid
one-half the debt, he was, in equity, entitled to one-
half of the dividend, which we have attempted to show
is not the law.
For the reasons stated we are of the opinion that
the ruling of the circuit court on the demurrer was
proper, and its judgment is, therefore, affirmed. All
the judges concur.
Thomas H. Killoren, Appellant, v. Cobnelius Meehan
et ah. Respondents. 1 55 427
: 59 49
St. liOuis Court of Appeals, December 6, 1893. 66 4?ri
«68 2151
1. Buildingr Contract: discharge op surety op contractor. I 55 ^
When a building contract provides against any material variation |102 1715
from its terms, unless the difference in the contract price resulting
from the variation be first agreed upon by the parties in writing, and
a material change in the work is agreed upon between the, parties
but not in writing, the surety of one of them will be discharged from
further obligation, if he has not consented thereto.
Digitized by VjOOQIC
428 55 MISSOURI APPEAL REPORTS,
Eilloren y. Meehan.
2. : . Bat the surety will not be discharged by a change
in the work contracted for, which was rendered necessary solely by
the negligence of his principal in the execution of the contract ; nor by
an independent contract made after the completion and acceptance
of the work with respect to which he has bound himself.
8. Practice, Appellate: reyersal of sntirb judoment. The
plaintiff herein, who was a surety on the bond of a contractor for a
building, sued to enforce a mechanics' lien for work done on the
building, and recovered judgment. The defendant owner recovered
judgment on a counterclaim based on the bond. Held, on appeal by
the plaintiff, that error in the trial of the counterclaim should work
a reversal of both judgments.
Appeal from the St. Louis City Circuit Cowr^.-^HoN.
J. A. Hakrison, Judge.
Beyebsed and bemanded.
Seneca N. Taylor ^ Charles Erd and Ed. L. Powers
for appellant.
It is not disputed that the owner and contractor
could make any addition to, or omission from, the work
they might agree upon, or alter or change the con-
tract as they saw fit, without invalidating or rendering
it void between themselves ; but any such additions or
omissions or alterations made without the sureties' con-
sent discharges them from liability. Warden v. JRyan^
37 Mo. App. 470; Fitzgerald v. Beers y 31 Mo. App.
361; Beers v. Strimple, 22 S. W. Rep. 620. The stipu-
lations of the contract, in respect to omissions and
additions and changes, fix absolute limitations upon
the power of the supenntendent and are binding.
Beers v. StrimpUy 22 S. W. Eep. 620; Hartupee v.
Pittsburg, 97 Pa. St. 107-119; Ford v. United States, 17
Court of Claims, 60; Stewart v. Cambridge, 125 Mass.
102; Illinois Deaf and Dirnib Institutions v. Piatt, 5
Bradw. (111.) 567; Meiers v. Searl, 30 C. L. L. J. Q. B.
9; Russell v. LaDabanderia, 32 C. L. L. J. C. 68. It
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Killoren y. Meehan.
cannot be contended successfully by the
that the additions and alterations were of si
character as that the law will not regard tl
maxim de minimis non curat lex. It has
held that a sum equal to $20 would fall
maxim. Moreover, adding any substantia
obligation discharges the securities. FicJcei
ridge, 22 Pick. 298; Cherry v. Stephens, 9
Evans v. Fortman, 30 Mo. 449; Bank v. A\
Mo. 59; Bank v. Fricke, 75 Mo. 178; .
Garth, 78 Mo. 434; Hood v. Taubman, 7
Farrar v, Kramer, 5 Mo. App. 167.
A. jR. Taylor for respondents.
Biggs, J.— The defendant Dunn ent
contract with his codefendants, Meehan ai
for the construction of some buildings to b(
a lot owned by him. The houses were
according to written specifications and pla
building contract contained the further
that, if they were not completed at a given
Meehan and Creagen should forfeit and pay
for each day thereafter until their final
To secure Dunn in the performance of th
Meehan and Creagen gave an indemnifyii
which the plaintiflE was surety.
The present action is one for work
materials furnished by the plaintiflE as a su
under Meehan and Creagan in the constru
houses, and for the enforcement of a mec
against the lot and houses. Dunn alle
answer, by way of counterclaim against the
surety in the bond, that Meehan and Ci
failed to complete the houses within the
time, and that, by reason thereof, he (
Digitized by VjOOQIC
430 55 MISSOURI APPEAL REPORTS,
Killoren v. Meehan.
entitled under the terms of the bond to a judgment
against the plaintiff for $550. In reply the plaintiff
alleged that there was **a departure from the plans and
speciJBcations for the erection of said buildings in
question, made at the instance and request of said
Thomas Dunn, which departure required the furnish-
ing of other and additional material and labor in the
construction of said buildings, amounting in the^
aggregate to $100 or thereabouts; that the superin-
tendents for said buildings directed Meehan and
Creagen, contractor, to make such changes and altera-
tions and additions without first agreeing in writing,
signed by the contractors and said superintendents, as
to the cost and expense thereof, and this was in viola-
tion of the contract and bond, and discharged the
plaintiff as surety on said bond; that he never con-
sented or assented to said changes, nor did he know
that such changes, additions and alterations, were
being made until after said buildings were completed.''
The plaintiff as a further defense to the alleged counter-
claim averred that, for a consideration, Dunn had
agreed with Meehan and Creagen to waive all claims
for delay in the completion of the houses.
On the trial the juiy returned a verdict in plain-
tiff's favor for $507.90, and the jury also found that the
plaintiff was entitled to the enforcement of his mechan-
ics' lien. Judgment was entered accordingly. The
jury also returned a verdict in favor of Dunn on the
counterclaim for $500, and the court entered a judgment
thereon. It is of this last matter that the plaintiff
complains.
The building contract contains this clause: **The
superintendent shall be at liberty to make any devia-
tion from, or alteration in the plan, form, construction,
detail and execution described by the drawings and
specifications without invalidating or rendering void
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Killoren v. Meehan.
this contract, and, in case of any diflference i
expense, an addition to, or abatement from, the coi
price shall be made, and the same shall be deterr
by the architect; and, in case any such alterati
change shall be made or directed by the said su]
tendent as aforesaid, in the plans, drawings and
struction of the aforesaid buildings, and in case c
omission or addition to said buildings being requii
said superintendent, the cost and expense thereof w
agreed %ipon in writing^ and such agreement is to he t
by said parties of the second part (Meehan and Crei
and superintendent, before the same is done or befoi
allowance therefor can be claimed, and, in case of am
ure to so agree, the same shall be completed upon the
inal plany
It was developed by the plaintiff on the <
examination of W. B. Ittner, one of the archite<
charge of the buildings, that the cellar was du
inches deeper than the plans called for, thereby e
ing the additional cost of $32. Concerning this cl
the witness said: ^'As I remember, I think that
change in the depth of the cellar) was more of a r
sity than anything else. When we went to lay ou
house, we found the ground low; if we had bull
house as the plans showed, we would have nothi]
rest it on but six inches of air, so that we just drc
our bottom six inches ; it was not a change mac
Mr. Dunn's request, but it had to be made." Thi
ness also testified that, at the request of Dunn,
work was done in the bath room, amounting tc
shelves in the closets, $3 ; and a partition fenc(
that there was no written agreement between Mc
and Creagen and the superintendents, providing fo
change in the plans or for extra work or the
thereof; that the plaintiff was not notified of the cl
or extra work, and that he did not assent to the s
Digitized by VjOOQIC
432 55 MISSOURI APPEAL REPOETS,
Killoren y. Meehan.
On the other hand, there was some evidence tending to
prove that the change in the depth of the cellar
resulted from the negligence of Meehan and Creagen in
making the excavation in this, that in doing the work
they failed to consult the grades, thereby getting the
excavation for the cellar six inches deeper than the
plans called for, and that the excavation either had to
be refilled or the buildings constructed with the cellars
six inches deeper than the plans called for. There was
evidence, to the effect that the partition fence was built
by Meehan and Creagen without any orders from any-
one ; and that the agreement for the extra work on the
closets and bath rooms was made after the completion
and acceptance of the houses, dnd was independent of
the original contract.
The court refused the following instruction, asked
by theplaintiflf:
^*The court instructs the jury that, under the terms
of the contract read in evidence, neither the owner nor
the superintendents, Foster and Ittner, had any right
to make any changes, alterations or additions in the
work required to be done, which would increase the
cost thereof, without first agreeing in writing as to
the value of such additional cost, and said agreement
being signed by said superintendents and Meehan and
Creagen; and, if the jury believe from the evidence
that there was any additional. work done by said
Meehan and Creagen at the instance and request of the
superintendents, which increased the cost of the flats in
question, and that there was no agreement entered
into in writing between said superintendents on the one
side and Meehan and Creagen on the other before said
extra work was done, then this would release the plain-
tiff from any liability on his bond, and the jury should
find for the plaintiff and against defendant Dunn upon
his counterclaim.^'
Digitized by VjOOQIC
OCTOBER TERM, 1893. 433
Killoren y. Meehan.
The other members of the court are of opinion
that this instruction is defective, in that it ignored the
defendant's evidence to the effect that the additional
work on the excavation became necessary by the negli-
gence of the contractors, and that for this reason the
court was justified in refusing it. If the case had been
tried on such a theory, I would readily yield to this
view. But the entire record shows that the release of
the plaintiff from liability on the bond was resisted
upon the sole ground that changes might be made in
the building without first fixing the cost by written
agreement, as the contract provided. For this reason
alone the instruction was refused. The instructions
given by the court conclusively show this. Hence the
suggestion, which is made for the first time in this
court, that the instruction is faulty in the manner
stated, is an afterthought, and, I think, should not be
heeded in a review of the case.
But we are all agreed that the court committed
error by giving the defendants' fifth instruction, which
reads: *'The court instructs the jury that by the terms
of the contract and bond read in evidence the fact that
alterations or extra work was done by Meehan and
Creagen, the contractors on the buildings and improve-
ments, did not impair or render void said bond, nor
release or discharge the plaintiff from the obligations
of said bond.'' As all the evidence tended to show
that the alterations were made, and that the extra work
was performed without any agreement in writing pro-
viding therefor, and fixing the price thereof, this
instruction was clearly wrong under the recent decision
of the supreme court in the case of Beers v. StrimplCy
reported in 22 S. W. Rep. 620. The court was there
called upon to construe a similar contract, and the con-
clusion arrived at was that, before the owner or super-
intendent of the building was authorized under the
Vol. 55—28
Digitized by VjOOQIC
434 55 MISSOURI APPEAL REPORTS,
Eilloren v. Meehan.
contract to order changes or variations in the work, the
cost thereof must be agreed to in writing, signed by
the contractor and the superintendent. If it was not
so agreed beforehand, and the surety on the bond of
the contractor did not assent to the changes, he would
be released from his obligation. The court, in passing
on the question, said: ^'This agreement is clear, to the
effect that, before there can be any alteration or change
in the plans, drawings, or specifications, the cost must
be agreed upon by the superintendent, on the one
hand, and the parties of the second part on the other.
The two sentences, taken together, confer the right to
make alterations upon the superintendent, not the
plaintiff; but before any alterations are made, the cost
must be agreed upon in writing by him and the parties
of the second part. This mtist be the meaning of the
contract, taken as a whole, for the proposition is clearly
expressed and made prominent in the contract that,
before alterations or changes are made, the cost must
be agreed upon in writing, signed by the parties of the
second part and superintendent. ♦ ♦ ♦ The find-
ing of the referee shows that a number of changes and
alterations were made, and that, too, without the
knowledge or consent of the sureties. The law is well
settled that a surety has the right to stand upon the
strict terms of his contract, and if a variation is made
without his consent, he is discharged. The principle
applies to these building contracts the same as to other
contracts.'^
The other assignments are not well taken. But,
in view of a retrial, we deem it proper to suggest that
to relieve the plaintiff from his liability on the bond
the changes and extra work must have been authorized
either by the superintendents or Dunn, and the extra
work must have been performed under the original
contract. Therefore; if , as a matter of fact, the change
Digitized by VjOOQIC
OCTOBER TERM, 189;
Freymark v. McKinney Bread G
in the depth of the cellar was caused so]
gent act of Meehan and Creagen, ar
fence was built by them without order
and the extra work on the bathroom
was performed after the completion an
the buildings and under another and ir
tract between them and Dunn, then th<
plaintiff on the bond was in nowise affe
As the rights of the respective par
tied and adjudicated at one and the
error of the court in reference to the tri
terclaim must result in vacating the
gether. Therefore, it will be set asid
remanded. All the judges concur.
Chaeles Fbeymabk, Eespondent, v. M
Company, Appellant.
St. Louis Court of AppecJs, Decemb
1* Malicious Attachment: pleading : aide;
petition in an action for malicious attachment m
the attachment proceeding has terminated in fa'
defendant, or that it has terminated against him
opi>ortanity to defend against it; nor is the wa
cured by verdict.
2. : NATURE OP THE ACTION. Held, in the c
that the dissolution of the attachment is not sufi
tain an action for malicious attachment by the a1
that the basis of such action is malice and tl
cause ; and that the issue as to the want of probi
the acts and conduct of the attachment defends
warrant the belief that attachment would lie.
Appeal from the St. Louis City Circuit
Daniel D. Fisheb, Judg(
Sevebsed and Remanded.
Digitized by VjOOQIC
436 55 MISSOURI APPEAL REPORTS,
Freyiuark y. MoKinney Bread Co.
Christian <& Wind for appellant.
The petition does not allege that the attachment
suit was finally determined in favor of plaintiff, and
therefore does not state a cause of action. Mooney v.
Kennett, 19 Mo. 551-555; Sharpe v. Johnstmj 76 Mo.
660-669; Fixley v. Read, 26 Minn. 80; Vinal v. Core,
18 West Va. 24; Rothschild v. Meyer, 18 111. App. 284;
Miller v. Milligan, 48 Barb. 37; Gorton t). BeAuglis, 6
Wend. 420; Cardivalv. Smith, 109 Mass. 158; Wheeler
V. NesUtt, 65 U. S. 544; Stewart v. Saumbum, 98 XJ.
S. 187. As the final determination cannot be implied
from facts stated, the defect is not cured by verdict.
Mooney v. Eennett, 19 Mo. 555; Childs v. Railroad^ 17
S. W. Rep. 955, 956.
No brief filed for respondent.
Biggs, J. — Action for malicious attachment.
There was a judgment for five hundred dollars, from
which the defendant has prosecuted an appeal.
It is claimed that the petition fails to state a cause
of action, in that it fails to state that the attachment
had terminated in favor of the defendant therein. In
actions for malicious prosecutions, which are entirely
analogous, it has been held necessary to aver and prove
that the prosecution complained of had ended in an
acquital. Mooney v. Kennett, 19 Mo. 551; Sharpe v.
Johnston, 76 Mo. 660. Mr. Drake in his work on the
law of attachments states it is a general rule that, in
order to maintain an action for malicious attachment,
it is essential to aver and prove the determination of
the attachment in favor of the. defendant therein.
(Drake on Attachments [7 Ed.], sec. 729.) When,
however, the defendant in the attachment had no oppor-
tunity to defend against it, the action may be main-
Digitized by VjOOQIC
OCTOBER TERM, 1893.
FreTxnark y. McKinney Bread Co.
tained although the attachment tenninatec
the plaintiff. (Bump v. Belts, 19 Wend. 45
either case the petition must show affirna
the attachment has terminated.
Some of the authorities hold that the v
an allegation is cured by verdict. Under i
this could not be, if such fact is one of the
constituent elements of the cause of action,
will only make gooi an imperfect or insuff
ment of material facts. Orove v. City of
Mo. 672.
We think it evident that the rules
applicable to actions for malicious prosec
necessarily govern in suits for malicious
As the plaintiff's petition herein failed to
directly or inf erentially that the attachmen
favorably to him, or a state of facts tending 1
he was deprived of an opportunity to def
the attachment, we must hold that it faile
cause of action and that for this reason th
must be reversed.
In view of a retrial we think it necess
gest that, if the attachment has been <
otherwise finally settled in the plaintiff's
truth of the alleged grounds of attachmen
be the issue. That question would be rei
The issue would be whether the attachmei
out maliciously and without probable cau
V. ThieSj 56 Mo. 89; Hay den v. Samj
138; Brennanv. Tracy, 2 Mo. App. 540
cause has been defined to be ^ ^belief founc
sonable grounds.'' In other words, the iss
whether the acts and conduct of the defen
attachment were such as to warrant the
attachment would lie. On the trial of such
the facts and circumstances attending the
Digitized by VjOOQIC
5 MISSOURI APPEAL REPORTS,
Said y. Stromberg.
>f attachment may be incjuired into for the
of determining whether the plaintiff in the
nt had reasonable grounds to act, but not for
)se of determining whether the alleged grounds
iment were true or false (authorities above
Upon such an inquiry it has also been decided
3urt that evidence of the intentions of the
Lchment debtor is inadmissible, unless it
that such intentions had been made manifest
outward act, or had been disclosed or were
0 the plaintiflE in the attachment prior to the
of the writ. Brennan v. Tracy ^ supra,
1 the concurrence of the other judges the
b will be reversed and the cause remanded. It
jred.
E. Said et al.^ Appellants, v. William H.
Stkomberg, JRespondent.
Louis Court of Appeals, December 5, 1898.
ircts, Validity of : extra-tebbitoeial eppbot of Sunday
Dor statutes against the performance of labor on Sunday have
k-territorial effect, and, therefore, do not invalidate a contract
\ made in this state, but is wholly to be performed beyond its
ky at Common Law of Contract for Work on
y. A contract for work and the transaction of business on a
is not invalid at common law.
ice : JUDICIAL COGNIZANCE OF FACTS. Gourts wiU uotice judi-
L what day of the week a given date fell.
^om the St. Louis City Circuit Court. — Hon.
Daniel D. Fisheb, Judge.
0
0 AND BEMANDED.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 439
Said V. Stromberg.
W. C. Bragg for appellants.
No proof of the statute law of Illinois ]
offered, the disposition of this cause^must 1
by the common law, and at common law t
sued upon was not invalid. Rawlins v. I
2 C. B., 72-80; Bloxsome v. Williams, 3 B,
Merrett d Earle, 31 Barb. 40; 2 Parsons oi
p. 757; 17 Am. Law Reg., p. 281.
Frank A. C McManus for respondent.
RoMBAUER, P. J. — Touching the facts
there is no controversy. The plaintiffs, who
an association to conduct summer excursic
road trains running from the city of St. Lo
into the following contract with the defends
^*St. Louis, Mo., June 1(
'*We, the undersigned, do hereby sell t
ileges on our railroad excursion to Cereal S
Sunday, June 26, 1892, to Mr. W. H. Str<
the sum of $70, the baggage car to be pul
of train; otherwise, only $60. No gamb
allowed. All privileges allowed such as Mr.
may see fit to carry, except as above mentic
*'N. E. Said, Chairman Winona
^^St. Louis, June 16
* 'Received this day of W. H. Stromberg
of bar privileges to Cereal Springs, Sunda
twenty dollars ($20).
*'N. E. Said, Chairman Winona
On Sunday, June 26, defendant's outfit
into a baggage car in the city of St. Louii
locked by Said, and the key retained by
the car reached East St. Louis, in the state
The excursion train started from the latter ]
Digitized by VjOOQIC
SSOUKI APPEAL EEPOETS,
Said Y. Strombeig.
7er paid the balance of $50. There was
1 the case, either direct or inferential, to
any part of the contract was to be per-
state of Missouri, nor was there any evi-
) contract contemplated a violation of the
)f the state of Illinois, since the statute
tate were not in evidence. '
ig all the evidence, the court, upon plain-
first declared the law to be:
contract can be performed without any
aw, it is a legal presumption that it will
led ; or, at least, there is no presumption
t be so performed.
burden is on him who seeks to show the
El contract, which is valid according to its
as.''
re the contract in suit can be declared
lity, it must be shown that a performance
J unlawful in the state where it was to be
; then rendered a judgment for the defend-
)n plaintiflEs took this appeal.
t a loss to see how this judgment can be
he declarations of law made by the court
lably correct, and, when applied to the
d evidence, would logically result in a
plaintiff. Sheffield v. Balmer, 52 Mo. 475 ;
•. cfe Mech. Ass^n v. Delano^ 37 Mo. App.
, 108 Mo. 217. There is nothing, either
of the paper or in the evidence, to show
act, or any part thereof, was to be per-
unday in the state of Missouri. Our
ling the illegality of a sale of goods, or
3f labor on Sunday, have no extra-terri-
As the statute law of the state of Illinois
lay labor and sales was not in evidence,
Digitized by VjOOQIC
OCTOBER a
Wetmore i
that law, as far as it rests
On the other hand, if the (
mined by the common law,
in the sale or labor; becau
declared that no judicial act
on Sunday, as to all other i
between Sunday and other
sons on Contracts [7 Ed.],
take judicial notice of the f
of June, 1892, when the wril
delivered, fell on a Thursda
It results that the judg
the cause remanded. All tl
OOTAYIA WeTMOEE, Appcll
etal.j Beg
St. Louis Court of App<
Accountingf: insutpioienot op pi
tion and the evidence in this oaae
not to state, and the latter not to e
to an accounting with respect t
which the plaintiff and one of th<
Appeal from the St. Louis
Leroy B. Val
Affibmed.
John J. McCann for apj
Selden P. Spencer an<
respondents.
RoMBAUEE, P. J. — This
an accounting. Upon the
Digitized by VjOOQIC
442 55 MISSOUEI APPEAL REPORTS,
Wetmore v. Crondi.
evidence the trial court declared that, under the plead*
ings and -evidence, the plaintiff was not entitled to the
relief prayed for, nor to any relief. The plaintiff
thereupon took a voluntary nonsuit, and, upon the
refusal of the court to set it aside, brings the case here
by appeaL The defendant now contends that there
was no error in the ruling of the court, because the
plaintiff's petition states no cause of action for an
accounting, and her evidence substantiates none. The
plaintiff takes issue on both these propositions.
So much of the petition as bears upon the first
inquiiy is as follows:
The plaintiff states, **that defendants James N.
Crouch aijd Mary E. Crouch are husband and wife, and
that plaintiff is half sister to the latter; that, in the
summer of 1888, plaintiff and said James N. Crouch
entered into an agreement to buy between them and
speculate on a half interest in an option on certain real
estate, situated in St. Louis county, Missouri, then
known as the 'Benton farm,' plaintiff furnishing all
the money used in the enterprise, said James N. Crouch
engaging his business experience, labor and skill
therein; that the amount thereupon furnished by plain-
tiff was the sum of $250, and that shortly thereafter said
James N. Crouch succeeded in securing said one-hijf
interest in said option, paying therefor said sum of
$250; that shortly afterwards, in or about August, 1888,
the Kenwood Investment Company, a corporation organ-
ized under the laws of Missouri, purchased said Benton
farm at an advance of a large amount, to-wit, the sum
of $15,000, over and above the purchase price named in
in the option aforesaid, said James N. Crouch using
said option in the transfer from the original owners of
said Benton farm to said corporation; that the pro-
moters of said Kenwood Investment Company allowed
plaintiff and said James N. Crouch shares of stock in
Digitized by VjOOQIC
OCTOBER TERM, 1893. 443
Wetmore v. Crouch.
said corporation, of the par value of $6,500, as their
share of the capital stock of said company, accruing to
them from the use and management of said option
from its acquisition to the purchase by said corpora-
tion of said Benton farm ; that $1,000 par value of said
stock was thereupon received by said James N. Crouch
in his own name, and $5,500 par value thereof in two
certificates, of $5,000 and $500 respectively, by plaintiff
in her own name, said James N. Crouch at the same
time paying to plaintiff the sum of $250, and request-
ing and receiving from her the receipt which he origi-
nally gave her for the same ; that on the same day
plaintiff received the two certificates aforesaid, she was
requested by said James N. Crouch to assign the one
for $5,000 to defendant, Mary E. Crouch, which, in the
belief that it was in furtherance of the original agree-
ment between her and him, she at once complied with,
asking or receiving no consideration therefor at the
time; that subsequently, in May, 1889, said James N.
Crouch proposed to plaintiff to pool all the stock in
said corporation owned by them and realize upon the
same, to which plaintiff consented/ ^
The petition then goes on to state that all the
stock was transferred by the defendant Crouch to
third parties, and that he received in exchange therefor
a house, and lot and $2,100 in* money; that out of **the
$2,100 received by said Crouch as aforesaid, he then
and there gave to plaintiff the sum of $400 in a pre-
tended settlement of the profits of the purchase and
management of the option aforementioned, which she
then and there accepted; but plaintiff further states
that she was in utter ignorance of her rights at the
time said settlement was made ; that she relied implic-
itly on said James N. Crouch, who was well acquainted
with her for years, who had previously been befriended
by her, and who was related to her through his wife,
Digitized by VjOOQIC
444 55 MISSOURI APPEAL BEPORTS.
Wetmore v. Crouch.
to make a fall, fair and just settlement; that she at no
time advisedly waived any of her rights under the
original agreement first mentioned; that a portion of
said original agreement was that, in case the original
investment of $250 was lost, said James N, Crouch
would refund to plaintiflf one-half the amount thereof,
while, if it proved profitable, both he and the plaintiff
were to make considerahle profit out of it.^^
The petition concludes with a prayer that the
pretended settlement between plaintiflE and defendant,
James N. Crouch, be cancelled and set aside; that said
James N. Crouch be ordered to account to plaintiff for
an equal one-half portion of the original profits of the
original agreement hereinbefore first referred to, and
for other relief.
The petition is very inartificially drawn, and it is
difficult to glean from it what it intends to charge as
to the character of the business relations created
between the plaintiff and the defendant Crouch by
their engaging in the venture mentioned. It is evi-
dent at first glance that no partnership is charged,
because, in order to create that relation in this state, a
mere participation in profits and losses of the business
does not suffice. There must be such a community of
interest as empowers each party to make contracts,
incur liabilities, manage the whole business, and dis-
pose of the whole property, a right which upon the
dissolution of the partnership by death of one passes
to the survivor, and not to the representatives of the
deceased. Donnell v. Harshe^ 67 Mo. 170; Musser v.
Brinks 68 Mo. 242; Newherger v. Friede^ 23 Mo. App.
631, 637, and cases cited. The case of Lengle v. Smith,
48 Mo. 276, on which plaintiff relies, is irreconcilable
with the later cases decided by the supreme court. As
we stated in Newherger v. Friede, supra j **we are
bound to follow the last controlling decision of the
Digitized by VjOOQIC
OCTOBER TERM. 1893.
Wetmore v. Crouch.
supreme court on the subject, and to regard
Ear she as overruling Lengle v. Smith.^^
As no partnership is charged in th(
either expressly or by implication, the ques
what other facts dbes the petition charge wl:
entitled the plaintiflE to an account in equity
nite amount. The petition does not state
original contract between the plaintiflE and tl
ant, Crouch, was, any further than **that th
into an agreement to buy between them and
on a half interest in an option in certain rei
and, further, that in case the original inv(
$250 (which the plaintiff furnished) was ]
venture, said Crouch would refund to the ph
half thereof, while, if the venture proved
**he and plaintiff were to make considerable
of it." The petition nowhere charges, eithe
or (in the absence of an allegation of partn<
necessary intendment, that the plaintiff ai
were to derive the profit arising from the ver
and share alike. It does charge in a blind
the plaintiff did receive $400 in settleme
profits of the venture, and that she seeks tc
that settlement, but it nowhere charges tha
tlement was brought about by any fraud or
sentation on the part of Crouch, or that the
not a considerable profit on an investmen
The sum and substance of the petition is
plaintiff gave to the defendant $250 to ii
joint venture, out of which, if it proved prol
and the defendant were to make consideral
that if, on the other hand, it proved unprol
was to have half of the money returned to
subsequently in settlement of her share of 1
the defendant gave her $400, but that this
should be set aside as inequitable^ and she
Digitized by VjOOQIC
446 55 MISSOURI APPEAL REPORTS,
Wetmore v. Crouch.
let into a full participation to the extent of one-half of
^ the profits.
The true test of the sufficiency of a petition is
whether, if all the facts therein stated are true, the
plaintiff is entitled to any relief. It is evident that
all the facts stated in this petition might be trae, and
yet the plaintiff would be entitled to no relief. The
petition nowhere shows what the share of the plaintiff
in the profits was to be, except that it was to be con-
siderable, nor does it show that the settlement of her
profits, when made, was brought about by fraud or
misrepresentation. The court would have been justi-
fied in sustaining the defendant's objection to the
introduction of any evidence under this petition, and
hence was justified in declaring that, under the plead-
ings and evidence, the plaintiff was not entitled to any
relief.
The plaintiff was the only witness who testified
orally at the trial. She stated the transaction substan-
tially the same as it was stated in her petition. She
said in addition that nothing was said as to the ratio
of division of the profits, except that the defendant
said in a laughing way, **he would like to limit me."
When the $6,500 of stock, of which $6,250 represented
the profit of the venture, was received, the defendant
gave to the plaintiff $500 of it, retained $1,000 in his
own name and $5,000 in the name of his wife. He
said to the plaintiff that he would not be willing to
give her less than $500. The plaintiff afterwards trans-
ferred her $500 of stock to the defendant to enable him
to pool it with his stock in trading the entire amount
to a third party. After the trade was consummated,
the defendant paid to the plaintiff $400, stating that
that represented the proceeds of her stock, less amounts
for expenses and taxes. It appeared affirmatively from
the plaintiff^s own evidence that she at no time prior
Digitized by VjOOQIC
OCTOBER TERM,
Wetmore v. Crouol
to the institution of this suit clain
she received, nor sought an ex
defendant why he did not give hei
of stock out of the $6,500. Whei
to her, she made no reply at all ;
money. The plaintiflE's testimony
doubt that she knew what the pi
venture were, and that, in receivii
in the first instance, and the $^
quently as proceeds of such stQc
represented the amount which the
to give to her as her share of the pr<
still she made no objection and as
tion. The plaintiff's evidence, ai
who testified by deposition thai
made a statement to him subseq
ment, that *'by rights the plain
one-half of what the defendant i
tiff very generous and did not ask
evidence in the case.
It will be. thus seen that t
broader than the petition, and fu
a right to an account. Independ(
admission last above quoted, th
tends to negative any promise, e:
pay to her any definite amount
venture beyond the amount wh
received. Whether the defends
above quoted could be made avail
law for conversion, or in an actioi
received by the defendants to ph
not speculate upon, as this is not
the basis of an independent promi
to an account, it is clearly unavai]
tains no promise, because the stat
to the plaintiff y and because it wai
Digitized by VjOOQIC
448 55 MISSOURI APPEAL REPORTS,
State ex rel. v. Boever.
tlement was had which the plaintiff now seeks to set
aside. Neither has the statement, taken as a whole,
any tendency to show fraud in the settlement.
We fail to see, therefore, either in the plaintiff's
petition or in the evidence adduced in support thereof,
any ground for equitable relief. No partnership is
alleged or shown; hence, equitable relief cannot be
invoked on the ground of partnership account. No
fraud in the alleged settlement is charged or shown;
hence there is no claim presented for equitable relief
on that ground. Touching the only allegations calling
for equitable relief in the petition, namely, the setting
aside of certain conveyances for fraud, there is not a
particle of evidence in the record. It nowhere appears
that, if the plaintiff has any right, she has not an
adequate remedy at law.
Seeing no error in the record, the judgment is
affirmed. All the judges concur.
State ex rel. Matthew Smith, Respondent, v. J. 0.
RoEVEB et ah J Appellants.
St. Louis Oourt of Appeals, December 5, 1898.
1. Chattel Mortffafires: effeot of power of salb on part of
HOBTGAGOB. To render a chattel mortgage constraotively fraudulent,
a power of sale or substitution on the part of the mortgagor most be
reserved at the time of the execution of the mortgage; if confeired
subsequently thereto, it will not have that effeot.
: ooNSTBucnvB fbaxtd: effect of actual delivbby of
CHATTELS TO HOBTGAGEB. A chattel mortgage which is only eon-
structiyely fraudulent is purged of the fraud, if the mortgagee rl^t-
fully takes possession of the mortgaged property prior to any levy on
it under process against the mortgagor.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
State ex rel. v. Roever.
Appeal from the St. Louis City Circuit Cou
Daniel Dillon, Judge.
Affirmed.
Henry B. Davis for appellants.
Appellants' first and second instructio
have been given. The assent by Smith to tl
O'Brien of the eight cows and one horse, noi
purpose of turning over the proceeds to
account of his debt, but to use them to pure]
stock to be the property of the mortgagor,
the mortgage, and that the mortgagor shoul
the power of disposition of the property, hac
effect in showing the intention of the parties,
a provision had been incorporated in the d
nally. Thompson v. Foerstel, 10 Mo. App.
burn V. Mueller, 10 Mo. App. 87; State v. Ja*
App. 297; Eby v. Watkins, 39 Mo. 27; Bulk
retty 87 Mo. 185.
John P. Leahy for respondent.
Biggs, J. — This is an action on an ind
boijd, in which the relator recovered a jud
$179.35. There is no conflict in the evidence
the following facts. One the first day of J
one Thomas O'Brien was indebted to the
the sum of $471, for which on that day he ex
promissory note to the relator, due six mo
date, with six per cent, interest from date,
this note O'Brien, on the same day, executes
.mortgage on certain milch cows, horses and
which mortgage contained the usual cover
Vol. 55—29
Digitized by VjOOQIC
450 65 MISSOURI APPEAL REPORTS,
State ex rel. v. Boever.
O'Brien should remain in possession of the property
until the maturity of the note, unless he attempted to
remove or sell the property, or unless there was an
unreasonable depreciation in its value, in which cases
the relator was authorized to take possession. The
mortgage was filed for record on July 15, 1892. A few
days after the last mentioned date O'Brien, who waa
at the time engaged in running a dairy, sold some of
the cows which were not giving milk and also a horse
embraced in the mortgage. He pocketed the proceeds
and absconded. The relator admitted that he con-
sented to this sale upon the promisethat O'Brien would
either pay to him the proceeds, or invest the money in
cows that were giving milk. O'Brien left no one in
charge of his property, and, as there was nothing for
the stock to eat, and O'Brien's whereabouts were
unknown to the relator, the latter took possession of
the property under his mortgage. Afterwards, on the
first day of August, 1892, the defendants, Roever and
Storbeck, sued O'Brien by attachment, and the con-
stable under their orders seized two of the horses cov-
ered by the mortgage. At the time of the levy one of
the horses was in the actual possession of the relator,
and the other was in the possession of a third party, to
whom the relator had delivered it on trial with a view
»
of its sale. Thereupon the relator gave the constable
notice of his claim to the horses, and the defendants
executed the bond in suit.
The answer was to the eflfect that the mortgage was
constructively fraudulent as to the creditors of O^Brien,
and also that it was executed for the purpose of hinder-
ing, defrauding and delaying them in the collection of
their debts.
The defendants asked, and the court refused to
give, the following instructions, of which complaint is
now made.
Digitized by VjOOQIC
OCTOBER TERM, 1893. . 451
State ex rel. v. Eoever.
''1. The court declares the law to be that, if
O'Brien with the consent of Smith, the plaintiflE herein,
sold any of the property mentioned in the mortgage
read in evidence, and did not or was not to account to
Smith for the proceeds thereof, then the jury will find
for the defendants, notwithstanding the jury may fur-
ther find that said O'Brien agreed with Smith that new
property would be bought with the proceeds and that
said new property would be covered by the mortgage.
''2. The court declares the law to be that, if the
relator Smith, the plaintiflE herein, agreed with O'Brien
that any of the property covered by the mortgage
should be sold by O'Brien, and that the money so
obtained was to go to the purchase of new property
which should be covered by the mortgage, then the
jury will find for the defendants."
There was no evidence tending to prove any actual
fraud as to the relator's debt, nor as to the execution
of the mortgage, so that that view of the case may be
put aside.
It is urged that, under the decision of the Kansas
City Court of Appeals, in the case of Smith v. Hantj 51
Mo. App. 437, the instructions of the defendants ought
to have been given. The decision referred to seems to
hold that when, subsequently to the execution and
delivery of the mortgage, the mortgagor with the con-
sent of the mortgagee sells the mortgaged property or
substitutes other property in its place, the court should
peremptorily instruct the jury that the mortgage was
constructively fraudulent as to the other creditors of
the mortgagor. We can not concur in that view of the
law. We are of the opinion that, to render a chattel
mortgage constructively fraudulent, the right of the
mortgagor to sell or substitute other property must
have entered into the original agreement. If extrinsic
evidence is relied on to show such an understanding,
Digitized by VjOOQIC
452 55 MISSOURI APPEAL EEPORTS,
State ex rel. v. Roever.
subsequent sales or the substitution of other property
by the mortgagor with the knowledge and consent of
the mortgagee would only be evidence to be considered
by the jury in determining whether the right of sale or
of substitution was reserved to the mortgagor at the
time the mortgage was executed. Jennings v, Sparkman,
48 Mo. App. 246; Bullene v. Barrett, 87 Mo. 186.
However, under no view of the law would the court
have been authorized to give the instructions which the
defendants asked, for the reason that all of the evidence
tended to shpw that, at the time of the levy of the
writ of attachment, the relator was rightfully in
possession of the property as mortgagee. The
adjudicated cases in this state hold that a mort-
gage which is only constructively fraudulent is purged
of the fraud, if the mortgagee prior to the seiz-
ure by the creditor has rightfully taken possession of
the property. Nash v Norment, 5 Mo. App. 545; Chree-
ley V. Reading f 74 Mo. 309; Dobyns v. Meyer, 95 Mo.
132; Manhattan Brass Co. v. Webster Co., 37 Mo. App.
145; 'Joseph, Nelke, <& Co. v. Boldridge, 43 Mo. App.
333 ; Koppelman Furniture Co. v. Fricke, 39 Mo. App.
146.
The objection, that the judgment is excessive, was
not urged in the motion for new trial. Although the
point is not properly before us, we have looked into the
evidence and found that the judgment is less than the
balance due on the relator's demand, and it is within
the limits of the relator's evidence as to the value of
the horses.
Neither has the defendant any room to complain
of the relator's instructions. The one as to the meas-
ure of damages is faulty, in that it fails to authorize
the recovery of interest on the damages assessed. This
error was against the relator. The other instructions
stated correctly certain propositions of law which may
Digitized by VjOOQIC
I
OCTOBER TERM, 18
Busso V. Fette.
not have been necessary, but they v
prejudicial.
With the concurrence of the othe:
ment of the circuit court will be'a]
ordered.
John Busso, Appellant, v. Anton Fe
8t. Louis Court of Appeals, Decen
Mechanics' Liens : supficienoy op account.
an account filed as a mechanic's lien, though i
detailed statement of the work for which it is i
it is a fact, and the account on its face shows,
contract for the work at the amount of the c
over, the action for the enforcement of the lie
tra^t, and not upon a quantum meruit. £spe<
the lien is filed by an original contractor as di
contractor.
Appeal from the St. Louis City Civi
Leroy B. Valliant, Ju
Reversed and remanded.
John J. McCann for appellant.
F. A. C. MacMantis for respond(
Biggs, J. — Action to enforce a
On the trial the court refused to alio
his lien paper in evidence for the r
opinion of the court, it failed to answe
of the statute, in that the statement c
too indefinite. The court, sitting
for the plaintiff in the sum of $385.1
was entered against the defendant for 1
court also found that the mechanic's
Digitized by VjOOQIC
■\ ^-^ '•'',''
454 55 MISSOURI APPEAL REPORTS,
Busso V. Fette.
established. The plaintiflf has brought the case here by
appeal, and the sole question arising under the record
is the correctness of the ruling of the circuit court as to
the suflBciency of th« lien paper.
The plaintiff alleged in his petition, and his evi-
dence tended to prove, that he made a contract with
the defendant, who was about to commence the erec-
tion of a building on premises owned by him, to do the
stone work on the house, consisting of **cut stone, rub-
ble masonry and range material,'' and to furnish the
necessary materials therefor, for the sum of $364; that
he fully performed the work, and that he also did extra
work at the request of the defendant, which was
reasonably worth $25. The court held the petition to
be bad as to the item for extra work, and the parties
proceeded to trial on the other item of the account.
That the lien paper was properly filed within the
time prescribed by law is not disputed.* It reads:
* ' State of Missouki, ^
>ss.
^'City of St. Louis. J
**The undersigned. John Busso, states that he was
the original contractor with Anton Fette, hereinafter
mentioned, for the furnishing and setting of cut stone,
rubble masonry and range material, and labor in set-
ting same, in the erection of a certain new two-story
building situated on lot number 30, as represented in the
amended plat of Gartside's subdivision in the Prairie
Des Noyers fields, and in city block number 5016 of
the city of St. Louis, state of Missouri, having a front
of fifty feet on the west line of Alfred avenue, by a
depth running westwardly, between parallel lines, of one
hundred and fifty-two feet, six inches to an alley; that
Anton Fette aforesaid was, and is, the owner of said
house and lot at the time the contract with affiant was
made, and now; that the materials and labor men-
Digitized by VjOOQIC
OCTOBER TERM, 1893.
■H
Busso V. Fette.
tioned were furnished and rendered at his sj
instance and request, and that the following is 8
and true account of the demand due affiant affr
just credits have been given therefor, to-wit:
**To material and labor furnished and renc
thereupon, as per original bid and contract, $364.
*'To materials and labor furnished and renc
thereupon, extra or change in plans, $25.
**That the work was begun, to-wit, on Marc
1892, and was finished and the indebtedness ace
April 5, '1892, and that the sum of three hundred
eighty-nine dollars ($389), is due said Busso from
Fette for and on account of the premises.
^^JoHN Busso
'*The above named John Busso, being duly ss
on his oath says that the matters and things state
the above and foregoing statement are true.
**JoHN Busso
^^Sworn to and subscribed before me this
teenth day of May, 1892. My term expires thirty
of October, 1893 5 witness hand and seal.
'^'Alston L. Ryland, [seal"
^'Notary Public
Under the decision of the supreme court ii
case of Eude v. Mitchell, 97 Mo. 365, and tht
Hilliker v. Francisco j 65 Mo. 599, both of which in
the sufficiency of mechanics' lien accounts, it is j
difficult to apply the law in some cases. The 0
tionable item in the Hilliker case reads: ^'To Jun
City. Stone furnished First National Bank, ai
contract, $7,790.'' This was held sufficient to si
the statute. The main item in the Rude case n
'*1892. Dec. 1st. For alterations and additioi
buildings Nos. 210 and 212 N. Third St., as
plans and specifications, $22,287." Then foil
Digitized by VjOOQIC
SOURI APPEAL REPORTS,
Busso V Fette.
ems for extra work. The statement of
s held to be too indefinite,
n its opinion in the Rude case approved
ng ii^ the Hilliker case, and undertook
he cases. In referring to the Hilliker
L.ACK said: ^^The suit was one by the
md there was evidence to show that the
ed with the contractor to the sum of
Busation to the plaintiflEs for the material
tioned in the item. Under these cir-
NBLS held that the item was sufficiently
item there in dispute, it will be seen,
stone work and labor of setting only,
given. In the present case the first item
and there is nothing to show, on the
ount, what is, or what is not, intended
0 us that another distinctive difference
two cases, and which perhaps would
• particularity in the statement of one
bhe other, is, that the recovery in the
ras on a special contract, in which the
;reed on a lumping price for the work
ually performed and which was desig-
iccount, whereas in the Rude case the
a a quantum meruit^ — the referee holding
3 be no recovery under the contract for
it the difference in the price for the
extra work had not been fixed by the
e contract required.
) at bar the lien paper states that there
:)ntract with the owner of the building
stone and other materials, and do the
k for the ''cut stone, rubble masonry
3rial,'' in the construction of the house
f $364. The petition stated the same
Digitized by VjOOQIC
* fPTiJ^^^sme ffHnniT«*wT?^j^ti«:?
OCTOBER TERM, 1893. 457
Grimm v. Dundee Land and Investment Co.
facts, and the plaintiflE introduced evidence tending to
prove the averments, and also that he had fully per-
formed the contract on his part. It seems to us that
this is a stronger case on the facts in favor of the lien
than that of Hilliker v. Francisco. There Hilliker was
a subcontractor. Here the plaintiflE is an original con-
tractor. The object of the statute, which requires an
itemized statement of the account, is to notify the
owner, and other parties interested in the property
sought to be charged' with the lien, of the nature of
the work and the amount of the claim, to enable them
to inquire into the validity of the claim as an incum-
brance. As there is no one to be affected in the case
at bar but the plaintiff, what additional information
would a more particular statement (if such a thing had
been possible) have conveyed to him? Certainly none.
Even as to third persons there is sufficient in the lien
paper to show that the defendant had agreed to pay to
plaintiff the sum of $364 for stone work in the build-
ing, including materials and work, and that the work
had been performed and not paid for. It seems to us
that this case falls within the principle of the Hilliker^
Francisco case, and must be governed by it.
With the concurrence of the other judges the
judgment of the circuit court will be reversed and the
cause remanded. It is so ordered.
J. Hugo Grimm, Respondent, v. Dundee Land and
In\'EStment Company, Appellant.
St. Louis Court of Appeals, December 6, 1893.
1. Justices' Courts : waiver op objection to want op jurisdiction.
The doctrine, that jurisdiction over persons may be conferred by
consent or waiver, is applicable to justices' courts.,
55
4n7
68
36
68
46
55
457
95
«624
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
Grimm v. Dundee Land and Investment Co.
itice, Trials insuppiciency op objection to evidenob,
)tion to the admission in evidence of a letter as a whole is
icient, when a portion of it is competent.
jrom the St. Louis City Circuit Court. — Hon. Jr
A. Habrison, Special Judge.
[ED.
\wson & Oarvin for appellant.
) The justice had no jurisdiction because of the
laracter of his statutory powers and the locality
residences of the parties, plaintiff and defend-
Phe statute prescribes the limits of his jurisdic-
Revised Statutes, 1889, sec. 6126; Bums v.
ly 6 Mo. App. 194: Bast v. Ketchum^ 5 Mo. App^
'larkson v. Guernsey, etc. Co. 22 Mo. App, 111 ;
V. Bail/road, 38 Mo. App. 50; United States, etc.
Reisinger, 43 Mo. App. 574; Hausberger v. Bail-
3 Mo. 200; State v. Metzer, 26 Mo. 66; Ba v.
id, 45 Mo. 475; ^Fare v. Ounter, 82 Mo. 524;
k V. Bailroad, 89 Mo. 183; Hamilton v.
ise, 40 Iowa, 75 ; Murfree's Justice Practice, sec.
in appearance of the defendant did not, and
t of parties cannot, give the justice jurisdiction,
greater powers in this case than is conferred
sly by the statutes. Chapman v. Morgan, 2 G.
t; Smith V. Simpson, 80 Mo. 639; McMeans v.
m, 51 Iowa, 691 ; Thurston v. Wilkinson, 65 Ga.
Mitchell V. Braswell, 59 Ga. 534; Dodson v.
, 47 Mb. 287; Boy er v. Moore, 42 Iowa, 544;
on Jurisdiction, sec. 36, note 2; Murfree's
) Practice, sec. 227; Gregg v. Bailroad, 48 Mo.
99; Christian v. Williams, 111 Mo. 429. (2)
dgment should be reversed for errors committed
e trial court in admitting illegal evidence.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 459
■. ■ ^ .
Grimm v. Dundee Land and Investment Co.
Hammond v. Beeson, 112 Mo. 201; Ebersole v. Eankifij
102 Mo. 500; State v. Whelehofiy 102 Mo. 18; Brownfield
V. Ins. Co. J 35 Mo. App. 55; Fowle v. Stevenson, 1
Johns. Cas. 110; Tuttle v. Hunt, 2 Cowen Eep. 436;
Champlin v. Filley, 3 Day, 303 ; Pennfield v. Carpenter^
13 Johns. Hep. S50 ^IRutledge v. Bailroadj 110 Mo. 318.
J. Hugo Grimm for respondent.
Even if the act of 1883 was repealed, whicih is
denied, still the defendant has waived any objection to
the court's jurisdiction over its person, first, by appear-
ing and defending before the justice; second, by tak-
ing an appeal to the circuit court and there again trying
the case on its merits, Bornschein v. Fink, 13 Mo.
App. 121, 123; Gihhsv. Railroad, 11 Mo. App. 459;
Gantv. Railroad, 79 Mo. 502; Kelly v. Railroad, 86
Mo. 682; Fitterling v. Railroad, 79 Mo. 504; Boulware
V. Railroad, 79 Mo. 494; Berkley v. Kobes, 13 Mo.
App. 502; Ricev. Railroad, 30 Mo. App. 110; Fair v.
Qunter, 82 Mo. 523; Blackman v. Cowan, 11 Mo. App.
588; Eevised Statutes, 1889, sees. 6123, 6125, 6326,
6328,6339. As to the meaning of '* jurisdiction of sub-
ject-matter,'' see Dowdy v. W amhle, 110 IA.0. 284.
RoMBAUER, P. J. — This action was instituted before
a justice of the peace in the city of St. Louis, its object
being the recovery of damages for breach of a contract
of sale. The defendant appeared before the justice in
obedience to a summons, and defended the action on
its merits. Upon being defeated the defendant
appealed to the circuit court, where it was again
defeated; and it now prosecutes the present appeal.
It was admitted on the trial in the circuit court
that the defendant did not reside in the judicial district
of the justice, nor in an adjoining judicial district, and
Digitized by VjOOQIC
460 55 MISSOURI APPEAL REPORTS,
Grimm v. Dundee Land and Investment Co .
had no office- in either of them. The defendant moved
to dismiss the cause for want of jurisdiction, but the
motion was overruled by the court, and this ruling is
now complained of as error.
This assignment of error is based on the assump-
tion, that section 6126 of the Revised Statutes of 1889
is an express repeal of the act of 1883, page 103, which
conferred on justices within the city of St. Louis, juris-
diction co-extensive with the city, regardless of the
defendant's residence. We need not discuss the merits
of that argument, as the point does not call for a
decision on the record before us. It nowhere appears
that the plaintiflE did not reside in the judicial district
of the justice before whom the cause was tried, nor that
the defendant was not found therein. The defendant
is a corporation and as such can have no fixed resi-
dence in any district ; and it does not appear that its
president, who by law is the proper person to be served,
was not found in the judicial district of the justice.
Revised Statutes, 1889, section 2527; Mikel v. Railroad j
54 Mo. 145. The record merely recites that the sum-
mons was returned duly served. But, even if this
objection were out of the way, the defendant's position
would not be mended, because it is affirmatively shown
by the record that it appeared before the justice and
went to trial upon the merits of the action. By so
doing the defendant waived any objection to the jurisdic-
tion of the justice over its person, since the action was
transitory. The position now taken by the defendant,
that, as to tribunals of limited and statutory jurisdic-
tion, even the jurisdiction of persons becomes juris-
diction of subject-matter, is untenable both on principle
and authority. The case of Fare v. Gunter, 82 Mo.
522, impliedly decides that, even where the justice has
no jurisdiction of the person of the defendant, because
he resides in another township, an appearance to the
Digitized by VjOOQIC
OCTOBER TEEM, 18
Grimm v. Dundee Land and Invest]
merits waives the objection to the
cannot see how the law could be (
giving rise to the most in terminable
the statute does not require either 1
sei-ves the writ, or the justice
cause, to state the residence of thi
we take judicial notice of the fact i
done.
Upon the trial of the merits 1
evidence tending to show that he
defendant a lot of land at auction sal
of his purchase deposited $50 as ea:
the defendant. It was conceded th
at the time gave to the plaintiff a
the sale, executed by its duly auth
stating that the sale was at the rate
foot. The plaintiff was always read;
the transaction on that basis, but the <
that the sale was at $25.50 per front 1
to tender a deed to the plaintiff for t
as it was claimed to be by plaintiff
of this controversy dragged on for
when the plaintiff finally consented
additional fifty cents per front foot
benefit of his bargain, the defendant
upon him conditions as to the paj
which were not contained in the pros
The plaintiff also gave evidence ten(
the market value of the lot sold to h
ant was, at the date of sale, $30 per f
On the other hand, the defendant
to show that the sale was made at a j
front foot, and that the memorandui
to the plaintiff, which stated the pi
mistake of the scrivener. The def
evidence tending to show that it wai
Digitized by VjOOQIC
462 55 MISSOURI APPEAL REPORTS,
Grimm v. Dundee Land and Investment Co.
convey the property to the plaintiff upon his complying
with the terms of the sale at $25.50 per front foot.
The court instructed the jury in substance that, if
they believed the facts to be as shown by plaintiff's
evidence, the plaintiff was entitled to recover the $50
paid by him to the defendant, and also any excess in
the market value of the lot over and above the amount
at which the lot was sold to him ; that, if they believed
that there was a mistake in good faith on part of the
plaintiff and defendant as to the price of sale, then the
plaintiff's recovery was limited to the $50 earnest
money which he had paid; but that if, on the other
hand, they believed the facts to be as shown by the
defendant's evidence, then the plaintiff could not
recover, and they must find for the defendant. The
» jury found for the plaintiff in the sum of $300, their
verdict indicating that they found a sale of the lot at
$25 per front foot, a breach of the contract of sale by
the defendant, and a market value of the lot at $30
per front foot, the lot being one of fifty feet front.
Complamt is made of these instructions, because
they submitted to the jury the plaintiff's right of,
recovery of the earnest money in case of mistake,
whereas his statement sought only the recovery of
damages for breach of contract of sale. It suffices to
say in reply to this complaint that this action was
instituted before a justice of the peace, where formal
pleadings are not required, and that the plaintiff's
statement sought to recover as well the earnest money
as damages for the breach of the contract. But even
if the case were otherwise, the defendant would be in
no position to complain, since the verdict of the jury
conclusively shows that they found for the plaintiff not
on the ground of mutual mistake, but on the ground
of the breach by the defendant of the contract as
Digitized by VjOOQIC
OCTOBER TERM,
Grimm y. Dundee Land and Inve
claimed in the plaintiflE ^s statement
tion complained of, even if not wan
framed, could not have possibly mis
Complaint is also made that th(
defendant's objections, permitted t
to the jury certain letters, which he
defendant's agents urging them t
contract. When these letters were
each of them was objected to as
objections been confined to certain
court would probably have sustai
but, as it was, the objection was
portions of each of the lettei-s. wer
dence as tending to show the read:
plaintiflE to comply with his part
Hence we must overrule this aj
likewise.
Complaint is also made that t
the plaintiflE to amend his origii
thereby, as the defendant claims, s
the cause of action. The amendec
the circuit court is diflEerent from
before the justice only in setting oi
facts. The plaintiflE would certai
liberty to prove all' the facts, which
circuit court, under his original
before the justice of the peace, j
which was the breach of the cont
defendant, was in no way changed.
Finding no error in the recc
with the concurrence of all the judj
Digitized by VjOOQIC
MISSOURI APPEAL REPORTS,
Collins V. Kammann.
iLiNS, Respondent, v. August B. Kammann,
e of Progressive Benefit Order, Appellant.
>uis Court of Appeals, December 6, 1893.
Courts : piling op papers. The filing of a paper— in
the contract sued upon — is its actual delivery to the officer
r it is to file it. The filing need not be shown by a file
RiSDiCTioNAL PACTS. It is not essential to the validity of
mt of a justice of the peace that the jurisdictional facts
ear from his docket entries ; it suffices if they appear any-
he face of the proceedings.
nent : assessments bt benepft society. An assessment
benefit society against a subordinate lodge reached the
le treasurer of the lodge, whose duty it then was to imme-
ward the fund to the treasurer of the society ; nor did the
aafter, under its own laws or those of the society, have any
)r the fund. Held, that the fund was subject to garnish*
r a writ of attachment against the society, notwithstanding
Ige had directed its treasurer not to forward, but to hold, the
ig to the failing condition of the society.
m the St. Louis City Circuit Court. — Hon.
Daniel D. Fisher, Judge.
4. Steber for appellant.
(& Jamison for respondent.
UEE, P. J. — The defendant appeals from a
rendered against him as garnishee of the
3 Benefit Order. The facts, succinctly
as follows : The Progressive Benefit Order
n corporation, and one of its objects and
vers is to establish a benefit and reserve fund
Digitized by VjOOQIC
^^
OCTOBER TERM, 1893. 465
Collins V. Kammann.
from which those, who have held a certificate of mem-
bership in it for one year, may receive an amount of
$100. By the genei-al laws of the order, this $100 is
payable to all who pay assessments at the rate of $2,
when called for. Subordinate lodges are established,
and it is provided that, whenever an assessment is
made, the secretary of the subordinate lodge shall cer-
tify to the treasurer of the same the amount due on the
assessment J)y the terms of the call. The treasurer of
the subordinate lodge shall immediately forward the
same to the supreme treasurer, and notify the secretary
of the lodge in writing that the amount has been for-
warded. Any lodge, which fails to have the amount
of the assessment in the hands of the supreme treasurer
within fifteen days from the date of the expiration of
the call, shall be reported by the supreme secretary to
the supreme president, who shall at once suspend the
lodge. Assessments are made by the supreme lodge on
each subordinate lodge. It is also provided by the laws
governing subordinate lodges that their treasurer shall
keep the general and reserve and benefit funds in sep-
arate accounts, and not allow them to be used for any
other purpose than that provided for by law.
Prior to the institution of this suit, two assessments
(numbers 27 and 28) were thus made, and the gar-
ishee, who is treasurer of the subordinate lodge known
as Future GreatLodge, number 179, had$400 of moneys
arising from such assessments in his possession,
belonging to the relief fund. The Progressive Benefit
Order being in a failing condition, the members of
lodge 179 met and decided by a vote that the treasurer
should not forward assessment number 27 to the
supreme lodge, but hold the same for the members (of
the subordinate lodge) until further orders. It was in
evidence that the plaintiflE was present at this meeting,
but it did not appear that she participated in the pro-
VOL. 55—30
Digitized by VjOOQIC
0""
'^^'^^
W' ■ ,
^ 466 55 MISSOURI APPEAL REPORTS,
Collins V. Eammaiin.
ceedings or voted on the resolution. This meeting
took place on a Wednesday, and the next day the plain-
tiflE instituted the present suit against the Progressive
Benefit Order by attachment, and caused the garnishee
Kammann to be summoned as its debtor.
The errors assigned by appellant garnishee are
that the judgment obtained by the plaintiff against the
f Progressive Benefit Order is jurisdictionally defective;
and that, at the date of the service of the writ of
attachment, the money in the hands of the garnishee
-was owned by the individual members of the subordi-
[! nate lodge, and not by the defendant order.
The basis of the first assignment of error is, that
no statement was filed with the justice at the date of
the institution of the suit; that the service by publi-
f . cation was insufficient; and that judgment was ren-
[ • dered by the justice in the main case on a day to
b which it had not been continued. In passing on these
objections it will suffice to say that the filing of a paper
^ is its actual delivery to the officer whose duty it is to
file it, without regard to any action that he may take
thereon, and the true date of the act may be shown
without any file mark. Grubhs v. Cones ^ 57 Mo. 84;
^ Bensley v. Haeberle, Adm^Tj 20 Mo. App. 648. There
was evidence in this case that the plaintiff's certificate,
which was a sufficient statement of her cause of action,
was delivered to the justice when the suit was brought.
It was not even controverted that the certificate was
filed, and indorsed as filed, long before the cause was
tried, and that was sufficient to confer jurisdiction.
Revised Statutes, 1889, sec. 6139. As to the service
by publication it appeared by the constable's return
that he had posted four notices, sufficient in form, in
four public places in the city of St. Louis more than
twenty days preceding the return day of the writ. The
objection that these facts do not fully appear from the
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Collins V. Kammann.
justice's docket entries, and, therefore, fa
jurisdiction, is not tenable, because it suflSc
dictional facts appear upon the face of the p
anywhere. Nor is the objection tenable, tl
appear that judgment was entered in the i
on a day to which the same was not continu
seems to be some confusion in the justic
entries by mixing up those which relate t
nishment proceeding with those which rel
main action; but by looking at both it
appears that both causes were continued fro]
29, to February 5, 1892, at which last date
ment was entered against the Progress!
Order. The first assignment of error must
be ruled against the defendant.
The validity of the second assignme]
must be determined by the answer, which,
evidence, is to be given to the question:
garnishee, at the date of being summone
indebted to the Progressive Benefit Order o
were the funds in his hands representing th
of assessments 126 and 127, a debt due to
unaffected by liens, prior incumbrances or
of contract!^' Lackland v, Garesche, 56
Sheedy v. Bank^ 62 Mo. 17; Bitter v. Ins, (
App. 140. It will be seen, by referring to t
the order first hereinbefore set out, that,
assessment is levied by the supreme lodge a
the treasurer of the subordinate lodge, it b
duty of the latter to forward the same imt
the grand treasurer. There is nothing, eit
laws of the order or in the laws of subordin
which reserves to the latter any control whi
the benefit fund after the assessments for
into the hands of its treasurer. Quoad thi
treasurer of the subordinate lodge is accouni
Digitized by VjOOQIC
ISSOUEI APPEAL REPORTS,
Bainwater y. Burr.
and not to the subordinate lodge. It is
shown by the evidence, his bond is given
linate lodge, but the condition of the bond
the duties of his office in accordance with
3rning the administration thereof, and to
:he benefit and reserve fund to whoever
/ appointed to receive the same. The only
y appointed to receive said fund is the
rer of the Progressive Benefit Order, while
bsists and is engaged in the performance
duties.
appears that, at the date when the gar-
immoned, he did owe to the defendant in
nt a sum exceeding the judgment rendered
and that, as the defendant had called for
i had not revoked the call prior to the
) garnishment, the debt was payable to it
nd unconditionally, and was subject to
BirtwMstle v. Woodward^ 95 Mo. 113,
the subordinate lodge had no control over
ar fund, its action could not affect the
debt,
jment is affirmed. All the judges concur.
Rainwateb etah, Respondents, v. H. B.
DBB et ahy Defendants; Geobgb
C. Bubb, Appellant.
lis Court of Appeals, December 6, 1893.
IP : COMPETENCY OP DECLARATIONS OP ALLEGED COPAKT-
Bclarations of one member of an alleged partnership in
its business are admissible against another, when the
the partnership between them has been established
ibstantial evidence.
Trial : WEioraNO the evidence. This court will not
idence in an action at law, when there is a substantial
Digitized by VjOOQIC
OCTOBER TEEM, 1893.
1
Rainwater y. Barr.
Appeal from the St. Louis City Circuit
Jacob Klein, Judge.
Affirmed,
B. H. Kern for appellant.
(1) The court committed error in
testimony of Rainwater to the effect 1
sold the goods in dispute to H. B. B
sentea to him that appellant, George '.
partner. Cole v, Butler j 24 Mo. App.
Partnership, sec, 95; Bimel v. Hayes
Campbell v. Hastings^ 29 Ark. 526; Thot
111 U. S. 529. (2) The court comm
admitting the testimony of Thompson a
was objected to by appellant. Benedi
McLean, 347; Bates on Partnership, sec
Merrifield W. Huff tor respondent.
(1) The evidence shows that the c
partner of H. B. Burr. Appellant kne
they were intending to form the partn
B. Burr was representing to others th
partnership existing and took no steps
quently to correct this impression, i
83 Mo. 202; Eahlo v. Mayer, 102 M
Butler, 24 Mo. App. 76. (2) This
simply a question of fact which the 1
passed upon, and the verdict will not
because of the contradictory testimon
Ccesarj 53 Mo. App. 263; Doud v. Beid
555.
Biggs, J. — The plaintiffs sued t]
H. B. and George 0. Burr, for goods i
Digitized by VjOOQIC
470 55 MISSOURI APPEAL REPORTS,
Rainwater v. Burr.
ered. It was alleged that at the time of the sale of the
goods the defendants were, and for some time previous
thereto had been, conducting a gents' furnishing goods
business in the city of Dallas, Texas, under the firm name
of H. B. Burr & Bro. H. B. Burr made no defense.
George C. Burr filed a separate answer under oath, in
which he put in issue the alleged existence of a part-
nership between him and his brother. This was the
only issue tried. The court, sitting as a jury, found in
favor of the plaintiflEs, and a judgment was entered
against both defendants for the amount of the claim.
George C. Burr only has appealed.
Against the objection of the appellant, the court
permitted the deposition of C. C. Eainwater, one of
the plaintiffs, to be read in evidence. The witness tes-
tified substantially that, when H. B. Burr commenced
business in Dallas, he applied to the plaintiffs for the
purchase of goods; that he stated that he and his
brother, George C. Burr, had formed a copartnership,
and were about to commence business in the city of
Dallas, Texas, under the firm name of H. B. Burr and
Bro. ; that upon the faith of these representations the
plaintiffs commenced to sell goods to the firm, and so
continued, without notice of any change in the firm,
until H. B. Burr made an assignment in May, 1887.
Further on, in the deposition the witness said: ^'George
C. Burr was in our place of business several times
during the period in which the business was being con-
ducted under the name of H. B. Burr & Bro. I sev-
eral times said to him ^How are you getting along at
Dallas t' 'Sow is business in Dallas?' and the like
inquiries; to which he made answers to the effect that
the business was good, or the like."
At the time the alleged partnership was formed,
and for some time thereafter, the defendant, George
C. Burr was employed as a paying teller in the Boat-
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 471
Rainwater y. Burr.
men^s bank in the city of St. Louis. There was a
by-law of the bank, prohibiting any clerk from engag-
ing in outside business. William H. Thompson, the
president of the bank, testified: * ^Learning that Burr
had an interest at Dallas, Texas, I called his attention
to this by-law, and, according to my best recollection
(but I won't be positive), he stated that he had an
interest in business there. I told him in substance
that he could readily see that one or the other would
have to be abandoned — his business there or his clerk-
ship here, and he decided, as I recollect, to abandon
the former, but I am not positive. He afterwards told
me he had done so, and that he no longer had any
interest in the business, and that his only connection
there then consisted in money loaned to his brother
to carry on the business. This is my recollection, but
I can't state positively as to the above statement.''
Two days after the assignment by H. B. Burr,
William L. Evans had a conversation with George C.
Burr touching his relationship to the firm. The
witness said: **I asked him (George C.) how it was
that the assignment was made in the name of H. B.
Burr as an individual ; he said, because he was not a
partner. I then asked him when he withdrew from the
business; he hesitated, and said, that really he never
had been a partner. Somewhere in the conversation
I asked the question why he withdrew, and his reply
was that Mr. Thompson objected to his having any
outside connection, * * * j asked him, also, how
much money he had put into that concern; he said
about eighteen hundred dollars. I asked him if he
had withdrawn any of that money ; he said he had not.
I asked him if his brother had either given him any
note or paid him any money out of the concern, or
given him a note for that eighteen hundred dollars
that he had paid in there, and he said he had not."
Digitized by VjOOQIC
I' 472 55 MISSOURI APPEAL REPORTS,
^^ ■
Bainwator v. Burr.
^,. There was also testimony to the eflfect that, when
J^ H. B. Burr commenced the business, the firm name,
I ''H. B. Burr & Bro.,'' and also the individual names
of himself and brother appeared on the bill and letter
^ heads of the concern, and George C. Burr admitted
that he was in Dallas some time after the business was
started, and that he saw the signs, '*H. B. Burr &
Bro.'' over the front door of t^e store where his brother
was conducting the business.
The exception to that portion of the deposition of
Rainwater, in which is stated the declaration of H. B.
i^' Burr in reference to the business of the firm and the
i^ persons composing it, must be overruled. If the
J admission of the testimony had not been followed by
evidence aliunde of the partnership, the action of the
court would have been clearly prejudicial. The rule is
7 established in this state and in many other jurisdictions
f that after the party, who has alleged a partnership,
has introduced substantial evidence that the party
■ sought to be charged was a member of the firm, the
declarations and admissions of the other members in
reference to the business of the concern are admissible
on the score of agency. Campbell v. Dent, 54 Mo. 325;
Folk V. Wilson, 21 Md. 538; CoUyer on Partnership,
[6 Ed.], sections 454, 702, 775; Bates on Partnership,
section 321 ; JlfcCawn v, McDonald, 7 Neb. 305; Hilton
V. McDowell, 87 N. C. 364. That there was ample
evidence tending to prove that the appellant was a
member of the firm cannot he controverted. Nor can
it make any difference that no such proof had been
adduced at the time the deposition of Rainwater was
offered in evidence. (Campbell v. Dent, supra.) The
deposition itself contained substantial evidence of the
controverted fact, which rendered the entire deposition
competent evidence at the time it was offered.
Digitized by VjOOQIC
I imyp't^s"
OCTOBER TERM, 1893. 473
Bain water ▼. Burr.
The case of Bimel v. Mayes j 83 Mo. 200, is not
applicable, for the reason that there was no evidence of
the actual existence of a partnership. The liability of
of the defendants was made to depend upon an
alleged ^'holding ouf that they and one Smith were
partners. The court allowed the declarations of Smith
that the defendants were his partners to be proved,
which the supreme court properly held to be error.
We will, therefore, overrule the first assignment.
The appellant at the close of the plaintiff's evidence,
and also at the close of all the evidence, asked the court
to instruct that, under the law and evidence, there could
be no recovery against him. The court refused both
instructions, and this is assigned for error. No other
instructions were asked or given.
The appellant denied in toto the conversations
testified to by Rainwater. He also stated that, at the
time he had the conversation with the president of the
Boatmen's bank, he was only considering the advisa-
bility of going into the business with his brother; and
that when his attention was called to the by-law of the
bank, he determined not to, and did not go into the
firm. He alsb substantially contradicted the testimony
of Evans. However, he admitted that he loaned his
brother eighteen hundred dollars just before he com-
menced business, and that he had not taken a note or
other writing as evidence of the loan. He also admitted
that he was in Dallas while his brother was conducting
his business, that he saw the sign, H. B. Burr & Bro.,
over the frontdoor of his store room, and that he called
for no explanation.
It thus appears that we have a sharp and sub-
stantial conflict in the evidence bearing on the only
issue of fact that was tried. In such a case we cannot
interfere. To do so, we would have to hold that the
conclusion reached by the trier of the fact could not in
Digitized by VjOOQIC
98 362
e98 sea
474 55 MISSOUEI APPEAL REPOETS,
Chamberlain v. Pollman Palace Car Co.
reason be true. Mulford v. CtesaVj 53 Mo. App. 263.
TMs assignment will likewise be overruled.
Finding no error in the record, the judgment of the
circuit court will be affirmed. All the judges concur.
56 474 O. Stafford Chamberlain, Respondent, v. Pullman
95 788
Palace Car Company, Appellant.
St. Louis Court of Appeals, December 5, 1893.
Sleeping Oar Companies, Liability of: contributory negli-
gence OF PASSENGER. A passenger on a sleeping oar, wlio leaves his
watch in his berth while he is in the toilet room, is, as a matter of
law, gnilty of contributory negligence if it is stolen in his absence,
and therefore cannot recover from the company for the loss; but it is
, otherwise if he directs the porter in charge of the car to look after his
effects in his absence.
Appeal from the St. Louis City Circuit Court. — ^Hon.
Daniel Dillon, Judge.
Eeversed and remanded.
Dickson (& Smith for appellant.
(]) Defendant's instruction in the nature of a
demurrer to the evidence should have been given, as
plaintiff's own evidence established such contributory
negligence on his part as should have defeated his
action. Root v. Sleeping Car Co., 28 Mo. App. 199;
Railroad v. Handy ^ 63 Miss. 614; Thompson on Car-
riers, p. 531 ; Hutchinson on Carriers [2 Ed.], sec. 617d.
(2) The refusal of the instructions offered by the
defendants was erroneous. Boot v. Sleeping Car Co.^
supra.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 475
Chamberlain v. Pullman Palace Car Co.
Lee & JEllis for respondent.
There was no error in the refusal of the trial court
to nonsuit the plaintiff, nor in its refusal of the instruc-
tions offered by the defendant. Root v. Sleeping Car
Co., 28 Mo. App. 199.
EoMBAUER, P. J. — The plaintiff recovered a judg-
ment for $300 from the defendant for the negligence of
the latter's servants in not sufficiently guarding plain-
tiff's personal effects, in consequence whereof a valuable
watch was stolen out of "his waistcoat, lying under a
pillow in the berth occupied by him as a passenger on
one of the defendant's sleeping cars. The defendant
now assigns for error that the judgment is not sup-
ported by the evidence, and that the court erred in its
instructions to the jury.
The petition charged negligence only, and no fraud
or felony on part of the defendant's servants. The
answer contained a general denial and the plea of con-
tributory negligence. The plaintiff, who was the sole
witness on his own behalf, testified in substance that he
ordered the porter to wake him at daybreak so that he
might take a bath in the lady's toilet room ; that the por-
ter woke him according to order, and that he thereupon
took his hand bag or valise and went to the toilet room
m his night shirt; leaving his clothes in his berth ; that
the watch in question was in his waistcoat pocket, which
was carefully folded and placed under his pillow; that
upon his return, fifteen or twenty minutes afterwards,
he found his waistcoat lying on the berth unfolded and
the watch was gone. The plaintiff in addition stated that,
when he went to the toilet room, he saw one or two
men, whom he took to be train men, sitting in the for-
ward end of the car in an unoccupied berth. The
remaining berths were occupied by passengers who
Digitized by VjOOQIC
476 55 MISSOURI APPEAL EEPOETS,
Ghamberlam v, Pullman Palace Gar Ck).
were presumably asleep at that early hour of the morn-
ing. The plaintiflf was an experienced traveller, hav-/
ing, according to his own testimony, spent on the aver-
age one hundred and forty nights of every year for
thirty yeai^s in sleeping cars.
On the question, whether he had told the porter to
look out for his things while he was absent in the toilet
room, the plaintiff's testimony was to the effect that he
would not be positive that he told him so, but that he
thought he did. The porter, who was called for the
defendant, testified that he woke the plaintifl! according
to order, but did not see him when he got up, and had
no words with him at all ; that he left the body of the
car before the plaintiflf left his berth, and proceeded to
the smoking room to clean? it up, and that, when he
returned to the car, he found the plaintiflf dressing.
Under this evidence we must overrule the defend-
ant's first assignment of error that the court erred in
not instructing the jury at the close of plaintiflE's evi-
dence that he could not recover. There was soAe sub-
stantial evidence that the plaintiflE had requested the
porter to guard his effects in his absence, wherein this
case is distinguishable from Boot v. Sleeping Car Co.^
28 Mo. App. 199. The weight of that evidence was for
the jury.
But we must sustain the defendant's second assign-
ment of error, based upon the refusal of the following
instruction asked by it: *'If the jury believe under the
evidence that plaintiflE left the watch mentioned in evi-
dence in his berth when he went to the toilet room to
wash, and allowed said watch to remain in said berth
while in that toilet room without notifying any servant
of the defendant that the watch was so left in the berth,
then the jury are instructed that defendant was guilty
of negligence directly contributing to the loss of such
watch, and they will find for defendant. ''
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Chamberlain v. Pullman Palace Car Co.
There was no other instruction given, w
sented for the consideration of the jury the j
contributory negligence, and its effect. W<
Bootv. Sleeping Car Co.y supra, a case identical
of its features with the present case: ^'The ci
the passenger's hand baggage and money is, sj
most that can be said in his favor, a mixed c
partly his custody and partly that of the sle(
company. But it is not even a mixed cu
respect of money or other small valuables whi(
conveniently keep upon his person, or under
while he is awake. Such a custody is the
custody of the passenger, and not, in any g
custody of the carrier. Now, if a passenger
articles in a situation where anybody can stc
and goes away and leaves them there, and esj
he does this without notifying any servant of i
ing car company that he has so left them, it
said, as a matter of law, that he has been guill
tributory negligence. '' We are aware of no ca
state that carries the liability of these compa
further than there stated. There was ample
to support this instruction, and the defenc
entitled to it. We see no error in other ins
given by the court, nor in the qiodificatio
defendant's second instruction, which was uni
but not prejudicial.
The judgment is reversed and the cause re
All the judges concur.
Digitized by VjOOQIC
55 4781
82 4531
478 55 MISSOUEI APPEAL REPORTS,
Walker v. Fairbanks & Co.
J. W. Walker, Appellant, v. N. K. Fairbanks &
Company, Garnishee of D. C. Henderson,
Respondent.
St. Louis Court of Appeals, December 5, 1693.
1. Garnishment : bfteot of answer of gabnishes. The answer of a
garnishee to the interrogatories filed by the attaching creditor is evi-
dence in his favor of all affirmative facts stated therein by way of
avoidance; accordingly it casts upon such creditor the burden of
rebutting the allegations made in it.
2. : JURiSDionoN. A debt must have its situs within the territo-
rial limits of the jurisdiction of a court in order to be subject to gar-
nishment under the process of that court; audits situs for this purpose
is the place where it is payable.
Appeal from the St. Louis City Circuit Court. — ^HoN.
Daniel Dillon, Judge.
Affirmed.
Walter B. Douglas for appellant.
A corporation organized in another state, but
doing business and having property in this state, is
subject to garnishment here. Revised Statutes, 1889,
sees. 2538, 5218, 2009, 2010, 521; Bitter v. Ins. Co., 28
Mo. App. 140; Keating v. Refrigerator Co.j 32 Mo.
App. 297; Drake on Attachment, sec. 477; Murfree on
Foreign Corporations, sec. 261; McAllister v. Ins. Co.,
28 Mo. 214; Railroad v. Crane, 102 111. 249. The situ^
of a debt is the place where the debt is payable, the
debtor is found and subject to garnishment. Greenes
Bank v. Wickham, 23 Mo. App. 663. It being shown
that the garnishee is a resident of this state for the pur-
pose of garnishment; that the debtor was employed in
this state to do work for the business conducted in the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 479
Walker v. Fairbanks & Co.
state under the direction of the manager of the business
in this state; that his account was kept here and his
salary paid by checks made here upon a St. Louis
bank; such evidence, if not rebutted or avoided by
other evidence, establishes the fact that the debtor's
salary is payable here.- The fact that the plaintiff in
this case is a resident of this state makes this case
widely different from the cases of Fielder v, Jessupj 24
Mo. App. 91, and Todd v. Mo. Pac. R'y Co., 33 Mo.
App. 110, where the debtor and the creditor were both
residents of the same state and nonresidents of this
state. Pennoyer v. Neffy 105 U. S. 714. An agreement
to send checks to a* place out of this state is not an
agreement to make payment out of this state. 2
Daniel on Negotiable Instruments, sec. 1623 ; Chouteau
V. Bowsey 56 Mo. 65.
J. F. Merry man for respondent.
In garnishment proceedings, whereby a debt is
sought to be condemned, jurisdiction is determined by
the sitv^ of the debt, and not by the residence of the
garnishee or of the debtor. Fielder v. Jessupy 24 Mo.
App. 91. In the case of foreign attachment or garnish-
ment the situs of the debt (as to jurisdiction) is where
the garnishee lives, unless the debt by the terms of the
contract creating it is payable in another jurisdiction.
But, if it appears from an answer in garnishment, not
denied, and from the proof offered, that the judgment
debtor resides without this state, and that the debt due
him is payable in another state, there is no jurisdiction
in a court of this state to entertain the proceeding, and
a judgment for the plaintiff against the garnishee is
error. Keating v. Refrigerator Co., 32 Mo. App. 293;
Todd V. Railroad y^'i Mo. App. 115; Greenes Bank v.
Wickham, 23 Mo. App. 663 ; Fielder v. Jessup, 24 Mo.
App. 91.
Digitized by VjOOQIC
480 55 MISSOURI APPEAL REPORTS,
Walker v. Fairbanks Ss Co.
RoMBAUEB, P. J. — ^Upon a trial of this cause the
court rendered judgment in favor of the garnishee. All
the instructions asked by the plaintiff were given, and
no exceptions were saved to the admission or rejection
of evidence. The garnishee a^ked no instructions.
The only complaint made by the plaintiff is that, under
the conceded facts, the court should have rendered
judgment against the garnishee.
The garnishee's ahswer which was filed in June,
1891, admitted an indebtedness to the defendant
Henderson, but stated that such indebtedness was pay-
able in Denver in the state of Colorado. The gar-
nishee's answer under our practice is evidence in his
favor, even in regard to all aflirmative facts stated
therein by way of avoidance. (Holton v. Railroad^
garnishee, 50 Mo. 151 ; Ronan v. DeweSj garnishee, 17
App. 306.) Hence it became incumbent upon the
plaintiff to disprove the fact that the debt was payable
in Denver, Colorado, and to prove that it was payable
here, since the place where the debt is payable is it«
situsy in this class of cases, for the purpose of deter-
mining the jurisdiction of the court over it. Greenes
Bank v. Wichham^ 23 Mo. App. 663.
On the trial of this cause the plaintiff disclaimed
to have attached any debt payable subsequently to
July, 1891. The garnishee's oflScers, who testified for
plaintiff, stated that up to January, 1892, the employes
of the garnishee, of whom Henderson was one, were
paid by checks or drafts on New York city, and that
such checks or drafts were invariable sent to Henderson
or Henderson's wife to Denver, in the state of Colorado,
where Henderson resided. It will be thus seen that,
outside of the garnishee's answer, there was ample evi-
dence to support the judgment of the court, because,
if the checks or drafts were payment in themselves^
Digitized by VjOOQIC
OCTOBER TERM, 1893. 481
Droege v. Droege.
then the situs of the debt was Denver, in the state of
Colorado, and if the place where the checks or drafts
were payable determined the situs of the debt, then
such situs was New York City, in the state of New
York. In neither event was the situs of the debt in
this state. Hence, it results that the court rendered
the only judgment which it could have rendered under
the facts established by the plaintiff's own evidence.
All the judges concurring, the judgment is affirmed.
It is so ordered.
Francis W. Droege, Appellant, v. Elizabeth Droege,
Eespondent.
St. Louis Court of Appeals, December 19, 1893.
Divorce : desertion. When a separation by a wife from her husband,
though without justification, takes place with the tacit consent or
connivance of the latter, it does not amount to desertion within the
meaning of the law of divorce.
Appeal from the St. Louis City Circuit r.
Daniel D. Fisher, Judge.
Affirmed.
Smith P. GaU for appellant.
The evidence shows that defendant absented herself
from plaintiff without reasonable cause for the space
of one whole year before the filing of his petition, and
therefore the appellant is entitled to a decree of divorce.
Bishop on Marriage and Divorce [Ed. 1891], sections
1742, 1217 and 1753; 5 American and English Ency-
clopedia of Law, p. 205, note 2; Pierce v. Pierce, 33
Iowa, 2'JJ8; Skean v. Skean, 33 N. J. Eq. ; Messenger v.
Messenger, 56 Mo. 329; Taylor v. Taylor, 80 Iowa, 29;
Vol. 55—31
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
Droege v. Droege.
flee V. Van Dyke, 135 Pa. St. 459; Alkire v.
}3 W. Va. 517.
adhead <& Hezel for respondent.
) defendant did not absent herself from the
without reasonable cause; therefore plaintiff is
[tied to a divorce. Lindenschmidt v. Linden-
29 Mo. App. 295; Dwyer v. Dwyer, 26 Mo.
3.
GS, J. — Action for divorce. The plaintiff
in his petition that, in July, 1884, the defend-
wife, left their home without good and suffi-
ise, and that since that time she had absented
from him without a reasonable cause. The
.8 a general denial. The circuit court, upon a
, dismissed the proceeding, and the plaintiff has
the case here for review.
ertion, in the law of divorce, **is the voluntary
on of one of the married parties from the other,
''oluntary refusal to renew a suspended cohabi-
^ithout justification either in the consent or the
I conduct of the other.'' I Bishop on Marriage
orce, section 1662. There is great diversity of
among judges as to what should be deemed an
e excuse or provocation for separation. Some
it the misconduct of the other party must be
to entitle the party (who leaves the other) to a
Others have regarded' something less as suffi-
lat is, where it is made to appear that the separ-
the natural or probable result of irritating or
IS conduct of the other party. The latter rule
in adopted in this state, where the defendant
1 the misconduct of the plaintiff as a provoca-
ely for the act of separation. Gillinwaters v.
Digitized by VjOOQIC
OCTOBER TEEM,
Droege v. Droege.
Gillinwaters, 28 Mo. 60; Otven t
208. But, if the separation is wi
nivance of the other party, then
Lea V.Lea J 8 Allen, 418; Crow t
Fulton V. Fulton^ 36 Miss. 517; M
J. Eq. 315.
We do not think that, even u
rule adopted in this state, the ev
on the part of the plaintiff was suf
the defendant in abandoning her 1
ing of the record has convinced
was more anxious for a separatioi
and that it topk place by his tacit
and desire, as his subsequent cor
with the testimony of the def
shows.
The parties were married in 1
mother (Mrs. Meehan) was a wid
some property The defendant
The young couple hved with Mrs.
four years after the marriage, j
which time the latter moved onto
ton county. During this time tv
of the marriage. After Mrs. M
farm, the plaintiflf and defendant "
three months, when the plaintif
Being without employment or n
family to his mother-in-law's farn
his residence with her. In the
was sold, and all parties returned
Meehan bought a house, and the p
again installed themselves as pa
This continued until the spring
Meehan sold her house and infori
he must set up an establishmeni
this time the plaintiff had been
Digitized by VjOOQIC
484 55 MISSOURI APPEAL REPORTS,
Droeg« V. Droege.
years, and during^ the time (excepting two or three
months) he and his wife and their two children had
lived on the bounty of Mrs. Meehan. He paid no
board, and in no wise contributed to the household
expenses, although, after his return to St. Louis, he
had constant employment at a salary of from $60 to $90
a month.
After Mrs. Meehan had notified the plaintiflE that
he must provide another home for his family, he
rented three rooms and commenced to keep house in
April, 1884, and he so continued until July following,
when his wife went back to live with her mothe;*,
taking the children and all the furniture.
The defendant testified that, during the time they
kept house, the plaintiflE failed to provide a sufficient
amount of food for herself and children; that he
remained away almost every evening until very late
hours, sometimes not returning until two o'clock in
the morning, and, when she asked where he had been,
he answered that it was none of her business; that he
habitually treated her coldly, and exhibited no affec-
tion for the children; that just before the separation
she asked him to buy her a tonic which her physician
had prescribed, and that he rudely pushed her aside,
remarking that she did not need any medicine; that
she often complained to him of his failure to sufll-
ciently provide for her and the children, and of his
discourteous treatment of her, and that" she informed
him on several occasions that, unless there was a
change for the better, she would go back to live with
her mother, and that he always replied that she was at
liberty to go whenever she desired.
On the other hand the plaintiff testified that at
the time he commenced to keep house he was receiving
a monthly salary of $83 with a bonus of $100 at the
end of each six months for faithful service ; that for
Digitized by VjOOQIC
OCTOBER TE
Droege v. Dj
each month he set apart $60
of which went to his wife,
remainder ($17) for provision
the family; that he treated 1
had no trouble whatever; that
and that he was perfectly
returned to his home one even
and dismantled, and his wife \
he confessed that he made no
to find out whither they had
gone. He said that he was
gone to live with Mrs. Meeha
into a new house which she he
ted that, a few months after
sent for him to visit his daugl
he there met his wife, and tha
any time during their long sep
an explanation of her cond
that during this time he had S(
or five times, although they
that he had never contributed
education or support.
The conduct of the plaint
his wife had gone, and subseq
to harmonize with his stateme
treated his wife well; that
children dearly; that she m
that she had never threatened
is a palpable contradiction
justified the trial court, and it
the statements of the wife
true. We think that he was i
intentions, and that she acted
connivance; for, in answer t
treatment and threats to leave
with her mother in the eve
Digitized by VjOOQIC
486 55 MISSOURI APPEAL REPORTS,
Droege v. Droege.
better, he always assured her that she was at liberty to
go whenever she was ready. He seemed to want to be
rid of the burden of supporting his family, knowing
full well that Mrs. Meehan could and would give them
a better home than he * could aflEord. His conduct
cannot be explained in any other way.
It may be true, as we decided in an action brought
by Mrs. Droege against her husband for maintenance
{Broege v. Droege^ 52 Mo. App. 84), that the circum-
stances attending the separation were not sufficient to
make out a case of desertion on the part of the
husband. That was one thing. But to hold that the
act of separation was an act of desertion on the part of
the wife, and that the plaintiff is an innocent and
injured party is quite a different thing.
The judgment of the circuit court will be affirmed.
All the judges concur.
CONCURRING OPINION.
RoMBAUER, P. J. — It appears by the plaintiff's
own evidence that his wife left him in July, 1884 ; that
he knew that she had removed to her mother; that he
never asked her to return, never in terf erred with her
movements in any manner, never sought her society,
or offered to make any provision whatever for her.
The present suit was instituted in February, 1893.
Under these circumstances the trial court was war-
ranted in holding, under the decisions of this state, that,
although the defendant's departure was unjustiJSed,
yet the plaintiff by his subsequent conduct acquiesced
in the separation, and hence there was no desertion
within the contemplation of the statute at the date of
the institution of the suit. This view is in harmony
with the views expressed in my separate opinion in
Dwyer v. Dwyer, 16 Mo. App. 422, and with those
Digitized by VjOOQIC
OCTOBER TERM, 18!
Cook V. Voii Phul.
expressed by the supreme court and
court of appeals in Simpson v. Simpsoi
Gilmer v. Gilmer ^ 37 Mo. App. 672.
Eliza Cook etah^ Respondents, v.
Phul daZ,, Defendants; Frederic
Appellant.
St. Louis Court of Appeals, Decern
Statutory Action to Quiet Title : when it
a proceeding under section 2092 of the Revis
the defendant to bring an action to try the titl
the statutory relief sought, when he is in \
claiming the fee, and the defendant claims an
interest in the property, which is capable of I
appropriate proceedings in the courts; the
which such title or adverse interest is to be
rial.
Appeal from the St. Louis City Circi
Jacob Klein, Judge
Affirmed.
Vernon W. Knapp and Wm. .
appellant.
Where the alleged adverse claim
with the possession or right of posses
tiffs, and the defendant can bring nc
settle the title, the case is not within
the statute, unless plaintiff show
adverse claim is such as may b
court of equity entitling claimant to
and that plaintifiE cannot as well mainl
the defendant. Webb v. Donaldson, <
Digitized by VjOOQIC
488 55 MISSOURI APPEAL REPORTS,
Cook v. Von Phul.
V, Warren J 30 Mo. App. 335. When the opposite party
can only claim title through the record, and a defect
appears upon the face of such record, there is no cloud
on the title, such as will call for the exercise of the
equitable powers of the court. Clark v. Ins, Co.j 52
Mo. 272.
C. P. d J. D. Johnson for respondents.
The judgment of the lower court was correct,
because it appears from the pleadings and the evidence
that the respondents were in possession of the premises
in question, claiming an estate of freehold therein ; and
that the appellant claims title to the same, but does not,
by answer, show cause why he should not be required
to bring an action and try such title. Revised Statutes,
sees. 2092, 2093; Bredell v. Alexander, H Mo. App. 117;
Burtv. Warren, 30 Mo. App. 335; Benoistv. Murrin,
47 Mo. 559; Von Phul v. Penn, 31 Mo. 333; Murphy v.
DeFrance, 23 Mo. 341; DeWare v. Wyatt, 50 Mo. 236;
Fontaine V. Hudson, 93 Mo. 62; Babe v. Phelps, 65 Mo.
27; Clark v. Ins. Co., 52 Mo. 273; Mason v. Black, 87
Mo. 344; Beedle v. Mead, 81 Mo. 297; Cole v.
Skrainka, 37 Mo. App. 446; Rutherford v. Ullman, 42
Mo. 216.
RoMBAUER, P. J.-r-This is a proceeding under sec-
tion 2092 of the Revised Statutes to compel the defend-
ants to show why they should not be compelled to
bring an action to try the title to a lot on the south-
west corner of Ninth and Chestnut streets in the city
of St. Louis. The petition contains the statutory aver-
ments of possession in the plaintiflE under claim of a
freehold title, and an adverse claim made by the
defendants. The action was instituted against five
defendants but was dismissed against two, and a default
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Cook V. Von Phul.
was taken against two who did not answer.
Von Phul is the only defendant who ans^
answer denied that the plaintiffs were in
under a claim of freehold title, and averr(
title to the land was held by the plaintiff H.
as trustee for the devisees of Henry Von Ph
the defendant Frederick was one. The (
the hearing made an order debarring the t
ing defendants, and ordering that the answe
ant bring an action to try the title within
time, or else be debarred from further ch
this order the defendant Frederick alo
assigning for error that the order is not wj
the evidence.
Section 2093 of the Revised Statutes of
vides : *'If the defendant shall appear and
right and title adverse to the petitioner, he s
his costs; if he shall claim title, he shall by i
cause why he should not be required to brin
and try such title, and the court shall make
ment or order respecting the bringing and
of such action as may seem equitable and
in the present instance the defendant does
the only issue before the court was wheti
by his answer and evidence shown suffi
why he should not be required to bring a
try it.
Touching the common source of the
which the plaintiffs and defendants claim,
controversy. Both parties claim under
Phul. The plaintiffs gave evidence sho\
veyance of the lot in question by Henry
to certain trustees with power to convey ; a
by such trustees in 1872 to Maria Sophia V
conveyance by the latter in 1880 to William
a deed from William Cooke in 1883 to th(
Digitized by VjOOQIC
"'^i'^r
490 55 MISSOURI APPEAL REPORTS,
Cook V. Von Phul.
trustee; also that H. V. P. Cooke, one of the plaintiflEs,
was the trustee of his eoplaintiffs at the present time.
The evidence concedes that the plaintiffs are in posses-
sion under a chain of conveyances from Henry Von
Phul, the common source of title, which conveyances
are regular upon their face and purport to vest in the
plaintiffs a fee simple estate in the property.
For the purpose of showing a claim on the part of
the defendant, the plaintiffs gave in evidence the will
of Henry Von Phul, who died in 1874, making certain
specific devises to his children and among them to his
son, Frederick, and giving the residue of his estate to
all of his children. They also gave in evidence a writ-
ten declaration of trust made by William Cooke in 1880
while he held the legal title to the property, to the effect
that he held the property in trust for all the devisees of
Henry Von Phul. The will of Henry Von Phul was
not probated until 1892, and the declaration of trust
was not recorded until 1892. There was no sub-
stantial evidence that the plaintiffs were aware of this
declaration of trust at the time when they acquired the
property.
Under this evidence we must hold that the court
did not err in making an order upon the defendant. The
evidence clearly shows that the plaintiffs are in posses-
sion of the property claiming the fee, and that the
defendant does claim an adverse and immediate interest
in the property, which is capable of being tested at once by
appropriate proceedings in the courts, and which is as
complete now as it ever will be. We consider that to be
the test entitling the plaintiff to relief by this statutory
proceeding. The form of action in which such title or
claim of adverse interest is to be asserted is immaterial.
Benoist v. Miirrin, 47 Mo. 537, 539 ; Bredell v, Alexander ^
8 Mo. App. 117. The plaintiffs under the evidence
presented have a complete record title, and are not,
Digitized by-VjOOQlC
OCTOBER TERM, 1893. 49
Moore v. St. Louis Wire Mill Co.
therefore, under the decisions in this state, in a positioi
to maintain an action to remove a cloud, but th
defendant is, because whatever right or title he ha
arises from taets dehors the record evidence. Maso
V. Black, 87 Mo. 329; Fontaine v. Rudsmi, 93 Mo. 62
As the defendant does by his answer assert an ad vers
claim to the property in himself, and fails to show goo(
cause why he should not be required to bring an actioi
to try it, the judgment of the court requiring him to d
so was proper.
All the judges concurring, the judgment i
aflfirmed.
John Moore, Respondent, v. St. Louis Wire Mil
Company, Appellant.
St. Louis Court of Appeals, December 10, 1803.
1. Master and Servant: acceptance op risks by latter.
servant assumes all risks arising from defective appliances of whic
he knew, or which were so obvious as not to escape the observatio
of an ordinarily prudent person.
2. : : LAW AND PACT. Whether the risk is thus obvious
a question of fact, when different conclusions in regard thereto ca
reasonably be drawn from the evidence.
3. : : INSTRUCTIONS. An instruction authorizing a reco^
eiy by a servant against his master for injury from a defect in t\
appliances furnished by the latter, is fatally erroneous, if it do(
not require a finding that the defect was the cause of the injury.
Appeal from the St. Louis City Circuit Court. — Hoi^
Jacob Klein, Judge.
Reversed and remanded.
P. Taylor Bryan for appellant.
(1) The instruction given by the court at plair
tiflf's request, which attempts to define the risk
Digitized by VjOOQIC
492 55 MISSOURI APPEAL REPORTS,
Moore v. St. Louis Wire Mill Co.
assumed by the plaintiflf, is erroneous. It excludes
from the risk of employment all risks which arise from
the defects of appliances or places in which plaintiflf
was required to work, even though they were patent
defects, and such as were known, or might, by the
exercise of ordinary care, have been known to plaintiflE.
This is erroneous. Cooley on Torts [2 Ed.], 651, and
cases cited ; n^/ww v. The Union Bridge Co., 42 Mo.
App. 529; dissenting opinion of Rombauer, P. J., in
Fugler v. Bothe, 43 Mo. App. 44-69, adopted as the
opinion of the supreme court; Fugler v. Bothe, 22
S. W. Rep. 1113; Watson v. Coal Co., 52 Mo. App.
366; Aldridgev. Furnace Co., 78 Mo. 539; Hulettv.
Railroad, 67 Mo. 239; Wood on Master & Servant
[2 Ed.], sec. 351, p. 724; Sullivan v. India Mfg. Co.,
113 Mass. 398. (2) The last instruction given for
plaintiff is erroneous, in that it does not require the
jury to find that the alleged absence of the guard or
ledge, referred to in the instruction, was the cause of
the injury to the plaintiff. Flynn v. Union Bridge Co.,
42 Mo. App. 529; Breenv. Cooperage Co., 50 Mo. App.
203; Spiva v. Osage, etc. Co., 88 Mo. 68; Stone v.
Hunt, 94 Mo. 475.
John J. 0' Connor for respondent.
Plaintiff's last instruction should be read in con-
junction with all the other instructions given in the
case, and when so read there is no substantial error.
When instructions, read together, are not misleading
and declare the law sufficiently favorably for the
appellant he cannot complain. JRidenhour v. Railroad,
102 Mo. 270; Haniford v. City of Kansas, 103 Mo. 172;
Bergman v. Railroad, 104 Mo. 77.
Biggs, J. — This action for personal injuries origi-
nated before a justice of the peace. The plaintiff
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 493
Moore v. St. Louis Wire Mill Co.
alleged in his petition that he was employed as a
laborer in the defendant's mill, and that, while he was
engaged in the work assigned to him, he fell into a
vat of hot lime ; that the accident occurred by reason
of the negligence of defendant in failing to provide
plaintiff with a reasonably safe platfortn on which to
work, and in negligently leaving the vat open or
unguarded close to where plaintiff was required to
work. On a trial in the circuit court there was a judg-
ment for $250, from which judgment the defendant
has appealed.
The circuit court refused to nonsuit the plaintiff.
This is assigned for error.
The plaintiff's case rests wholly on his own testi-
mony. He testified, in substance, that he received his
injuries on the second day after his employment inside
of the mill ; that he was engaged in carting loads of
wire from the place where hot lime was poured over the
wire to what were called the drying rooms ; that the
trucks which were loaded with wire were placed on a
gangway or bridge constructed between two vats, which
were constantly filled with boiling lime; that the vats
were several feet long and one foot wide, and that the
gangway was six or seven feet wide with a track in the
center, running lengthwise, upon which the loaded
trucks ran ; that along the sides of this gangway next
to the vats there were wooden guards two or three
inches high, which were reasonably sufficient to keep
persons from slipping into the vats; that there had
previously been a similar guard on the end of the vat
into which he (plaintiff) fell, but that a portion of it
had been broken off; that it had the appearance of an
old break, for the reason that lime and dirt had accu-
mulated at the place where the guard had been broken ;
that he had no knowledge of the defective condition of
the guard until after he received his injuries ; that in
Digitized by VjOOQIC
55 MISSOURI APPEAL REPORTS,
Moore y. St. Louis Wire Mill Co.
ing a truck load of wire it became necessary, when
eached the end of the vat, for him to go to the side
he truck to keep the load from upsetting; that he
ed his shoulder against the load, and in bracing
self his foothold gave way, and that by reason of
break in th6 guard his foot slipped into the vat of
ng lime.
It is undoubtedly the law that the master must
ish suitable and reasonably safe appliances for the
•mplishment of the work assigned to the servant.
la V. Railroad J 82 Mo. 430; Covey v. Railroad^ 86
635; Hickman v. Railroad, 22 Mo. App. 345.) And
also the law that the master must make the place
re the servant is required to work reasonably safe.
IcJila V. G)U(,ensf elder y 52 Mo. App. 43 ; Dayharsh v.
road J 103 Mo. 570; Indermaur v. Dames , ti. E. 1
\ 274. ) But the servant may dispense with these
Rations which the law imposes on the master. As
said by the supreme court of Massachusetts:
hen he (the servant) assents, therefore, to occupy
place prepared for him, and incur the dangers to
ih he will be exposed thereby, having sufficient
lligence and knowledge to enable him to compre-
i them, it is not a question whether such place
ht, with reasonable care, and by a reasonable
mse, have been made safe. His assent has dis-
ced with the performance on the part of the master
[le duty to make it so. Having consented to serve
;he way and manner in which the business was
Lg conducted, he has no proper ground of com-
Dt, even if reasonable precautions have been neg-
3d.'' Sullivan v. India Mfg. Co., 113 Mass. 396.
So the courts decline to hold the master liable,
n the defects in machinery are perfectly obvious to
one, and the servant has had the time and oppor-
ity to consider and appreciate the extent of the risk.
Digitized by VjOOQIC
OCTOBER TEEM, 1893. 495
Moore v. St. Louis Wire Mill Co.
Keegan v. Kavanaugh, 62 Mo. 230; Cummings v. Collins,
61 Mo. 520; McDermott v. Railroad, 87 Mo. 287;
Beichla v. Gruensf elder, supra.
The doctrine of the foregoing cases rests on the
legal presumption that the servant is at liberty to
engage in the work or not, as he sees proper; and,
having voluntarily elected to enter the employment, he
will be presumed to have contracted in reference to
obvious conditions. This presumption, as a practical
and every day question, is a mere fiction, for the reason
that a great majority of laborers have no choice in the
matter. Courts, however, ought to act on the legal
presumption ; for to ignore it would produce confusion
and uncertainty in the administration of the law.
In the case of Fugler v. Bothe, 43 Mo. App. 44, a
majority of this court erroneously supposed that the
supreme court had broken away from this rule, and
had imported into the jurisprudence of this state the
law of many other jurisdictions, to the effect that the
servant will not be considered as having assumed
the increased risk arising from obvious defects in
machinery or appliance, unless the danger be imme-
diate or threatening. Judge Rombaueb held to a
contrary view, and so expressed himself in a dissenting
opinion. The case was certified to the supreme court,
and the views of the dissenting judge were adopted by
that court. We are, therefore, justified in the belief
that we will hear nothing more of the ^ ^immediate and
threatening danger doctrine.^ ^
Making application of the law to the facts as tes-
tified to by the plaintiff, we are not prepared to say
that the inference is not a fair one, that the plaintiff
did not see the defect in the guard. The plaintiff said
that only a small portion of the guard W6is broken off,
and that at that particular place lime and dirt had
accumulated to a considerable extent, thus laying the
Digitized by VjOOQIC
496 55 MISSOURI APPEAL EEP0ET8,
Moore v. St. Louis Wire Mill Co.
foundation for the further inference, necessary to the
plaintiff's recovery, that the break was not of recent
date, and that the defendant knew, or ought to have
known, of it. It must be borne in mind that the guard
extended only two or three inches above the surface of
the floor, making it possible for the break in the
guard to be concealed by lime or dirt. Whether,
under the physical facts as established by the plaintiff's
evidence, the alleged break in the guard would likely
escape the attention of an ordinarily observant person,
is a question about which reasonable minds might
differ. Therefore, the question was one of fact for
the jury, and not of law for the court. This assignment
will be overruled.
The defendant complains of the plaintiff's second
instruction, which reads: ^'The court instructs the
jury that, while the plaintiff is bound to accept the
risks incident to the doing of his work when the appli-
ances and instruments furnished to him with which to
do said work are reasonably safe, and such as are
usually used under similar circumstances for the doing
of such work, this does not mean that he is bound to
accept risks or damages (dangers) which spring from
any defects in the appliances or instruments with which
he was requir^ hy defendant to do said work. And the
jury are further instructed that for the purpose of this
action they shall consider the floor, as well as the rail
or guard about the top of the vat mentioned in evi-
dence, and into which plaintiff slipped, as part of the
appliances furnished by defendant to plaintiff with
which to do his work at the time he fell and slipped
into said vat, if they find that he did so fall and
slip."
As we have attempted to show, the servant assumes
all risks arising from defective appliances of which he
knew, or which were so obvious as not to escape the
Digitized by VjOOQIC
r
OCTOBER TERM, 18
Lee V. Clifford.
observation of an ordinarily prudei
evident that the instruction was
entirely different theory. That it
cannot be questioned.
PlaintiflE's third instruction is like
jury was not required by it to find
did not know of the defect in the i
ordinarily observant man would not
it. Nor was the jury required to fin
was the cause of the accident, which, i
the instruction fatally defective, as i
covered the entire case. Flynn v. Br
App. 536.
For errors in ihe instructions, t
be reversed and the cause remanded,
concur.
Michael Lee, Respondent, v. Dei
Appellant.
St. Louis Court of Appeals, Decem
The Eividence in this cause is considered, and A
the verdict.
Appeal jrom the St. Louis City Circ
Daniel D. Fisher, Jud
Affibmed.
E. J. O^Brien for appellant.
Seneca N. Taylor and Erd <& Powe
Bond, J. — This suit was begun I
the peace for breach of a contract to <
and plastering on the houses of defen
Vol. 55—32
Digitized by VjOOQIC
498 55 MISSOURI APPEAL REPORTS,
Lee V. CliflPord.
The statemiBnt of the cause of action was, that
plaintiflE submitted, at defendant's request, a bid for
the work in question for the sum of $1,079, which bid
was accepted by defendant; *^that, within a reasonable
time thereafter, plaintiflE delivered at said houses the
box in which to run oflE the lime, and made all prepara-
tions to proceed with the work * * * pursuant to
the contract, '' but that defendant refused to allow him
(plaintiflE) to proceed with the work, wherefore he
prayed for damages for $215.80.
Upon appeal to the circuit court, there was a trial
and judgment in favor of the plaintiflE, from which the
defendant hfes appealed to this court, and assigns for
error: First. That under all the evidence it was a con-
dition precedent to the right of the plaintiflE to perform
his contract, that the houses should be ready for the
work therein provided for. Second. That there was
no evidence that respondent ever oflEered to do the
work under his contract after the houses were ready
therefor.
After a careful examination of the facts in this
record, our conclusion is that there was evidence tend-
ing to show that the contract sued on was accepted by
defendant without any express condition attached to
such acceptance, except that appellant wanted the ivork
done without delay. That there was an implied condi-
tion that the work was only to be done when the
houses were in a suitable state for its performance,
results from the nattire of the contract.
This condition, we think, had happened on the
day when plaintiff took his wagon and box to the
houses for the purposes of doing the work. For
the evidence is that he had, before this, examined the
progress of the buildings, and had ascertained that they
were about ready for lathing and plastering. And
there was also evidence tending to show that on this
Digitized by VjOOQIC
OCTOBI
Handley v. Ct
very day they began to
evidence also tended t(
lant positively refused
work on the buildings
vented respondent's pei
apparent, therefore, thi
error are not well taken
All the instructions
case, except the demuri
and no complaint is m
for respondent.
There was evidence
the allegations containe
ent's cause of action;
ent's favor by the jui
disturb on the ground i
dence.
The result is that t
All concur.
John Handley et aL,
Island and Pa(
E
St. Louis Court of
1. Pleading: denial of coi
STATUTORY RULE. The Sti
execution of a contract in
by failing to deny it under
be invoked for the first tii
urged in the trial court as
evidence controverting the
2. Common Carriers: si
this cause is considered, i
upon the part of a local ag
for the through shipment
evidence is also held insu
gation of that contract by
the shipper at the terminu
Digitized by VjOOQIC
~^^-';, } - ■¥,.'°. i?r*jj ; ^^jjfF
500 55 MISSOURI APPEAL REPORTS,
Handley v. Chicago, B. I. & P. B'y Co.
Appeal from the St. Louis City Circuit Court. — ^Hon.
Daniel Dillon, Judge.
Reyebsed and bemanded.
Henry B. Davis for appellant.
(1) The evidence that the local agents at McPher-
son were in the habit of issuing similar bills of lading
and that they were recognized and carried out by the
respondent is sufficient evidence of the authority of the
local agent in this C6ise. White v. Bailroadj 19 Mo.
App. 400; Turner v. Bailroady 20 Mo. App. 632; Brooks
V. Jameson^ 56 Mo. 505 ; Sommerville v. Bailroad, 62
Mo. 399. The receiving carrier is liable for losses
occurring beyond the terminus of its line when it has
made a contract to transport the goods beyond such
terminus. Orr v. Bailroady 21 Mo. App. 333; Cray-
croft V. Bailroady 18 Mo. App. 487.
3f. A. Low and W. F. Evans for respondent.
Mr. Gt. W. Ecker, who signed the contract of ship-
ment at McPherson as the agent of respondent, was
merely the local agent at that point, and had no
authority to execute the contract in question for the
shipment of stock to a point not on the respondent's
railway, and had no authority to undertake, on behalf
of the respondent, the transportation of freight beyond
its own line. Grover^ etc. Co. v. Bailroady 70 Mo. 672;
Orr V. Bailroady 21 Mo. App. 333; Turner v. Baitroad,
20 Mo. App. 632. (2) The undisputed evidence shows
that the stock in question was transported from Kansas
City to St. Louis by the Missouri Pacific Railway
Company in pursuance of the contract made by
appellant, J, H. Handley, with that company at Kansas
City, and that the injuries to the stock were received
Digitized by VjOOQIC
OCTOBER TERM
Handley ▼. Chicago, B. I. 6
while on the line of that company
The respondent should not be h
negligence of the Missouri Pacif
Bond, J. — This is an action '
a contract for the shipment of st
Kansas, to St. Louis, Missouri.
The contract sued on was es
plaintiffs, Handley, and also by i
company by its agent, Gt. W. Ec
the transportation of one car loa
certain provisions inserted there
McPherson, Kansas, to the City i
Under the terms of said agreeme
was accorded to one person for t
panying the stock, and giving at
to them while in transit.
The answer of the defendant
denial; secondly, an averment tl
carrier between McPherson, Kan
Missouri, at which latter point
that it delivered thereat the ca
mules to the plaintiff, John Ha
and sound condition; that sai
after the delivery to him of the
as aforesaid, made a contract fo
with the Missouri Pacific Kai:
Kansas City to St. Louis, Mil
which they were carried between
which contract the defendant h
whereto it was neither directly r
thirdly, a denial that it ever ente
the shipment of the carload of he
Kansas, to St. Louis Missouri,
a common carrier between thof
Kansas City and St. Louis, Miss
Digitized by VjOOQIC
502 55 MISSOURI APPEAL REPORTS,
Handley v. Chicago, R. I. & P. B'y Co.
The evidence showed that about the twenty-first
day of June, 1890, a written contract was executed
between plaintiff Handley and the defendant, whose
signature was attached by its agent, Or. W. Ecker,
which contract obligated the plaintiff to ship, and the
said defendant to haul, a car load of horses and mules
from McPherson, Kansas, to St. Louis, Missouri, under
other limitations and restrictions as to care, attention,
liability, etc., set forth in said contract.
The evidence tended to show that in pursuance of
this contract, plaintiff, after some delay, secured a
* ^street stable car,'' number 825, which he loaded with
his stock and for which he paid $7.30, extra price,
which extra amount was presented in the bill for the
freight which he paid at St. Louis.
The evidence tended to show that, after the arrival
of this car containing the stock of the plaintiff at
Kansas City, they were taken therefrom for the purpose
of being fed; that thereafter in the evening, when
plaintiff Handley had started his horses to the ^'chutes"
to be loaded for St. Louis, he was met by an agent of
the Missouri Pacific road who told him that the car, in
which his stock had come to Kansas City, had been
taken away, and that there was no car there to put his
ntock in; that thereupon said Handley demanded a
street stable car, so that he could separate his stock
and secure their safety ; that he was told that he would
t hen be left at Kansas City ; that he replied that he
*^ was three days late now getting to St. Louis; that
will put me off again; a big feed bill, and I don't know
anything to do;" that thereupon the Missouri Pacific
agent went off, and after a while an engine was sent
with an old car ankle deep in mud and manure, which
had been lying on the side tracks, for the reception of
plaintiff's horses; that he objected to the use of this
car; that the men around the car carried about two
Digitized by VjOOQIC
^^^^^F
OCTOBER TERM, 1893.
Handley v. Chicago, R. I. &.P. R'y Co.
buckets full of sand into it, drove the plaintiff
into the car, and pulled the car up into the yj
the plaintiff then walked up into the yard and
yardmaster, and complained of the injustice
being done him ; that, soon after the train ha
on its journey to St. Louis, plaintiff's hoi
thrown down in the mud, tangled up, and s
them injured; and that, when they arrive
Louis, several of them were down and many
in a badly damaged condition.
The evidence tended to show that, after j
horses had been placed upon the cars of the
Pacific railway at Kansas City, he signed a
handed to him by the agents of that cor
covering their transportation to St. Louis and
free transportation for himself; and that ui
contract the shipment came from Kansas C
Louis, where it was delivered in a badly
condition.
The evidence tended to show that plai
been shipping eight or ten years ; that he ha<
some twenty-five or thirty loads of horses
road to St. Louis; that it was proper to t
shipments out of the cars at Kansas City and
water them, and then take the evening trai
Louis; that this would enable the shipment
St. Louis on the same time as if, when it got i
City, it had not been unloaded but put on a 1
and forwarded to St. Louis.
The evidence tended to show that th
street stable car, hired by plaintiff at M(
Kansas, was placed in the possession of the
Pacific road by the defendant railroad when
at Kansas City; that, when the stock arriv
Louis, they were damaged to the extent sued
Digitized by VjOOQIC
504 55 MISSOURI APPEAL EEPORTS,
Handlej ▼. Chicago, B. I. & P. B'y Co.
The evidence was that the defendant railroad
owned no line between Kansas City, Missouri, and St.
Louis, Missouri, and that G. W. Ecker, who signed its
name to the stock shipment contract sued on, was its
local agent at McPherson, Kansas, where he did their
business and solicited stock, and was in control of the
agency at that point, which was a place of considerable
shipment, averaging five loads of stock a day, that
the general offices of the defendant railroad are at
Topeka, Kansas.
The evidence tended to show that the particular
shipping contract sued on was the first one that
Mr. Ecker, on behalf of the defendant railroad com-
pany, had ever executed with the plaintiff Handley,
although he had signed and executed a number of such
contracts since that time, and although the plaintiff
had, under contracts of a similar form, signed by agents
who preceded Mr. Ecker, made shipments to St. Louis
of other loads of stock for the last three or four years.
The total freight charges, including the rent of the
street stable car and amounting to some $70, were paid
at St. Louis to the agent of the Missouri Pacific
Railway Company.
At the close of the case the defendant prayed the
court to give an instruction in the nature of a demurrer
to the evidence, which instruction, being held under
advisement, was given on November 19, 1892, and
final judgment rendered in favor of the defendant.
Plaintiff duly excepted to this ruling of the court, and,
after the overruling of his motion for a new trial, took
an appeal to this court.
The one question arising on this appeal is whether
or not, under the pleadings and evidence or the legiti-
mate inferences arising therefrom, the plaintiff was
entitled to have the issues herein submitted to a jury.
Digitized by VjOOQIC
WIJRPJl '--
OCTOBER TERM,
Handley y. Chicago, B. I. &
The petition in this case bein
t^n instrument charged to have
defendant, and there being no ans
cution verified by affidavit, the la^
should have been adjudged confe
utes, 1889, sec. 2186; Rothschild
App. 321 ; Smithy etCj Co. v. Bembc
It has, however, been held
avail himself of this statutory ru
the written contract must object t
ing: to impeach its execution in tl
ground that the answer or other
execution is not verified by affid
held that such objection could i
the first time in an appellate <
Lithograph' Co. v. Obertj 54 Mo. A
There was evidence to the eff
had made a number of contracts i
to St. Louis with the local aj
While the evidence is not quite c]
contracts were made before the co
we are not prepared to say that
tendency to show that fact.
We must, therefore, hold tha
authority of the local agent to i
question should have been submil
The only question remainii
the contract, made by plaintifll
Pacific Eailway Company at ]
shipment of his stock thence to S
an abrogation of the contract enfe
defendant at McPherson for their
point to St. Louis.
Under the facts and circums
this case, there are but two views
■ Digitized by VjOOQIC
506 55 MISSOURI APPEAL REPORTS,
Handley v. Chicago, B. L & P. R'y Co.
of the conduct of defendant in delivering the shipment
made by plaintiff at Kansas City.
First, that defendant thereby delivered the stock
to plaintiff, declining on its part to transport it any
further.
Secondj that defendant delivered the shipment in
question to the Missouri Pacific Railway Company, in
order to fulfill its through contract with plaintiff by
means of a connecting carrier. In other words, when
the stock shipment in question reached Kansas City,
defendant then committed a breach of its contract, or
continued the performance of its contract by a con-
necting carrier.
Whichever of these two views may be taken, we
think, under the record, the case should have been
submitted to a jury.
If the act of the defendant in stopping the special
street stable car, numbered 825, which was designated
in its contract of shipment at Kansas City, amounted
to a breach of that contract, then the plaintiff is not
precluded from recovering the natural and proximate
damages occasioned to him by such breach, because he
thereafter entered into another contract with another
carrier for the transportation of his stock to the point
of their original destination.
On the other hand, if the act of defendant in put-
ting the special car containing plaintiff's shipment in
the possession of a connecting carrier at Kansas City,
was for the fulfillment of its contract for through ship-
ment, then it is equally plain, under the facts in this
record, that this case was one for the jury. For we
do not think that the reception by the plaintiff of the
contract tendered to him by the Missouri Pacific road,
after his stock had been received by, and was in the posses-
sion of, that company, was, as a matter of law, an aban-
donment by the plaintiff of his rights under the prior
Digitized by VjOOQIC
1^^^
OCTOBER TERM, 1893.
Terry v. Greer.
contract. His strenuous objections to tl
of the special stable car secured to him, a
against the car in which his stock were
Missouri Pacific road, and other circi
indicate that the contract between hii
Missouri Pacific road was mainly to affor
transportation as the attendalnt of his stc
rate, that it was signed by him with no ii
ever of thereby releasing the defendant
gations to him for through transportatioi
on the special street stable car which t]
lated to ^'haul," and for which an ext
exacted ; and the question of that inten
have been submitted to the jury.
Even if the contract in suit had pro\
shipment to St. Louis without stipulating
car, the defendant would still be liable for
of the carrier who performed that portioi
portation, provided for in defendant's cor
Kansas City and St. Louis, unless the
and substituted agreement superseding
contract. Our conclusion is that this
have been submitted to the triers of t
appropriate instructions. For the errc
court in sustaining a demurrer to all th(
judgment is reversed and the cause, re
concur.
A. O. Tebry et al.y Eespondents, v. Rob
Appellant.
St. Louis Court of Appeals, December
1. Contracts: independent agreements. Held,
promises are not necessarily dependent because c<
Digitized by VjOOQIC
508 55 MISSOURI APPEAL REPORTS,
Terry v. Greer.
2. New Trial : newly discovered evidekce. Held, arguendo, that
a new trial on the ground of newly discovered evidence is not war-
ranted, when such evidence ought not to change the result upon a
retrial.
Appeal from the St. Louis City Circuit Court. — Hon.
Daniel Dillon, Judge.
Affibmed.
David Murphy for appellant.
Edmond A. B. Garesche for respondents*
RoMBAUEB, P. J. — The plaintiffs recovered a judg-
ment against the defendant for one-half of the com-
missions which the latter received from the owners
for selling certain lands in the city of St. Louis. The
defendant now assigns for error that this judgment is
not supported by substantial evidence, and is opposed
to the plaintiffs' admission upon the trial; also that
the court erred in modifying an instruction asked by
the defendant.
The plaintiffs' petition charges that the defendant
agreed to and with plaintiffs that, if they could secure
for him as the agent of the owners a purchaser for the
land in question at $43,000, he would pay to them for
their services in so doing one-half of the commissions
received by him from the owners. The defendant's
answer is a general denial. The plaintiffs gave evi-
dence tending to show that they bought the land them-
selves for $43,000, although they claimed by their
evidence that the ' purchase was in the interest of a
syndicate. Whether they bought it themselves or in
the interest of a syndicate is wholly immaterial, since
the defendant's liability, if it existed at all, depended
on the fact that the plaintiffs secured a purchaser for the
lands at the sum mentioned, and that the defendant
Digitized by VjOOQIC
OCTOBER TERM, 1893. 509
Terry v. Greer.
thereby earned his commissions. Touching the aver-
ments that the land was sold for $43,000 by the plain-
tiflEs' exertions, and that the defendant thereupon
collected from the owners his full commissions, and
that he never paid any part of such commissions to the
plaintiffs, there is no controversy whatever. All the
evidence concedes the truth of these averments.
The defendant was called as witness on his own
behalf. He neither admitted nor denied that he had
made a contract with* the plaintiffs to pay them one-
half of his commissions. He did, however, state that,
while on his way to Belleville with one of the
plaintiffs to see the owners (which was at a time
subsequent to the agreement about commissions tes-
tified to by the plaintiffs), he, the defendant, inquired
whether he could have an interest in the purchase,
and that the plaintiff told him he would like to
have him (the defendant) come in, and that there-
after it was arranged that the defendant should have a
half interest in the venture. The defendant, however,
admitted that he never made any demand for a con-
veyance of such half interest to himself, and . that he
never tendered any money to the plaintiffs at any time,
and that in fact he did not know what payments were
made by the plaintiffs to the owners, nor when such
payments were made.
The defendant's first assignment of error is claimed
to find support in the following testimony of one of
the plaintiffs, when called in rebuttal.
* 'Going to Belleville he (the defendant) said he
would like to go in first rate, but he had so much on
his hands, so much vacant ground and other property
to attend to, he did not see how it was possible to
go in.
^^Q. Did he ever tender you at anytime any money
on thist -4. No, sir.
Digitized by VjOOQIC
510 55 MISSOURI APPEAL EEPORTS,
Terry v. Greer.
^^Q. Did he at any time ever demand of you a con-
veyance of any interest in this property! A. Well, I
don't know as he ever demanded any conveyance, but,
when I asked him about the commissions, he said,
'Ain't I going to get an interest in that?' I said *no.'
He said *why ;' and I said, 'because you did not put up;
you didn't go in, you said you didn't want to go in,
and I took other partners in.'"
It needs no argument to show that this evidence
contains no admission, to the eflEect that the defendant
had not at some prior time agreed to divide commis-
sions with the plaintiffs, or that the plaintiffs ever
agreed with him to give him an interest in the pur-
chase, or that his interest in the purchase superseded
the agreement as to commissions. Hence the error is
not well assigned.
The second assignment of error is based upon the
following modification by the court of one of defend-
ant's instructions, the modification consisting in add-
ing to the instruction the words placed in italics:
*'The court instructs the jury that, if they believe
and find from the evidence in this case that plaintiff
and defendant agreed that plaintiff should buy the
Waugh property, and then convey or transfer one-half,
or other interest therein, to defendant, and that all
expenses should be borne equally, and all profits and
commissions equally divided, and that this was all one
agreement, and that there was no agreement between
plaintiffs and defendant having reference solely to a
division of commissions for the sale of the Waugh
property, then their verdict should be for defendant."
We are very clear that there was no error in
refusing the instruction as asked by the defendant, but
we are not quite so clear that there was no error in
giving it as modified. That error, however, was in
favor of the defendant, in this, that the instruction
Digitized by VjOOQIC
r
OCTOBER TERM, 1893.
Terry v. Greer.
assumes, as a matter of law, that the two
mentioned therein, if concurrent , were n<
dependent^ and that the plaintiflEs could not en
defendant's promise without first complying v
own. Such is not the law in this class of cas^
ris V. Shrewsbury Park Land and Improvement
page 381, and cases there cited. Moreover, t
no substantial evidence in the case that the U
ises were concurrent ; hence the court, in subr
the jury ^^that this was all one agreement,''
ther in defendant's favor than the evidence w
It is self-evident that the fact that plaintiff an
ant made one agreement at one time, is ii
disproved by evidence that they made anoth
ment relating to a different subject at so
time.
No error is formally assigned touching t
of the trial court in not granting a new tri
gi'ound of newly discovered evidence. We
suflScient to say on that subject that the affida
that such evidence relates exclusively to an i
to be implied from the silence of one of the
upon an occasion when he was under no obli
speak. Such evidence is of the weakest chara
hence-, not such as ought to change the resu]
I retrial. It would have been no ground for
[ it, even if the error had been formally assigne
[ All the judges concurring, the judj
affirmed.
Digitized by VjOOQIC
\
512 55 MISSOURI APPEAL KEPORTS,
Scudder y. Atwood.
1698 «106
Clifton E. Souddee, Respondent, v. John 0. Atwood,
j^ Appellant.
55 512
^ i^^ St. Louis Oourt of Appeals, Deoember 19, 18G3.
I 'iTy 512*
I 86 386
55 512 1. niegal Trusts: enporcement in EQurry. A oourt of equity will
-ffl- — not lend its lAd to the enforcement of an illegal trust, and accord-
Ififtn *^CM ^^^y ^^ 'lot, at the suit of a debtor who has conveyed his property
to hinder or defraud his creditors, compel a reconveyance to him.
2. ; PLEADING. Under the general issue evidence may be
received, which tends to show a cause of action never existed, or that
it was void db initio. Accordingly, when a petition alleges a lawful
trust in favor of the plaintiff and seeks to enforce it in equity, it may
be shown under a general denial that the trust was made for fraudu-
lent purposes .
Appeal from St. Louis City Circuit Court. — Hon. Daniel
D. FisHEB, Judge.
Beyebssd.
Geo. W, Ta/UfSsig for appellant,
.(1) The testimony of plaintiff discloses a plan to
conceal his property from his creditors by placing it in
the name of defendant^ and the successful execution of
the plan ; that the plaintiff by such fraudulent conceal-
ment of his property from March, 1888, to April, 1892,
completely exhausted his creditor, so that the latter
was compelled to take a small per cent, of the debt due
from plaintiff; that now the plaintiff **has gotten rid of
his creditor,'^ and seeks the aid of a court of equity to
recover back the property. ^ * The door of a court of equity
is always shut against such claimants. ^^ 1 Pomeroy's
Equity Jurisprudence, sec. 397, et seq. ; Trimble v.
Doty, 16 Ohio St. 118; Nellis v. Clark, 20 Wend. 24;
Digitized by VjOOQIC
OCTOBER TEEM, 1893. , 513
Scudder v. Atwood.
St. John V. Benedict, 6 Johns. Ch. 117; Perkins v.
Savage, 15 Wend. 412; Garrett v. Kansas Coal Co., Ill
Mo. 279; Kitchen v. Greenebaum, 61 Mo. 116; Sumner
V. Sumner, 54 Mo. 340; Holt v. Green, 73 Penn. St. 198;
Steadman v, Hayes, 80 Mo. 319. (2) The petition is
based upon an express trust, ^^that defendant, upon
plaintiff's rec[uest, and upon the understanding that
defendant should never be called upon to pay for the
same or any part thereof, and for the purpose of hold-
ing the same for the use and benefit of plaintiflE, sub-
scribed, and agreed to pay for, thirty-nine shares, * *
* to be issued in defendant's name for the use and
benefit of plaintiff, and in trust for him. The answer
contains a general denial of these averments. Under
the pleadings, the plaintiff was obliged to show such
an express trust, and it was competent for defendant to
show, under the general denial, that the alleged trust
was void a6 im^io, and that no legal contract existed.
Hardwick v. Cox, 50 Mo. App. 509; Wilkerson v.
Bowman, 82 Mo. 672; Greenway v. James, 34 Mo. 328;
Chapman V. Currie, 51 Mo. App. 40; Tyler v. Lanmore^
19 Mo. App. 445 ; Carter v. Shotwell, 42 Mo. App. 663 ;
Thomas v. Ramsey, 47 Mo. App. 84; White v. Middles-
t(;or<A, 42 Mo. App. 368; Sprague v. Booney, 104 Mo.
349; Hoffman V. Parry, 23 Mo. App. 20; Corby v.
WeddlCy 57 M.O. 452; JEidson v. Hedges, 38 Mo. App.
52.
Walter B. Douglas for respondent.
The appellant's contention, that he is not liable in
this suit for the reason that he and respondent entered
into a fraudulent combination to cheat respondent's
creditor, is an affirmative defense, and, not having been
pleaded, was not a matter in issue in the court below
and will not be considered here. Musser v. Adler, 86
Vol. 55—33
Digitized by VjOOQIC
^
514 55 MISSOURI APPEAL REPORTS,
Scudder y. Atwood.
Mo. 445; St. Louis ^ etc. Ass^n v. Delano, 37 Mo. App.
284; 8. 0., 108 Mo. 217; CummisJcey v, Williams 20
Mo. App. 606; Moore v. Bingo, 82 Mo. 468; Reese
V. Garth,d6 Mo. App. 601; Mize v. Olenn, 38 Mo. App.
98; Sybertv. Jones, 19 Mo. 86; Suit v. Woodhall, 116
Mass. 547; Foster v. Hall, 12 Pick. 89.
Bond, J. — This is a proceeding in equity for the
purpose oif obtaining a decree or judgment, compelling
the defendant to assign and deliver to the plaintiff a
certain certificate, number 8, for two shares of stock
in the St. Louis Electric Light & Power Co., and
divesting all title in said two shares out of defend-
ant and vesting the same in plaintiff.
The petition stated in substance that, at or imme-
diately prior to the organization of said corporation, at
plaintiff's request and upon the understanding that he,
the said defendant, should never be called upon to pay
the same or any part thereof, and for the purpose of
holding the same for the use and benefit of plaintiff,
the defendant subscribed for thirty-bine shares of the
original capital of said company; that plaintiff was at
said time insolvent, and, having paid to the company's
first board of directors the subscription price of said
^tock, caused and directed the certificate for said thirty-
nine shares to be issued in the name of defendant, and
defendant's name to be entered upon the books of said
company as the owner of said thirty-nine shares ; that
the certificate so issued to defendant included, among
others, to-wit, number 8, for two shares, '*aK of which
was done in pursuance of said understanding that said
defendant should not be called upon to pay for said stock,
or any part thereof, and for the purpose of defendants
holding said thirty-nine shares in every part thereof for
the benefit of plaintiff and in trust for him;^^ that defend-
ant has never paid any consideration for any of the
Digitized by VjOOQIC
r
'"W^€*''i''^--''
OCTOBER TERM, 1893. 515
Soudder v. Atwood.
shares of stock so issued to him, but that the full sub-
scription price therefor has been paid by plaintiff, and
that the plaintiflE has always been the actual owner
of all of said shares of stock, though issued in the name
of defendant. The petition then alleges an increase of
the capital stock of the company on March 11, 1890,
and another increase on May 2, 1892. It then admits
that defendant has issued to plaintiflE all the shares of
stock originally issued to him, except the two shares
evidenced by said certificate, number 8. It then alleges
that since June 14, 1888, plaintiff has been entitled to
have said certificate, number 8, for two shares trans-
ferred and delivered to him ^'by reason of the trust
established as aforesaid ;^^ that plaintiflE then demanded
of defendant to assign and ' deliver certificate, number
S,to plaintiflE '*m fulfillment of said trusty hut that
defendant refused to do so, as in equity and good sense
he is bound to do by reason of the trust aforesaid.^ ^
Wherefore the petition asks for the relief compelling
the defendant to assign and deliver said certificate, and
divesting title out of him.
The answer admits the insolvency of plaintiflE, and
avers that defendant was employed by plaintiflE and one
D. W. Guernsey, a co-incorporator of the plaintiflE to
act for them in the purchase of certain electrical appli-
ances and machinery, which were among the assets of
the assigned estate of the Guernsey Furniture Com-
pany, in which plaintiflE and said Guernsey had been
stockholders; that defendant purchased said property
for the benefit of plaintiflE and Guernsey at the
assignee's sale for the sum of $3,000, which money was
furnished by plaintiflE and said Guernsey; that the title
of the property so bought was taken in defendant's
name, and was conveyed thereafter to the St. Louis
Electric Light Company upon its incorporation as the
basis of the capital stock of that corporation, to-wit,
Digitized by VjOOQIC
516 55 MISSOUEI APPEAL REPORTS,
w — — — — — —
Scudder v. Atwood.
$8,000; that the only consideration received by the
defendant for this conveyance was seventy-eight shares
of the full paid stock of said corporation, among which
were the certificates of stock set out in the petition;
that defendant thereupon at once transferred to plain-
tiff thirty-seven shares, and to Guernsey's assignee's
thirty-nine shares of the stock issued to him, in full
discharge of all the claims against this defendant by
reaspn of the premises.
The answer further avers that said certificate,
number 8, for two shares A^as delivered to him for
his services to said company, and to said Scudder, as
his absolute property.
The reply of plaintiff was a general denial.
There was a judgment in the court below in
accordance with the petition. The material facts shown
on the trial were, to-wit, that the plaintiff and D. W.
Guernsey were officers and stockholders in the Guernsey
Furniture Company, which made an assignment for the
benefit of its creditors in January, 1888; that among
the assets thus assigned was an electrical plant, which
the assignee was ordered to 'sell at public auction ; that
plaintiff and said Guernsey desired to purchase this
asset ; that at the time plaintiff and said Guernsey were
indebted individually to one George W. Parker as joint
makers on twenty-three notes for $450 each, dated
December 15, 1886, and payable respectively from four-
*teen to thirty-six months after date; that, to enable
them to make the purchase, respondent arranged, with
Mr. Cupplei; for a loan of $S,000, one-half for himself
and one-half for Mr. Guernsey, respondent being
responsible for the whole amount; that, at respondent's
request, and with the money borrowed from Mr.
Cupples, the electncal plant was purchased by appel-
lant at a public sale of the assets of the assigned estate;
that thereupon the corporation, now known as the St.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 517
Scudder v. Atwood.
Louis Electric Light and Power Company, wa^
ized by subscription of seventy-eight shares r
appellant, and of one share each by respond
Mr. Guernsey; that Guernsey was chosen as pr
appellant as vice-president, and respondent as tr
that thereupon one share of stock each was ii
Scudder and Guernsey, and seventy-eight shai
issued to appellant, who at once transferred thi
of them by the direction of Mr. Guernsey to
Barnard, and indorsed thirty-seven of the re
to Scudder, who at once transferred them as c
security to Mr. Cupples. This transaction left i
lant's hands only certificate, number 8, for twi
of the stock in question, which he has retail
since, and which is the subject-matter of the
suit.
Eespondent states with reference to the i
of these two shares that he said to appellant:
all this stock will be out of my hands ; I wo:
any at all, as it will be in Mr. Cupples' hands :
rity. You had better keep this certificate for tvi
to indemnify yourself as stockholder ; '' that not:
said about payment of appellant for his service
than I (respondent) asked him to hold the stc
a director in the company, as it was necessarj
ingtolaw;'^ that the reason why the stock
issued in his (Scudder's) name was that he w
Parker (an existing creditor) would get hold oi
he, Scudder, told' appellant that he ''didn't
take ^ny chance of Parker jumping on it.''
Matters remained in this plight until abc
25, 1892. During this interval the business of
poration prospered, and its stock was twice ii
New shares representing the increment of ii
were issued to appellant in lieu of certificates
held by him (except for certificate number 8),
Digitized by VjOOQIC
518 55 MISSOURI APPEAL REPORTS,
. : L _«
Scudder v. Atwood.
by him indorsed and delivered to respondent, who
thereupon indorsed all of them over to Cupples from
whom respondent had borrowed a part of the money-
used by him in paying for a portion of the increase of
the capital stock, the remainder of the increase having
been paid for in profits of the business.
During this interval, to-wit, February 13, 1891,
Parker, the creditor for $4,337, accepted fifty per cent,
thereof as satisfaction of his claim therefor against
Scudder and Guernsey from the latter. About four-
teen months thereafter Scudder contributed to Guernsey
one-half of what Guernsey had paid Parker. A short
time after this Scudder wrote the following letter, and
got the following reply:
'*St. Louis Electric Light and Power Co.
''St. Louis, Mo., April 25, 1892.
''Mr. J. G. Atwood J
''Deab-Sir. — As per notice mailed you, we will
hold our annual meeting on Monday, May 2.
''As matters now stand, I suppose you will not put
in an appearance on that day; if such is the case, I
should like very much to have the stock which now
stands in your name transferred. Please let me know
as soon as possible your wishes in the matter and
oblige. Yours truly,
"C. E. Scudder.^'
To this, Atwood answered as follows:
"St. Louis, Mo., AprU, 28, 1892.
"ilfr. C. B. Scudder, Secretary and Treasurer St. Louis
Electric Light and Power Co.,
"Dear Sir: — ^Yours of the 25th inst. received.
As to whether I attend the annual meeting on the 2nd
prox. (of which I stand fully advised) or not, I judge
it makes but little difference and will not prove at all
detrimental to proceedings. If it is contemplated my
absence and non-representation of my stockholding
Digitized by VjOOQIC
OCTOBER TERI
Soudder v. Atwc
will inconvenience proceedings,
attend or to send my proxy, t
proposition to increase the capi
name.
''Touching your intimation
as a stockholder is distasteful
suggestion as to transferring it,
of purchasing my interest for $2
a reasonable estimate of its va
original capital of the compan;
increased to $30,000, and is to
hundred and fifty per cent, oi
profits, augmented value of pr
and considering that the earniui
ness wiU be likely to continue as
years, if not increase.
* 'If this proposition is not
dispose of the stock in the mean
shall expect, if there is a re-issue
being increased, to receive a nui
new stock proportionate with
which I will be entitled, whereui
present certificate.
With reference to the foregc
said "he could not get the stocl
he got the Parker matter out of
made answer as follows to tl
to- wit: "And that is the reason
to transfer it back sooner, for
stock in your name until you go
of the wayf A. I didn't wan
gotten the Parker matter oi
"Because, if you had the sto
he (Parker) would come down
Digitized by VjOOQIC
' v.,*^- ■
520 55 MISSOURI APPEAL REPORTS,
Soudder v. Atwood.
just debtr' A. ''That would be the danger; yes, sir.'^
Q. ''Don't you remember that you told Atwood, at the
time of the original transaction for the purchase of this
plant, that you didn't know when Parker might bother
you, and you wanted to get it in his name until you got
straightened upf A. ^'Yes, sir; I said that, and that
is the fact, too; that is what I did say."
There was a breach of friendship between respond-
ent and appellant in February, 1892.
Appellant's testimony was that he was asked by
respondent to buy in the electric plant which had been
conveyed to the assignee of Guernsey Furniture Co.,
and join in an incorporation based on this plant as its
capital stock ; that they would give him enough stock
to be an officer and director in the proposed corpora-
tion, and enable him to "perform the functions
expected of him in the company;" that he attended
the sale, bought in the property for $3,000, of which
Guernsey and Scudder each furnished one-half, trans-
ferred the identical property to the corporation there-
after organized upon a paid up capital of $8,000; that
thereupon all the stock, except one share each to
Scudder and Guernsey, having been issued to appellant,
he transferred thii-ty-nine of said shares by indorsement
to Guernsey, and thirty-seven in the same manner to
Scudder; that, as to the two remaining shares (certifi-
cate No. 8) Scudder said: "Here, take them; these
are yours. I am sorry I cannot give you more, but you
know my circumstances, and I would do it if I could."
Appellant told him: "It was all right and to let the
thing stand as it was;" that he was given to under-
stand that they were given in consideration of services.
There are only two questions presented on this
appeal : First. Whether or not respondent is entitled
to a decree under the pleadings and evidence, vesting
title in himself to certificate, number 8, for two shares
Digitized by VjOOQIC
OCTOBER TEf
Seudder v. Ati
of stock in execution and pe
alleged in his petition. Seco
not equitably debarred from si
under (he evidence ^niiil^di theri
Under the first inquiry the
scope of the evidence admis
denial contained in the answ(
act the rule is that all defenses
the allegations necessary to the
case, must be affirmatively plei
obvious corollary to this rule is
issue, evidence may be receive
that the cause of action never e:
<jA> initio. Chreenway v. James ^
Booney, 104 Mo. 360; Hardw
513; White v. Middlesworth, 41
son V. Farnham, 82 Mo. 672;
445; St. Louis y etc., Association
In the case at bar respondi
ness stand that he had caused
to be put in appellant's name
from respondent's creditor,
'^didn't want to get the stocl
name, until he had gotten th
the way,'' and that, to that e
upon appellant for the trans!
these two shares of stock until
claim. There could not be
proof of the character of the tru
in taking the stock in his nam
after, than is afforded by this t
It is also apparent that the ti
respondent's evidence is repui
the trust alleged and set forth
and proves that no such trust i
and that the one in fact create<
tion.
Digitized by VjOOQIC
522 55 MIS80UEI APPEAL REPORTS,
Soadder v. Atwood.
It follows, therefore, according to the definition of
the issues raised by the general denial, that it was com-
petent thereunder in this case to adduce evidence of the
real character of the fraudulent trust created by
respondent, and assumed by appellant, in the issuance
of the stock sued for in appellant's name. Such evi-
dence, being receivable generally under the general
denial contained in appellant's answer, was, for a.
stronger reason, admissible, since it appeared in the
testimony of .respondent and as a part of this case.
Hudson V. Wabash Railroadj 101 Mo. 30. In the latter
case the rule is laid down, that even strictly affirmative
defenses need not be specially pleaded, if the evi-
dence of the plaintiflE disclosed a fact (contributory
negligence) which absolutely defeats his right of action
and disproves his own case. (Petition for negligent
injury.)
That the unlawful trust, shown by the evidence in
overthrow of the express trust alleged in the petition, is
not one that can be enforced in a court of equity, is
established beyond all controversy, Nellis v. Clark,
20 Wend. 24; Pomeroy on Equity Jurisprudence, sec-
tion 401; Beach on Modern Equity Jurisprudence,
section 78; Kitchen v. Oreenabaum, 61 Mo. 110; Taylor
V. Von Schrader, 107 Mo. 228; Larimore v. Tyler, 88
Mo. 66; Sumner v. Summers, 54 Mo. 340. As said by
the supreme court of the United States in the recent
case, quoting from Chancellor Walworth: '^Wherever
two or more persons are engaged in a fraudulent trans-
action to injure another, neither law nor equity will
interfere to relieve either of those persons, as against
the other, from the consequences of their own miscon-
duct." Dent V. Ferguson, 132 U. S. 66; Bolt v. Bogers,
3 Paige, 157.
Our conclusion is that the judgment of the lower
court must be reversed. All concur.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 523
J^ones V. Jones.
William J. Jones, Appellant, v. Eose M. Jones,
Eespondent.
Bt. Louis Court of Appeals, December 19, 1893.
Divorce : desertion by wife. If a husband sees fit to invite members
of his family to live with him, his wife has no right to leave his home
on that aecount.
Appeal from the St. Louis City Circuit Comt. — ^HoN.
Daniel Dillon, Judge.
Revebsed and kemanded (with directions).
P. W. Fauntleroy for appellant.
Stone (& Slevin for respondent.
The question before the court is one merely of the
suflBciency of the evidence to warrant the action of
the trial court in dismissing the bill. In such cases
the appellate court will defer greatly to the opinion of
the trial court. The witnesses are there present; their
credibility can be determined by their manner and
demeanor. Walker v. Owens ^ 25 Mo. App. 587; Mathias
V. O^Neil, 94 Mo. 520. A wife is guilty of no wrong,
who leaves her husband because of torment offered
from his relations living with him, and is not bound to
return to him unless he assures her of protection from
continuance of the wrong. Spengler v. Spenglerj 38
Mo. App. 266.
Bond, J. — This an action for divorce, brought by
the husband upon the statutory ground that the wife
had absented herself ' 'without any reasonable cause for
the space of one year.'' Eevised Statutes, 1889, section
4500.
Digitized by VjOOQIC
524 55 MISSOURI APPEAL REPORTS,
Jones ▼. Jones.
•
The answer was a general denial. There was a
trial and judgment dismissing the petition, from
which the plaintiff has appealed, and he assigns for
error that under the evidence the court should have
granted a divorce. There is no dispute that the
respondent absented herself from the appellant for a
longer period than one year. The only question,
therefore, is whether or not such desertion was for a
reasonable cause.
The evidence showed that the parties intermarried
on June 18, 1890, and lived together in a house owned
by the mother of the appellant, the three constituting
the whole family, up to February 18/^1891, at which
time the wife left and spent a month with her parents,
after which she returned to the appellant and remained
with him five weeks (April 25, 1891). Since then she
had absented herself. The evidence is that the appel-
lant earned about eighteen dollars per week, and that
his mother with whom he lived had no means but the
little house.
It is not denied that the appellant's mother did all
the house cleaning, washing, ironing and cooking for
the family, with some assistance from the respondent in
ironing plain pieces and a little help in the cooking. The
respondent admits that this state of affairs continued
for about seven months after her marriage, during
which she had an *^easy time;'^ that for eight months
after their marriage the respondent declined to accord
appellant his martial rights, and that, in the middle of
April, 1891, she told him '*all intercourse with her was
done forever,'' and left his home and took up her
abode with her parents.
The evidence disclosed that the appellant requested
his wife to return to him both on the occasion of her
first and second departures; that at first she wrote
him that she would do so, if he would provide her a
Digitized by VjOOQIC
I'-'
OCTOBER TERM, 1893. 525
Jones V* Jones.
separate house apart from his mother. He replied that
he was unable to do so, and that it was her duty ^*to
come home and behave herself."
After respondent finally left her husband she wrote
him the following letter:
'*St. Louis, August 2, 1891.
**BiLLY: I received your what I would call very
saucy note, and I think it will about settle everything
between us, that is, as far as I can look into the future.
I am afraid we can never be friends again. I can
never live under the same roof with your mother, for
she has too violent a temper for me to trust myself
with her. As long as your mother says that I am not
good or honest or faithful and was so very dirty, I
don't see what you would be doing with me out there.
I don't see how your mother dare say I am not honest.
Have I ever taken anything from you? She better' be
careful how she speaks about me, or she may have to
pay dear for it. I will have no one call me dishonest.
And as you are not man enough and too stingy to look
after a wife, you had better stay with your mother,
where you belong. So when you can act like a man
and a husband, and get a home for me without your
mother interfering with my affairs, I will go with you.
One can easily see what kind of a man you are. I
have now been away 4 months, and I have never
received one nickel from you, not even so much as to
pay my car fare when I have met you. I have got a
situation^ and am going to work to earn my own money
independent of you. 1 donH see why you are bothering
yourself asking me to come home. I have heard that you
have been consulting a latvyer, and IdonH see what you are
thinking about wanting me to come home after you have
gone that far. Why don't you finish the proceedings,
and leave me where I am! You can blame your
mother for all this trouble she has bought on us. She
Digitized by VjOOQIC
526 55 MISSOURI APPEAL REPORTS,
i
Jones y. Jones.
has belied me all through, and you have believed it
all. Her own heart will tell her what she has done. I
have never seen a woman with such a temper as she
has got, but I will leave her to God, as he is the best
judge. Bo not tcrite any more letters to mey as it tcill
only be a waste of time. So I suppose I may say good-
bye forever; for we can never live together while your
mother is there, unless something extraordinary occurs
that will alter the affair , and until such times I intend to
stay where I am. So I must close my letter. From your
wife, RosE.'^
It is not denied in the record that appellant's
home was comfortable and well supplied with neces-
sary food, and in all respects suitable to his condition
in life. Nor is any excuse given by respondent for
leaving this home, except the complaint that her
mother-in-law was a woman of ungovernable temper
and had spoken to respondent about the way the
windows were cleaned, and that she (appellant's
mother) had words with a couple of the neighbors,
because respondent spoke to them.
We think the action of the trial court in dismissing
the appellant's petition is wholly unwarranted under
the evidence adduced on the trial. Respondent left thja
home of her husband for the full statutory period,
not for want of support, or any indignity inflicted by
her husband, but in substance because his mother
lived in the same house.
True, respondent gives as the reason for her
refusal to live with her husband that his mother's
temper was violent, ungovernable, etc. But when she
is asked to specify instances of such manifestations of
temper, she is compelled to admit on cross-examination
that during the first seven months of her marriage her
mother-in-law treated her kindly, and did all the house
cleaning and other heavy work. Nor was respondent
Digitized by VjOOQIC
w^
OCTOBllR Tl
Jones v. J
able to give subsequently ai
disposition on the part of
respondent's statement that
^'snappish'' complaints aboi
windows after respondent (oi
husband) had assumed charj
and duties, and also that h
want her (respondent) to
there.
There is not a shadow
prove that appellant consent
absence of his wife ; on the
abundant that he exerted all
to return.
The law is that it is the <
her husband's fortunes and
however humble, if it is all h
V. Messenger, 56 Mo. 329, 33'
to invite members of his fan
wif a cannot on that account
Schmidt V. Lindenschmidt, 29
The application of these
facts of this case demonstrate
reasonable cause to absent h
The only conclusion to be dr
is that her abandonment o1
caused merely by her dissa
wife. She had voluntarily
The highest interests of soci(
it at will.
Our conclusion is that a]
is entitled to a divorce for
forth in his petition. The ji
is therefore reversed, and 1
directions to the circuit coi
herein in accordance with th:
Digitized by VjOOQIC
528 55 MISSOURI APPEAL REPORTS,
Hanlon v. O'Keefe.
Michael Hanlon, Respondent, v. Benjamin O'Keefe,
55 628 Appellant.
58 463
St. Louis Court of Appeals, December 19, 1893.
1. Replevin: right op successful party to hold the other por
CONVERSION PENDING THE PROCEEDING. The defendant, in an action
of replevin retained the property in controversy by giving a forth-
coming bond. The judgment in the action was in favor of the plain-
tiff, and gave him an election to take the property or its assessed
value. The defendant, nevertheless, sold the property without afford-
ing the plaintiff any opportunity to take it under the judgment. Held,
that the defendant was guilty of a conversion of the property, and
that he was, therefore, answe/able for its actual value at the time of
the sale in a/ new action by the plaintiff on that theory.
2. : ELECTION BY SUCCESSFUL PARTY. The fact that an execution
was issued under the judgment in the action of replevin, and that the
defendant paid to the sheriff the value of the property assessed in that
action, does not establish an election by the plaintiff under that judg-
ment ; accordingly, the plaintiff having refused to accept the collec-
tion from the sheriff, his right to the property remained unimpaired.
Appeal from the St. Louis City Circuit Court. — Hon,
Jacob Klein, Judge.
Affibmed,
M. Kinealy, James Ji. Kinealy and B. S. Mac-
Donald for appellant.
(1) The petition did not set forth a cause of action.
White V. Van HouteUy 51 Mo. 577; Donohoe v. McAleer,
37 Mo. 312; 6 Wait on Actions and Defenses, 169;
Revised Statutes, sec. 7494, p. 1734. (2) On the evi-
dence the plaintiflE ought not to recover. Dwyer v.
Reppetoe, 10 S. W. Eep. 668; 1 Thompson on Trials,
sees. 818, 819 ; also authorities cited supra.
Digitized by VjOOQIC
OCTOBER TERM, 1
Hanlon v. O'Keefe.
John M, Dickson and A. A. Paxs
The defendant's instructions i
were properly refused. The instrud
court of its own motion correctly
Revised Statutes, 1889, sees. 7492,
Revised Statutes, 1879, sees. 3857,
Swantz V. Fellow, 50 Ark. 304.
Bond, J. — The petition filed in 1
lows:
**PlaintiflE states that, in May,
owner and entitled to the possessioi
mare, and that defendant having fra
possession of said mare, wrongfully
possession and refused to surrender
tiflf; that plaintiff was thereupon c
and did bring, an action of replevin
the peace in the city of St. Louis a,
ant for the recovery of said mare ; th
the institution of said suit, execut
bond in pursuance of the provisions
was entitled to retain possession of 1
ing said action ; ^;hat thereafter said
appeal in the circuit court of the ci
the day of , 1889, and, up
judgment was rendered in favor of p
session of said mare; that defenda:
an appeal from said judgment to the
appeals and filed a supersedeas bond
enabled to continue in possession of
the appeal ; that said appeal coming
the St. Louis court of appeals, the jr
cuit court was affirmed in all things;
of said judgment plaintiff was entitle
Vol. 55—34
Digitized by VjOOQIC
530 55 MISSOURI APPEAL REPORTS,
Hanlon v. O'Keefe.
of said mare, should he so elect; that it was (as defend-
ant well knew) plain tiflE's intention and desire to so
elect, but that defendant, for the purpose of defeating
and frustrating such contemplated election on the part
of plaintiff, on the day of , 1889, wrongfully
and fraudulently converted said mare to his own use by
selling her to a third party for the sum of one hundred
and fifty dollars ($150), and causing her to be shipped
beyond the limits of this state, and it has thus
become impossible for the officers of this court to exe-
cute said judgment by delivering said mare to plaintiflE
according to his election.
'Tlaintiff states that the conduct of defendant in
the premises has throughout been fraudulent, vexatious
and oppressive ; that defendant well knew that he had
no right in the first place to detain plaintiff's mare, and
the appeal taken by him as aforesaid was (as defendant
well knew) wholly without merit, and intended solely
for vexation and delay, and for the purpose of affording
him an opportunity to wrongfully deprive plaintiflf of
his property.
* Plaintiff states that, by reason of the premises, he
has lost said mare and the use thereof, and has been
compelled to incur large expenses in maintaining his
legal rights, and has thereby sustained damages in the
sum of five hundred dollars ($500), for which he prays
judgment with costs.''
The defense to the foregoing petition was: First j
a general denial ; and, second, that in the replevin suit
referred to in said petition a judgment was rendered in
favor of the plaintiflf for $45 as the value of the maxe,
and $10 as damages for her detention; that pending
said replevin suit the defendant, believing himself the
owner of the mare, sold her, and that the plaintiff^
knowing of this sale, sued out an execution in the
replevin suit on the judgment for her value and
Digitized by VjOOQIC
OCTOBER TE]
Hanlon v. O']
damages, the amount of whic
the sheriff.
On the trial of the issues
introduced so much of the rec
instituted by him for the u
tended to show that judgment
his favor for the possession of
ment on an appeal taken to
38 Mo. App. 273.
It also appeared from th(
suit so introduced in evidence
dency of that suit in the cir
dispute was in the custody of
forthcoming bond, and, du
that suit in this court, the
in the custody of the def(
sedeas bond. There was evi
that, before the aflSrmance
court and while it was here c
sold the mare for $150 ; that,
defendant paid into the han(
city of St. Louis $50 upon ar
issued in said replevin suit, bu
adjudged to belong to the plaii
sheriff, to the end that the plai
he would take the mare or her
entitled to do by said judgmen
The plaintiff then appliec
ant to produce said mare and ti
which rule was granted by the
after, upon the aflSdavit of dei
to the rule so made, showing t
and she had been shipped o
was discharged.
There was other conflict
value of the mare in controvei
Digitized by VjOOQIC
532 55 MISSOURI APPEAL REPORTS,
Hanlon v. O'Keefe.
The case was tried by the court, sitting as a jury,
and judgment rendered in favor of the plaintiff, from
which the defendant has appealed to this court, and
assigns as error: First, that the petition does not set
forth a cause of action ; second, that the court erred in
giving its instructions and refusing those requested by
appellant; third, that on the evidence the judgment
should be reversed.
There is no merit in the first assignment of error.
The petition alleges in substance that the plaintiff
intended and desired under the judgment in the
replevin suit in his favor to elect to take possession of
the mare sued for, and that the defendant with knowl-
edge of this intention, and to defeat such an election,
wrongfully converted said mare to his own use by
selling her to be shipped out of the state, so that she
could not be delivered to the plaintiff under the judg-
ment and process thereon in the replevin suit.
This was a sufficient averment of the rights of the
respondent to the property converted by appellant.'
Nor is there any force in the contention of the appel-
lant that the object of the present suit is to recover the
value which was rightfully adjudicated in the replevin
suit. The authority cited by him. White v. Van
Hquten, 51 Mo. 577, is to the effect that, where a judg-
ment rendered in a replevin suit in favor of a defend-
ant, omitting any assessment of damages for detention,
has been specifically complied with by the delivery
and acceptance thereof of the personal property
adjudged in his favor, such defendant cannot in a new
action sue for damages for the detention of the prop-
erty recovered in a replevin suit, merely because pn the
trial of that action no evidence whatever was offered on
the issue of damages for detention.
This decision rests upon the principle of the con-
clusiveness of a final judgment as to all the issues upon
Digitized by VjOOQIC
'*^r
OCTOBER TERM, 1893. 533
Hanlon v. O'Keefe. '
which it was obtained. Damages for detention are nee-
essaiily embraced in the issues in replevin. A judgment
ignoring them for want of evidence is, therefore, con-
clusive, if nnappealed from.
In the case at bar the judgment in the replevin
suit, requiring the appellant to deliver the mare to the
sheriff (to enable the plaintiff to elect whether he
would take the mare and damages, or her assessed
value and damages, in satisfaction), has never been
complied with. This action is, therefore, for specific
personal property which has been adjudgjed to belong
to the plaintiff, and which the defendant has withheld
and converted to his own use, thus rendering himself
liable to the plaintiff, upon elementary principles, for
the value of the property converted at the time of its
conversion. Neither is there any force of reason in
the point urged by appellant, that the execution of
the forthcoming bond entitled him to sell the property
for which such bond was given, so as to defeat the
right of the plaintiff in the replevin suit to compel the
production of this property in the event of his success.
The right to recover the specific thing sued for in the
action of replevin is secured to the prevailing party by
the express terms of the statute regulating such
actions. Revised Statutes, 1889, sees. 7489, 7490,
7492, 7493.
Forthcoming bonds in replevin are conditioned,
primarily, for the delivery of the property, when
^^ adjudged,^ ^ to the obligee. They confer no title on
the obligor to the property retained in his possession,
and do not legalize a breach by him of his express stip-
ulation to deliver (under penalty) at the end of the
suit. Revised Statutes, 1889, sec. 7482. Nor is there
any authority for this position of the appellant in the
case cited by him. Donohoe v. McAleery 37 Mo. 312.
Digitized by VjOOQIC
534 55 MISSOURI APPEAL REPORTS,
• Hanlon v. O'Keefe.
This case merely decides that the plaintiff, having
title to the property replevied at the time of the bring-
ing of the suit therefor, is not precluded from ultimate
recovery in such action, because, after the institution of
his action, he may have sold and transferred the prop-
erty in question ; in other words, that in such actions
it is the rights of a plaintiff when his suit is begun,
and not his rights as they existed subsequently, which
determine whether or not the suit was properly brought.
The first instruction requested by the appellant
and refused by the court was properly refused, because
it assumed a fact. It assumed as a fact that there was
no evidence of the value of the horse sued for in the
present action at the time of the affirmance of the
replevin suit by this court, when the plaintiff therein
was entitled to demand the production of the horse.
This assumption is not consistent with the record in
this case.
The court also did right in refusing the second
instruction offered by appellant, because this instruc-
tion assumed that the plaintiff in this action had
received the amount adjudged in the replevin suit as
the value and damages for the detention of the horse
in lieu of his right to the horse itself; for which assump-
tion there is no support to be found in the evidence in
this case.
The court, of its own motion, gave the following
instruction: **If the court, sitting as a jury, finds from
the evidence that, after the rendition of the judgment
in the replevin suit between these parties, the record of
which has been offered in evidence, being case number
77036 of the circuit court, city of St. Louis, and before
the affirmance of said judgment by the court of appeals,
on December 3, 1889, the defendant did without the
consent of the plaintiff sell and dispose of the mare in
question, and receive and retain to himself the proceeds
Digitized by VjOOQIC
^^^^
OCTOBER TERM, 189;
Hanlon v. O'Keefe.
of such sale ; and if the court shall fr
the evidence that the defendant never
said mare into the custody of the sheriflE
ance of said judgment in said replevin
of appeals, and that by the conduct of
the said plaintiff was deprived of his rij
take said mare or the value thereof as
replevin suit, which right of election t
was not bound to exercise, as the court
to be, until the defendant delivered t
possession of said mare into the hand
upon the execution in favor of plainti
read in evidence, then the verdict st
plaintiff.
*^And if the court shall so find, it i
plaintiff's damages at such a sum as i
the evidence to be fair and reasonable
said mare at the time the defendant sol
so sell her) ; and the court, may, if i
under the circumstances shown in th
additional damages in the nature of ii
above the value of the saicj mare, as tl
found by the court at the time same
defendant."
The foregoing instruction was a d
hensive statement of the Taw applical
and facts in this case, and is not open i
cism on the part of appellant.
We must also overi'ule the assigni
the effect that, under the evidence i
judgment should be reversed. There
whatever that the plaintiff in this act
the amount assessed as the value of th^
ages for her detention in the replevin si
of his right to her recovery in specie; <
Digitized by VjOOQIC
536 55 MISSOURI APPEAL REPORTS,
Krah v. Weidlich.
the evidence is that he refused to accept such assess-
ment, when tendered him.
The fact that the sheriff collected the same does
not affect or impair the right of the plaintiff to the spe-
cific property, i. e. , the mare, which he recovered in his
replevin suit. Revised Statutes, 1889, sec. 7495. The
plaintiff still had the right to demand the surrender of
th^ specific property recovered by him, and could only
be compelled to make his election after the same had
been delivered into the hands of the sheriff on proper
process and upon notice to the plaintiff. . Revised Stat-
utes, 1889, sec. 7493.
The sheriff, in collecting the assessed value and
damages for the detention of the horse adjudged to the
plaintiff, was merely discharging a plain statutory duty
(Revised Statutes, 1889, sec. 7494), which in no wise
prejudiced the rights of the plaintiff. The only way he
could be debarred from claiming title to the property
adjudged to belong to him in the replevin suit was by
election, after the property itself had been placed in the
hands of the sheriff, to receive its assessed value and
damages rather than the property itself.
We have examined the record in this case, and our
conclusion is that there was no reasonable ground for
the appeal taken to this court ; that the errors assigned
here are in contravention o^ the plain statutes, supra.
We, therefore, affirm the judgment of the lower
court with ten per cent, damages. It is so ordered.
All concur.
Henby Kkah et ah^ Appellants, v. August Weidlich
etal.j Respondents.
St. Louis Court of Appeals, December 19, 1893
Mechanics' Liens: work on property not described m lien
ACCOUNT. Held, in the course of discussion, that a mechanics' lien
cannot be established for work, or against property, broader than the
Digitized by VjOOQIC
OCTOBER TEEM
Krah v. Weidlicl
statemeDts of the lien account and, thei
oathonse cannot be considered in deterno
of the lien account, when the lien is fil
only.
Appeal from the St. Louis City
Daniel D. Fisher,
Affirmed.
F. and Ed. L. Gottschalk for
T. J. Bowe and John W. Ben
Bond, J. — This is an ac
mechanics' lien brought against
the owner of the building. The <
denial.
.The lien claim sued on was s
20, 1892. The description of the
lien is: ^* To- wit, two-story brie
uated in the following describe
The evidence was that appellai
lowing bill for same work for
brought:
St. Lo
Mr. August Weidlich to H, Krah ^ Son^
Debtor.
For work on house on Clark avenue, south
Grand avenue and Thresa avenue, Mr.
contract
August 15, by cash account
Balance due
There was substantial evi
respondents to the effect that app
other work on the building after
this bill. There was some evid(
appellant that a small outhouse w
twentieth and twenty-fifth of Oc
Digitized by VjOOQIC
55 538|
74373
55 638
77432
538 55 MISSOURI APPEAL REPORTS,
Lysa^t V. St. Louis Operative Stonemasons' Ass'n.
law, appellate courts do not weigh conflicting evidence.
In the case at bar, the most appellant can claim under
the record is that the evidence was conflicting as to
whether or not any work was done on the building
specifically described in the lien claim between the
twelfth of September, 1892, and the twentieth of Janu-
ary, 1893, a period of over four months.
The trial court sitting as a jury found this contro-
verted fact upon substantial evidence for respondent.
We are, therefore, concluded by that finding. Nor do
we think the work upon the out-house (privy )y even if
the trial court had found that it was done within four
months next before the filing of the lien claim, would
have entitled the appellants to a lien on the building
described herein. That description is specific , and,
excludes any lien for improvements not embraced
within its torms. According to the lien account, appel-
lants were entitled for work done on **atwo-stoiy brick
building. '^ This is the definite description to which
appellants restricted themselves in their lien account.
Appellants cannot establish a lien for work, or against
property, broader than the statements of their lien
claim. Revised Statutes, 1889, section 6709.
The result is that the judgment of the trial court
herein is aflBrmed. All concur.
•55^ John Lysaght et al.. Appellants, v. St. Louis Opera-
88 166 I ». M. /
— ^, TiVE Stonemasons' Association, Respondents.
98 n96|
98 >390| St. Louis Court of Appeals, December 19, 1893.
1. Mandamus : expulsion of member bt corporation. A oorpor&iioa
whose members have property rights in it has no power to expel %
member without due notice to him of the grounds of the proceedings
and a trial at which he has been afforded an opportunity to be presenfe-
When a member has been expelled in violation of this rule, he m»f
compel the restoration of his privileges by mandamus.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 539
Lysaght y. St. Louis Operative Stonemasons' Ass'n
2. : . When the laws of a mutual benefit soc
for the payment of benefits to defray the funeral expenses
and of their wives, the members have property rights in
within the purview of this rule.
3. Mutual Benefit Society: legality of benefits. T1
of a benefit society set forth that one of the objects of th(
was to afford relief, comfort and protection to members, 2
ered the association to make by-laws to carry out tho
Held, that the adoption of a by-law for the payment of
defray the funeral expenses of members and of their
authorized thereby.
4. Corporations: defense of ultra vires. Held, argu
corporation cannot plead ultra vires agamst an act by
excess of its charter authority, where the consideratio
received by it and the transaction has been executed I
party.
Appeal from the St. Louis City Circuit Cour
Leroy B. Valliant, Judge.
Reversed and bemanded.
M. McKeag for appellants.
(1) The appellants have shown sufl5cient
rights in the respondent corporation to entitle
maintain this proceeding. Ludowiski v. B
Society, 29 Mo. App. 337; State ex rel, v. M
Exchange, 2 Mo. App. 96; State v. Georgia
Society y 38 Ga. 608; State ex rel. v. Benevolent
72 Mo. 146. (2) The averments of the pet
sufficiently specific. State ex rel. v. Railroad
143; School District v. Laiiderbaugh, 80 Mo. 1£
ex rel. v. Smith, 104 Mo. 661. (3) The righ
i^elators to membership in this incorporated asi
was pecuniarily valuable, and it does appear t
were members in good standing, and that tl
deprived of their right of membership without
ing and without cause. This is not a case wh
violated any of the charter provisions or by-lav
Digitized by VjOOQIC
540 55 MISSOURI APPEAL REPORTS,
Ly8aght v. St. Louis Operative Stonemasons' As8*n.
as appears of record. State v. Grand Lodge, 8 Mo.
App. 148; Steele ex rel. v. Benevolent Society, 42 Mo.
485.
C. P. (& J. D. Johnson and Joseph L. Laurie for
respondent.
The lower court properly sustained respondent's
motion to quash the alternative writ, for the reason
that on the face of the writ the relators were not enti-
tled to the relief prayed for. State ex rel. v. Governor,
39 Mo. 388; State ex rel. v. Odd Fellows, 8 Mo. App.
148; People V. The Board of Trade, 80 111. 136; State
ex rel. v. Paint Co., 21 Mo. App. 526; State ex rel. v.
Fladd, 26 Mo. App. 500; People v. Masonic Ass^n,
98 111. 632; State ex rel. v. Temperance Benevolent
Society, 42 Mo. App. 485-490.
Bond, J. — This is an application .for a mandamus
by plaintiff against defendants upon the following
petition, which was sworn to, to- wit:
**The petitioners herein, John Lysaght, Patrick
Touhey, Philip Emmerich, John Emmerich, Paul
Kostich, George W. Bickel, Denis O'Leary, William J.
Campbell, John J. Schneider, R. H. Eddy and Joseph
Weisemeyer, respectfully represent to the court that the
General Assembly of the state of Missouri by an act
entitled *'An act to incorporate the St. Louis Operative
Stonemasons' Association,'^ approved Febniaiy 23,
1853, duly incorporated the St. Louis Operative Stone-
masons' Association, a body politic, to have perpetual
succession, and provided that it may be sued.
'*The objects of said association, as appears m
section 2 of said act, was for the encouragement of the
stonemasons' trade, to furnish deserving members
employment when they need the same, to afford relief,
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Lysaght v. St. Louis Operative Stonemasons* As
comfort and protection to sick of (or) u]
n^edy, and also to promote industry, benev
temperance among the members of said i
For the purpose of carrying out these obje
association it is empowered by said act to ;
and by-laws: Provided, however, that th
not repugnant to, or against, good morals, t
the United States or the state of Missour
terms of said act it is further provided tha
ness and management of said association is
the control of a president, vice-president,
treasurer and standing committee, to be €
chosen by the members of said association
to time, as they may deem necessary
ijQterest.
''That by the terms of a by-law of said
all persons who are by occupation operai
masons and residents of the city of St. Louii
ble to membership in said association, and a
fee of $5 is required to be paid to said assc
the person initiated, and, in addition to {
monthly contribution of fifty cents from t
April to the first of December, and for the
months of the year twenty-five cents each, to
from the date of his election.
''It is further provided by a by-law of i
ation that, when a member has paid twe"
prior to his death all dues and arrears, t
$75 will be paid by the association towards
ing of the dead member's funeral expenses,
further provided by its by-laws that, at the
member's wife, who has complied with the ;
he shall be entitled to draw from the tr
sum of $40 to assist in defraying her funera
"Plaintiffs further state that they are
masons by trade, and have worked for mai
Digitized by VjOOQIC
542 55 MISSOURI APPEAL REPORTS,
Lysaght v. St. Liouis Operative Stonemasons' Ass'n.
said trade and are residents of the city of St. Louis,
and duly and properly qualified to be members of said
association. That all of them were duly elected and
qualified for more than one year next before the
day of December, 1892, and paid all of the dues and
initiation fees required of them as such members, and
enjoyed all the privileges of membership of said asso-
ciation, and were all members in good standing up to
said day of November, 1892.
^Tlaintiflfs further state that on some day after the
said day of November, A. D., 1892, the date of which
is unknown to them, without any notice to your peti-
tioners, the said defendants, the officers and committee
or high court of said association, namely, Patrick T.
Walsh, its president; Christian Bauer, vice-president;
Patrick J. Costello, secretary; Gustav Schneider, treas-
urer, and Martin Widmer, Philip Kustner, Gustav
Wiegert, Robert Smithanna, Charles La Walles,
Edward Harvey, John J. Byrnes, William Evans,
Francis Noonan and Richard Lyons, notwithstanding
that they, the plaintiffs, were all members in good
standing, the said officers and committee, actuated by
malice and by a determination to deprive these plain-
tiffs by a corrupt, arbitrary and illegal use and con-
struction of the powers vested in them by the charter
and special act hereinbefore referred to, presented to
the members of said association, without notice to these
petitioners, unjust, illegal and damaging charges
against your petitioners, and undertook without notice
to said plaintiffs to charge upon the books of said asso-
ciation unjust, illegal and oppressive fines against your
petitioners, and afterwards dropped the petitioners^
names from the rolls of the said association and
expelled them therefrom, and have frequently refused
to permit your petitioners to participate at the meet-
ings of said association, and at the election of officers
Digitized by VjOOQIC
pfT-
OCTOBER TERM, 1893. 54?
Lysaght v. St. Louis Operative Stonemasons* Ass'n.
and a committee for said association, as provided bj
said act, and have failed and refused to reinstate youi
petitioners to all the privileges of membership in saic
I association, and to remit the fines thus illegally anc
corruptly assessed against them.
* 'Plaintiffs further state that the action of saic
officers and committee was not the exercise of a discre
tion lawfully pertaining to the objects of said associa
tion, as set forth in the act creating it, or the carrjdnj
out the purposes for which it was created, but a usurpa
tion of power by them only to oppress and unjustly
and illegally deprive the plaintiffs of the benefits of saic
association, and of the use of all the fees and intiatioi
fees paid by them to said association. ^
^ Plaintiffs further state that, to carry out theii
malicious oppression and illegal designs and determi
nations the said officers notified all the other members
of said association, not thus expelled, that it would b<
a cause of expulsion should they, or either of them
work at mason work at any building where your peti
tioners were working, and illegally and maliciously
reported the work of one McCuUy as blackened when
your petitioners were working, and prohibited all mem
bers from working thereon.
'Tlaintiffs further state that they are remediless
in the premises by or through ordinary process of law
and they therefore pray this honorable court to aware
against said corporation, officers and committee, i
mandamuSy commanding them, and each of them, t<
expunge from the books of said association all illega
and oppressive fines charged against your petitioner!
thereon, and that their names be again placed on th(
rolls of said association as members thereof, and tha
they be reinstated to all of the privileges of saic
association, and for such other and proper relief as th<
Digitized by VjOOQIC
vrr^H-*"'
544 55 MISSOURI APPEAL REPORTS,
Lysaght v. St. Louis Operative Stonemasons' Ass'n.
plaintiffs may be entitled to, and for their costs in thij
proceeding expended."
An alternative writ was issued commanding the
defendant to restore and place the names of petitioners
on the rolls of the defendant corporation, or show
cause why they should not do so. The defendants
appeared, and moved to quash said alternative writ for
the following reasons. First. That the pleadings
showed that no property rights were involved ; where-
fore plaintiffs could suffer no substantial damages and
were not entitled to a writ of mandamus. Second.
That it did not appear that the plaintiffs had exhausted
the methods of redress which the corporation itself
furnished to its members, or that they were without
other adequate remedy.
The plaintiffs thereupon moved the court for a
peremptory writ of mandamus. Upon the hearing of
these motions the court overruled the plaintiff's motion
for a peremptory writ, and sustained the defendant's
motion to quash the proceedings, to which ruling of
the court the plaintiffs duly excepted. Afterward the
parties appeared, and, plaintiffs declining to plead
further, the court rendered judgment for said defend-
ants, from which an appeal was taken to this court.
The error assigned on this appeal is the action of the
lower court in sustaining the defandant's motion to
quash.
Mandamus is the most appropriate remedy to
restore or induct one into the enjoyment of the privi-
leges of an incorporated association, of which he is
unlawfully and unreasonably deprived. People ex rel.
Medical Society of Erie, 32 N. Y. 187; State ex rel. v.
White, 82 Ind. 278. The courts, however, restrict the
application of this remedy to cases where the relator
is deprived of some pecuniary right. Subject to this
limitation, it is applicable to corporations formed for
Digitized by VjOOQIC
■.Willi •'•
OCTOBER TERM, 189
Lyeaght v. St. Louis Operative Stonema
the purpose of gain or to incorporati
benevolent or social ends.
No member of any of these org<
deprived of any substantial right or ]
by the enforcement of an illegal by-law
upon any ground not recognized at 1
cause for such action. State ex reL v
38 Ga. 608; Spelling on Extraordinar
1606, 1607 et seq. The only question
determined on this appeal is, whei
petition shows on its face that the re
deprived by the defendant corporati(
actipg in this behalf, of a pecuniar
expulsion from the organization; sin<
should be held that relators were illegf
the corporation, that they would no1
remedy for their restoration as speci
mandamus. Spelling on Extraordinar
1606, supra. State ex reL v. Tempt
Society^ 42 Mo. App. 485.
The question is, tharefore, the leg;
of the corporation through its officers ii
the benefits of membership under th(
tained herein ; for in this case the pa
tuted the petition for the alternative v
fatter is properly the first pleading ir
and the basis of all the issues therein
fact. State ex reL v. Bailroady 114 IM
ton V. Town of Dexter, 89 Mo. 188.
In looking to the allegations of th
solution of this inquiry, we find that t
accomplished upon charges and a
made and conducted without any nc
relators. It is true we are not spe(
what these charges were, but the pe
Vol. 55—35
Digitized by VjOOQIC
1
546 55 MISSOURI APPEAL REPORTS,
Lysaght v. St. Louis Operative Stonemasons' Ass'n.
affirmatively that the relators were at the time in no
default as to their pecuniary dues, and were then in the
full observance of all their duties as members ; and that
the charges preferred against them in their absence and
without notice were malicious, illegal and unjust. As
petitioners had no opportunity of knowing or meeting
the said charges, we do not see how they could be
required to state them with more particularity. It is
the law of this state that corporations, whose members
have property right therein, have no power of suspen-'
sion or expulsion without due notice of the grounds of
such action and upon a trial thereof, at which the par-
ties charged might have been present. Ludowiski v.
Benevolent Society^ 29 Mo. App. 337; State ex rel, v.
Temperance Benevolent Society^ 42 Mo. App. 490 et
citations.
That relators had a * ^property right'' in the defend-
ant corporation we think sufficiently appears from the
statements in the pleadings.
In Ludowiski t. Benevolent Society ^ supra^ the evi-
dence showed that the corporation had a ^^sick benefit. ^^
In construing this phrase, the court said: ** Which we
understand to be an allowance to members when they
are sick. The plaintiff, therefore, had property rights
in the society, and the society had no jurisdiction to
deprive him of those rights" by expulsion. The only,
difference between the facts of that case and the one at
bar is that there the court deduced a property right
from the evidence of a **sick benefit;'' whereas, in this
case, the property right exists by reason of a death ben-
efit to each member of $75 for himself and $40 for his
wife.
There is no difference in principle between the two
cases. The respondent argues that this pecuniary ben-
efit secured to the members rests upon a by-law which
is unauthorized by its charter. It is doubtful, if this
Digitized by VjOOQIC
■^wwif^
OCTOBER TERM, 1893.
Lysaght v. St. Loutls Operative Stonemasons' Ass'n.
point were well taken, whether the respondent,
received the consideration (initiation fees and di
this provision, would not be estopped from plei
mere want of authority to enact the by-law.
The law is that, for acts merely in excess of
authority corporations can not set up the def
ultra vires J where the consideration has been r
and the transaction executed by the other part;
think, however, the point has no support in t
guage of the charter empowering the respon
adopt by-laws.
The charter in broad terms set forth as one
objects of the association: ''To afiford relief, <
•and protection'' to the members; and it emj
the passage of lawful by-laws to that end. "V^
that this was ample authority for the by-law in qi
Respondent also insists that this ''pecutit
vision'' is not of that substantial character ^
referred to by the courts in speaking of property
The answer is, that it is of the same charact
money, which was termed a ''property right" ii
wiski V. Benevolent Society^ supra. Nor do we
any persuasive force to the Illinois authority (P
rel. V. Board of Trade, 80 111. 134), cited by resp(
That case put the refusal of the court to award i
on the ground that the board of trade was aut
to discipline, and, to that end, to suspend or e:
members, in accordance with its regulations, tc
each member had agre'ed in joining the body
court has taken a contrary view of the power
courts to control the action of a board of t
expelling a member for noncompliance with its b
State ex rel. v. Merchants^ Exchange, 2 Mo. A
Albers v. Merchants^ Exchange, 39 Mo. App. 581
The result is that the circuit court erred in
elusion that the petition (alternative writ) (
Digitized by VjOOQIC
548 55 MISSOURI APPEAL REPORTS,
Dengler v. Auer.
show any property rights in relators, and its judgment
sustaining the motion to quash on that ground i&
reversed and the cause remanded. All concur.
Bebnard Dengler, Respondent, v. Andrew Auer
et ai., Appellants.
St. Louis Court of Appeals, December 19, 1893.
1. Stated Account : building contract When the parties to a
building contract have agreed upon the amonnt due for a specific por-
tion of the work, and the one who owes the amount thus agreed upon
has paid it in accordance with the terms of the settlement^ the other
is debarred from making any further claim for the work.
2. Buildingr Contract, Brea^chof: measure of damages. "When
there is a breach of an agreement by a contractor to erect a building
within a stipulated time, the value of the use of the building, while the
owner is delayed in its occupancy by the fault of the contractor, is
recoverable as damages.
Appeal from the St. Louis City Circuit Court. — Hon»
Daniel Dillon, Judge.
Reversed and remanded.
Lubke <& Muench for appellants.
(1) PlaintiflE having received from defendants the
sum of $200 after any indebtedness was denied by
defendants, and upon a written agreement that this
covered all millwork in the building, it was error for
the court below to allow a lien of $254 for this work, as
as it did by its declarations of law. Plaintiff was
estopped from making such claim. Phillips on Mechan-
ics' Liens, sees. 272, 273. The transaction amounted
to a settlement between the parties, at least of the item
of millwork, and must stand as the parties adjusted
the same. Harmon v. Waller, 2 Mo. Leg. News, 538.
Digitized by VjOOQIC
r
OCTOBER
Dengle:
(2) The contract provided i
ages for delay in completi
weight of evidence was to
were able to occupy the bu
of May 1, 1892, as stipulat
contract was $5 per day.
vailing evidence this sumsh
ages, and the court erred
of law on this subject. 3.
App. 377.
Bassieur dt Schnurmaa
Bond, J. — This action
for work and material fun
a building belonging to the
ment of a mechanics' lien 1
The defense was that 1
written contract for a spe*
tract was subsequently i
reduced to the sum of $
having broken this contrac
August 8, 1892, had an ac«
and a settlement of all con
whereupon appellants paid
$200 in cash, which was re
all claims against them on
-defense the answer set fori
respondent had broken t
recoupment in the sum of i
The case was tried bef
jury, which rendered judgi
€int for $400.13, and in fav(
-counterclaim for $72.80, lei
in favor of respondent, fo
lished against the proper
Digitized by VjOOQIC
550 55 MISSOURI- APPEAL REPORTS,
Dengler v. Auer.
appeal from said judgment, the errors assigned are:
First. That the court found for the respondent accord-
ing to the wall measurements pointed out by section
8863 of the Revised Statutes, 1889. Second, That the
court erred in allowing a lien in excess of $200 for mill-
work on the building. Third. That the court erred m
not upholding the counterclaim of the appellants for
work and material not furnished by the respondent, and
in not declaring the law as to the measure of damages
to which the appellants were entitled for d^lay of
respondent in completing the building; and that the
court erred iji the reception of evidence, ^and in not
limiting its finding to the measurements made by Mr.
Hill under the agreement of the parties.
The contract for the building required it to be com-
pleted on or before May, 1892, under the penalty of $5
forfeit for delay, not unavoidable or caused by appel-
lants, each day thereafter.
The evidence was conflicting as to the time of the
completion of the building, the testimony ranging from
April to August, 1892. The respondent testified that
certain changes were made in the specifications, and as
to the omission, by agreement, of the painting (amount-
ing to $292) required under the contract; ' and that the
value of the work and material that went into the build-
ing was $1,626.
For the purpose of securing evidence as to the
number of bricks used in the building the parties
entered into the following agreement: *'And it was
agreed by both parties that Mr. J. W. Hill, a profes-
sional measurer, shall take the measurements of the
actual brick that went into said improvement, and sub-
mit them to the court at the close of the case. The
report of the number of bricks made by Mr. Hill under
this agreement, if calculated at the prices charged by
the respondent in his account, would tend to prove that
Digitized by VjOOQIC
OCTOBER TEEM, 1893.
Dengler v. Auer.
respondent had overcharged the appellants
had also overcharged them for laying more
actually furnished (according to this reporl
of $58.'94.
Witness Krah testified that a larger
brick than reported by Mr. Hill, but a lesi
than set forth in respondent's account, we
building.
The evidence also tended to prove t
eighth day of August the parties discussed
of a settlement, when the following order i
and the following receipts were executed:
*'St. Louis, August £
^^Mr: A. Auer: — Please pay to A. Kue
mill work furnished for your annex, in ful
dreddollai's($200).
''(Signed) B. Dej
This order was paid by Mr. Auer on
1892, and receipted for by A. Kuenzel, as f<
''Eeceived of Mr. A. Auer, in full for al
furnished for the annex, carving included.''
And on the giving of this order, and
promise to pay it, Dengler gave Auer th
receipt :
''Eeceived,St. Louis, Augusts, 1892, fr
Auer $200 for millwork, lumber and mal
ished and delivered, at, in or about p
Rappahannock street and Grand avenue, ir
services and repairs, also for labor paid.''
The testimony of the parties as to this
was conflicting: Respondent stated that
was given, as above, so that '*all those i
tors" could make no claim against the bui
the other hand, appellant Auer stated thai
was given, and the receipt taken, for the
Digitized by VjOOQIC
552 55 MISSOURI APPEAL REPORTS,
Dengler v. Aaer.
discharging all the liabilities on the building contract
by the payment of the amount ($200) of the order.
There was no evidence of measurements of the
building, so as to apply the statutory rules for compu-
tation of the brickwork. Respondent's accounts for
the reasonable value of the article sued for showed an
aggregate charge of $16.26, being the exact price fixed
in the contract, after deducting the agreed sum of $292
to cover cost of painting to be done by appellants.
The above aggregate of respondent's charges included
items for millwork as $254.
We cannot see, under this state of the record, any
basis for the first assignment of error. The appellants
concede that no evidence of the dimensions of the
building was adduced for the purpose of ascertain-
ing the brickwork according to the statutory rule.
Revised Statutes, 1889, section 8863. The court could
not in the absence of such evidence reckon the wall
measurements by the statutory process, and, therefore,
committed no error in declining the declaration of law
tendered by appellants, to the eflEect that the statute in
question had no application in this case. If there had
been sufficient evidence of the data prescribed by the
statute for calculating wall measurements, it would
have been competent for the court to resort to the
statutory rule, even if there had been no reference to it
in the pleadings. The filing of a lien account for the
material embraced in the statute necessarily implies its
application. Doyle v. Wurdeman, 35 Mo. App. 330.
The second assignment of error is based upon the
refusal by the court of the following declaration of law,
requested by appellants:
'*2. As to the millwork the court declares the
law to be that, if the defendants received the order of
plaintiff read in evidence, and paid the mill owner the
amount of $200, mentioned therein, on the faith of the
Digitized by VjOOQIC
f
OCTOBER TERM, 1893. 553
Dengler v. Auer.
language of said order and the receipt written thereon,
then plaintiff cannot now recover a lien herein allowing
for such mill work in excess of a price of $200."
This declaration of law was based upon the theory
of the evidence presented by the testimony of Auer, to
the effect that there was a settlement in conformity
with the recitals in the order and the mill owner's
receipt, which discharged both his claim and all claim
of respondent for any balance due on the building.
The declaration of law presented this view of the evi-
dence, was supported by substantial testimony, and
was aptly framed ; and its refusal was error.
The court did not err in refusing the declaration
of law requested by appellants as to their counter-
claim for delay, because it was erroneous in form, in
that it assumed a fact. On a retrial a proper instruc-
tion on this subject should be given.
The law is that for a breach of a contractor's
stipulation to build in a certain time, the value of the
use of the building, while the owner is delayed in its
occupany by the fault of the contractor, is recoverable
as damages. Shouse v. Neiswaanger, 18 Mo. App. 236;
Muffv. RinaldOj 55 N. Y. 664; McConey v. Wallace, 22
Mo. App. 377.
These conclusions involve the reversal of the judg-
ment of the trial court, which is accordingly done, and
the cause remanded. All concur.
Digitized by VjOOQIC
554 55 MISSOURI APPEAL REPORTS,
Whipple V. Peter Cooper B. and L. Ass'n.
J. W. Whipple, Eespondent, v. Peter Cooper Build-
ing AND Loan Association, Number 4,
Appellant.
St. Loiiis Court of Appeals, December 19, 1893.
1. Pleading^ : instructions, a plaintiff must recover, if at all, on the
cause of action stated in his petition. Accordingly, when the petition
alleges one contract and its breach, and the answer denies these alle-
gations and states another and wholly different contract, an instruc-
tion which authorizes a recovery for the breach of the latter contract
is erroneous.
2. Practice, Trial: motion for new trial: exceptions to instruc-
tions. Exceptions to instructions given by the court need not be
taken specifically ; a general exception addressed to the instructions
in the aggregate will suffice
Appeal from the St. Louis City Circuit Court. — Hon.
Daniel D. Fisher, Judge.
Reversed and remanded.
Frank E. Rickey and W. M. Kinsey for appellant.
The court erred in submitting the case to the jury
upon an issue of fact not raised by the petition. Glass
V. Gelvin, 80 Mo. 297; Clements v. Yeates, 69 Mo. 625;
Stix V. Matthews, 75 Mo. 99.
Edmond A. B. Garesche and William L. Murfree for
respondent.
RoMBAUER, P. J. — The only substantial question
arising on this appeal is, whether the court erred in
submitting, by an instruction to the jury for their find-
ing, an issue not made by the pleadings. The point
arises in this manner: The petition charges the fol-
lowing facts. The plaintiflE, being about to build a
Digitized by VjOOQIC
OCTOBER TERM, 1893. 555
Whipple V. Peter Cooper B. and L. Ass'n.
house, borrowed from the defendant the mc
doing. By the terms of the loan the defend
took to become the plaintiflE's disbursing i
agreed to superintend the erection of the hoi
audit and pay all bills out of the money 1
was part of the defendant's duty, under the c
take from the contractor a bond of indemnitj
itself and the plaintiflE against ' mechanic's
against the building. It also became the d
duty, under the contract, not to pay to the
at any time an amount, rendering the total
made to him in excess of eighty per cent, oi
actually expended by him. The petition t
that the defendant violated its aforesaid dut
ing to take from the contractor the aforesai
indemnity, and also by pajdng him in excess
per cent, of his expenditures; that the
absconded, leaving a number of claims a
building unpaid, whereupon sundry persons
against the building for labor and mater
amount of $680.66. These liens the plainti
the protection of his property, and he now
judgment for this amount against the defend
The answer of the defendant denies th
tions, and states, in substance, that the
bond mentioned in the petition was waiv(
plaintifiE in consideration that the defendant
burse under plaintiff's order the^ money ari
the loan, and applicable to the building, fo
ment of material-men, laborers, and others
defendant did disburse all the money under
orders, so that no lien accrued by reason of t
on the part of defendant; that the liens were
of the contracting by plaintiff for a more
house than the money would pay for, the
the liens representing less than such excess.
Digitized by VjOOQIC
556 55 MISSOURI APPEAL EEPORTS,
Whipple V. Peter Cooper B. and L. Ass'n.
The answer was denie(^ by reply.
It will be thus seen that the issue presented by the
petition is, that the defendant violated its contract
obligations in failing to take an indemnity bond from
the contractor, and in paying him in the aggregate
over eighty per cent, of the amount of his expenditures,
in consequence whereof certain liens were filed against
the building, which liens the plaintiff was compelled to
discharge. The answer of the defendant was a simple
denial, an assertion that an indemnity bond was waived,
and, as evidencing such waiver, an aflSrmative allega-
tion that all moneys expended were expended upon
plaintiff's orders. Touching the waiver of the indem-
nity bond by the concurrent action of the plaintiff and
defendant there was no substantial controversy, and
the court assumed that such waiver had been fully
established. There was no evidence tending to show
that the liens were the result of the defendant's derelic-
tion, and the court did not submit that question to the
jury. There was no e\'idence that the defendant had
paid to the contractor more than eighty per cent, of his
expenditures, the showing on that subject being at best
conjectural, and no evidence whatever that an exces-
sive payment to the contractor had anything whatever
to do with the filing of these liens. There was irre-
fragable evidence that all the money paid out by the
defendant, except the sum of $218, was paid out upon
the plaintiff's orders. In regard to this $218 the evi-
dence was conflicting. This money had been paid to
the contractor by the defendant, and the plaintiff
admitted that one subsequent payment for $274 was
made to the contractor by the defendant upon his, the
plaintiff's order, given with a full knowledge of the
previous payment of $218.
This being in substance all the evidence bearing
upon the point of inquiry, we must hold that the court
Digitized by VjOOQIC
1
OCTOBER TEEM, 1893. 557
Whipple V. Peter Cooper B. and L. Ass'n.
erred in giving on its own motion the following i
tion:
**The court further instructs the jury that,
find from the evidence that defendant paid «
$8,500 in question, $2,350 at the direction of p
on his lot in question, and the balance, except $!
under and in pui-suance of the orders signed bj
tiff and offered in evidence, then the court in
you in reference to the second count in pla
petition, he is not entitled to recover for an]
unless it be for $218.39 paid by defendant to (
.on or about August 11, 1891; and if you fii
believe fi\)m the evidence that said sum of $218.
paid by defendant to Clayton at the direction or i
of plaintiff, or that, after such payment had been
plaintiff ratified and acquiesced in such paymen
you will find in favor of defendant on said
count. But if you find and believe from the e\
that said payment was not made at the direcl
request of plaintiff, and that he did not afterwarc
or acquiesce in the same, and further find fr(
evidence that said sum, when paid, was in ex
eighty per cent, of the sum which had actuall;
expended upon said building in question, and
was the understanding and agreement of the
that defendant should not pay to said Clayton oi
subcontractors and material-men at any time
than eighty per cent, of the sum actually expen
said building, then the jury will find for the p
on said second count for the sum of $218. c
interest thereon at the rate of six per cent, per
since the date of filing this suit, viz., Februa
1892. '^
It has always been the law of this state tl
plaintiff must recover, if at all, on the cause of
stated in his petition. It is only when the vi
Digitized by VjOOQIC
558 55 MISSOURI APPEAL REPORTS,
Whipple V. Peter CJooper B. and L. Ass'n.
between the allegation in the pleading and the proof
is not material, but the court may direct the fact to
be found according to the evidence, or may order an
amendment of the pleadings. Revised Statutes, 1889,
section 2097. As the trial issues must be within the
paper issues, instructions must be framed with regard
to the paper issues made. lAnk v. Vaughn, 17 Mo. 585;
Ensivorth v. Barton, 60 Mo. 511 ; Hubbard v. Railroad,
63 Mo. 68; Iron Mountain Bank v. Armstrong, 62 Mo.
70; Clements v. Yeates, 69 Mo. 623; Stix v. Mathews,
63 Mo. 371; Glass v. Gelvin, 80 Mo. 297; Feurth v.
Anderson, 87 Mo. 354.
An insufficient averment in a petition may be
helped out by an answer supplementing it; Krtim v.
Jones, 25 Mo. App. 71; Henry v. Sneed, 99 Mo. 407;
but, in such an 'event, the recovery is still on the
petition and not on the answer. Where the petition
states one contract, and the answer states another and
wholly diflferent contract, denying the contract stated
in the petition, we are aware of no rule which would
entitle the plaintiff to a recovery upon a bare showing
that the defendant had not complied with the contract
stated in the answer. The case last put preiSents a
case of failure of proof and not of variance, and is
governed by section 2238 of the Revised Statutes and
not by the provisions of sections 2097.
The plaintiff claims that this point has not been
properly saved. The bill of exceptions recites that the
defendant excepted to the instructions using the noun
in the plural. The motion for new trial, complains of
this particular instruction, and of the fact that the case
was submitted to the jury upon an issue of fact not
raised by the pleadings. The practice in many states
requires specific exceptions to the charge of the judge,
and disregards exceptions taken to instructions as a
whole, unless the whole charge is erroneous. The
Digitized by VjOOQIC
f
OCTOBER TERM, 189
Smith y. Carondelet Electric Light and
practice in this state, however, has
the contrary, and an exception to inj
ally was always considered sufficient '
out in detail the specific instruction (
It results that the judgment must
the cause remanded. So ordered. AI
James A. Smith, Eespondent, v. Caroi
Light and Power Company, A
St. Louis Court of Appeals, Deceml
Conclusiveness of Verdict in an Action a'
of the jury on questions of fact, submitted undi
is conclusive in an action at law, if it is sup]
evidence.
Appeal from the St. Louis City Circn
Daniel D. Fisher, Judg
Affirmed.
H. D. Wood for appellant.
Seneca N. Taylor for respondent.
Bond, J. — This is an action for dai
of a contract for the delivery of ice.
was entered into on the twelfth day
between the respondent and the app
terms thereof the appellant agreed to
to respondent fifteen hundred tons of i
able ice in quantities of one car loac
said ice to be delivered on or about the
June, 1892; and agreed, further, that, ii
a sufficient quantity of ice to enable
more than one car load per day, any i
ered in excess of one car load per day
in addition to, or considered a part
hundred tons of ice, as respondent mi
Digitized by VjOOQIC
560 55 MISSOURI APPEAL REPORTS,
Smith V. Carondelet Electric Light and Power Co.
appellant further agreed to sell and deliver said ice for
the sum of $2.20 per ton, except in case car loads
should be delivered at appellant's plant; in that event
all freight to Chouteau avenue to be deducted.
The respondent agreed to buy fifteen hundred tons
of ice as above stated, and to pay for the same in cash
on delivery. It was further agreed between the parties
that appellant should not be liable for any damages
arising from any failure to deliver said ice as above
agreed, caused by any defect or failure in the operation
of said company's ice plant to manufacture mer-
chantable ice in sufficient quantities for delivery under
this contract.
It was alleged in respondent's petition that he had
paid on account of said contract the sum of $3,207.30;
that appellant had only delivered to respondent eleven
hundred and fifty-two tons and three hundred pounds,
leaving a deficit of ice of three hundred and forty-seven
tons and seventeen hundred pounds, to which respond-
ent was entitled by the terms of said contract; that,
on the twentieth of June, respondent extended the
time, by agreement with appellant, for the delivery of
ice under said contract at the rate of one car per day
thereafter, until the entire contract was filled; that, on
the twelfth of July, appellant ceased and refused to
deliver any more ice; wherefore the respondent prayed
judgment for the market value of the ice undelivered.
The answer of the appellant admitted the execution
of the contract, and set up that by its terms appellant
was to deliver, and respondent was bound to receive, said
ice in quantities of one car load per day ; that appellant
commenced delivering the ice on April 15, and continued
to deliver at the rate of one car load per day until
April 20, when respondent requested appellant not to
deliver any ice for a period of ten days ; that appellant
accordingly abstained from delivering ice during said
Digitized by VjOOQIC
OCTOBER TERM, 1893. 561
Smith v. Garondelet Electric Light and Power Co.
period of ten days-at respondent's request; that after-
wards, on the thirteenth, fourteenth and fifteenth days
of May, 1892, appellant again abstained from deliver-
ing ice at respondent's request; that, by reason of these
acts, respondent waived the right to require the delivery
of the quantity of ice which he was by the contract
entitled to receive, to-wit, one car load of ice per day
for thirteen days, amounting to two hundred and sixty
tons of ice. The answer also set up the delivery of two
hundred and thirteen tons of ice under the contract,
which was in all respects of the quality therein called
for, but that respondent claimed that it was not mer-
chantable ice, and declined to receive it under the con-
tract unless the price was reduced from $2.20 to $1 per
ton ; that thereupon appellant reduced the price to $1
per ton, and respondent received same under said con-
tract. The answer further stated that appellant deliv-
ered eleven hundred and fifty-two tons of ice at the
rate of one car load per day, as required by said con-
tract; that after deducting from the fifteen hundred
tons required to be delivered under said contract, first j
the two hundred and sixty tons whose delivery was
waived by respondent, second^ the eleven hundred and
fifty-two tons admitted to have been delivered, and
thirdj the two hundred and thirteen tons accepted as
under the contract, the result will show that appellant
had delivered all of the ice which it had contracted to
sell.
The respondent replied, denying the allegations of
the answer, and stating that, on the twentieth of April,
appellant's machinery was out of repair, and it was
agreed between the parties that the delivery of the ice
should be postponed for ten days, not, however, thereby
interfering with the quantity called for under the con-
tract; that, at the expiration of these ten days, appel-
lant's machinery was in condition to make ice, but not
Vol. 55—36
Digitized by VjOOQIC
562 55 MISSOURI APPEAL REPORTS,
Smith y. Carondelet Eleotrio Light and Power Co.
such as respondent was entitled to under his contract;
wherefore for six days thereafter respondent, to
accommodate the appellant, purchased ice at the rate of
$1 a ton.
There was evidence tending to show that appellant
made deliveries of ice under the aforesaid contract
until April 20, when, by agreement, it ceased deliveries
until May 12, when it again, by consent, ceased deliv-
ery until May 16. There was evidence tending to show
that, after these suspensions, appellant delivered two
hundred and thirteen tons of ice to respondent at the
price of $1 per ton. The evidence was undisputed that
appellant delivered eleven hundred and fifty-two tons
and three hundred pounds of ice at $2.20 as prescribed
in the contract. On July 7, 1892, appellant informed
respondent that he considered his contract as about
filled.
On the eighteenth of July appellant inclosed the
following statement to respondent:
Dear Sir: — Below we hand you statement of iee shipped yon, and
also the basis upon which we consider our contract for one thousand five
hundred tons with you as filled :
$1.00
$2.20
$3.60
April 12—30
79.1200
99.800
May 1-15
135.100
147.1100
May 16—31
78.100
263.1550
June 1—15
259.1050
June le— 30
195.500
July 1—12
61.1800
124.1900
292.1400
1029.800
124.1900
On contract:
$2.20 ice
1029.800 tons
1.00 ice made
so by stoppage
of ship-
ments
213.200 tons.
13 days' stoppi
ige at 20 tons per day. . .
er and above contract. . .
260. tons.
1500. 1000 tons.*
Ice shipped ov
124.1900 tons.
Tours truly,
Cabondet.kt ELEcrrRio Light & P. Co.,
per F. W. MoTT. Secretary.
Digitized by VjOOQIC
r
OCTOBER TERM, 1893.
Smith V. Carondelet Electric Light and Power
The evidence showed that respondent ;
to be delivered under said contract the sum of
$725.50 of which was paid on June 22,
receipted for by appellant as ''on account of
There was testimony tending to show that
•of the letter and statement of date July 18, 1
respondent called at appellant's oflBce, wh
informed that his contract was filled, an(
offered $2.25, $2.50 and $2.75 per ton for
offer was refused, and the company offered
have ice at $3 per ton, and this offer
declined. Upon the trial there was a ju
favor of respondent, from which the defc
appealed; and it assigns as error, y?r5<, th£
erred in giving improper instructions for tl
ent, and refusing proper instructions askec
lant; second, that the court erred in refui
aside the verdict as excessive.
The theory of appellant is, that it was
deduct from the fifteen hundred tons of ic
had contracted to sell and deliver, two amou
two hundred and sixty tons which respo;
sented not to receive, and two hundred ai
tons (at $1 per ton), which respondent i
under the contract, though at a reduced pi
of these defenses was submitted to the jury
following instructions given for appellants:
'*1. If the jury believe from the evidei
the mutual consent of the parties the deli
between April 20 and May 1, 1892, and IM
May 16, 1892, was waived, the plaintiff cam
for the nondelivery of such ice as defendant
would, under the contract, have delivered
periods aforesaid. In order to establish th(
aforesaid, no formal proposition made by
and accepted by the other need to be shoy
Digitized by VjOOQIC
564 55 MISSOURI APPEAL REPORTS,
Smith ▼. Carondelet Electric Light and Power Co.
fact that delivery was waived by mutual consent may
be inferred from the conduct, acts and declarations of
the parties given in evidence, if such conduct, acts and
declarations satisfy the jury that such waiver was
mutually agreed upon between the parties.
**2. If the jury believe that the plaintiff waived the
delivery of a certain quantity of ice in April and May,
1892, and also accepted ice at a reduced rate in lieu of
contract ice, and if you find that the quantity of ice
received at a reduced rate, the delivery of which was
waived, and the quantity of ice added to eleven hun-
dred and fifty-two tons, equals or exceeds fifteen
hundred tons, then your verdict should be for the
defendant.
*'3. If the jury believe from the evidence that from
May 1 to May 6, 1892, inclusive, and May 16 to May
18, 1892, inclusive, the plaintiff received two hundred
and thirteen tons and two hundred pounds of ice at a
reduced rMe as and for the car loads to be delivered
during the period aforesaid under the contract, then
defendant is entitled to credit on the fifteen hundred
tons for the ice so delivered.''
The verdict of the jury on the questions of fact
submitted in the foregoing instruction was supported
by substantial evidence, and is, therefore, conclusive,
unless there was reversible error committed by the
court in the instructions given or refused.
After an examination of the instructions given and
refused by the court, we do not think, under the evi-
dence, that any prejudicial error was committed.
Instruction number 1, given for respondent, was, as
to the sufiicieucy of facts, stated to constitute waiver
^^as to the time within which the contract for delivei'y of
said ice was to he fulfilled, "^^ The undisputed evidence
showed that, although the delivery of the ice, according
to the torms of the contract, was to be made ^^hy or
Digitized bvVjOOQlC I
f
OCTOBER TER
Smith V. Carondelet Electric
aboiU the ttventieth day of Ju
twenty-second day of June, IJ
for $727.50 ^^on account of co
ceded that there was technical <
in so far as it .assumed the twen
the date of expiration of the c
dently a harmless one, because
second of June, 1892, when api
money, was at a period when t
reasonably been held to be en
had been done indicating an ii
existence.
Under the evidence of tl:
made, and the surplus of moi
hands, and the continued deliv(
lant's statement) of contract ice
<5annot see how the jury could 1
reference, in the instructions coi
1892, as the date after which i
found by the jury.
Nor do we think the insti
requiring appellant to prove its
execution of the contract sued
to deliver all the ice therein i
only avoid the effect of its contr
of the matter set up in avoidant
instructions required, and, wh(
instructions, supra, given for
question as favorably as the a
We have examined the oi
instructions herein. Our concl
was fairly presented to the jur
under the evidence, the verdict i
ment herein is affirmed. Judge
concur in the result.
Digitized by VjOOQIC
566 55 MISSOURI APPEAL REPORTS,
Pazson y. St. Louis Drayage Co.
Alfeed a. Paxson, Respondent, v. St. Louis Drayage.
Company et al.j Appellants. •
St. Louis Court of Appeals, December 19, 1893.
1. Practice, Appellate: examination op voLUMiNoys evidence.
An appellant is not entitled to the examination of voluminous evi-
dence by this court, when he himself makes no statement of it and
lends ao assistance thereto.
2. : DE MINIMIS NON CURAT LEX. A judgment will not bcTe versed
for error in a trifling amount — in this cause $1.89.
Appeal from the St. Louis City Circuit Court. — Hon.
Leroy B. Valliant, Judge.
Affirmed.
Henry B. Davis for appellants.
Alfred A. Paxson for respondent.
Biggs, J. — This is an action for damages for breach
of the following contract:
''This agreement, made and entered into this
thirteenth day of December, 1889, by and between the
Batchelder Egg Case Company, of St. Louis, Missouri,
party of the first part, and F. F. Henseler, general
manager of the St. Louis Drayage Company, St. Louis,
Missouri, party of the second party,
^^Witnesseth: The said party of the second part
agrees to do the draying and delivering of the goods of
the said party of the first part from their store in St.
Louis, Missouri, to the freight depots and to city cus-
tomers in St. Louis at the following rates:
'•Butter tubs, nested, per one hundred tubs,
twenty-five cents.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Paxson V. St. Louis Drayage Co.
''Empty egg cases, per hundred cases,
cents.
''Filled egg cases, or cases of fillers, pe
dred cases, $1.
"K. D. cases, per one hundred pound
one-half cents.
"Car lots from depots in St. Louis, and
to depots in St. Louis, $6 per car. All fre
to East St. Louis to be collected from rai
pany at East St. Louis, except to points b<
Illinois, at tariff rates by the said party of
part. Ample consideration to be paid by t
the first part to parties of the second pa
drayage of creamery supplies of all kinds, i
salt, etc., which cannot well be classified in
ment.
"The said parties of the second part ar
unto the said parties of the first part at the (
month an itemized statement or bill for tl
done during the preceding month.
"It is further agreed and understood thi
tract shall hold good for one year from th
mentioned above.
"In witness whereof we have, this thir
of December, 1890, set our hands and seaL
the duplicate thereof.
' ' ( Signed ) B atchelder Egg Cas
"E. E. Clark, Cag
"(Signed) St. Louis Drayage C
"F. F. Henseler, (
The breach alleged is that, from and afte
1890, the defendant, the St. Louis Drayage
refused to haul the freight tendered by the
Egg Case Company, and that in conseque
the egg case company was compelled to, and c
a larger sum than the contract price ^
Digitized by VjOOQIC
568 55 MISSOURI APPEAL BEPORTS,
Paxson V St. Louis Drayage Co.
amounted to for the services which appellant had
agreed to perform. The cause of action growing out
of the alleged breach was assigned to the plaintiff.
It is admitted by the drayage company that it
failed and refused to perform the contract on and after
March 13, 1890, and that the prices paid to other parties
by the egg case company were as claimed, and were
reasonable. The defendant, the drayage company, justi-
fied its refusal to proceed further with the contract
upon the following grounds. First, The egg case
company had in many instances fraudulently under-
stated the weight of freight. Second. It had insisted
that the defendant should haul single articles, such as
butter tubs and egg cases, at the same rate as was
agreed upon in the contract for the tubs ' 'nested'' per
hundred tubs, etc. Third. It had refused to pay bills
for freight, and that defendant was obliged to bring suit
to collect them.
The case was sent to a referee, who took testimony
and recommended a judgment in plaintiff's favor for
$222. The defendants filed exceptions to the report of
the referee, which the circuit court overruled. There-
upon the report was approved, and a judgment entered
for the amount found to be due by the referee. The
drayage company only has appealed.
It was undisputed that the appellant's bill for haul-
ing freight during the month of January was promptly
paid. The referee found that the bill for February and
up to March 13, as presented by the appellant, was not
warranted by the rate fixed in the contract, and that,
therefore, the refusal of the egg case company to pay it
constituted no valid excuse for the abandonment of the
contract by the appellant.
The referee also found that the appellant had
ample protection under the contract by weighing the
goods delivered to it for transportation, and the fact
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Sheehan v. Prosser.
that the egg case company had noted un
•on some of the goods was not a justificati(
abandonment of the contract by the appel
Whether the facts found by the referee a:
-elusion thereon are authorized by the evider
only know by an examination of the transc
briefs presented by the appellant fail to give
-evidence ; in fact, no reference is made to i
not a compliance with the rules of the C(
record is very volumino.us, and it is unrea
Ask us to go through it unaided by counsel.
V. Railroad J 24 Mo. App. 392, 396; Jayne v
Mo. 404.
It is contended by the appellants that
bound to carry separate or single articles, (v
contracted for in round numbers) at the cor
Conceding this point to be well taken, th(
bearing on the question, as. it appears
respondent's abstract, shows that the re<
this score was for only $1.89. We can i
the judgment for so trivial a sum. De m
-curat lex.
Judge Bond, having been the referee in
^oes not participate in the decision. Judge
<;oncurring, the judgment will be affirmed.
Maurice Sheehan, Appellant, v. T. J. Pros
Respondents.
St. Louis Court of Appeals, December 19,
1. Master and Servajit: negligence op fellow ser
a building was in process of erection, lumber was hois
the upper floors by means of apparatus operated by
Heldf that one of the workmen, who received the lumbei
and the engineer in charge of the engine by which the
was generated, wetQ prima facie fellow servants within
ing the negligence of a fellow servant a risk incident in
ment.
Digitized by VjOOQIC
570 55 MISSOURI APPEAL REPORTS,
Sheehan v. Prosser.
2. : : PLEADING. The defense, that personal injuries sued
for were caused by the negligence of a fellow servant of the plaintiff,
is available in an action by a servant against his master without,
being specially pleaded.
Appeal from the St. Louis City Circuit Court. — Hon.
Jacob Klein, Judge.
Affirmed.
Dodge & Mulvihill for appellant.
(1) The defense of a fellow servant was tiot set
up in the answer of defendant, and hence not applica-
ble. The averment of contributory negligence is not
sufficient to let in the defense that the injury was
caused by a fellow servant. Higgins v. B tilroady 43
Mo. App. 548; Conlin v. Railroad, 36 Cal. 404;
Northrup v, Ins. Co., 47 Mo. 435; Deering's Law of
Evidence, sec. 202; Eevised Statutes, 1889, sec. 2049;
Newham v. Kenton, 79 Mo. 382. It was a usurpation
by the court of the province of the jury to withdraw
the case from the consideration of the jury. Ball v.
City of Independence, 41 Mo. App. 476. (2) Plaintiff
was not a fellow servant of the foreman, Daze, or the
engineer, Eeed ; as to plaintiff they were vice-princi-
pals, and defendants are liable. Dut^i v. Geisel, 23 Mo.
App. 676; Miller v. Railroad, 109 Mo. 350; Foster v.
Railroad, 21 S. W. Rep. 916; 2 Thompson on NegU-
gence, sec. 521, p. 899; Long v. Railroad, 65 Mo. 225;
Farker v. Railroad^ 109 Mo. 362; Dixon v. Railroad^
109 Mo. 413.
C. P. (& J. D. Johnson for respondents.
If there is evidence tending to show that appellant
was injured by the negligence of anyone, it .was by that
of the engineer, the fellow servant of appellant, and
Digitized by VjOOQIC
r
OCTOBER TERM,
Sheehan v. Prosaer,
for whose acts in that behalf the
nowise liable. Moran v. Browriy
Corbett v. Railroad, 26 Mo. App. 6
road, 104 Mo. 419; Parker v. Bai
And to entitle appellant to hold r€
of them, responsible for the n
engineer, it devolved upon him t(
that the engineer was not his fell
vice-principal of the respondents.
road, 61 Mo. 532; Marshall v. Sd
Blessing v. Railroad, 77 Mo. 413.
necessary to set up in the answer, j
that appellant was injured by the
low servant. Proof of that fact 1
the allegation in the petition, that i
tlirough the negligence of respond(
the allegation by the answer put
Greenway v. James, 34 Mo. 328; J
Mo. App. 29; Kersey v. Gasten, T
Code Pleadings, par. 352 ; Northn
Mo. 647.
Biggs, J. — The defendant. Pi
tract for the construction of a hw
fendant, the Kelly-Goodfellow SI
plaintiff was employed about th(
laborer. He was injured by beii
third stoiy of the house.
The petition stated substantia
the plaintiff received his injuries
ployees about the building were
lumber to the third floor of the 1:
derrick, with ropes and pulleys att
power was furnished by a steam eii
tiff, with three others, was on the 1
and that they were engaged in rec
Digitized by VjOOQIC
572 55 MISSOURI APPEAL REPORTS,
Sheehan v. Prosser.
lumber which were lashed together with ropes and
chains, and that while the plaintiff was thus engaged
he was, by a sudden and unexpected movement of a
load of lumber, struck and precipitated to the ground,
thereby greatly injuring him. The liability of the
defendants was based on their alleged negligence in
requiring the plaintiff to work on the third floor of the
building, and also on the alleged negligence of the
engineer in wrongfully and suddenly starting up
the engine, thereby causing the load of lumber to
swing out and knock the plaintiff off the building.
The answer contained a general denial, and also a plea
of contributoiy negligence.
On the trial the plaintiff testified in his own behalf,
and at the conclusion of his testimony his counsel, in
answer to a question propounded by the court,
announced that the plaintiff based his right of recov-
ery solely on the negligence of the engineer. Counsel
also announced that the other evidence, which they
proposed to introduce, would merely corroborate and
in nowise change the statements made by the plaintiff
concerning, the facts and circumstances attending the
accident. Thereupon the court * 'ruled'' (as the record
reads) that the plaintiff under the law and evidence
could not recover. This was tantamount to sustaining
a demurrer to the plaintiff's evidence, and we will so
treat it.
It was conceded by the plaintiff's counsel on the
argument that no case was made against the Kelly-
Goodf ellow Shoe Company ; but it is insisted that the
court erred in sustaining the demurrer to the evidence
as to Prosser.
A few extracts from the plaintiff's testimony con-
cerning the engineer and his duties, and what took
place at the time the plaintiff was hurt, will best illus-
trate the underlying facts of the case:
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Sheehan v. Prosser.
^^Q. Who was in charge of the en^nel A. G
Eeed.
''Q. How long had he been in charge of it'
Well, he had been there about two or three di
think.
^^Q. Do you know what his duties were! A.
sir; to take care of the engine; that is all I know
''Q. What did he do? A. Well, just hoisi
lower the lumber.
TJie Court: "Q. Did he have anything to do
tying up the boards or adjusting the ropes to iti
No, sir.
^^Q. Or did he simply manage the enginel
Managed the engine.
'*^. Fired up, and started it and stopped iti
Yes, sir.
''Q, Whom did he work for! A, Well, he
have worked for the same man I did. » » »
' * Q. Did you at any time give any orders or inj
tions to the engineer in regard to the manner or
in which he should hoisti A. No, sir; I did not.
^^Q. Was that any part of your duty? A. N<
^^Q. You did not undertake to exercise iti
No. * * *
^^Q. Did anyone call to him? A. No.
^'Q, No signal given to him? A. No signal t
^^Q. Isn't it a fact that he saw the lumber g<
and, when he saw it go around out of sight, he lo^
it to let it down? A. I suppose so.
^^Q. That is the way it was done? A, I supp
was; I didn't hear any one give any signals.
^^Q. At no time? A. No time at all.
^^Q. You never heard any of your compa:
there hallo to him to raise or lower away? A. Nc
^^Q. Things up to the time of the accident ran
smoothly; there was no hitch of any kind? A. 1
was none.
Digitized by VjOOQIC
574 55 MISSOURI APPEAL REPORTS,
Sheehan v. Prosser.
^^Q. Of your own knowledge do you know what
made that pile of lumber move! A. Yes; the engine.
^^Q. Did you see it! A. Well, I did not, but noth-
ing else could move it.
^'Q. That is your reasoning, or supposition, then!
A. Well, there wa^ no other power to move it.
^^Q. You did not see the engine move? A. N05
but the lumber moved.
^^Q, And brushed you oflE? A. Yes.
The court: ^^Q. The sling had not been taken oflE
the lumber yet, and it was still attached to the hoisting
rope I A. Yes, sir.''
Under the facts testified to by plaintiff prima facie
he and the engineer were fellow servants. They were
engaged in a common work, and were so situated that
they could observe the conduct and delinquencies of
each other and report to a common master for redress.
If a different relationship existed, of which there is not
a scintilla of evidence, it devolved on the plaintiff to
show it. McGowan v. Railroad j 61 Mo. 528; Blessing
V. Bailroad, 77 Mo. 411.
The rule as to who are fellow servants is thus stated
in Moore v. Railroad^ 85 Mo. 594: '^All are fellow
servants, who are engaged in the prosecution of the same
common work, leaving no dependence upon or relation
to each other, except as colaborers without rank, under
the direction and management of the master himself,
or of some servant placed by the master over them.''
In the case of Mehjea v. Railroad, 112 Mo. 86, the
following statement of the rule was adopted: **They
are coservants who are so related and associated in
their work that they can observe and have an influence
over each other's conduct and report delinquencies to a
common correcting power." If either test is applied to
the facts proven, the conclusion is unavoidable that the
plaintiff and the engineer were fellow servants.
Digitized by VjOOQIC
r
OCTOBER TBI
Sheehan v. Pn
As the evidence tends to
was injured solely through the
neer, it necessarily follows that
ery against the defendant, Pn
cite cases in support of the proi
can not be made to answer foi
servants resulting from the i
servant.
The defense, that plaintiff
negligence of a fellow servani
defendants without having 1
Pi^oof of that fact necessarily (
that the plaintiff was injured tl
the defendants. Hoffman v. I
Northrup v, Ins. Co.y 47 Mo. 43
thing may be shown under g
tends to prove that the cause
existed. Greenway v. James j I
Pleading, par. 352.
The plaintiff relies on the
City Court of Appeals in the caa
43 Mo. App. 548, as establishi
The court there intimates and c
support of the proposition, the
to be specially pleaded. But t
gested and not decided.
With the concurrence of th(
ment of the circuit court will
ordered.
Digitized by VjOOQIC
576 55 MISSOUKI APPEAL REPORTS,
Schmitz V. St. L., I. M. & S. R'y Co.
Anton Schmitz, Respondent, v. The St. Louis, Iron
Mountain and Southern Railway Company,
Appellant.
St. Louis Court of Appeals, December 19, 1893.
Damcbges: evidence of loss of earning oapacitt. In an action by a
father for damages for injuries to his minor child, whereby the child
(a boy) was crippled, there was evidence tending to show that boys
thus crippled could not find employment in a number of avocations,
and that their earning capacity was therefore lost entirely, or nefwly
so. The defendant adduced no evidence of an earning capacity on
the part of such a cripple in any avocation. Held, that there was
sufficient proof of the plaintiffs damages in this regard.
Appeal from the St. Louis City Circuit Court. — Hon.
J. A. Harrison, Special Judge.
Affirmed.
H. S. Priest and H. G. Herhel for appellant.
Seneca N. Taylor for respondent.
Rombauer, p. J. — The plaintiff recovered a ver-
dict for $1,809 against the defendant for loss of services
and outlays, occasioned to him on account of bodily
injuries received by his minor son and servant through
defendant's negligence. The son had his leg crushed
while attempting, on the line of a public highway, to
cross an opening left in one of defendant's trains,
which stood athwart the highway. The case is the
same which was before this court on a former appeal by
plaintiff, reported in 46 Mo. App. 380. The recovery
on the first trial was $2,610, of which the plaintiff
remitted $150. We reversed the judgment on the
ground that, under the instructions of the court the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 577
Sohmitz V. St. L., I. M. & 8. R'y Co.
damages awarded were excessive, and indicated mistake
or bias on the part of the jury. We also held that the
instructions submitted to the juiy an element of
damage of which there was no substantial evidence,
and that remittiturs in this class of cases, which change
the defendant's right of appeal from the supreme court
to this court, were not permissible.
The main error assigned now is the same as then,
namely, that the evidence in the case shows no right of
recovery, and that the court erred in submitting the
cause to itself sitting as a jury. An examination of
the record discloses the fact that the evidence at the
last trial was substantially the same as on the preceding
trial. We held on the former appeal that, under the
last controlling decisions of the supreme court, the
plaintiff was entitled to go to the jury. Such holding
necessarily precludes a re-examination of the question,
unless the supreme court since such holding* has estab-
lished a different rule. This is not the case. On the
contrary, the supreme court has, since the cause was
submitted on the present appeal, decided in an action
instituted by the minor himself, upon a cause of action
arising out of the same accident and supported by the
same evidence, that the plaintiff had a right to go to
the jury. William Schmitz v. St. Louis j Iron Mountain
and Southern Railroad Co., 24 S. W. Rep. 472.
Touching the complaints now made of the court's
action on the instructions which bear on the cause of
action and right of recovery, it will suffice to say that
the instructions given and refused in this case were sub-
stantially the same as those given and refused in the
case of William Schmitz, last referred to, with this
exception, that certain instructions were given for the
defendant in the case of William Schmitz, which, in
the present case, were refused as asked, and given in a
modified form. That the instructions as asked were
Vol. 55—37
Digitized by VjOOQIC
578 55 MISSOURI APPEAL REPORTS,
Schmitz V. St. L., I. M. & 8. R'y Co.
erroneous, has been decided by the supreme court in
the case last referred to ; hence the defendant has no
ground for complaint on that score. Under the view
taken by the supreme court the modifications were
strictly proper.
We must also hold that the defendant's last com-
plaint is without foundation. That complaint is to the
effect, that no evidence was adduced of the minor's
earning capacity in his crippled condition ; hence, the
evidence lacked a substantial basis for the admeasure-
ment of the plaintiff's damages. The plaintiff gave
evidence tending to show that boys crippled as this boy
was could find no employment in a number of avoca-
tions; hence their earning capacity was entirely gone,
or nearly so. The defendant adduced no evidence
tending to show an earning capacity of a cripple in any
avocation. That the question of earning capacity is
one that must, more or less, depend upon opinion, and
is not subject to mathematical demonstration, is
obvious. We think the plaintiff acquitted himself of
the otms imposed upon him by the opinion of this court
upon the former appeal. He made a prima facie case
showing a total want of earning capacity in a number
of the usual avocations open to boys. If there were
others in which a crippled boy could earn fair wages, it
was for the defendant to show that fact. It is a matter
of universal experience of which courts may take
judicial notice, that the services of a cripple in the ordi-
nary avocations of life are less valuable than those of
one whose body is sound. The case was tried by the
court, and the verdict shows that allowances were made
for loss of services resulting from the usual casualties
affecting health and the continuance of life.
In view of the fact that the plaintiff's right of
recovery stands on the boundary line, we do not deem
the case one where the judgment should be aflSirmed
Digitized by VjOOQIC
OCTOBER TERM, 1893.
State ex rel. v. Henning.
with damages. The plaintiff's motion to
denied. The judgment is affirmed with
AU concur. •
^TATE OF Missouri ex rel. Catherine M.
Executrix of Philip Schonhorst, Res]
Henry Henning, Appellants
St. Louis Court of Appeals, December :
The Evidence is considered, and is held to requ
rendered by the trial court.
Appeal from the St. Louis City Circuit
James E. Withrow, Judge.
Affirmed.
Eber Peacock for appellants.
LaughliUy Wood & Tansey for responc
RoMBAUER, P. J. — The appeal in 1
taken to the supreme court under the ir
that the suit involved the title to real esti
a state officer was a party therein. The s
ordered a transfer of the cause to this c
that this court had exclusive cognizance
that it had no jurisdiction therein.
These preliminary observations becoi
to determine the exact status of the partiei
us on this record. It would seem from
randa found in the papers that in Janu
attempt was made in the supreme court t(
death of James Cullinane, one of the dei
as that court never had any jurisdiction i
.such suggestion in fact was not made t<
Digitized by VjOOQIC
580 55 MISSOURI APPEAL REPORTS,
Htate ex rel. y. Henning.
court. At the October term, 1892, the death of the
relator Philip Schonhorst was suggested in this court,
and at the March term, 1893, Catherine Schonhorst,
his executrix, entered her appearance in the cause, and
a summons was issued at her instance to bring in the
defendant Henning, and William CuUinane, executor
of the defendant James CuUinane. This was the first
information conveyed to this court that James CuUinane
was dead. No notice was taken as to the remaining
defendant, J. P. Schulte, and, as he never was properly
brought into this court on the revived action, the cause
against him wiU have to be dismissed.
Proceeding to consider the merits of the appeal,
we refer to the fact that the cause is the same which
was heretofore before this court on a former appeal
taken by the plaintiff's testator. (State ex rel. v.
Henning, 26 Mo. App. 119). The action is one on an
official bond of a constable against him and his sureties.
The breach charged is the constable's failure to execute
a wiit of restitution in an unlawful detainer proceeding.
The first trial of the cause resulted in a judgment for
the defendants, which judgment we reversed, holding
that upon the conceded facts the plaintiff was bound
to recover. The judgment upon the last trial was in
the plaintiff's favor, and the complaint made is that
such judgment is erroneous on the conceded facts.
There is no pretense that the evidence upon the
last trial was different from the evidence on the preced-
ing trial, except in so far as the defendants offered
some records in evidence, which their counsel now
claims in his brief should have been admitted as evi-
dence of res judicata. The records are not in the
transcript, but their general effect is stated in a brief
filed by counsel. But, even if such records were in the
transcript, it would not change the result. No plea of
former adjudication was made by the defendants, and
Digitized by VjOOQIC
J
OCTOBER TERM, 1893.
Loan V. Gregg.
the records would have been inadmissible
had been made, as they in no way bore <
tiff 's right of recovery in this action. T
was, therefore, the only one which the
have rendered.
It is ordered that the case be dism
J. P. Schulte, and that the judgment
against the other defendants. All the ju
Emeline E. Loan, Appellant, v. Justic
Respondent.
Elansas City Court of Appeals, November i
January 8, 1894.
1. Fixtures : mirror not built in wall. A mirror i
but pat up after the building was finished so that it
interfere with the wall is a chattel and not part of
does not pass thereiyith.
2. : intention: other elements: jury ques
to make a chattel a permanent accession to a buil
sufBoient, without adaptability and annexation, an
matters for the consideration of the jury iu a propex
Appeal from the Buchanan Circuit Court.—
M. Ramey, Judge.
Affirmed.
James F, Pitt for appellant.
The testimony shows that the mirror
top, a part of a mantel made accordin
drawings ; that it was designed alone for g
this particular house. Every test of a fixtu
adaptability, annexation, and intention to
manent accession. These are mattei*s o
Digitized by VjOOQIC
582 55 MISSOURI APPEAL EEPORTS,
Loan V. Gregg.
jury, of which in this case there is not merely some
evidence, but the clearest and most satisfactory proof.
Goodin v. Association^ 5 Mo. App. 294; Cooke v. McNeil,
49 Mo. App. 81; Ward v. Kilpatrick 85 N. Y. 413;
Thomas v. Davis, 76 Mo. 72, It was error to take the
case from the jury, and the cause should be reversed
and remanded.
Hall (& Pike for respondent.
(1) The mirror in suit was of ordinary form and
not unusual size, was not set in the wall of the building,
was put up after the building was finished, was not so
attached to the building that its removal could inter-
fere with or injure it. It formed no part of the build-
ing. It was a mere chattel, like any other piece of
furniture. McKeage v. Ins. Co., 81 N. Y. 38. (2) It
is true that the intention with which a chattel is
attached to a building is a material element for con-
sideration in determining whether a chattel has become
a fixture. This was so held by this court in the recent
case of Cooke v. McNeil, 49 Mo. App. 81; but it is not
the only element; there are other elements. Boger
et al. V. Crow et al., 40 Mo. 91; 8 American and Eng-
lish Encyclopedia of Law, 52 ; Ward v. Kilpatrick, 185
N. Y. 413.
Smith, P. J. — This is an action of replevin . to
recover the possession of an ^'overtop mantel mirror,"
alleged to have been wrongfully taken by defendant
from the plaintiff's dwelUng house.
It appears from the abstract of the evidence that
the house in question was built by H. E. Barnard, who
sold it with all furniture in it to the defendant, and
that the latter sold it to a Mr. Lindsay, who sold it to
plaintiff. It seems further that the defendant continued
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Loan V. Gregg-
to occupy the house after his sale, as a 1
he quit the house and removed therefr(
away the mirror in controversy.
The undisputed evidence proved ti
was not built in the wall nor did it form
nor was it put up until the wall over the
was finished. It was then placed on the
its base resting thereon and its back resti
wall of the room. It was not disclosed h
was fastened. The defendant, who was
plaintiff to testify, stated that he though
very slight fastening but was unable tc
what manner it was fastened. It does n
the removal of the mirror caused any inji
or any break in the moulding. The wal
everywhere except behind the mirror,
exposed the bare wall behind where it
was no sort of connection between the r
mirror other than has been stated. This
the same style and finish as a pier mir;
placed on the opposite side of the room
was testified to by the original owner of i
he never intended to change the positic
mirrors. They were intended to match
The court instructed the jury to find :
ant, and it is this action of the court th
question by the plaintiff's appeal. As hi
stated, the mirror in suit was not set in
was put up after the building was finish^
so attached to the building that its r(
interfere with or injure it in any particul
more than a bare chattel like any other pi(
furniture that was not an appurtenance t(
The facts here shown are quite an ale
in McKeagev. Insurance Co., 81 N. Y. Si
there announced must dominate this case
Digitized by VjOOQIC
584 55 MISSOURI APPEAL REPORTS,
Loan V. Gregg.
It is true, as we held in Cooke v. McNeil^ 49 Mo.
App. 81^ that the true intension with which a chattel
is attached to a building is a material element for
consideration in determining whether it has become
a fixture ; but it is not the only element. There are
other elements. The element of intention alone with-
out the presence and existence of other elements is not
enough to transform a mere chattel into a fixture. It
will not do to say that, because the owner of a house
declares that he intends that a picture hung on the wall
or a bureau or book case placed in a certain position
in a room are to remain permanently where placed, that
they thereby lose the quality of chattels and become
fixtures and a part of the freehold. It is true that
every test of a fixture — its present adaptability, annex-
ation and intention to make it a permanent accession
and that these are matters of fact for the consideration
of a jury in a proper case. Two of these elements are
wholly absent in this case. The mirror was no more
adapted or annexed to the room or building than a book
case or bureau that might have happened to have been
placed in it under like circumstances.
This case bears not the slightest resemblance to
that of Ward v. Kilpatrickj 85 N. Y. 413, for there
the mirrors **were actually annexed to the building and
were so annexed during the process of building as a part
of that process. ♦ ♦ ♦ They were fitted to the use
and purpose for which they were designed; they formed
part of the inside wall."
The mirror was no part of the freehold and for that
reason the plaintiflE acquired no title to the former by
the purchase of the latter. It is clear to us that the plaiur
tiff, on the evidence adduced by her, was not entitled
to a submission of the case to the jury, and therefore
the trial court did not err in its ruling, and so it results
the judgment must be affirmed. All concur.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
MoNown V. The Wabash B'y Co.
Z. T. McNSpwN, Appellant, v. Wabash
Company, Respondent.
Elansas City Court of Appeals, Jajiuary i
1. Railroads: signals at grossing: negligence, i
pany, when it fails to ring the bell or sound the whis
approaches a highway crossing, violates the statute ;
negligence.
2. : : CONTRIBUTORY negligence. In ord<
court in taking a case from the jury and declare pU
as a matter of law, it should clearly and incontrovert
no other conclusion than that of plaintifiTs negl
deducible from the evidence, giving him the benefit
able inference that may be drawn from it; and the
case does not justify the court in declaring plaintiff g
utory negligence, Ellison, J., dissenting,
3. : : ORDINARY care, a person on tl
preaching a railroad crossing is only required to use
which does not mean that every possible precaution s
but only that care and circumspection which should
one of ordinary prudence.
Appeal from the Carroll Circuit Court. — J
Broadus, Judge.
Reversed and remanded.
Virgil Conkling for appellant.
(1) The demurrer to the evidence shoi
been sustained. The negligence of defends
clusively proven, and the question of pla
tributory negligence was clearly a matter i
to determine. The testimony of plaintiff,
whole, does not show contributory negliger
most, it was only a doubtful case upon wh
men might differ. It was therefore a queg
Digitized by VjOOQIC
586 55 MISSOUEI APPEAL REPORTS,
McNown V. The Wabash R'y Ck).
for the jury, and to them should have been submitted.
The court is authorized to pronounce certain conduct
negligent only when no other construction may fairly
and reasonably be placed upon it. Petty v. Railroad^
,88 Mo. 306; Keim v. Railroad, 90 Mo. 314; Wilkins v.
Railroad, 101 Mo. 93; Dickson v. Railroad, 104 Mo.
492 ; Kenney v. Railroad, 105 Mo. 271 ; Bluedorn v. Rail-
road, 19 S. W. Rep. (Mo.) 1106; Dixon v. Railroad, 19
S. W. Rep. (Mo.) 412; Ramsey v. Railroad, 20 S. W.
Rep. 162; Jennings v. Railroad, 20 S. W. Rep. (Mo.)
490. (2) A person crossing a railroad has the right
to assume that the statutory signals will be given, and
to so act. Petty t\ Railroad, supra; Crumpley v.
Railroad, 19 S. W. Rep. (Mo.) 820; Jennings v. Rail-
road, supra.
F. W. Lehnann and Geo. S. Grover for respondent.
The plaintiff's own testimony clearly developed the
fact that the accident was caused solely by his own neg-
ligence, in driving upon defendant's track without the
looking or listening for approaching trains. In such a
case it is the duty of the trial court to instruct the jury
that, as a matter of law, the plaintiff cannot recover,
even though the defendant was also negligent in failing
to give the statutory signals. Henze i\ Railroad^ 71
Mo. 636; Turner v. Railroad, 74 Mo. 602; Powell v.
Railroad, 76 Mo. 80; Taylor v. Railroad, 86 Mo. 457;
Yancey v. Railroad, 93 Mo. 433; Hudson v. Railroad,
101 Mo. 13; Boyd v. Railroad, 105 Mo. 371; Corcoran
V. Railroad, 105 Mo. 399 ; Maxey v. Railroad, Mo.
; 20 8. W. Rep. (1893), p. 654; Drake v. Railroad,
51 Mo. App. 562; Mo. Legal News, Feb. 15, 1893, p.
257.
Gill, J. — The plaintiff sued the defendant for
damages for negligently running one of its trains over
Digitized by VjOOQIC
OCTOBER TERM, 1893.
McNown V. The Wabash R'y Co.
and killing his mare at a public road cross
borne, Missouri. The negligence allegec
defendant's servants in operating the tra
ring the bill or sound the whistle as the c
approached, as is required by the statu
Statutes, 1889, section 2608. The defense
a general denial and a plea of contributoiy
At the close of plaintifiE's evidence the c
instance of the defendant, gave an instruct
plaintiff could not recover. .The plaintifl
submitted to an involuntary nonsuit and 1
case here by appeal.
The court's action in admitting certain
to contributory negligence not pleaded an<
allowing defendant to amend its answer so
the objectionable evidence, we deem it uni
notice, since at all events we think the coi
taking the case from the jury.
As already stated, the defense was
denial pf negligence, coupled with a plea of c
negligence, in that plaintiff carelessly and
drove his team onto the defendant's track w
ing and listening for an approaching train,
abundant testimony tending to prove the {
ligence in running the train, in that the b
rung nor whistle sounded as the train appi
crossing. But the trial court seems to ha^
the demurrer to the evidence on the alle]
that plaintiff was himself guilty of negligei
onto the track of the railroad without 1«
listening for passing trains.
The testimony is not at all clear in son
but from the abstract we understand the cii
to have been about as follows: At Norborn
of defendant's road is east and west, ci
public road running north and south at ri
Digitized by VjOOQIC
588 55 MISSOURI APPEAL REPORTS,
McNown V. The Wabash R'y Co.
On the north side of the Wabash right of way stands a
mill and some other small buildings one of which
seems to extend well out towards the tracks of the
railroad. Now, the plaintiflE 's movements are thus told
in his own language: *'I am the plaintiff, live in Ray
county and am engaged in farming. At about eleven
o'clock A. M. January 27, 1891, I drove my. team up to
Stribling's Mill in the town of Norborne, drove the
team to the north door and held them there headed
west. While standing there a train went east over the
Santa Fe. Immediately thereafter I got unloaded and
started to drive over to the store. When I started to
drive out I was informed that I had plenty of time to
cross the Wabash track; that the next train would
be a passenger and that it wasn't due for some little
time yet. (The train that did the damage was an
extra freight.) When I started from the mill door
with my team, I drove west to the corner of the mill
and then turned around the corner of the mill and
went south to the southeast corner; I then turned the
southeast corner of the mill and drove east, or a little
north of east, turned around the electric light pole and
then around the telegraph, making an easterly course
like the letter 'S' and then turned south and drove
on the Wabash track at the regular mill crossing.
This road is a public road and the crossing is a public
crossing and both are used by the public generally.
The street crossing the Wabash track at this point is
known as Elm street and runs north and south. At
the time I started to drive across the track I had no
indication whatever of a train approaching and heard
no signals whatever. When a person is coming around
the mill there is a grain house, and when a person is
in a position to see up the track it obstructs the view.
When I looked up the track there was. nothing in sight
at all. I looked up the track to see, and couldn't see
Digitized by VjOOQIC
OCTOBER TERM, 1893.
McNown V. The Wabash R'y Co.
anything. When I drove onto the Wabash
suddenly discovered the train approaching anc
think it was more than two hundred and i
away. I had just driven onto the dump
horses had gotten their fore feet on the track
saw the train coming. I tried to save myself b;
my team out of the way. I turned the team
to one side, but the engine struck one of the
valuable brood mare which was worth $125 or
On cross-examination plaintiff was as]
question :
' * * ^. When you turned south — we will assi
you were within twenty or twenty-five feet of
road — did you look up the track to see if the t
approaching? A. Don't suppose that I did.
^^Q. When you started south with yo
across the track did you look up that railroa
A. No, sir; I don't suppose I did; I heard n(
iattract my attention.
*^Q. Wasn't the road perfectly straight
two miles? A. Yes, sir."
The witness further testified: **Had sc
versation with Mr. Hess before I left the mill
asked him how soon there would be another ti
he said the next would be a passenger on the
but that it wasn't due for some little time j
would have plenty of time to get out. There i
house west of this mill, that extends out tow
Wabash railroad. I looked up the track as f
building would permit me seeing and there was
in sight and I heard nothing. When I go
southwest corner of the mill I could see onl;
distance up the track, and when I got to thai
did not hear any noise like the ringing of a be
blowing of a whistle. '^
Digitized by VjOOQIC
590 55 MISSOURI APPEAL REPORTS,
MoNown V. The Wabash R'y Co.
Keller, another witness, among other things, stated:
^*Itis about eighty feet from the mill to the railroad
track. I didn't notice McNown until the train was
right on him.
^^Q. After McNown emerged from the mill, was
there anything to prevent him from seeing up the
track? A. I think there was some small building in
the way on the north side of the track.''
On this state of the evidence the trial court forced
plaintiff to a nonsuit on the ground that his loss was
the direct result of his own negligence, and, therefore,
that he was in no condition to complain of the defend-
ant's negligence. The announcement of the principles
of law controlling this character of cases is often easier
than their application to a given state of facts. The
omission to do a thing in the time or manner as com-
manded by positive statute is negligence per se. Hence
the defendant, when it failed to ring the bell or sound
the whistle as the train approached the crossing in
question, violated the statute and was guilty of negli-
gence. On the other hand, if when the plaintiff ap-
proached the railroad crossing he failed to exercise that
degree of care which an ordinarily prudent person would
observe under the same or similar circumstances, then
plaintiff will be deemed to have been likewise negligent,
and for damages occasioned thereby he cannot recover.
Admitting now that defendant's train men were in
the flagrant violation of the statute (which the testi-
mony tends to prove) ; that they were running the train
across this public highway without giving the statutory
signals, then the plaintiff ought to recover for the
killing of his mare, unless he, too, wa& negligent.
This contributory negligence charged on the plaintiff
is matter of defense that must be made out by the
defendant, the onus rests on it. Such negligence, too,
is ordinarily for the determination of the jury under
Digitized by VjOOQIC
OCTOBER TERM, 1893.
MoNown V. The Wabash R'y Co.
proper instructions. The court is not au
interfere and declare such defense establis
on the clearest proof. Bluedorn v. Railroa
439.
''When the question arises upon a st?
on which reasonable men may fairly arrive
conclusions, the fact of negligence cannol
mined until one or the other of these cone
been determined by the juiy. The infer
drawn from the evidence must either be (
incontrovertible or they cannot be decided u
court. Negligence cannot be conclusively
by a state of facts upon which fair minded
well differ." Voelker v. Railroad^ 129 111
order to justify the court in taking the cas*
jury and declare the plaintiff negligent, as
law, it should clearly and incontrovertibly 8
no other conclusion than that of the plain
gence is fairly deducible from the evidence,
the benefit of every reasonable inference tl
drawn from it. Kenney v. Railroad j 105 M
cases cited.
Now, while the evidence here may ten
the plaintiff wanting in that degree of care
ought to have exercised in approaching th
we yet fail to see in his conduct that clear cj
tributory negligence which would justify tl
so declaring as matter of law.
This is not a case where the plaintiff
gether to observe the precaution of looking
ing as he was approaching the point of di
seems to have been on the alert, but owing 1
tion of the grain house or other small
extending out towards the railroad was un
any great distance up the track until he
twenty or twenty-five feet thereof. And
Digitized by VjOOQIC
592 55 MISSOURI APPEAL REPORTS,
McNown V. The Wabash R'y Co.
space, and just as his horses had set their forefeet on
the first rail, he looked west and discovered the
approaching train at a distance of about two hundred
and fifty feet. He says that he then made every effort
to free himself and his team from the threatened peril
by jerking them back; he turned the team partially
to one side, but was unable to get one of the horses
entirely out of the way of the moving train. It does
not appear just how far the plaintiff's person had
passed the obstruction on the north side of the track
when he looked west and saw the coming train. It
was apparently a very short distance, since it was only
about twenty or twenty-five feet from this obstruction
to the north side of the railroad track, and within this
space stood the wagon and horses. It may be that if
he had cast his eye westward when a few feet further
north he would have been able to discover the engine
in time to have averted the accident. But that he did
not do so is not conclusive proof that he was negligent.
Ordinary care does not mean that every possible pre-
caution shall be adopted, and ordinary care was all
that plaintiff was called on to exercise. The question
is, did the plaintiff, under the circumstances, conduct
himself with that care and circumspection which
should be expected of one of ordinary prudence. If
he did this, then it was all that was required in order
to relieve himself of the imputation of contributory
negligence. Kenney v. Railroad^ 105 Mo. 288; Jen-
nings V. Railroad, 112 Mo. 275; Easley v. Railroad, 113
Mo. 245; Shaw v. Jewett, RecW, 86 N. Y. 617; Greany
V. Railroad, 101 N. Y. 424; Plummer v. Railroad, 73
Mo. 594; Bishop on Non-contract Law, sec. 143.
The circumstances, too, are to be considered along
with the plaintiff's conduct in order to determine
whether he was conducting himself as an ordinarily
prudent person would. He left the mill on the north
Digitized by VjOOQIC
OGTOBliR TERM, li
Nicholson v. The A., T. & S. F.
side of the railroad after being advis(
no train yet due, that it would be
before a train would pass on the Wal
that the train doing the damage wai
passing unexpectedly. Besides, the
train bells or whistle, and had a righ
that no train was coming. Petty v,
319. Taking these circumstances ii
all the evidence in the case we thin!
contributory negligence was one f<
should have been submitted to it for
The judgment, therefore, will be
cause remanded. Smith, P. J., cone
J,f dissents.
William N. Nicholson, Responde
TopEKA & Santa Fe Raileoai
Appellant.
Kansas City ^ Court of Appeals, Noven
January 8, 1804.
, 1> Bailroads: killing stock: notice. Anii
left standing open for such length of time <
accident, the defendant knew, or conld ]by t
care have disooyered, it in time to have close
passed through it, then the defendant is lial
evidence in this case, as is also an instruci
opinion which was given for the defendant.
2. Justices' Courts: appeal: defective ai
A defect in an affidavit for an appeal from a j
by the general appearance of the appellee ; ai
after making objection to the affidavit waives
Appeal from the Jackson Circuit Coi
Field, Judge.
Affirmed.
, Vol. 55—38
Digitized by VjOOQIC
594 55 MISSOURI APPEAL REPORTS,
Nicholson r. The A., T. & S. P. R'y Co.
Gardiner Lathrop and S. W. Moore for appellant.
(1) What constitutes reasonable time for a railroad
company to be charged with knowledge that a gate is
open or a fence down, and to close the one and repair
the other, is ordinarily a question for the jury. Where,
however, the time is so short, as in this case, it has
invariably been held, as a matter of law y that negligence
cannot be imputed to the railroad company for failure
to discover the open gate or broken fence. Clark v.
JRaUroady 62 Mich. 358; Stephenson v. Railroad^ 34
Mich. 323; Railroad v. Dicherson^ 27 111. 55; Bailroad
V. Swearingen, 47 111. 206; Antisdel v. Railroad, 26 Wis.
145; Railroad v. Eder, 45 Mich. 329; Railroad v.
Swearingen, 33 111. 289; Vinyard v. Railroad, 80 Mo.
92; Fitterling v. Railroad, 79 Mo. 504; Davis v. Rail-
road, 19 Mo. App. 425; Ridenore v. Railroad, 81 Mo.
227; Morrison v. Railroad, 27 Mo. App. 418; West v.
Railroad, 26 Mo. App. 344. (2) The primary obliga-
tion to keep a farm crossing gate closed rests upon the
land owner. Adams v. Railroad, 49 American and
English Railroad Cases, 579; Bond v. Railroad, 100
Ind. 301; Railroad v, Williamson, 23 American and
English cases, 203; Manwell v. Railroad, 80 Iowa, 662;
Harrington v. Railroad, 71 Mo. 384. As the affidavit
filed by the plaintiflE in the justice's court did not state,
as required by section 6330, Revised Statutes, 1889,
whether the appeal was taken from the merits or an
order or judgment taxing costs, the circuit court
acquired no jurisdiction of the cause, and the court
erred in admitting any testimony. Spencer v. Beasley,
48 Mo. App. 97; Whitehead v. Cole, 49 Mo. 428.
Porterfield & Pence for respondent.
(1) The principle decided in Clarke v. Railroad, 62
Mich. 358, cited in appellant's brief, is entirely foreign
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Nicholson v. The A., T. & S. F. R'y Co.
to the case at bar. The facts in the case at bar bi
within the rule of Davis v. Railroad^ 19 Mo. App.
Morrison v. Railroad^ 27 Mo. App. 418; West v.
roady 26 Mo. App. 344. All of which are cit^
appellant's brief. (2) The cases cited in appel
brief on the primary obligations to keep a farm (
ing gate closed resting upon the land owner, ar
applicable to the case at bar, for the reason the
statute imposes the duty of keeping such gates cl
upon the railroad company. (3) Appellant ma
point in its brief upon an alleged defect in the aflB
of appeal from the justice's court. The record, h
shows that the defendant entered its appear
writing in the circuit court, when the appeal W£
by the plaintiff to said court, and since the circuit
had jurisdiction of the cause, and, by the ent
appearance, gained jurisdiction of the defenda
<30uld not then complain of an irregularity or defe
the appeal of the plaintiff from the court of the ji
-of the peace to the circuit court. Fitterling v. Rail
79 Mo. 504; Gant v. Railroad, 79 Mo. 502; Reddi
Newburfiy 76 Mo. 423. The case of Spencer v. Bei
48 Mo. App. 97, cited on this point by appellant,
not decide the question at issue.
Smith, P. J. — This is an action commenced!:
a justice of the peace to recover damages, unde
statute, for injuries to stock. There was a trial ii
circuit court which resulted in judgment for the ]
tiff, and from which defendant has appealed,
evidence tends to show that the defendant let a
tract to McGee & Kahman to provide and place \^
mats along the side of its track at a point wher
waters of the Missouri river were eroding the alii
formation underlying it. McGee & Kahman contr
with the Foleys to procure and deliver the willows
Digitized by VjOOQIC
596 55 MISSOUEl APPEAL EEPOETS,
Nicholson v. The A., T. & S. P. Ky Co.
used for the construction of the mats. These the latter
purchased of one Maxwell, who, with plaintiff, owned
adjoining lands through which the defendant's road
runs. The lands are enclosed by a common fence.
There was no partition fence between them. They
pastured the lands so enclosed by agreement in com-
mon. There is a farm crossing over defendant's road
on Maxwell's land. There is a gate at this point
through which the crossing is approached. The Foleys,
in hauling willows from where cut to the railroad track,
passed through this gate. The gate was a sliding one.
Five of the witnesses called by plaintiff, some of whom
had been engaged in hauling the willows for the Foleys,
testified that during the time the hauling was done
through the gate that it was always standing open;
that they found the gate standing open at half past five
in the morning and half past six in the evening during
the time the hauling was done. One of them saw it
open as late as six o'clock on February 7, 1891, the
night the plaintiff's stock were struck and injured by
the defendant's cars. They never saw it shut at all
until after the injury.
The defendant's section man saw the gate open at
5:30 o'clock the evening before the night the stock
were injured, and told the willow haulers to shut it, but
did not know whether they did so or not. One of the
defendant's witnesses testified that the gate was closed
by him at 5:30 o'clock on the evening before the stock
was killed. Two of its witnesses testified that the gate
was always closed when the willow cutters quit work in
the evening.
The plaintiff's stock escaped through this gate from
the common enclosure and strayed upon defdbdant's
track when they were injured. There was no dispute
but that the stock passed through the gate in (Question.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Nicholson v. The A., T. & S. F. R'y Co.
The jury were instructed that, if they bel
the evidence that the gate was left standiu
such length of time directly previous to th
that the defendant knew, or could, by the
ordinary care, have discovered, this fact in ti
closed such gate before the time in questior
defendant was liable.
The jury were further told, by an insti
defendant that, if the gate was closed about
in the evening and that, during the night, sc
not in the employ of defendant went throuj
it open, and that, during the night plainti
escaped through it and were injured, the verc
be for defendant.
These two instructions fairly declared
the case as applicable to the facts. That
plaintiff was entirely proper on the facts whi
dence tended to establish. It left it for tl
was proper to do, to determine from th<
whether the gate had been left open for sue
of time previous to the infliction of the injur
tiff's stock, that the defendant knew, or (
known, by the exercise of ordinary care, tl
time to have closed the gate and prevented
Thornton on Railroad Fences and Private
section 161. Whether the gate's being left
ing the two weeks the Foleys were hauling t
through it, or for a shorter time, raised th(
tion of negligence against defendant and
with the knowledge that the gate was open, ^
ter for the jury to decide. Wait v. Eailroad
207; Perry v. Railroad, 36 Iowa, 102. It wt
of defendant to close the gate after gaining
that it was open, no difference by whom
Wait V. Railroad, supra; Aylesworth v. Ri
Iowa, 459.
Digitized by VjOOQIC
598 55 MISSOURI APPEAL REPORTS,
Nicholson v. The A., T. & S. P. E'y Co.
There was no evidence that the land owner author-
ized the gate to be opened, or, if so, to be left open day
and night. It may be fairly presumed that he assented
to the passage of the Foleys' wagons through the gate
while engaged in hauling willows, but there is no evi-
dence that he assented or acquiesced in the leaving of
it open after night, or that he knew that it was so
habitually left open. Nor is there any evidence that
plaintiff knew the gate was left open day or night, or
that he assented thereto in any way.
The jury, no doubt, found, as they may have well
done under the evidence and instractions, that the gate
had been left open by the willow haulers on the evening
before the plaintiff's stock were injured, and that it had
been so left open continuously for two weeks, or more,
prior thereto. They evidently did not credit the state-
ment of the defendant's witnesses that the gate had
been closed the evening before the injuiy. There was
a sharp conflict in the testimony of the witnesses of
plaintiff and those of defendant on this point.. The
jury must have given credence to that of the plaintiff's
witnesses. This was a question for them to determine.
The verdict of the jury was clearly for the right party.
The objection that the plaintiff's affidavit for the
appeal from the judgment of the justice did not con-
form to the requirements of section 6330, Revised Stat-
utes, was waived by the defendant's general appearance
in the circuit court. It is true' that it made an objec-
tion thereto the jurisdiction of the court; but it did not
stand on the objection, but, after making the same,
proceeded to the trial of the case. This, we think^
constituted a waiver of the objection.
The circuit court had, under the law, jurisdiction
of the action without reference to the appeal, and the
general appearance of defendant to the action and the
proceeding to trial gave the circuit court the requisite
Digitized by VjOOQIC
OCTOBER TEEM, 1893.
Welsh V. The H. & St. J. B'y CJo.
jurisdiction of the parties. Pearson v. Gi
App. 312; Welch v. Bailroad, 55 Mo. App.
son V. Thompson (decided at the present te:
We have considered the other objectic
defendant, but find the same destitute of n
The judgment will be affirmed. All c
Simon Welsh, Respondent, v. Hannibal &
Eailboad Company, Appellant
Kansas City Court of Appeals, November
January 8, 1804.
1. Justices' Courts: appeals: 'defective afpi;
Although the affidavit for appeal from a justice's c
whether the appeal is from the merits or an order tax
the granting of the appeal by the justice and the fili
in the clerk's office, the circuit court becomes possess
and if the appellee proceeds without objection, the ^
limiting Whitehead v. Cole, 49 Mo. 428.
2. Railroads: fencing station ground. Whether
pany has placed its fence and cattle guards as nea:
switch as is consistent with the safety of trainmen in
at the station is a question for the jury under proper ;
Appeal from the Macon Circuit Court. — He
Ellison, Judge.
Affirmed.'
Spencer & Mosman and Ben Eli Guthr
lant.
(1) We contend that defendant's dem
have been given because there was not a
evidence to sustain the charge made in
that the cow came upon the track **at a ]
the same passed through enclosed or cultiv
This part of plaintiff's case rests entirely oi
Henderson V. Railroad^ 36 Mo. App. 112;
Digitized by VjOOQIC
60a 55 MISSOURI APPEAL REPORTS,
Welsh V. The H. & St. J. B'y Co.
Railroad, 79 Mo. 504, 509; Hyde v. Railroad^ 110 Mo.
280; Railroad v. Talbot^ 78 Ky. 621; Smith v. Railroad^
37 Mo. 295; Callaghan v. Warren, 40 Mo. 137; Long
V. Moon, 107 Mo. 338, 339. (2) The demurrer should
have been given because, by the uniform decisions of
this court and of the supreme court of the state, rail-
way companies are not liable under the double damage
section for stock killed on depot grounds. Robertson
V. Railroad, 64 Mo. 412; Swearingenv, Railroad, 6ii
Mo. 73; Morris v. Railroad, 79 Mo. 367; Lloyd v.
Railroad, 49 Mo. 199; Russell v. Railroad, 83 Mo. 510;
Mcintosh V. Railroad, 36 Mo. App. 377. (3) The
defendant having in good faith constructed its station
at Lingo, was entitled to the presumption indulged in
favor of every other citizen, that it had acted rightly
and had not abused its discretion. St, Louis v.
Weber, 44 Mo. 550, 551 ; Cape Girardeau v. Riley, 72
Mo. 224; Corriganv. Gage, 68 Mo. 544; Jennings v.
Railroad, 37 Mo. App. 653; Pearson v. Railroad, 33
Mo. App. 546; Pawell v. Railroad, 76 Mo. 84; O^Harra
V. Railroad, 95 Mo. 692. (4) It was error to refuse
defendant's second and third instractions, as they
correctly declared the law of the case. Plaintiff was
not entitled to go to the jury on a theory entirely sub-
versive of the cause of action stated in his petition.
Luckiev. Railroad, 67 Mo. 245; Clement v. Yeates, 69
Mo. 625; Hausberger v. Railroad, 43 Mo. 196; Revised
Statutes, 1889, sec. 6345. (5) It was error to give the
plaintiff's first instruction. No such issue was pre-
sented in the pleadings. Bray v. Seligman, 75 Mo. 40;
Glass V. Gelvin, 80 Mo. 297. (6) We deny that the
framers of the statute ever intended, or that the letter
or spirit of the statute gives to the owners of stock
killed on depot grounds, double damages for failing to
fence a track, when that failure arises from an error of
judgment as to the extent of ground necessary to
Digitized by VjOOQIC
OCTOBER TE: i
Welsh V. The H. & I
accommodate the public, or t<
the trains of defendant runni
V. Railroad J 54 Mo. 240; Spii
Nenan v. Smith, 50 Mo. 525.
plaintiff's third instruction,
upon which to base it. This "^
by plaintiff by asking his first
V. Bailroad, supra; Miller v.
€33,
Bert D. Nortoni for respoi
(1) The justice of the pe
tion of this cause. Revised S
Therefore the circuit court h;
^ 'subject-matter. ' ' Green v. C
Whitehead v. Cole et al., 49 ]
circuit court having no jui;ig
matter,'' none could be ace
<jircuit court. Whitehead v.
paper purporting to be an affi
the justice of the peace to th
was insufficient and fatally def(
state whether such appeal is
an order or judgment taxing c(
1889, sec. 6330, And an affic
a justice of the peace which
such appeal is from the mei
judgment taxing costs," *4s
defective and confers no ju
court to try the cause." Sp(
App. 97 ; Whitehead v. Cole e\
Brief in reply for appellai
(1) The statutes, from e
solicitous in every way, not on]
Digitized by VjOOQIC
602 55 MISSOUEI APPEAL BEPOETS,
Welsh V. Th6 H. & St. J. B'y Co.
shall exist, but that every possible and conceivable
opportunity for the exercise of it shall be left open. It
seems from these sections that it must follow that the
return of the justice depositing the papers with the
circuit court gives that coiirt its jurisdiction, and that
it proceeds to make amendments and corrections therein
as the parties may suggest. Myers v, Woolfolk, 3 Mo.
348. (2) On the preceding authorities and statutes it
seems infallible that the aflSdavit is subject to amende
ment in the circuit court. If it is amendable there, it
is not jurisdictional. Hardin v. Lee, 51 Mo. 245; Hunt
V. LouckSj 38 Gal. 372 ; Pannelee v, Hitchcock^ 12 Wend.
98; Cooper v. Reynolds j 10 Wall. 308; O'Beilly v.
Nicholson^ 45 Mo. 163; Gray v. Bowels ^ 74 Mo. 419^
State ex rel. v. Donegan^ 83 Mo. 374; Yeoman v.
Younger^ 83 Mo. 424; Hughes AdmW v. Hardesty^ 13
Bush, 364; Mcllwrath v. Hollander^ 73 Mo. 105; Fields
V. Moloney y 78 Mo. 179. (3) It is just the difference
between void and voidable. This is a common practice
in other proceedings ; an amendment to show jurisdic-
tional fact not shown in statement as before justices,
can be properly made out in the circuit court. Fatham
V. Butevy 31 Mo. App. 304; Vaughn v. Bailroadj 17 Mo.
App. 4; Circuit v. Bailroad, 79 Mo. 328; Dryden v.
Smith, 79 Mo. 525; Bollin v. Bailroad 73 Mo. 619. (4>
The statement required by the statute, showing whether
the appeal is from the merits or from the costs, is
purely a matter of averment, and not a jurisdictional
fact. If from the taxation of costs, the above clause
confers jurisdiction. The statement being only required
to advise the court and opposite party of th^ nature of
the case that is to be tried. 48 Mo. App. 49. If the
reason for this statute is correctly stated, then it
necessarily follows that the party in whose favor the
provision is made may waive it. Moore v. Bailroad, 51
Mo. App. 504. It is not possible to come to any other
Digitized by VjOOQIC
0CT6bEE term, 181
Welsh V. The H. & St. J. R'y
conclusion than that this statement i
purely a matter of averment when se<
sidered in connection with section 6
V. ConnerSy 51 Mo. App. 397. (5) G
code is directly opposed to a party ge
from raising a point of this kind, foi
this court. State v. Mackin^ 51 Mo. App
V. Hughes y 21 Mo. App. 528; Pershing i
140; Squires v. Chillicothe, 89 Mo. 232
61 Mo. 373. Sections 6339 and 63^
with sections 2098 and 2117, Revised Si
We know of no reason why the failui
a statute regulating the practice in jus
meet with a more rigorous punishmen
for a similar violation of a statute reg
tice in courts of general jurisdiction.
61 Mo. 373; Steams v. Railroad, 94 M
B (&C.V. Memphis, etc., 72 Mo. 664.
Ellison, J. — Plaintiff instituted ]
defendant before a justice of the p
complained that defendant's engine
struck and killed his cow. He recc
justice, as well as in the circuit court
was taken on appeal from the justice.
Plaintiff's contention here is that
had not, and this court has not, ju
cause, and that his judgment before
against defendant unaffected by any
His point is based on the fact that def
for an appeal from the justice failed
such appeal was from the merits, or i
judgment taxing costs, as required
Revised Statutes, 1889. That by omit
ment of the statute, no jurisdiction of
ter was conferred upon the circuit cou
Digitized by VjOOQIC
€04 55 MISSOURI APPEAL REPORTS,
Welsh V. The H. & St. J. B'7 Co.
was not raised in the circuit court and has been urged
here for the first time in the history of the cause.
Plaintiff's position is supported by the case of White-
head v. Cole, 49 Mo. App. 428. That decision is
attacked by defendant, and we are now of the opinion
that we went too far m the Whitehead case in declaring
that the' omission of the statement as to the appeal
being from the merits or costs was fatal to the circuit
court's jurisdiction of the cause. An aflBdavit omitting
to state whether the appeal is from the merilb or merely
from an order taxing costs is a defective aflSdavit, but
is, notwithstanding^ such omission, an affidavit; and as
such, it may be amended. Revised Statutes, 1889, sec-
tion 6340. If it may be amended it must be a thing of
substance on which an amendment can operate, and
will necessarily have an operative effect in taking the
cause from the inferior court and placing it in the
superior court. A justice of the peace might very
properly refuse to allow an appeal unless the necessary
statutory affidavit was -filed; indeed, under sections
6328 and 6330, Revised Statutes, he ought not to allow
it. But if he, notwithstanding the affidavit is defective,
or if no affidavit at all is made, nevertheless does allow
the appeal and sends the transcript and papers to the
circuit court as required by statute, section 6337, that
court obtains jurisdiction of the cause. See State v.
Cook, 33 Mo. App. 57 ; City of DeSoto v. Merciel, 53
Mo. App. 61. This is the more clearly apparent from
the terms of section 6339, wherein it is declared that:
^'Upon the return of the justice being filed in the clerk's
office, the court shall be possessed of the cause, and
shall proceed to hear, try and determine the same anew,
without regarding any error, defect or other imperfec-
tion in the original summons or the service thereof, or
on the trial, judgment or other proceedings of the jus-
tice or constable in relation to the cause. ^'
Digitized by VjOOQIC
OCTOBER TERM, IJ
Welsh V. The H. & St. J. R']
So, construing sections 6328
together it amounts to this, that ur
appeal should be allowed until the
substantially complying with the st
the justice, but if the appeal shoul
allowed, without complying with th
it shall not, under the terms of the 1
missed, if the appellant will make an
davit in the circuit court before the
to dismiss is determined.
It necessarily follows from the f
ations that the affidavit may be waiv(
He may take action on account of t
desires, and if the appellant fails or
defect, as permitted by the statute, 1
by the dismissal of his appeal. B
fails to exercise his right to demand
it will not affect the jurisdiction of tin
the subject-matter of the action.
II. The judgment that was ren(
court is then, the one upon which ;
A consideration of the record and a
sel has satisfied us that that judgment
The evidence shows, or at least it ci
the light of the verdict of the jury
upon the track outside the corporate
of Lingo. There is evidence tendini
got upon the track through a defec
point outside the limits of the town \
fence, but where there should have
theory was submitted to the jury in a
defendant contends that the track c
at this point. That the fence and cs
close to the head of the switch as c
with the safety of the trainmen in sv
ling trains at the town of Lingo.
Digitized by VjOOQIC
i5 MISSOURI APPEAL REPORTS,
Page V. Culver.
submitted to the jury by such an instruction
lid to be proper in Pearson v. Bailroady 33 Mo.
J.
mdant says that plaintiff's statement of his
action fixes the point where the cow went upon
k at a place where the track passes through
or cultivated fields ; and that there is no evi-
sustain this allegation. The allegation made
tiff is broader than defendant states it. The
n is that the animal went upon the track **at
where said railroad passes through, along or
? enclosed or cultivated fields, or unenclosed
j^here defendant had failed to erect lawful
attle guards, etc. This is the language of the
section 2611, Eevised Statutes, 1889. There
ence tending to show that the cow went upon
k and was struck either inside the railroad
r, at a point outside of the fence which was
;he limits of the town, and which need not have
t unfenced for the reasonable convenience of
•oad in handling its trains or transacting
with the public, at the adjoining station
instructions refused for the defendant were
refused. They, in effect, took from the jury
(tion as to the reasonable limit of the switch
judgment will be aflSrmed. All concur.
AM Page, Respondent, v. B. W. Culveb,
Appellant.
BBS City Court of Appeals, January 8, 1804.
nistration : Xffsct of sale of realty. An administrator's
real estate under the statute is equivalent to a sale by the
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Page V. Culver.
2. Reversion: sale of lease: rents. The sale of the i
carries with it, tmless expressly reserved, all rents that ma
qaently beoome due under a lease previously given, and the
may recover the same in his own name.
3. Bents: reversion: oomhon law: apportionment. At
law, as rent followed the reversion, no apportionment ^
made ; but monthly, quarterly and annual rent would follow
and belong to the owner at the time it accrued.
4. Administration: sale of realty: rents. An administrai
of land effectually carries the reversion with rent to accr
incident thereto, though it be part of the crop, and this,
reference to the condition of the crop as to maturity or imms
the time of the sale.
Appeal from the Buchanan Circuit Court. — Hon,
M. Eamey, Judge.
Affirmed.
James W. Boyd for appellant.
(1) The instruction given by the court <
part of the respondent, ordering the jury to fi
the respondent, is erroneous. The court shouh
instructed the jury to find for the appellant. M
ter V. Lawlerj 32 Mo. App. 91; Oyster v. Oyster^ \
App. 270-275; Adams v. Leip, 71 Mo. 597; Jeni
McCoy y 50 Mo. 348; Harris v. Turner, 46 Mo
Morgner v. Biggs, 46 Mo. 65; Baker v. Mclnti
Mo. App. 505. (2) Without ownership or ri
possession, respondent's action in trover and c
sion cannot be maintained. To maintain his act
must establish the fact of general or special prop
the corn. Parker v. Blades, 79 Mo. 88; Sout
Co. V. Lamb, 82 Mo. 242, 249. (3) The admi
tor's deed purports to convey only the right, tit
interest in and to said land which the intestate ]
the time of his death. That is all the adminii
Digitized by VjOOQIC
608 55 MISSOURI APPEAL REPORTS,
Page V. Culver.
could, by such an order and by such a deed, convey.
Revised Statutes, 1889, sec. 171. (4) The administra-
tor's deed does not purport or pretend to convey per-
sonal property. This corn crop was personal property
and belonged to appellant. Garth v. Caldwell^ 72 Mo.
622-627 ; Baker v. Mclnturf, supra.
Thos. J. Porter and Ben. J. Woodson for respond-
ent.
(1) The authorities cited by appellant have no
application to the facts of this case. McAllister v.
Lawler, 32 Mo. App. 91, decides on the authority of
Adams v. Leipy 71 Mo. 597, Jenkins v. McCoy, 50 Mo.
384, Harris v. Turnery 46 Mo. 438 and Morgner v.
BiggSy 46 Mo. 65, that an action of replevin will not lie
in favor of the owner of land for a crop grown on and
severed from the soil by a person in actual possession.
(2) This being an action against the appellant, who
never was in possession of the land, did not plant, cul-
tivate nor harvest the crop, for one-third of the corn
raised by a tenant reserved for rent, differs widely in-
principle from the cases relied upon by appellant's
counsel and falls within the principle announced in
Foot V. Overmany 22 111. App. 181, which holds that a
purchaser at an administrator's sale takes with the land
the share of the crop grown on the land reserved for
rent, and of Culverhouse v. WortSy 23 Mo. App. 419;
Hayden v. Burkemper, 101 Mo. 644, 647; Stevenson v.
Hancocky 72 Mo. 612. (3) The only right claimed by
appellant to rent the land was that inherited by his
wards from their father. They took the land charged
with the ancestor's debts and. occupy the same position
as that of a landlord who rents his land subject to a
mortgage. Hetch v. Detemany 56 Iowa, 679; 1 Jones
on Mortgages, sees. 697, 780, 1658; Culverhouse v.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 609
Page V. Culver.
WortSj 32 Mo. App. 419. (4) But there is no contro-
versy with the tenant. Whatever respondent's rights
may have been against the tenant in possession and
claiming the corn, the share of the crop agreed upon
as rent for the use of the land followed the reversion,
and the tenant could have been compelled to attorn to
the purchaser. Revised Statutes, 1889, sees. 6373,
6397; Culverhousev. Worts, supra.
Smith, P. J. — The plaintiff sued the defendant in
trover and unlawful conversion to recover the value of
five hundred bushels of corn.
It appears that one William Murrin died seized of
the land upon which the corn in controversy was
grown ; that after his death and pending the adminis-
tration of his estate the defendant was appointed
guardian of his two minor children, and as such
guardian he rented the land to several different tenants
in several parcels, to be cultivated in corn during the
cropping season of 1888.
On the seventeenth day of May, 1888, the probate
court ordered a sale of the land for the payment of
debts; on the sixth of August, 1888, the land was sold
under the order by the administrator at which sale the
plaintiff became the purchaser and in the same month
paid the purchase price, at which time the corn was
maturing on the land. It was shown the corn was
not then completely matured. It was gathered in
December and January following. The defendant
who was thus in possession of the land by his tenants
at the time of the sale by the administrator received
and converted the rent corn to his own use. The
plaintiff had judgment in the court below, and from
which the defendant has appealed.
It is not disputed but that the proceedings insti-
tuted by the administrator of William Murrin, deceased,
Vol. 55—39
Digitized by VjOOQIC
610 55 MISSOURI APPEAL REPORTS,
Page V. Culver.
to sell real estate to pay debts, and the deed made in
pursuance thereof, conveyed the title to the premises
in question to the plaintiflE, and the only question
which we are obliged to decide is, whether said sale
and conveyance carried the rents and gave the plaintiff
the right thereto.
In Illinois it has been ruled that a sale by the
administrator under the statute of that state is equiva-
lent to a sale by the heir, the administrator being
made by statute, in substance, the attorney in fact of
the heir to make such sale. Selb v. Montagiie, 102 111.
446; Foot V. Overman, 22 111. App. 181. And we can
discover no reason why our statute concerning the
administration of the estate of deceased persons should
not be construed so as to give it a similar effect.
Accordingly we think the sale of the land by the
administrator was equivalent to a, sale made by the
heir. And so the renting by the defendant in his
capacity as guardian of the heirs may be regarded as a
renting by the heirs themselves.
The general rule is that a sale of the reversion
carries with it, unless expressly reserved in the convey-
ance, all rents under a lease previously given that may
subsequently become due, and that the grantee may
recover them in an action in his own name. Foot v.
Osterman, 22 111. App. supra, and cases there cited.
At common law, as rent follows the reversion or
ownership of the land, no apportionment would be
made ; but the monthly, quarterly or annual rent 'would
follow the land and- belong to the owner at the time it
accrues. Vaughn v. Lock, 27 Mo. 290. This rule has
not been changed by our statute, but, on the contrary,
it finds recognition in the provisions thereof. Revised
Statutes, sees. 6373, 6397, 6398.
Hence it follows that the sale of the land by the
administrator to plaintiff passed to him all the title of
Digitized by VjOOQIC
OCTOBER TERM, 1893. 611
Langkop v. The Mo. Pao. E'y Co.
the defendant's wards, including their share of the
crops reserved for rent and without reference to the
condition of the crops. It edectually conveyed to
plaintiff the reversion with the rent to accrue as inci-
dent to it. Culverhotise v. Worts j 32 Mo. App. 419;
Hetch V. Deteman^ 56 Iowa, 679 ; Jones on Mortgages,
sees. 697, 780, 1698. According to these rules it is
manifest that the plaintiff was entitled to the rent corn,
and, therefore, we are unable to find any fault with
the action of the trial court in directing the jury to
find for the plaintiff.
It results that the judgment of the circuit court
must be affirmed. All concur.
Henry Langkop et al. , Respondents, v. The Missouri
Pacific Railroad Company, Appellant.
Elansas City Court of Appeals, January 8, 1894.
1. Bailroads: damage bt stock: fence. The statute makes it the
duty of a railroad to so fence its track that stock cannot enter upon
its track or, being there, cannot escape on the adjoining fields and
commit damage, and this applies to tenants as well as to owner of
the fee.
2. : : coENERma tracts Plaintiffs were tenants of a
triangular piece of land adjoining defendant's right of way, which was
in a common enclosure with a cornering eighty owned by them in fee,
and a passage could not be effected from one tract to another with-
out passing over another triangular piece belonging to another corner-
ing tract, which latter triangular piece plaintiffs had enclosed in a
lane connecting these two tracts, without the apparent consent of the
owner, and so kept it enclosed for two years; held such owner at least
acquiesced in the use of his land by plaintiffs, and defendant was
not relieved of its duty to fence its track, and, failing to do so, is
liable for damage done on the land owned by plaintiffs in fee, by hogs
escaping from its right of way over the two triangular pieces.
Appeal from the Cooper Circuit Court. — Hon. Daesey
W. Shackelfobd, Judge.
Affirmed.
Digitized by VjOOQIC
612 55 MISSOURI APPEAL REPORTS,
Langkop v. The Mo. Pac. K'y Co.
Wm. S. Shirk for appellant.
(1 ) The demurrer to the evidence should have been
sustained. PlaintiflEs' land on which the crops were
destroyed and damaged was not adjoining land to the
railroad, nor next adjoining. Defendant was not bound
to keep its fences in repair for the benefit of anyone
except the adjoining owner. Kelly v. Bailroad, 65 Mo.
172; Smith v. Railroad^ 25 Mo. App. 113; Ferris v.
Railroad^ 30 Mo. App. 122; Harrington v. Railroad, 71
Mo. 384; Johnson v. Railroad, 80 Mo. 260; Peddicord v.
Railroad, 80 Mo. 160. (2) The demurrer should have
been sustained for the further reason that plaintiffs'
own evidence shows that the hogs Which damaged
plaintiffs' crops could not have escaped from the trian-
gular piece of Chelton's land, rented to plaintiffs, onto
the land of Rodgers, and from Rodgers' land onto
plaintiffs' land, except by the voluntary act of plain-
tiffs, in tearing down the fence between Chelton and
Rodgers, and leaving a gap in their own fence between
their land and Rodgers. See authorities to point 1.
(3) It devolved upon plaintiffs to show that this fence
was not a lawful fence, at the time they tore it down ;
and it also devolved upon them to show that they occu-
pied and used the corner of Rodgers' land with his
consent and permission. Johnson v. Railroad, 80 Mo.
621 ; Smith v. Railroad, 25 Mo. App. 113 or 115 and
116; Ferris v. Railroad, 30 Mo. App. 122 on 124. (4)
The court erred in finding that the triangular piece of
pasture land and the eighty acres belonging to plaintiff,
on which the crops were damaged, were in one common
enclosure. And its finding in this particular explains
its action in giving defendant's declarations of law, and
then finding against defendant. Because A. tears down
the division fence between his farm and B.'s, he does
not thereby make both farms, in the eye of the law, a
common enclosure •
Digitized by VjOOQIC
OCTOBER TERM, 1893
Langkop v. The Mo. Pac. R'y Co
John B. Walker for respondents.
(1) Plaintiffs were adjoining owne:
of the defendant to fence, existed in tl:
Even if it be conceded (which I deny),
argument, that the lands in sections 8 i
in a common enclosure ; yet defendant i
this reason: The land in section 8 adjc
ant^s rigl\t of way, and there was no \
otherwise, between this land and the in
Between these was the chute, lane or pass
V. Railroad J 30 Mo. App.122; Smith v. 1
App. 113 ; Peddicord v. Bailroad, 85 Mo.
Railroad J 80 Mo. 620. (3) It is the essenc
to contend that this connecting passage
Rodgers' land. The corner was remov(
the opening. Even if it be held that t]
over Rodgers' land, and that the hoj
injury, in going through this passage, t
Rodgers' land, yet this would not def
This gap or passage having existed fort
conclusively that Rodgers' west line of
lawful fence; because he had no fence a
ner of his land, and had not had for t
The plaintiffs were guilty of no negligei
this corner and constructing this lane o:
Smith, P. J. — This is an action
section 2611, Revised Statutes, to reco\'
injuries to crops standing and growing o
owned and rented by plaintiffs, caused
ing upon the same from the defendant
through a defective fence. There was a
ment for plaintiffs, to reverse which defei
The facts which we think the evi
prove will be better understood by refei
lowing plat used at the trial and pr
record before us.
Digitized by VjOOQIC
614 55 MISSOURI At>PiJAL REPORTS,
Langkop v. The Mo. Pac. E'y Co.
N.
V
N. D. GBN A BY.
\
"/
CHBLTON.
80.
HABNED.
160.
LANGKOP.
80.
BODGEBS.
80.
9 E.
\ 160.
\
a. Two or three acres rented by Langkop of
Chelton.
6. Gap made by Langkop from his eighty to the
two and one-half acres rented from Chelton.
— . Railroad track.
. Fences.
It is conceded that the railway fences along the
sides of defendant's right of way where the same passes
through the lands of the several proprietors, as desig-
nated on the plat, was defective and insufficient to turn
stock.
It will be seen that the eighty acres of the land
owned by the plaintiffs does not adjoin the defendant's
right of way, but that the little triangular piece marked
*'a," which corners with that owned by plaintiflfe and
which is connected with it by the open, narrow lane
**b," does so adjoin. The plaintiffs had occupied and
Digitized by VjOOQIC
OClPOBER TERM, 1893.
Langkop v. The Mo. Pac. E'y Co.
used for this purpose for about two years the tria
lar piece under a lease from the owner, Chelton.
crops that were injured were on the eighty acres
owned by the plaintiffs.
It further appears that the hogs of Mr. Hai
whose lands, it appears from the map, lie on each
of defendant's right of way, were in the habi
escaping from his enclosure through the defend;
defective fences upon its railroad, and from thence
strayed north along the same until plaintiff's trianj
piece of land was reached, where, finding no obstru(
railroad fence along there in their way, they str
upon the same and from thence passed througl
lane ^^a-b" and thus gained access to plaintiff's (
of corn and wheat which they destroyed.
Neither at the place where the hogs went upoi
right of way nor where they left it to invade the j
fields of the plaintiffs was there a fence, as require
section 2611, R. S. It was the statutory dut
defendant to maintain lawful fences at both of 1
places. The paintiffs' damages were therefore <
sioned by the defendant's neglect of duty.
But it is contended that since the land owne
plaintiffs, and on which the crops destroyed
standing, did not adjoin the defendant's railroad tht
defendant did not owe them the duty to fence
same along there. The statute requires the raili
of this state to fence their tracks for two purposes
to prevent stock from straying on the track, anc
other to prevent stock from trespassing upon adjo:
fields. Silver v. Eaitroady 78 Mo. 528; Stanl
Bailroad, 84 Mo. 623. It is admitted that the plai
were in the possession of the triangular piece of
as the tenants of the owner of the fee. Such bein
fact, plaintiffs had such a proprietary interest in
piece of land a^ entitled them to the beneficial pi
Digitized by VjOOQIC
616 55 MISSOURI APPEAL REPORTS,
Langkop v. The Mo. Pac. B'y Co,
ions of the statute in relation to railroad fences.
Thornton on Railroad Fences and Private Crossings,
sec. 49. Brown v. Railroad^ 24 Q. B. (Can.) 350; Brooks
V. Railroadj 13 Barb. 593.
But the defendant further insists that, even though
the plaintiffs were the proprietors of the triangular
piece adjoining its railroad, within the meaning of the
statute, and that it was included in a common enclosure
with the eighty acres tract in which the crops destroyed
were situate, that still plaintiffs are not entitled to recover
because the two tracts only cornered with each other
and that an entry upon one from the other could not
be effected without passing over a small part of the
land of Rogers situate in the northwest comer thereof,
for which the plaintiffs had no license or authority.
It seems that when plaintiffs rented the triangulai
piece of land they opened the narrow lane from it to
their own land for the passage of their stock. It does
not affirmatively appear whether the plaintiffs had the
express permission of Rogers to enclose the small
triangular piece of his land in the lane made by them
or not. It does appear, however, that they did so and
had used it for that purpose for nearly two years
previous to the date of the injury complained of. By
the opening of this lane the lands which plaintiffs
owned and the piece they had rented were brought
within one enclosure. Plaintiffs' lands so enclosed were
made thus to adjoin the defendant's right of way.
Does the small piece of the Rodgers land extend-
ing into the narrow lane by which the plaintiffs' own
land and that rented were connected and brought
within a common enclosure extending to the defend-
ant's railroad relieve defendant of the duty 6f main-
taining a lawful fence along the side of its road
adjoining the plaintiffs' fields? Even if the plaintiffs
acquired the possession of the Rodgers land enclosed
Digitized by VjOOQIC
OCTOBER TERM, 1893. " 617
Viertel v. Smith.
within the lane by disseizure in the first instance, yet
from the length of time which the plaintiffs have used
and occupied the same without objection of Rodgers, we
may fairly deduce the inference that if Rodgers did not
in the first instance grant plaintiffs a license to so use
and occupy it that he at least acquiesced therein.
There is nothing in the evidence tending to show
that there was any arrangement between the defendant
and Chelton by which the former was excused from
maintaining a lawful fence where defendant's road
passes through his land.
Since the lands within plaintiffs' enclosure adjoined
the defendant's railroad at the point where the trespass-
ing hogs entered upon the same from the defendant's
road, the plaintiffs were not strangers, but were, so far,
adjoining proprietoi*s who were within the protection
of the statute ; and for the reason the rule announced in
Berry v. Railroad^ 65 Mo. 172, and the cases that have
followed it, are inapplicable.
We are unable to discover any ground of piinciple
which would relieve the defendant from the perfor-
mance of the duty of maintaining a lawful fence on
the side of its railroad adjoining plaintiffs' fields.
We, therefore, find no fault with the action of the
trial court in overruling the defendant's demurrer to the
evidence, and so affirm the judgment. All concur.
1 56 617
Geokge Viertel, Plaintiff in Error, v. J. W. and B. F. . Ii m
Smith, Defendants in Error.
Elansas City Court of Appeals, January 8, 1894.
1. Sales: warranty: rescission: reasonable lien: jury question.
The vendee of a chattel on breach of warranty may rescind the con-
tract and recover back the purchase price, yet he must act within
a reasonable time, which is ordinarily a question for the jury; but
where, as in this case, the delay is without excuse or fair explan-
ation, the courts will as a matter of law declare the same onreason-
able.
Digitized by VjOOQIC
m 55- MISSOURI APPEAL REPORTS,
Viertel v. Smith.
Error to the Cooper Circuit Court. — Hon. D. W.
Shackelfokd, Judge.
Affibmed.
John Cosgrove for plainliflE in error.
(1) The demurrer admitted everjrthing which the
evidence fairly tended to prove, but challenged its
sufficiency in law. Bine v. Railroad j 32 Mo. App. 634;
2 Thompson on Trials, sec. 2267; Jackson v. his. Co.,
27 Mo. App. 62; Bine v. Bailroad, 100 Mo. 228. (2) The
plaintiflE was entitled to a reasonable time in which
to test the machine and to enable him to ascertain
whether it complied with the warranty upon which it
was sold. Implement Co. v. Leonard, 40 Mo. App. 477;
Werner v. O^Brien, 40 Mo. App. 483; Johnson et al. v.
Agr. Co., 20 Mo. App. 100; Earned v. Bailroad, 51 Mo.
482. (3) What is a ''reasonable time/' is, as a general
rule, a question for the jury and must be determined
from the peculiar facts of each case. Starke on Evi-
dence [9 Am. Ed.] 769; 2 Thompson on Trials, sees.
1530, 1531, 1532, 1533, 1534; Skeen v. Engine and
Thresher Co., 34 Mo. App. 485; Way v. Braley, 44 Mo.
App. 457; Werner v. O^Brien, 40 Mo. App. 483; Tower
V. Pauley, 51 Mo. App. 75. (4) "Reasonable time"
means as soon as circumstances permit, as soon as there
has been an opportunity to ascertain whether the article
sold possesses the qualities it was guaranteed to possess.
Bishop on Contracts [Enlarged Edition], sec. 680; 2
Thompson on Trials, sec. 1531 ; Bell v. Bailroad, 6 Mo.
App. 369; McCormick, v. Basel, 50 Iowa, 523. (5)
The plaintiflE had a right to rely on the letter of the
warranty. He had a right to rescind as soon as he
ascertained that the machine would not "do good work
in all kinds of grain.'' Bronson v. Turner, 77 Mo. 495;
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Viertel v. Smith.
Werner v. O^BrieUj supra; Leonard v. Implei
40 Mo. App. 477.
Draffen <& Williams for respondent.
(1) The plaintiff was not entitled to reco^
the evidence submitted in this case, and the lo'
properly so instructed the jury. The defenc
not warrant the machine for all future time,
not engage with the plaintiff, that it would
during all coming years to do good work. (
evidently not intended by the parties, that th(
should keep the machine for two years on tri
returning it, if found defective. The sale and
was on the fourteenth of September, 1889.
issory note was given for the purchase price, t
due after the harvest of 1890. This would inc
time that the parties intended for the ini
machine. (3) The plaintiff was bound to
election to rescind the contract and return the
within a reasonable time. What is a reasona
when the facts are admitted, and there is no c
regard to them, is a matter of law. Johnson
man Agricultural Co,, 20 Mo. App. 100; Tower \
51 Mo. App. 75; 2 Thompson on Trials, secti
Clark V. Wm. Deering d Co., 45 N. W. Rep. A
Gill, J.— On September 14, 1889, the
purchased from the defendants a Wood harv
binder, and at the time defendants gave thei
guarantee that the machine would '^do good
all kinds of grain.'' The plaintiff at the tin
purchase gave his note therefor in the sum
due one year after date. When this note
(September 14, 1890) plaintiff without objec
the same to one Woolridge who had purchased
maturity. In the fall of 1891, just two ye
Digitized by VjOOQIC
620 55 MISSOURI APPEAL REPORTS,
Viertel v. Smith.
purchase of the harvester and binder, plaintiff offered
to return the machine to defendants for the alleged
reason that it would not work well and demanded the
return of the purchase money. Defendants refused,
and this suit was brought. At the close of plaintiff's
evidence the court sustained a demurrer to the testi-
mony; plaintiff suffered an involuntary nonsuit and
brings the case here by writ of error.
The question is, was the trial court justified^ under
the evidence, in declaring, as matter of law, that the
plaintiff was not entitled to recover. In our opinion
the court ruled correctly and its judgment must be
aflSrmed.
The plaintiff bought this machine and took it to
his farm in September, 1889, but he did not attempt a
rescission of the contract and demand a return of the
purchase money until September, 1891. The rule of
law is well understood that, while the vendee of a
chattel may on the breach of the warranty thereof
rescind the contract and recover back the purchase
price, yet the vendee must act with reasonable expedi-
tion; must within a reasonable time test the article,
offer to restore the property and demand back his
money. Tower v. Pauly, 51 Mo. App. 75; Johnson v.
Whitman Agricultural Co.y 20 Mo. App. 100.
As to what is a reasonable time in such cases is
generally a question for the jury, or the trier of the
facts; but, as in many other such cases, the time
may be so long, and the delay in offering to rescind
may be so entirely without excuse or fair explanation,
that the courts will as matter of law declare the same
unreasonable.
The time taken by the plaintiff, within which to
test the machine in controversy, was, as we think,
clearly unreasonable ; the delay of two years was not
explained by any fair consideration of the circum-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 621
Ransberger v. Ing.
stances shown by the testimony. .The harvester was
purchased in September, 1889, and while this was at
the close of the harvesting season of that yeai* and the
plaintiff doubtless excused for not testing the machine
that year, still he had ample time and opportunity
during the season of 1890 for a thorough trial thereof.
The plaintiff testified that he did use the harvester in
cutting his own grain in the season of 1890 and that it
worked satisfactorily, but he further says that his grain
was light that season, and that he did not detect the
fault in the machine until he used it in the heavy crop he
raised in 1891. However, it does not appear but that
there was heavy grain in the neighborhood during the
season of 1890 where he might — without any inconven-
ience— have fully tested the machine.
The judgment was for the right party and will be
aflfirmed. All concur.
Adolphus Ransberger, Respondent, v. John Ing,
Appellant.
Elansas City Court of Appeals, January 8, 1894.
1. Sales: warranty: commendations: intention: jury question.
Mere assertions of the quality or condition of a chattel at the time
of a sale is not, as matter of law, a warranty, but is merely evidence
thereof as it may tend to show the intention of the parties, which
Is a question for the jury.
2. -: : advertisement OP auction. The statement in the
posted notice of an auction sale that certain ^'shoats were in good
health and condition," is not a warranty of their condition at the
time of the sale ; as a warranty, though called a collateral untertak-
ing, yet forms a part of the contract by agreement of the parties at
the time of si^e.
Digitized by VjOOQIC
622 55 MISSOUKI APPEAL REPORTS,
Bansberger v. Ing.
Appeal from the Saline Circuit Court, — Hon. Riohakd
Field, Judge.
Reveksed and Remanded.
Leslie Oreary Boyd <& Murrell for appellant.
(1) It was error for the court to instruct, that the
description of the property contained in the advertise-
ment warranted its quality, and that the advertise-
ment warranted the hogs to be sound on the day of the
sale, (twenty-one days after the advertisement)
although the evidence might show that the purchaser
relied on such advertisement, unless it should be
further shown by the evidence that the seller intended
the advertisement to be a warranty, or knew that the
buyer regarded it as such, or that it formed the basis
of tne contract. It was not contended on the trial in
the circuit court that the advertisement was so intended
by defendant, or so understood by plaintiff. Engar v.
Dawley, 19 Atl. Rep. 478; Benjamin on Sales, 610.
(2) The advertisement is no part of the conditions of
sale, and does not bind the vendor, unless expressly
made a part of the contract. 1 Lawson on Rights and
Remedies, sec. 212; Ashcom v. Smithy 21 Am. Dec.
437; Bartlett v. Hoppock^ 34 N. Y. 118; s. c, 88 Am.
Dec. 428.
B. B. Btiffy Ja$. Cooney and L. W. Scott for
respondent.
Gill, J. — This is an action for damages on an
alleged warranty in the sale of certain young hogs,
sold by defendant to plaintifE, December 10, 1891.
The evidence discloses about the following state of
fact: Defendant Ing, when about moving from his
farm in Saline county, on November 20, 1891, posted
Digitized by VjOOQIC
OCTOBER TERM, 1893. 623
Ransberger v. Ing.
certain printed handbills in the neighborhood adver-
tising a public sale on the premises of a lot of stock
and farming inaplements, and among these the bills
named ^^ forty -five head of shoatSj all in good health and
condition.^ ^ The sale was advertised to come oflE on
December 3, but was postponed by another notice to
the tenth day of December. The plaintiff saw and
read the bills and appeared at the sale and there
bought the shoats. Subsequently a large part of the
hogs died with the disease commonly known as *'hog
cholera/' There was evidence tending to prove that
the hogs were diseased at the date of the sale, and
there was likewise testimony tending to prove the
contrary. PlaintiflE testified that when the hogs .were
put up for sale, defendant Ing told the auctioneer, ''to
make the announcement that the hogs were sound and
all right,'' and that it was so stated. In this the plain-
tiff was corroborated by c^her witnesses. On the other
hand, the auctioneer and other witnesses for the defense,
swore that he only stated that ''they were a nice lot of
shoats ; that he thought they were healthy and that
they would show for themselves," etc.
The case was submitted to the court, sitting as a
jury, on the following declaration of law, given at the
plaintiff's instance: "That, if the court sitting as afore-
said believes from the evidence that defendant had a
public sale of personal property on the tenth day of
December, 1891, and that he advertised the same by
printed handbills describing the property to be sold ;
when and where it was to be sold, and afterwards
postponed said sale to the tenth of December, 1891,
and that in said printed handbills was advertised to be
sold with other property forty-five shoats and that
said handbills contained the statement of and concern-
ing said shoats, that all were in good health and condi-
tion ; then said statement of and concerning said shoats
Digitized by VjOOQIC
624 55 MISSOURI APPEAL REPORTS,
Bansberger v. Ing.
was a warranty that all of said shoats were at the time
of their sale free from all disease; and, if the court
shall further believe from the evidence that plaintiff
saw and read said handbills and said statement of and
concerning said shoats, and attended said sale and
purchased said shoats relying upon the statement
aforesaid contained in defendant's sale bills as to the
health and condition of said shoats, and that at the
time of said purchase, said shoats or any of them
were diseased or in any manner affected with disease,
which was afterwards the cause of any of them dying,
then plaintiff is entitled to recover in this suit damages
for all of said shoats that died from said disease.''
There was a finding and judgment for the plaintiff
and defendant appealed.
From the foregoing instruction it appears that the
case was tried on a misconception of the law, and for
that reason the judgment must be reversed. The
theory embodied in this declaration by the court is,
that where the vendor in an auction sale shall in the
antecedent printed notice state the quality of the
chattel, then such statement shall be deemed a war-
ranty to those purchasing at the sale, thereafter made,
regardless of what may be said by the vendor at the
time of such sale.
This is not the law. In the first place the court is
not justified in declaring that a mere assertion of
quality or condition of a chattel at the time of sale is,
as matter of law, a warranty. It may be regarded as
evidence tending to establish a warranty, but can hardly
be denominated such as matter of law. The question
is, as in other cases of contract, what was the intention
of the parties. ''This intention is a question of fact
for the jury, to be inferred from the nature of the sale
and the circumstances of the particular case. Ben-
jamin on Sales, sec. 613. The important and difficult
»
N
Digitized by VjOOQIC
OCTOBER TERM, 1893. 625
Kansberger v. Ing.
question is, many times, to determine whether the
vendor means to state a fact upon which the vendee
shall rely, or intends merely to give his opiniqn, or
express his judgment as to the condition or quality of
the thing sold. The first may be a warranty; the sec-
ond is not.
The instruction has, however, a more serious vice
than the one just noticed. It declared that because the
handbills, posted by the defendant some three weeks
prior to the sale, contained the statement that said
"forty-five shoats were in good health and condition,''
then such statement was a warranty that said hogs
were at the time of their sale free from disease. This
was manifestly erroneous. A warranty, though called
a collateral undertaking, yet forms a part of the contract
by agreement of the parties. ''It follows, therefore,
that antecedent representations, made by the vendor as
an inducement to the buyer, but not forming part of the
contract when concluded, are not warranties.'' Ben-
jamin on Sales, sec. 610.
Now this handbill, advertising a future sale of
defendant's hogs, could, at most, only amount to an
antecedent representation of the quality and condi-
tion of the shoats as they were when the bills were
circulated ; and this statement could not be construed
as any part of the contract subsequently entered into
between plaintiff and defendant, unless expressly fliade
so at the time of sale. 1 Lawson on- Rights and Reme-
dies, sec. 212; Ashcom v. Smith, 2 Penr. & Watts
(Pa.), 211; Riddle on Warranty in Sale of Chattels, 3
sec. 37-39. 7..,.. jy". a..-'. y.>/>// '"^^^/r^ ^*<c
The oflSce of such advertisement is simply to
induce the buyer to attend the future sale, and any
representation as to quality of the goods to be sold con-
tained in the published notice, will not be considered
Vol. 55—40
Digitized by VjOOQIC
626 55 MISSOURI APPEAL l^EPORTS,
Smith V. Western Union Tel. Co.
as a part of the contract, unless imported into the sale
at the auction. The test is, what was the contract
between the vendot and vendee at the time of the sale.
Were the goods then sold with or without a warranty
as to quality.
Now as to whether or not there was a warranty of
the hogs when they were actually sold at auction, the
evidence is conflicting, — ^that of the plaintiflE tending
to prove an intention, on defendant's part, to warrant
the shoats to be free from disease, while that of the
defendant tended to prove the contrary. That con-
flict must be settled;by the triers of the facts.
The judgment must be reversed and the cause
remanded for a new trial. All concur.
Ellis R. Smith, Respondent, v. Westebn Union
1 to m Telegbaph Company, Appellant.
I 56 626
e94 485 Kansas City Court of Appeals, January 8, 1894.
j_24 486
Trial Practice: attorney's closing argument. In an action for
(Jelay in sending a telegram, the sole question submitted to the jury
was whether the preoccupied condition of the wires was the cause of the
delay, the plaintiff's counsel in his closing argument told the jury he
was an operator and had worked on the line in question and it was
all nonsense to say that any office could not be reached in twenty
minutes. Defendant's counsel objected and called the court's atten-
tion to the matter and excepted because the court made no ruling but
permitted the plaintiff's counsel to proceed with further matter of the
same kind. At the close of the argument defendant's counsel further
objected and asked that the jury be discharged and the cause con-
tinued. The court thereupon told the jury not to consider statements
of counsel concerning his personal knowledge as an operator, as he
was not a witness in the cause ; and defendant again excepted. Meld,
the conduct of the plaintiff's counsel was prejudicial to the defendant
and the direction of the court to the jury was insufficient to cure the
9am9 and the jud^ent should be reversed and a new trial granted.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 627
Smith V. Western Union Tel. Co.
Appeal from the Pettis Circuit Court. — Hon. Richabd
Field, Judge.
Reversed and remanded.
Charles E. Yeater for appellaiit.
The action of plaintiflE's counsel in the closing
argument, in stating to the jury that he knew from his
previous personal knowledge and experience as a tele-
graph operator, that the defendant's employees had not
testified to the truth in their statement of their inabUity
to call another oflSce, and in persisting in similar
remarks, was under all the circumstances of the case,
such improper conduct as rendered it error to submit
the case to the jury. Fathman v. Tumilty, 34 Mo.
App. 241 ; Gibson v. Zeibig, 24 Mo. App. 69 and cases
cited in opinion on rehearing; Nichols <& Shepardv.
Metzger^ 43 Mo. App. 618.
Geo. F. Longan for respondent.
Gill, J. — This is an action to recover the penalty
provided for in section 2725, Revised Statutes, 1889,
for the alleged failure to promptly transmit a tele-
graphic dispatch left with the defendant's agent at Con-
cordia, Missouri, at about six o'clock p. m., January 15,
1893. The message was directed to Elliott, at Mars-
hall, Missouri, and, on account of some delay, was not
received at Marshall until about nine o'clock on
the morning of Januaiy 16, 1893. By reason of the
absence of a direct wire from Concordia to Marshall,
it seems to have been necessary to pass the message
through the telegraph oflSce at Lexington, Missouri. The
defense relied on was, that the lines were so taxed with
other telegraphic work that the operators were unable,
Digitized by VjOOQIC
628 55 MISSOURI APPEAL REPORTS,
Smith V. Western Union Tel. Co.
during the ordinaiy business hours, to get the dispatch
through as promptly as desired. This was indeed the
sole issue in the case, and the court, without objection,
presented the same by these instructions:
^'1. The court instructs the jury that, if they
believe from the evidence, that the defendant's agents
were unable to send the message in question to Marshal
before the close of the office hours at that place on the
evening of January 15, 1890, because of the fact thai
the wires were busy or engaged, then their finding must
be for the defendant.
*'2. The court instructs the juiy that, if they
believe that it was impossible to send the message on
the evening of the day it was filed, by reason of the
fact that the wires were busy, or engaged, their finding
must be for the defendant, although its agents may
have failed to promptly send the message from Lexing-
ton to Marshall on the day following:
'*3. The court instructs the jury that, if they
believe from the evidence, that the defendant's agents
attempted in good faith and impartially to promptly
send the plaintiff's message, then, notwithstanding any
failure, the finding must be for the defendant."
After an oral argument, by Mr. Longan, attorney
for plaintiff, and Mr. Yeater, for defendant, the jury
gave a verdict for the plaintiff, and from a juds^ment
thereon defendant has appealed.
The principal matter complained of in this appeal
is the alleged improper conduct of plaintiff's counsel
in the discussion of the case before the jury. The bill
of exceptions shows that Mr. Longan in making the
closing argument to the jury, made use of the follow-
ing words, and others of like import, as shown in the
bill of exceptions which we copy, to-wit:
'''Gentlemen, I am a telegraph operator myself,
and it is all nonsense to say that any office could not
Digitized by VjOOQIC
■■;■>'?;■■, f
OCTOBEK 1?ERM, 1893. 629
Smith V. Western Union Tel. Oo.
be reached at any time in twenty minutes after it is
called,' And upon making said remarks in the course
of the argument, defendant's counsel momentarily
interrupted plaintiflE's counsel, the said George F.
Longan, and objected to such remarks, and to other
remarks of a similar nature which had preceded them.
The court at that time made no ruling, to which action
of the court the defendant by its counsel then and
there excepted at the time.
* 'Thereafter the said counsel for plaintiff, George
F. Longan, resumed his argument, and very shortly
thereafter he made use of the following language: *I
have worked on this very Lexington branch line myself,
not at Concordia, but at Hughesville, and I know that
that line is never kept busy, and that it has two wires
which are more than suflScient to attend to business on
that line. I know that any office on that line can be
called without any delay, and it is all nonsense to tell
me that the operator could not get that message off
without delay . ' And the said plaintiff 's counsel
repeated said remarks, or words to that effect in his
argument to the jury, and while plaintiff's counsel,
said George F. Longan, was continuing his argument,
and immediately after the aforesaid objections the
defendant's counsel, Mr. Charles E, Yeater, at the
time wrote at once the following words upon a sheet
of legal cap paper, to- wit: *The defendant's counsel
asks the court to reprimand Mr. Longan, counsel for
the plaintiff, for stating to the jury in argument:
^'Gentlemen, I am a telegraph operator myself and it
is all nonsense to say that any office could not be raised
at any time in twenty minutes after it is called," and
other similar statements, for the reason that his state-
ment, as an expert, was not under oath.'
**And immediately after Mr. Longan concluded his
argument defendant's counsel handed the said writing;
Digitized by VjOOQIC
630 55 MISSOURI APPEAL REPORTS,
Smith V. Western Union Tel. Co.
setting forth the foregoing words, to the court, and in
addition renewed his objections orally,
*'And, thereupon, the court used about the foUow-
. ing words to the jury: *You will not consider any
statements made by Mr. Longan in his argument con-
cerning his personal knowledge as an operator, for the
reason that he was not a witness in the cause/ To
which action of the court in not more severely repri-
manding Mr. Longan, or in not then and there dis-
charging the jury and continuing the cause, the
defendant then and there excepted at the time. And
the said writing handed to the court last aforesaid set
forth was then an there duly filed in the cause by
defendant's counsel. '^
That plaintiflE's counsel in this case grossly trans-
cended the line of legitimate argument cannot be ques-
tioned. Notwithstanding frequent criticisms — many
of which I think unjust — the settlement of disputes by
means of trials by jury may be regarded as superior
to all other experiments, hedged about and guarded as
such trials are under our laws and rules of practice.
And whether disputed facts are to be settled by twelve
men or one man, there is nothing at the trial so con-
ducive to a just result, or of such potent aid to the
human understanding, as the well directed argument
of the lawyer, who brings into the court the results of
an industrious, thoughtful consideration of the case in
all its bearings. But it is not the province of the
lawyer in presenting by argument his client's cause to
manufacture evidence. The testimony must come from
the sworn witnesses.
It was herein that plaintiff 's honored and reput-
able counsel was at serious fault when he indulged in
the line of argument above quoted from ; and it was
the more serious and prejudicial to the opposite side
because of the well known standing of the lawyer that
Digitized by VjOOQIC J
OCTOBEJJ (TERM, 1893. 631
Smith V. Western Union Tel. Co.
uttered the objectionable matter. The probable pre-
judicial eflf-ect of Mr. Longan's voluntary and unsworn
statements is readily seen when we consider what was
in fact the telling point in the case and the state of the
testimony bearing thereon. The sole question of fact
then being tried by the jury, was, whether or not the
delay in transmitting plaintiff 's dispatch was unavoid-
able under the circumstances — whether or not the tele-
graph wires were so preoccupied that the operators
were unable to forward the message in due season.
The testimony adduced by the telegraph company
tended very strongly to sustain this defense; indeed
we may say that up to the argument there was but
little evidence the other way. There were, however,
some * 'physical facts'' and circumstances tendipg to
disprove the defense, and these the plaintiflE was entitled
to, and his counsel was justified in using these to the
best possible advantage. He had the right, and it was
his duty, to call attention to these circumstances, to
elaborate thereon, to discuss the testimony given by
defendant's witnesses and urge its improbability or
falsity. But the attorney had no right, in the absence
of direct proof on his side to supply the deficiency by
his own unsworn statements. He exceeded the most
liberal limit allowed to advocacy, when he said to the
jury: *' Gentlemen I am a telegraph operator myself,
and it is all nonsense to say that any oflSce could not
be reached at any time in twenty minutes after it is
called." And the counsel emphasized and aggravated
the offense, when (though called to order by defend-
ant's attorney) he in effect repeated such language,
telling the jury, later on, *'I have worked on this very
Lexington branch line myself, not at Concordia, but at
Hughesville, and I know that that line is never kept
busy, and that it has two wires, which are more than
sufficient to attend to business on that line. I know
Digitized by VjOOQIC
632 55 MISSOUEI APPEAL REPORTS,
Smith V. Western Union Tel. Go.
that any oflSce on that line can be called without any
delay, and it is all nonsense to tell me that the opera-
tor could not get that message off without delay/'
These, and like statements, the bill of exceptions recites,
were made and repeated during the closing argument
of the zealous counsel for the plaintiff — ^were made, too,
at a time when defendant's counsel had no opportunity
to reply, and in face of an objection interposed by him.
The trial judge, though appealed to at the first appear-
ence of the offense, said nothing, and permitted the
attorney to proceed without rebuke and again to repeat
the same unfair argument. However at the close of
the speech the judge did say to the jury: '*You will
not consider any statements made by Mr. Longan in
his argument concerning his personal knowledge as an
operator, for the reason that he was not a witness in
the cause.'' Defendant's counsel suggested that the
rebuke or reprimand was not sufficient, and insisted
that the jury should have been discharged and the
the cause continued.
Now, the further question is, whether or not the
above remarks by the trial judge after the close of the
argument cured the prejudice thus wrongly cast against
the defense. Ordinarily, we think an instruction to this
effect might be sufficient ; but in so aggravated a case
as this we hold that this mild statement from the court
was not adequate or timely. As to what is proper, in
cases of this nature, depends much upon the circum-
stances. Here was the trial of a question where there
appeared a decided preponderance of direct testimony
on defendant's side of the issue. To overcome this,
the plaintiff's overzealous counsel threw into the scales
the assertion of his own experience, and repeated and
elaborated the same before the jury. Doubtless this
was done inadvertently and during the heat of earnest
argument — at least from our own knowledge of the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 633
Smilli Y. Western Union Tel. Go.
character and standing of the oflEending counsel we are
free to concede that no unfair advantage or unprofes-
sional conduct was intended. But this must not weigh
^*one feather's weight" with us. If, because of this
indiscreet and improper argument, the conclusion is
irresistible that the cause of the defendant was pre-
judiced, it is then our duty, in promoting the fair and
impartial administration of justice, to order the judg-
ment set aside and award the parties a new trial. We
recognize that we are here dealing with a matter of
practice that rests largely in the discretion of the lower
court; but even in cases of that nature it is our duty to
interfere where that discretion has been manifestly
abused. We regard this as an instance of that na-
ture.
Where illegitimate argument is indulged in before
a jury it is made the duty of opposing counsel promptly
to object at the time of its utterance, so that the court
may immediately correct the error by rebuking the
oflEending lawyer and admonishing the jury not to be
influenced by the objectionable matter; and the reports
of this and the supreme court are full of cases where
the offended and prejudiced party was not heard to
complain because of a failure to thus promptly object
at the time. Where now, as was the case here, the
opposing counsel does promptly make his objections to
the unfair and improper argument — and that, too, in its
very incipiency — was it not as well the duty of the trial
judge as promptly to stop and reprimand the offending
advocate and caution the jury not to be influenced by
such prejudicial statements! In allowing Mr. Longan
to proceed over defendant's objection, and to restate
and elaborate his experience in telegraphy, the court
tacitly indorsed the propriety of such argument ; which
thereby, we have a right to assume, became so fixed
that even the mild caution given by the court at the
Digitized by VjOOQIC
'SPI
634 55 MISSOURI APPEAL REPORTS,
Smith V. The Western Union TeL Co.
conclusion of the argument would hardly eradicate it
from the minds of the jurors. In our opinion then the
error of the trial judge in permitting plaintiff's counsel,
against the objection of the defendant, to indulge in
said illegitimate argument, was not cured by the subse-
quent direction to disregard said statements. The
remarks of Judge Lewis, of the St. Louis court of
appeals, in the decision of a case like this in principle we
think, are applicable here. In that case the fault of
the attorney was in discussing, against the objections
of the other side, certain proffered evidence before
the jury which had been excluded by the trial
court. The court allowed the argument to proceed, but
subsequently instructed the jury to disregard it. The
learned judge who wrote the opinion said: '^Nothing
can be clearer than that, in this case, the plaintiff was
entitled to be protected against any determination of
his rights founded on the rejected evidence. The
method adopted by the court was anything but a proper
exercise of its authority to the end proposed. It is
always dangerous to let in an evil, because of a possible
remedy for it. Better to withhold the poison than to
depend on the antidote. Instead of this mild attempt
to avert the evil tendencies of the attorney's violation
of propriety, the learned judge should have acted upon
the rule declared on a former occasion ; 'an advocate
must not make himself a witness and state facts not in
evidence to prejudice the jury. Such statements
should be checked and a severe reprimand administered
in the presence of the jury, to the attorney who is guilty
of this violation of duty.' '' Marble v. Walters, 19 Mo.
App. 134; Boeder v. Sttidt, 12 Mo. App. 566. See, also,
the following: Gibson v. Zeibig, 24 Mo. App. 65;
Brown v. Swinefordj 44 Wis. 282; Budolph v. Land-
werlerij 92 Ind. 34; School Town of Bochester v. Shaw,
100 Ind. 268; Cleveland Paper Co. v. Banks, 15 Neb.
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Seleoman ▼. Kinnard.
20; Wolffe V. MinniSy 74 Ala. 386; Script
35 Mich. 370; 1 Thompson on Trials, sec
960.
The judgement will be reversed and
remanded for a new trial. All concur.
Or. P. Seleoman, Respondent, v. H. C. Kin
Appellants.
Kansas City Court of Appeals, January 8
1. Landlord and Tenant: lien on crop: execution
judgment creditor of a tenant who pays his rent in pa
cannot buy his execution on the immature crops g
rented premises, nor can he compel the landlord to tal
value of such crops so as to discharge his lien, and th
enjoin the officer having such execution.
2. Execution : crops. Growing crops being fruotus
subject to seizure and sale under execution.
Appeal from the Cass Circuit Court. — He
Wood, Judge.
Affirmed.
W. L. Jarrott for appellant.
(1) **A11 goods and chattels not exempi
are liable to be seized and sold upon (
Revised Statute, 1889, sec. 4915. (2) '^TJ
crops produced by annual planting and cull
chattels, and as such may be levied upon and
execution.'' Kelly's Justice Practice, p. 1£
V. Kelly, 42 Ind. 294; Preston v. Byan, 45
(3) '*An oflScer having an execution again
lawfully enter the close of the debtor and cu
seize and,»8ell, as personal estate, corn and
duce of the soil, when growing and ripe j
Digitized by VjOOQIC
636 55 MISSOURI APPEAL REPORTS,
Seleoman v. Einnard.
state to be gathered.'' Penhallow v. Dwighty 7 Mass.
34; Whipple v. Foote, 2 Johns. 216; Harkwell v. Bissellj
17 Johns. 128; Stewart v. Doughty ^ 9 Johns. 112;
Kelly's Justice Practice, supra; 4 N. Y. C. L. 618;
Veach v. Adams^ 51 Cal. 611; Brouch v. Wise-
many 51 Ind. 3; Bernol v. HovioiiSy 79 Am. Dec.
147. (4) * ^Although growing crops are not part
of the realty, unless severed from the soil, yet for
the purpose of levy and sale on execution, they are
suffered to be treated as personalty." 4 American
and English Encyclopedia of Law, p. 892; GriUitt v.
Traox, 29 Minn. 528; Garth v. Caldwell, 72 Mo. 622;
Pratt V. Coffman, 27 Mo. 424. Crops pass to devisees as
personal property. (5) *^ The undivided interest of ten-
ants in common may be seized and sold under
attachment, if the property is severable." 6 Lawson's
R. R. &. P., p. 4, 449. Newton v Howe, 29 Wis. 531.
Bnrney <& Burney for respondent.
(1) Injunction is the proper remedy to restrain the
illegal seizure of personal property, where an action at
la'v for damages would not aflEord an adequate remedy.
Revised Statutes, 1889, sec. 5510; Bank v. Kerchevalj
65 Mo. 683; McPike v. West, 71 Mo. 189; Turner v.
Stewart, 78 Mo. 480; Harris v. Township Board, 22 Mo.
App. 465. (2) A court of equity will interfere by
injunction to protect the owner of an equitable interest
or right in property, where the ordinary legal actions
are not adequate to its enforcement. Upon this prin-
ciple, the landlord has such a lien upon the crops grown
upon the rented premises, as will be protected and
enforced in a court of equity. Revised Statutes, 1889,
sec. 6376; Hewlitt v. Stockwell, 27 Mo. App. 328/ Knox
V. Hunt, 18 Mo. 243; Saunders v. Ohlhausen, 51 M.o.
163; Sheble v. Curdty 56 Mo. 437; Price v. Roetzell, 56
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Selecman v. Kinnard.
Mo. 500. (3) Plaintiff had no remedy a1
act of the tenant had given him ground for a
and, not being entitled to the immediate pc
the crop, he could not maintain replevii
Sheble v. Curdt, 56 Mo. 438; Boeger v. Lan
Mo. App. 11; Chandler v. Westj 37 Mo.
Hubbard v. Moss, 65 Mo. 647. (4) In ;
bunals causes are to be tried upon the issue
by the pleadings, and the judgment or de
court should be such as follows as a logical
the pleadings and the evidence. Greenlee
dence, sees. 50 and 51 ; State v. Roberts, G,
Seibert v. Allen, 61 Mo. 482; Bank v. An
Mo. 59; Wilson v, Albert, 89 Mo. 537; Broo^
well, 76 Mo. 309; Weil v. Posten, 77 Mo. 28
Fry, 22 Mo. App. 80. (5) An offer of c
made out of court by one party, but not [
the other, is not admissible as evidence. Ei
supra-, Smith v. Shell, 82 Mo. 215. If made
should have no greater force and effect.
Smith, P. J. — This was a suit for an
The undisputed evidence in the case sho\\
plaintiff rented his farm to one Pearson fc
from March 1, 1892, for one-third of all thi
oats and one-half of the flax and wheat rais
during said cropping year, which crops
harvested and gathered by Pearson. There
pasture and meadow land for which Pearsoi
pay plaintiff $39 in money.
On the twenty-eighth of June, 1892, the
Metzgar, who had previously recovered
against Pearson before a justice of the pe
an execution to be issued on his judgment
ered to defendant, Kennard, the township
who levied the same upon the said crop
Digitized by VjOOQIC
638 55 MISSOURI APPEAL REPORTS,
Seleeman y. Einnard.
taking the same into his custody when this suit was
brought by plaintiff to enjoin him from further inter-
ference therewith. A temporary injunction was
awarded, which on final hearing was, by the decree of
the court, made perpetual ; and it is from this decree
that the appeal is prosecuted by the defendants.
The statute in regard to landlords and tenants
gives the landlord a lien upon the crop grown on the
premises in any one year and continues the same for
eight months after the rent becomes due. Revised
Statutes, sec. 6376. By the terms of the lease, the
plaintiflE's rent was not due until the crops were har-
vested and gathered. None of the crops grown by
Pearson, the tenant, were in this condition at the time
of the constable's attempted levy and seizure, ^or
does it appear that the rent for the meadow and pas-
ture lands was then due. The corn that had been
planted was yet uncultivated and immature. The oats,
wheat and flax were still standing on the ground where
grown. The statutory lien of the. plaintiff for his rent
covered all these crops. They were a security for his
rent. To allow a stranger under an execution to
interfere with these crops under such conditions it is
plain to be seen, would result disastrously to the
landlord.
Can an officer under the process of execution seize
and sell the crops, mature and immature, of the tenant
without reference to the interest of the landlord whose
security for his rent they are! Suppose the young
corn thus levied on and sold has just appeared above
the ground, as was the case here, who is to cultivate
it and account to the landlord for the rent! A tenant
can make no assignment of his interest without the
consent of the landlord, and it certainly cannot be that
a constable, acting under his writ, even if considered
as an attorney in fact for the tenant, can perform an
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Seleeman v. Kinnard.
act for him which by the law is forbidden to the
himself. . A landlord cannot be compelled to ac
forced tenant of this kind in lieu of one of hi
selection. He may have contracted with a
whose skill and industry in the cultivation of his
would bring an abundant harvest, while the
tenant may be unskillful and slothful, and whos(
may bring the owner of the soil but poor retur
its use.
The liaw disfavors any act of another, w
officer or not, whose results are likely thus to <3
the landlord in his relations with his tenant,
officer can enter under his writ harvest and s^
matured crops, what becomes of the lien of the
lord for his undue rent?
It is argued by the defendants that .they oflEe
pay the plaintiff, after this suit was begun, th
that was due him. This afforded no defense,
tender was not made before the levy, and cou
have been, for the reason that the landlord wai
tied to one-third of the corn and oats and.one-1
the wheat and flax that vsras grown by the tene
the land. He could not be forced to. accept th
mated value of these cereals in lieu of the <
themselves. Besides this, the corn was then i:
immature condition that no estimate could hav(
made of its yield or the value thereof.
The law has long been settled in this stat
the crops during the existence of the landlord's "
not subject to the process of the law without pa
of the rent, — which was impossible in this cas
the suit of another creditor, as the lien of the lai
protects it from sale. Nothing can be seized
execution which cannot be sold. Knox v. Hu
Mo. 243; Sanders v. Oldhausen, 51 Mo. 163; Shi
Curdt^ 56 Mo. 437; Price v. Boetzell, 56 Mo. 500
Digitized by VjOOQIC
55 6401
7L 1921
I 55 640
I ^'^ ^1
55 6401
84 489
640 55 MISSOURI APPEAL REPORTS,
Price V. Merritt.
Of course, if it were not for the existence of the
landlord's lien, these crops being fructus industriales
and regarded, therefore, as personal chattels, inde-
pendent and distinct from the land, were the subject
of seizure and sale under execution. Revised Statutes,
sec. 4915; Smock V. Smock, 37 Mo. App. 56; Garth v.
Caldwell, 72 Mo. 622.
It is conceded by the defendants that the landlord
had the crops in possession with a special lien thereon
at the time of the attempted seizure, which we think
was sufficient to protect it from seizure and sale under
the execution of defendant, Metzgar, until the former
had received his share of the cereals and his money
i-ent was paid. It follows that the trial court did not
err in its decree, which must be affirmed. All concur.
Fkank N. Pbice, Respondent, v. Oeorge MERairr
et al., Appellants.
Kcuisas City Court of Appeals, January 8, 1894.
1. Mechanics' Liens: uenable and non-uenable items. A lien
paper is not inadmissible because^some of the items are non-lienable,
when they are separately stated and not mingled with Uenable
items.
2. Trial Practice : instructions in trial refore court. In trials
before the court instructions are unimportant save as showing upon
what theory the court arrived at the results.
3. Mechanics' Liens: title in mortgagee. Where the title to the
real estate is in a mortgagee, who directs and assents to an improve-
ment, such real estate will be subject to the lien for such improve-
ment.
4. : COMMISSION: dratage. Items for drayage, freight and com-
mission are proper charges in a lien account, where the contract for
furnishing the material was that the material-man should have ten
per cent, above cost and carriage to him.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 641
Price V. Merritt.
5. : ACCOUNT: application op payments. Payments were made
without direction as to their application and were not at the time
applied by the creditors. Held, the court properly applied them to
the non-lienable and unsecured portion of the account.
Appeal from the Cass Circuit Court. — Hon. W. "W.
Wood, Judge.
Affirmed.
Noah M. Givan for appellant.
(1) There is a mingling together of items lienablo
with those non-lienable so that they cannot be separated
upon an inspection of the account. Neither does the
account show an itemized statement of credits or pay-
ments. Guass V. Hussmannj 22 Mo. App. 118; Foster
r. Wolfing, 20 Mo. App. 89; Nelson v. Withrow, 14
Mo. App. 279; Biley v. Milling Co,, 44 Mo. App. 525;
Smith V. Haley, 41 Mo. App. 620; Rude v. Mitchell, 97
Mo. 373; Grace v. Nesbit, 109 Mo. 17; Curless v.
Lewis, 46 Mo. App. 280. (2) The contract for fur-
nishing materials was not made with the owner or pro-
prietor of the premises, his agent, trustee, contractor
or subcontractor. Revised Statutes, 1889, sec. 6705;
Gamettv, Berry, 3 Mo. App. 197; Squires v. FUhian,
27 Mo. 134; Porter v. Tooke,'ib Mo. 107; Kline v.
Perry, 51 Mo. App. 422; Henry v. Mahone, 23 Mo.
App. 83. (3) The items of drayage, freight and com-
mission charged in plaintiff's account, are not liena-
ble and they cannot be made so by contract. The
statute only gives a lien for ''work or labor done, or
materials, fixtures, engine, boiler or machinery fur-
nished,'^ and drayage, freight and commission are
neither of these. Revised Statutes, 1889, sec. 6705 ;
Louns V. Cutter, 6 M.O. App. 54; Nelson v. Withroiv,
supra; Blakey v. Blakey, 27 Mo. 39. (4) The court
committed error in refusing defendant's instruction
Vol. 55—41
Digitized by VjOOQIC
642 55 MISSOURI APPEAL REPORTS,
Price V. Merritt.
number 5, and in modifying and giving the same as
modified. Unless the. material sued for was used in
the building upon which the lien is claimed, then there
is no lien. Shulenherg v, PrairieHome Inst. , 65 Mo, 295 ;
Simmons v. Carrier, 60 Mo. 582; Fitzpatrickv. Thomus,
61 Mo. 561; Deerdorfer V. Everhart, 74 Mo. 37; Fath-
man v. Ritter, 33 Mo. App. 407. (5) The court com-
mitted error in making application of payments made
by defendants Wallace and Calvin Merrill in such
manner as to preserve, as far as possible, the lien of
plaintiff, instead of applying such payment to the
oldest items of the account sued on. 18 American &
English Encyclopedia of Law, pp. 245, 246, 247 and
249; Hersey v. Bennett, 28 Minn. 86; 41 Am. Rep.
271; Miller v. Miller, 23 Me. 22-; 39 Am. Dec. 597;
United States v. Kirkpatrick, 9 Wheat. 720; Poulsonv.
Collier, 18 Mo. App. 60; Goetz v. Piel, 26 Mo. 641;
Nelson v. Withrow, supra.
W. D. Summers for respondent.
(1) The account filed as a basis for the lien com-
plies in full with the requirements of the law as laid
down by the following authorities. Pullis v. Hoffman ^
28 Mo. App. 666; McLaughlin v. Schawacker, 31 Mo.
App. 365; Lumber Co. v. Strimple, 33 Mo. App. 154;
Miller v. Whitelaiv, 28 Mo. Appi 639; Johnson v. Mfg.
Co., 23 Mo. App. 456; Lumber Co. v. Kesogan, 52 Mo.
App. 418; Grace v. Nesbitt, 119 Mo. 9; Dear doff v.
Boy, 50 Mo. App. 70-77. (2) Plaintiff was original
contractor and material-man, and furnished the mate-
rial with the knowledge and consent of the legal
owner, whose property was thereby made liable.
O^Leary v. Boe, 45 Mo. App. 573; Allen v. Sales, 56
Mo. 28; Collins v. Megraw, 47 Mo. 395; Tucker v.
Gesty^QMo. 339; Cline v. Cline, 51 Mo. App. 422;
Digitized by VjOOQIC
OCTOBER TERM, 1893. 643
Price V. Merritt.
Seaman V. Paddock J 51 'Ko, App. 466; Cowenv. Pad-
dock, Sup. Ct. 17 N. Y.; Sup. 387, 43 N. Y.; S. R.
342 ; Spruch v. McRoherts, Sup. Ct. 45 N. Y. ; S. E. 624 ;
19 N. Y. Sup. 128; McCue v, Whiteivell, 30 N. E. Rep.
(Mass.) 1134; Careiv v. Slubbs, 30 N. E. Rep. (Mass.)
219. (3) The court made application of payment
so as to preserve the lien, in accordance with the rule
laid down by the authorities. Waterman v. Younger , 49
Mo. 413; Gantler V. Kemper, 58 Mo. 567; McKelvey v.
Janis, 87 Mo. 414; McQnaide v. Stewart^ ^8 Fa, St.
198; Foster v. McGraiv, 64 Pa. St. 464-469; Christnot
V. Montana & 8. M, Co., 1 Mont. 44; Capron v. Strouty
11 Nev. 304; Phillips' Mechanics' Lien [2 Ed.] sec.
287, p. 478; Nichols v. Culver, 51 Conn. 177.
Ellison, J. — This action was brought to enforce a
mechanics' lien. The trial was before the court with-
out a jury. Judgment was entered for plaintiff, and
one of the defendants appeals.
There was an objection taken to the sufficiency of
the petition in that, as stated, it failed to show that
^ 'these defendants were original contractors, or whether
plaintiff was charged as an original contractor or sub-
contractor." This objection is not borne out by the
allegations of the petition. So of the lien paper we
will say, in answer to the objection to its introduction,
that it was properly admitted in testimony. There was
evidence in the cause for and against the material alle-
gations of the petition, and on this evidence the court
made a special finding of facts. An objection to the
account or lien paper is that it contained items which
were lienable and those which were not. This would
not affect that part of the account which was for lien-
able material. It is, however, a part of the objection
that the lienable and non-lienable articles are so
mingled that they cannot be distinguished. But the
Digitized by VjOOQIC
644 55 MISSOURI APPEAL REPORTS.
Price V. Merritt.
lien paper does not bear out such objection. There is
no mixing of lienable and non-lienable matter. The
account itself is good and sufficient on its face, and if
any article is not lienable it arises upon the evidence
showing that it was not furnished, or did not go into
the improvement. There is no combining together into
one item proper and improper material. The fact that
several items appear in an account, some of which are
proper and some not, as before stated, does not affect
those that are proper.
The objection based upon the four months' limita-
tion was not made at the trial and, besides, is not the
limitation which applies to plaintiff's lien.
Since the court tried the case without a jury the
instructions are unimportant save as. showing upon
what theory the court arrived at the result, and in this
respect we have no hesitation in declaring them free
from error. Instruction number 5 could not have been
understood by the court as contended by defendants.
As to this appealing defendant, the court, in its
finding of facts, found *^that the defendant, Greorge
Merrill, is the owner of record of the real estate against
which the lien is sought to be enforced, and the same
being purchased by the other defendants, and being
conveyed to the said George Merrill, at the instance of
the other defendants, for the purpose of securing him
in an indebtedness of about the sum of $1,000 due to
the said George Merrill from the said Calvin Menill
and B. M. Wallace; that the said defendants, Calvin
Merrill and B. M. Wallace, contracted for the constmc-
tion and erection of the said building, under the author-
ity, by consent, and with the approval of, the said
George MerriU, he, the said George Merrill, furnishing
to the defendants, Calvin Merrill and B. M. Wallace,
the sum of $500, which was to be used in the construe-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 645
Price V. Merritt.
tion of said building, and was a part of the above men-
tioned $1,000.
This finding is, in eflfect, that the defendant, George
Merrill, held the legal title to the property as security
for $1,000 loaned to the other defendants. In other
words, he was a mortgagee, and as such he directed and
assented to the improvements for which this lien is
sought. Under these circumstances the court was right
in holding the property, the title to which was thus in
said Merrill, subject to the lien. O^Leary v. Boe, 45
Mo. App. 573; Allen v. Sales, 56 Mo. 28; Collins v.
McGraWj 47 Mo. 495; Spruck v. McRoberts, New York
Court of Appeals, October Term, 1893.
Among the items in the lien paper were those for
freight and '^commission,'' or a per cent, above cost.
On this the court made the following finding and declar-
ation: *'That the items of drayage, November 28, 1891,
$1; December 7, 1891, freight on same from Kansas
City, $2.60, and commission ten per cent., $5.95;
December 14, ten per cent, commission, $1.30; amount-
ing in all to $10.85, are lienable, the piaintiflE having
agreed to sell lumber to defendants, Wallace and Cal-
vin Merrill, at ten per cent, above cost and carriage to
him, and these items being so stated on plaintiff's books
for the purpose of showing a compliance with the
contract.''
This was a proper disposition of the matter. The
eflfect of this ruling of the court was simply to allow
plaintiflf the contract price for his material.
There were matters of account between these par-
ties for which there was no lien. Payments were made
but no direction given by defendants for their applica-
tion, nor were they at the time applied to either by
plaintiflf, he simply entering credit generally. Under
these circumstances the trial court properly applied the
credit to that portion of the account which was not
Digitized by VjOOQIC
56 64C;
88 197
646 55 MISSOURI APPEAL REPORTS,
The State ex rel. v. Wrsy.
lienable and for which there was no security. This is
in keeping with an equitable principle which has fre-
quently received the approbation of the courts in cases
of this nature. Gantler v. Kemper, 58 Mo. 567;
McQuaide v. Stewart, 48 Pa. St. 198; Christnot v. Mon-
tana, 1 Mont. 44; Capron v. Strout, 11 Nev. 304; Fos-
ter V. McGraw, 64 Pa. St. 464.
In the latter case it was held that, when one who
owes several debts to another makes payment and no
application is made by either party, the law applies
them to the debt which is least secured.
This court by Hall, J., in Foulson v. Collier, 18
Mo. App. 607, and the St. Louis court of appeals in
Goetz V. Piel, 26 Mo. App. 634, by Thompson, Judge,
held that under such circumstances the credit would be
applied by the court, in the absence of designation by
the parties, generally to the oldest items of the account,
except in cases where some of the debts are more pre-
carious, in which instance the payment will be applied
to those in pl'eference to others which are secured.
This is, also, practically, the view as stated by the
supreme court in Beck v, Rass, 111 Mo. 268.
A consideration of the other objections urged by
defendants has not resulted in the conclusion that the
judgment should be disturbed, and it is accordingly
affirmed. All concur.
State of Missouri ex rel. Bank of Belton, Plaintiff
in Error, v. W. A. Wray et ah, Defendants
in Error.
Kansas City Ck>urt of Appeals, January 8, 1894.
1. Public Ck>rporations : agent's power in and out opconvkn.
TioN. Certain individuals eonvened and acting as a body corporate
may transact certain business and exercise certain powers given the
corporations, yet these same parties not so convened are powerless,
even by unanimous consent as individuals, to perform the daties
enjoined on the body.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 647
The State ex rel. v. Wray.
Board of Equalization: record: clerk's assistance: correct-
ing MISTAKES. A mere assistant to the secretary of the board of equal-
ization has no authority to make the record of the board, and his
attempt to do so is a mere mutilation* unless made under the secre-
tary's direction; and if made under such direction, the secretary,
upon discovering mistakes immediately thereafter, may correct any
error and make it conform to the truth.
3. : : APPROVAL. The statute does not require the
approval of its record by the board of equalization, and the absence
thereof can not impair the record's legal effect; and if the board were
required to sign the record, the failure to do so would not invalidate it.
Error to the Cass Circuit Court. — Hon. W. W. Wood,
Judge.
Affirmed.
Chas. W. Sloan and Jas. S. Brierly for plaintiff in
error.
(1) Certiorari was relator's proper remedy. Min-
ing Co. V. Neptune, 19 Mo. App. 438; State ex rel. v.
St. Louis Co., 47 Mo. 594; State ex rel. v. Bowling, 50
Mo. 134; Railroad v. Board of Equalisation, 64: Mo.
294; State ex rel. v. Board of Equalization, 108 Mo.
235. First. The oflBee and nature of the writ of cer-
tiorari is to bring up the record of the inferior court,
and to show such defects as appear on the face of the
record. 50 Mo. 137, supra; State ex rel. v. Powers, 68
Mo. 323; State ex rel. v. Moniteau Co., 45 Mo. App.
391; Bogers v. Court of Clinton Co., 60 Mo. 101; State
ex rel. v. City of Kansas, 89 Mo. 34; State ex rel. v.
Cauthorn, 40 Mo. App. 94; State ex rel. v. Heege, 37
Mo. App. 338; Bailroad v. Young et al., 96 Mo. 39;
State ex rel v. Smith, 101 Mo. 174; State v. Schneider,
47 Mo. App. 669, 675. Second. Facts outside of the
record cannot be called to the attention of the court.
Railroad v. Board of Equalization, 64 Mo. 294, 308;
House V. County Court, 67 Mo. 522; Halpin v. Powers,
Digitized by VjOOQIC
648 55 MISSOUEI APPEAL REPORTS,
The State ex rel. v. Wray.
68 Mo. 320; State ex rel. v. Kansas Cityy 89 Mo. 34.
Third. The writ of certiorari is not a citation to justify
action of lower court. State ex rel. v. DowKngj 50 Mo.
134. Fourth. Certiorari operates as stay of all pro-
ceedings from time of service. Patcher v. May or y etc.,
of Brooklyn^ 13 Wend. 664; Hunt v. Lambertvill, 46 N.
J. L. 59; Hyslop v. Finch, 99 111. 171; 3 American and
English Encyclopedia, 66] 2 Desty on Taxation, 639;
Gaertner v. City of Fond du Lac, 34 Wis. 497 ; Conover
V. Devlin, 24 Barb. 636. Fijlh. In making a transcript
of a record called for, clerk's duty is to copy record as
it then appears on file, without assuming to make
amendments. Shout v. State, 55 Ala. 77. Sixth. On
service of writ the inferior tribunal must transmit a full
certified transcript to court, awarding writ as it then is.
McManmis v. McDonough, 4 111. App. 180. Seventh.
Writ of certiorari should issue after final determination
or action of lower tribunal. State ex rel. v. Edwards^
104 Mo. 127; State ex rel. v. Schneider, 47 Mo. App.
669, 675. (2) The record certified to May 25, 1893,
failed to show affirmatively the board had acquired any
jurisdiction to increase relator's assessment. Lingo v.
Buford, 20 S. W. Rep. 459 and authorities cited, 96 Mo.
39; Black on Tax Titles, [2 Ed.] sec. 140; Code, 1889,
sees. 7519, 7520; 19 Mo. App. 439; Black v. McGonigle,
103 Mo. 199; 108 Mo. 235; State v. Railroad, 26 Pac.
Rep. 225; People v. Supervisors, 35 Barb. 408; State ex
rel. V. Comers, 14 Mo. App. 297; State ex rel. v. ComWs,
88 Mo. 144. (3) The acts of the board were judicial.
St. Lotiis Mut. L. V. Charles, 47 Mo. 462; Railroad v.
McGuire, 49 Mo. 482; Black v. McGonigle, supra.
(4) It was error to admit as the correct one the
record made and signed after June 5, the board having
finally adjourned May 2 ; no amendment or change in
the record could be made after last date. Hill v. St.
Louis J 20 Mo. 588; Mann v. Warner, 22 Mo. App. 581;
Digitized by VjOOQIC
OCTOBER TERM, 1893.
The State ex rel. v. Wray.
Belkin v. RhodeSj 76 Mo. 643,^ and autho
First. Said record could not be changed
on mere recollection of members of board
occurred before them. 76 Mo. 643 ; Ross
Mo. 100. Second. On removal of cause to <
by certiorari jurisdiction cannot be conferre
ment. McQuoid v. Lamb, 19 Mo. App. li
Zeigler, 46 Mo. App. 193. Third. No
could be made to record by clerk without i
of the board or court as such ; after adjor
functions of the board had ceased. Revis(
1889, sees. 2115, 7520; State ex rel. v. St. L
113; Brechtv. Corfcy, 7 Mo. App. 305; Newti
48 Mo. App. 542; State ex rel. v. City oj
Mo. 39.
A. A. Whitsitt and W. L. Jarrott for d
error.
(1) The secretary of the board of equ
soon as he learned that an incorrect recoi
made, had the right to correct the same ai
accurate record according to the true facti
V. County Court, 57 Mo. 223; Fletcher v.
Mo. 430; Williams v. School District No. 1, \
80; Hutchinson v. Board of Equalization, 23
(Iowa) 249. (2) Relator claims that the c
write record in time. This is not correct ; 1
ing that it is, relator cannot complain of 1
it is provided in the chapter of Revised St;
ing to revenue: ^^Nor shall failure of an o
cers to perform the duties assigned him or
day, or within the time specified, work any
of any such proceedings.'' Revised St
7708; Bailey V. Guinn, 76 Mo. 263; Cook
tion, 320, 321. (3) We insist that the cl
make or change the record. This statemei
Digitized by VjOOQIC
650 55 MISSOURI APPEAL REPORTS,
The State ex rel. v. Wray.
is not correct. We may waive this point and admit
that the order placed of record by James Maxwell may
be considered as a part of the record; we insist that
the secretary of the board had the right to change it.
If the statute required him to keep an accurate record,
and an employee of the office, without the knowledge of
the clerk, placed of record an order which the board
did not make, we insist that the clerk had the right to
change the order so as to make it conform to the true
facts. Wells v. Battelle, 11 Mass. 477; Taylor v. Henry y
2 Pick. 307; Halleck v. Boylston, 117 Mass. 460; Mott
V. Reynolds, 27 Vt. 206, 208; Cooley on Taxation, 321;
1 Dillon on Municipal Corporations [3 Ed.], sec, 297;
Black V. McGonigle, 103 Mo. 200.
Gill, J. — This is a case of certiorari issued by the
'circuit court and directed to the defendants, compos-
ing the board of equalization in Cass county, whereby
they were ordered to certify up the records of such
board, so that the court might determine whether or
not it had acted arbitrarily and illegally in raising the
personal assessment of the relator. The complaint, as
made by the bank in its petition, was that the said
respondents, acting as said board of equalization, had
raised its assessment as returned by the township
assessor from $18,500 to $25,900 without first giving it
notice, or permitting it to be heard on the matter, as
the statute provides. (Eevised Statutes, 1889, sec.
7519.)
Respondents, in their return to the writ, alleged
that the bank had notice of the proposed raise, as
provided in the statute, and that the officers thereof
appeared on the fourth Monday in April, 1893, and
sought to show reasons why such assessment should
not be increased; but that such reasons were not
satisfactory to the board, and the said increase was
Digitized by VjOOQIC
OCTOBER TERM, 1893. 651
The State ex rel. v. Wray.
adhered to. And the respondents brought up what
purported to be the complete record of the board of
equalization, duly certified by the county clerk, the
keeper and custodian of such record. This record
clearly showed that the relator had legal notice of the
proposed raise, and in addition thereto that it had
appeared before the board and contested the increase.
Following this the relator came into court and in
the nature of a reply, pleaded nul tiel record; that the
pretended record of May 2, 1893, purporting to recite
notice and appearance, was false; and then proceeded
to state a record of that date wherein it was not recited
that notice was given the bank or that it appeared at
the hearing, and prayed the court to quash respond-
ents' return. The issue thus made was tried, and the
court found and declared the record as set out in
respondents' return to be the true one of the board,
overruled relator's motion to quash and confirmed the
action of the board, and from a judgment in accord-
ance therewith the bank hasappealed.
As supplemental to the foregoing cursory view of
this controversy, it seems necessary to state that, as
Cass county has adopted township organization, its
board of equalization, as constituted under section
7517 of the Revised Statutes, is composed of respond-
ents Wray, Meyers and Britt, judges of the county
court ; Bird, the surveyor ; Hatton, sheriff, and Maxwell,
the county clerk. The county clerk, however, has no
vote in its proceedings, but as secretary it is made his
especial duty *'to keep an accurate record of the pro-
ceedings and orders of the board." Section 7520.
• Beginning with April 3 (the first Monday) 1893,
this board met to consider the assessment lists sent up
by the township assessor. The sessions were held at
the county clerk's office from day to day until May
2, and during the progress of their work the board
Digitized by VjOOQIC
652 55 MISSOURI APPEAL REPORTS,
The State ex rel. v. Wray.
thought it just and proper to raise the valuation on the
personal property of relator and others. And that of
this proposed increase the relator had, in fact, due
notice, and indeed appeared and opposed the same,
seems to be admitted. The board held its final meet-
ing on May 2 ; and as usual in matters of this kind
there was such a large amount of business transacted
on such last day, that the secretary of the board (the
county clerk) was unable at the time to writ« up the
complete record. He kept, however, full memoranda
or minutes of the proceedings and orders of the board,
intending thereafter to prepare the formal entries with
more care, as he was warned that there might be
subsequent litigation; and with this view he had
asked the assistance of the county attorney.
A few days after the final adjournment of the
board, the county clerk's son, not a deputy but a mere
assistant about the office, undertook to, and did, write
up what he understood were the proceedings of the
board at its last sitting, but he failed to make the
record full and complete in that it was not stated that
notice was given or that the parties whose lists were
raised had appeared at the hearing. This entry was
spread on the record book without the knowledge or
consent of the county clerk, and, it would seem, while
he and the prosecuting attorney were, from time to
time, considering of what such record should consist.
Subsequently (and about June 5) the clerk and
secretary of the board canceled the entry thus inad-
vertently spread on the records by young Maxwell, and
wrote on the pages following, what he understood was
a complete statement of the board's proceedings of
May 2. This record, so written up by the county
clerk, in person, was signed by each and all of the
members of the board of equalization ; and it is this
record that the lower court held as the true one and
Digitized by VjOOQIC
OCTOBER TERM, 1893. 653
The State ex rel. v. Wray.
under which respondents have justified their action in
increasing relator's assessment. Whilst, however, the
so-called record, so made up by the clerk's son, was
spread on the board's book, and before the accurate
and correct record had been written thereon, this suit
was brought. But it stands uncontradicted by the
testimony that it was then in course of preparation,
and that such last and correct record is in exact accord
with the truth and supported in every detail by the
minutes kept by the board's secretary.
It will be seen that this case must turn upon the
question as to which of the two entries — the one
written by the clerk's son or the one subsequently
prepared and spread on the books by the clerk him-
self— should be treated as the proper record of the
board. The trial court decided in favor of the latter,
and in so holding we think no error was committed.
Much of appellant's argument is to the effect that,
after the final adjournment of May 2, the board of
equalization had, as aboard, ceased to exist; that its
functions as such were gone, and that, therefore, it was
not in the power of its members thereafter to make a
new record or even correct any theretofore made. We
find no fault with this contention in the abstract. The
principle is well understood, that while certain indi-
viduals, convened and acting as a body corporate,
may transact certain business or exercise such powers
as are given to the organization, still these same parties,
when not so convened and not acting as an organized
body, are powerless as individuals to perform the
duties enjoined on the body, even though each and all
of them concur in doing the particular thing. Johnson
V. School Dist, 67 Mo. 321; Kane v. School DisL, 48
Mo. App. 408-415. We concede, then, to appellant's
counsel that, when the diflferent members theretofore
composing the county board of equalization, on or
Digitized by VjOOQIC
654 55 MISSOURI APPEAL REPORTS,
The State ex rel. v. Wray.
about June S, approved the last record which was pre-
pared by Maxwell the county clerk, and assumed to
disapprove the written entry made by Maxwell's son,
they were performing a mere nugatory act. They were
not acting as an organized body for that had been
adjourned sine die, and what they might do individ-
ually in the matter gave no strength to the record thus
made by the secretary of the board.
But we base our decision on the following view of
the case: The county clerk was, by the terms of the
statute, the secretary of the board of equalization. It
was his duty (and his alone) under the express man-
date of the law, ^*to keep an accurate record of the
proceedings and ordera of the board.'' Revised Stat-
utes, 1889, sec. 7520. He was bound to the perform-
ance of this by his oath of office, and failure or
malfeasance in this respect would subject him to such
punishment as the law would inflict. Now this officer
(this secretary of the board designated by the stat-
ute) made but one entry in his book of the doings
of the board of May 2, and that was the writing
mechanically performed on or about June 5 ; and from
this record the jurisdiction of the board to raise rela-
tor's assessment is manifest, and it is conclusive, too,
on the relator. Kane v. School Dist., 48 Mo. App.
414. The entry wrongfully and inadvertently made by
young Maxwell was without authority, null and void.
He was not a deputy y even, of the board's secretary, and
therefore had no semblance of authority to act for
him. It was as if one an entire stranger to the office
had attempted to write the proceedings of the board.
He could only perform this duty by direction of the
rightful officer, and such direction he did not have.
This first pretended record of the proceedings of May
2 was then a mere mutilation.
But, even were this first entry made under the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 655
The State ex rel. v. Wray.
direction of the secretary of the board, it would yet
seem within the power of the rightful ofl&cer, when
discovering mistakes immediately thereafter, to correct
any error and make it conform to the truth. Cooley
on Taxation [2 Ed.], 320 etc; Halleck v, Boylston,
117 Mass. 469; Welles v. Battelle, 11 Mass. 477; Mott
V. Reynolds J 27 Vt. 206. This seems to have been uni-
formly allowed where innocent third parties are not
affected.
The record last made in this case was the only
accurate and complete record. It was unquestionably
based on the exact truth and written up from memo-
randa or minutes made by the secretary whilst the board
was in session. We fail, then, to discover any good rea-
son, technical or otherwise, why it should not receive
that recognition to which it is justly entitled. There was
no valid objection to the introduction of this record
because of the fact it was written out in full and
spread on the records some thirty days or more after
the adjournment, of the board. It was prepared from
the minutes kept by the secretary at the time ; and his
subsequent mechanical performance of writing the
entry to conform to these memoranda cannot affect its
validity. The statute does not require the approval of
the record by the board, and hence the absence of such
action by that body cannot impair its legal affect. And,
even were the board required to sign the record, still,
under the rulings in this state, a failure so to do would
not invalidate it. Platte County v. Marshall, 10 Mo.
345; Fontaine v. Hudson, 93 Mo. 62.
After a careful consideration of the very able and
elaborate briefs and arguments on both sides of this
controversy, we find the judgment of the lower court
for the right party, and it is, therefore, affirmed. All
concur.
Digitized by VjOOQIC
656 55 MISSOURI APPEAL EEPORTS,
The American Rubber Co. v. Wilson.
American Eubber Company, Appellant, v. J. H.
Wilson, Defendant; T. W. Cunningham,
Interpleader and Eespondent.
Elansas City Court of Appeals, January 8, 1894.
1. Usury: who may take advantage op statute: attachment
CREDITOR. The defense of usury is a personal privilege of the debtor,
his privies in representation, in blood, or in estate, as his vendee,
execution creditor, or, as in this case, his attachment creditor who
may defend against his debtor's mortgage on the ground that it
secures usury, as provided in section 2, page 171, Laws, 1891.
Appeal from the Jasper Circuit Court. — Hon. W. M.
Robinson, Judge.
Reversed and remanded.
Fred. Basom for appellant.
(1) The only question presented by the appeal in
this case, is a construction of the act of 1891, statute
governing usury and the validity of liens or mortgages
upon personal property. I contend that the court
erred in his findings of law. in favor of the inter-
pleader and against the plaintiff. (2) If the mortgage
set up by the interpleader was invalid and iUegal and
the statute declares it so to be, it could convey ^no title
whatever to the property therein described; and in
Georgia, in the case of McLaren v. Clark ^ reported in
7 S. E. Rep., p. 250, the court holds that whether a
deed infected with usury be made under the act of
1871 (code of Georgia, 1966), or under the general law,
it is equally void as to title and cannot have the effect
as an equitable mortgage, because no title passes.
Trust Company v. Burton, 74 Wis. 329; 43 N, W. Rep,
Digitized by VjOOQIC
OCTOBER TERM, 1893. 657
The American Rul^ber CJo. v. Wilson.
141; Brooks v. Todd, 4 S. E. Rep. (Ga.) 156; Meyer
V. Cook, 85 Ala. 417.
(7. H, Montgomery and H. C. Lowrance for respond-
ent.
(1) The defense of usury is personal to the
debtor. It cannot be urged by anyone but the mort-
gagor or his privies in blood, estate or contract. A
subsequent incumbrancer or purchaser cannot set it
up. Beady v. Euebner, 46 Wis. 692 ; Bensley v. Homier,
42 Wis. 631; Darst v. Bates, 95 111. 493; Safford v.
Fflz7, 22 111. 327; Bank v. Bank, 14 N. E. Rep. 859;
Sellers v. Botsford, 11 Mich. 59; Baskins v. Calhoun, 45
Ala. 582; Fenno v. Syre, 3 Ala. 458; McGuire v.
Van Pelt, 55 Ala. 344; Butts v. Broughton, 72. Ala.
294. Nor by mortgagor's wife claiming under a sub-
sequent voluntary conveyance. Cain v, Cimon, 36 Ala.
168; Sav. Inst. v. Copeland, 32N. W. Rep. (Iowa) 95;
BonnelVs appeal, 11 Pa. App. 211 ; Bank v. Bingham,
50 Vt. 105; Cramer v. Lepper, 26 Ohio St. 59; Smith v.
. Bank, 26 Ohio St. 141 ; Studabaker v. Marquardt, 55
Ind. 341; Pritchett v. Mitchell, 17 Kan. 355; Fullerton
V. McCurdy, 4 Lans. (N. Y.) 132; Carmichael v.
Bodfish, 32 Iowa 418; Loomis v. Eaton, 32 Conn. 550;
Anstin v. Chittenden, 33 Vt. 553. Usury in a mortgage
cannot be taken advantage of by a judgment creditor
of the mortgagor. Mason v. Pierce, 31 N. E. Rep. (111).
503; Leev. Feamster, 21 W. Va. 108; s. c, 45 Am.
Rep. 549; Eeed v. Eastman, 50 Vt. 67; Adams v.
Robertson, 37 111. 45. An indorser of a note cannot
avail himself of the usurious interest paid by the
maker. Bank v. Sinclair, 60 N. H. 100; Stewart v,
Bramhall, 18 N. Y. 139; Cadys v. Goodnow, 49 Vt.
400; New York, Delaware, Arkansas, Virginia, Oregon
and many other states have for years had statutes
Vol- 55—42
Digitized by VjOOQIC
658 55 MISSOURI APPEAL REPORTS,
The American Rubber Co. v. Wilson.
similar to Laws of Missouri, 1891, p. 170. Kelley v.
Sprague, 13 N. Y. S. 64; 58 Hun, 611; Railroad v.
Kason, 37 N. Y. 218; Dix v. Van Wyck,2m\\, (N. Y.)
522; Bullard V. Raynerd, 30 N. Y. 197; Billingtanv.
Wagner, 33 N. Y. 31; WHUams v. Tilt, 36 N. Y. 319;
Bank V. Edwards, 1 Barb. (N. Y.) 271; Spenglerv.
Snapp, 5 Leigh. (Va.) 478.
Ellison, J.— Plaintiff brought this suit by attach-
ment and levied upon a lot of personal property as
being the property of defendant. The interpleader
berein claimed the property under a chattel mortgage
executed prior to the levy of the attachment. On a
trial before the court without a jury, between the inter-
pleader and the plaintiff, the intei^pleader was success-
ful, and plaintiff brings the case here.
It was admitted that interpleader, as mortgagee,
had exacted usurious interest which was included
in the mortgage. The court gave the following declar-
iiions of law, to which plaintiff excepted:
^^1. The court finds as a matter of law that,
although it is admitted that the mortgage to T. W. Gun- .
ningham, interpleader, contains usuiy and would be
illegal and invalid as between the parties, yet the
defense of usury is a personal right and cannot be taken
advantage of by the plaintiff in this action, The Ameri-
can Rubber Company.
*'2. The court finds, as a matter of law, that the
plaintiff in this action. The American Rubber Company,
not being a party to the mortgage in which the inter-
pleader claims the goods therein described, although it
is admitted that said mortgage contains usury, yet an
attaching creditor, as is the plaintiff, under the law, is
not permitted to make the defense of usury against
said mortgage, as said mortgage is valid, except as to
the parties thereto.''
Digitized by VjOOQIC
OCTOBER TERM, 1893. 659
The Ameriean Rubber Co. v. Wile in.
' "^ '
The question for our determination is the correct-
ness of these declarations, which involves a construc-
tion of the following provision of a late statute: **In
actions for the enforcement of liens upon personal
property pledged or mortgaged to secure indebtedness,
or to maintain or secure possession of property so
pledged or mortgaged, or in any other case when the
validity of such lien is drawn in question, proof upon
the trial that the party holding or claiming to hold
any such lien has received or exacted .usurious interest
for such indebtedness shall render any mortgage or
pledge of personal property, or any lien whatsoever
thereon given to secure such indebtedness, invalid and
illegal.'' Laws, 1891, sec. 2, p. 171.
There is no doubt of the correctness of the court's
position in declaring that the defense of usury is the
personal privilege of the debtor, which he may waive,
and that it is not available to third parties. But, while
this is the general rule, there are certain exceptions or
qualifications to it which are recognized by the law.
One who is privy in representation, as the executor,
or in blood, as the heir, may invoke the plea of usury.
These instances are readily recognized as exceptions.
They are, however, not the only exceptions. The
privy in estate is another. Thus the vendee of the
mortgagor (if he has not contracted or accepted his
conveyance in recognition of the mortgage) may set
up usury against the mortgagee. Jones on Mortgages,
sees. 644, 1493; Sands v. Church, 2 Selden, 347; Maher
V. Lanfrom, 86 111. 513; Bank v. Bank, 123 111. 510;
Loyd V, Scott, 4 Peters, 205, 230; Green v. Kemp, 13
Mass. 575; Jackson v. Dominick, 14 Johns. 435; il/er-
chants^ Exchange Bank v. Con. Warehouse, 49 N. Y.
642; Trumbo v. Blizzard, 6 Gill. & J. 18; Brolasky v.
Miller, 1 Stock. 807; Pinnell v. Boyd, 33 N. J. Eq.
600. If this were not so; if it was beyond the power
Digitized by VjOOQIC
660 55 MISSOURI APPEAL REPORTS,
The American Rubber Co. v. Wilson.
of the vendee to assail the usurious mortgage when
attacked by it, the mortgagor would practically be
disabled from selling the property, except by ratifica-
tion of the usury.
A purchaser at a sheriff's sale is considered as
such vendee with such privileges. Pinnell v. Boyd;
Brolasky v. Miller, supra; Carow v. Kelly, 59 Barb.
239; Jones on Moi1:gages, sees. 644, 1493.
If a purchaser from the vendor, either by volun-
tary or involuntary sale, is considered in such legal
privity with the vendor as to be permitted to set up
usury against the mortgagee, it should logically follow
that an attachment or execution creditor, who has
seized the property and who is but beginning the
process necessary to an ultimate conveyance of the
mortgagor's title to the property, ought to be
allowed to show that liis assailant's pretended title
is founded upon an invalid and illegal instniment
when attacked by such instrument with the purpose of
taking the property from him. We are not without
direct authority on the question. Dix v. Van Wyck,
2 Hill, 522; Post v. Dart, 8 Paige, 639; Carow v.
Kelley, supra; Brolasky v. Miller, supra; Bank v.
Bell, 14 Ohio St. 200, 210; Banks v. McClellan, 24
Md. 83; Coulter v, Selby, 39 Pa. St. 361; Pope v.
Solomons, 36 Ga. 541 ; Lilienthal v. Champion, 58 Ga.
158. It is decided in these cases that an execution
creditor is considered, for this puspose, as standing in
such legal privity with the mortgagor as to empower
him to interpose usury to the destruction of the instru-
ment which secures the usury. It is true that an
execution creditor has been denied this right. See
Bensley v. Hornier, 42 Wis. 631, and Lee v. Feamster,
21 W. Va. 108. But it is doubtful if such would be
the decision, even in those jurisdictions in a case like
the one at bar, under a statute like ours. I, therefore,
Digitized by VjOOQIC
OCTOBER TERM, 1893.
The American Rubber Co. v. Wilson.
can see no season why an attachment cred
entitled to the same privilege as an executioi
It was pointedly so decided in Stien v. S
Minn. 218. He is not merely a general cred
mortgagor, but he has so far connected hi
him as to have laid hold of his property wi<
cess of the court issued at his instance, and
tied to have out of it all of the interest
mortgagor may have had in it at the time c
of the writ ; and such interest, by reason of i
is not affected by the usurious mortgage. H
conceded that a mere stranger cannot int(
illegality of the mortgagee's title, as for insi
illustrated in Brolasky v. Miller j supra, \
mortgages land to B. upon a usurious contn
hundred 'pounds, and, before the day of pa]
the mortgagee, is ousted by C, against
brings an action. C. cannot plead the statute
for he hath no title. For his estate is void a
mortgagor.'' *'But a person who, like an
creditor, asserts a lien upon the property
stranger, within the meaning of the rule" as
to usury. Carow v. Kelly, 59 Barb. 239.
What effect any act of the mortgagor, ta
the attachment waiving the usuiy, would hi
question, is not involved here.
The judgment is reversed and the cause
All concur.
Digitized by VjOOQIC
662 55 MISSOURI APPEAL REPORTS,
Bobinson v. The Troup Mining Co.
J, J. Robinson, Respondent, v. The Tkoup Mining
Company, Appellant.
Elansas City Court of Appeals, January 8, 1894.
"L Mines and Miningr : posting notice of lease: subtenant's pur-
OHASE OF LANDLORD'S. TITLE. Whera* the landlord on leasing mining
lots fails to post the notices required by section 7034, Revised Stat-
utes, 1889, the lease will expire at the close of three years, and the
subtenant who, during the currency of the three years, bought the
landlord's title will take the same at the expiration of that time, free
from the prior claim of the first tenant.
2. Landlord and Tenant: disputing title: estoppel. A tenant
may not dispute his landlord's title at the commencement of the term,
but may show that his interest has terminated by the efflux of time,
and the fact that, by inadvertence or mistake of his ri^ts, he may
have paid rent for the expiration of leasehold, will not be construed
into a continuance of the tenancy.
Appeal from the Jasper Circuit Court. — Hon. W. M.
Robinson, Judge.
Reversed,
Thomas <& Hackney for appellant.
(1) Neither J. R. Troup nor the Weston Land
and Mineral Company, while the owner of the land in
controversy, complied with the provisions of section
6441, Revised Statutes, 1879 (now section 7034, R. S.
1889); Revised Statutes, 1879, section 6442; Revised
Statutes, 1889, section 7035; Session Acts, 1877, p.
313; Desloge v. Pearce, 38 Mo. 588. (2) The defend-
ant company became the owner of the fee to the lots in
controversy, February 8, 1889, by purchase from the
Weston Land and Mineral Company (lessor of plaintiff
and his associates) ; and, although at the time of this
Digitized by VjOOQIC
OCTOBEji term, 1893. 663
Bobinson y. The Troup Mining Co.
purchase the defendant was occupying the premises as
the lessee or tenant of plaintiff under an oral contract,
no term being specified, and occupied the premises
thereafter; still, on the expiration of the plaintiff's
three years' right or license, in April, 1889, the defend-
ant company ceased to be the tenant of plaintiff, and
its possession of the lots thereafter was that of owner
of the fee instead of tenant of plaintiff; and it was not
necessary for the defendant company to surrender pos-
session of the premises to the plaintiff, nor to give the
plaintiff any notice repudiating the tenancy after the
expiration of his interest. 2 Herman on Estoppel and
Res Judicata, sec. 871, pp. 998, 999; Presstman v. Sill-
jacks, 52 Md. 647; Shields v.^Lozear, 34 N. J. L. 496.
(3) The defendant company is not estopped from
showing that plaintiff's interest in, or right to, the lots
in controversy expired by limitation or efflux of time
subsequent to the leasing thereof by plaintiff and his
associates, to Gray & Grounds or the defendant.
Meier v. Thiemann 15 Mo. App. 307; Chaffin v. Brock-
meyer, 33 Mo. App. 96; Culverhouse v. Worts j 32 Mo.
App. 426; Pentz v. Kuester, 41 Mo. 449, 450; Higgins
V. Turner J 61 Mo. 249; Presstman v. Silljacks, 52 Md.
647; Latvsonv. Clarkson, 113 Mass. 348; 2 Taylor on
Landlord and Tenant [8 Ed.], sec. 708; 2 Herman on
Estoppel and Res Judicata, sees. 843, 858, 868, 871; 12
American and English Encyclopedia of Law, p. 706;
see, also, cases cited in note to Horner v. Leeds, 2 Lead-
ing Cases in American Law, Real Property, by Shars-
wood and Budd, pp. 73, 74.
E. 0. Brown and J. H. Flanigan for respondent.
The record in this case disclosed the existence of a
contract between the parties so clearly, and the judg-
ment of the trial court having been simply to uphold
Digitized by VjOOQIC
664 55 MISSOURI APPEAL REPOETS,
Bobinson v. The Troup Mining Co.
and sustain the contract, the respondent contents him-
self with calling the attention of the court simply to the
following citations: **In leasing, paying rent and pro-
posing to buy, the defendants admitted the capacity of
plaintiff to lease lands in question. 2 Taylor's Land-
lord and Tenant, sec. 512.'' '* If defendant treated
plaintiff as its landlord by accepting lease, paying rent
and the like, it is precluded from showing that he had
no title at the time they paid rent, etc. Ibid., section
705.''
Gill, J. — Owing to the appearance in this record
of so much immaterial matter, it is quite difficult to
make a clear and yet coucise statement.
The plaintiff sues the defendant, Troup Mining
Company, for the rent or royalty alleged to be due him
on two mining lots which he developed and which he
subsequently let to the defendant; that the mining
company occupied and worked the property during the
period from July, 1889, to May, 1891, without paying
the rent or royalty as agreed. Among the defenses
relied on is, that plaintiff's interest in the lots expired
in April, 1889, and that hence he is not entitled to any-
thing because of minerals taken out after that date.
Eliminating much that is wholly immaterial, the
facts necessary to be stated are as follows: In April,
1886, plaintiff registered as miner of lots 23 and 24 in a
forty acres of land in the mineral region of Jasper
county then owned by the Weston Land and Mineral
Company. This corporation failed, however, to post
up any printed statement of the terms and conditions
upon which the land was to be mined, and the time
during which the right to mine thereunder should con-
tinue, as required by the mining statute. Revised Stat-
utes, 1879, section 6441, now section 7034, Revised
Statutes, 1889. The plaintiff, after a limited develop-
Digitized by VjOOQIC
OCTOBER TERM, 1893. 665
Bobineon y. The Troap MinlDg Co.
ment of the lots in 1887, rented the same to on€
with a parol agreement by Staggs to pay a cerl
portion of the minerals raised therefrom,
thereafter, and in the same year (1887), Stag
plaintiff's consent, sold out to Gray & Grounds
the same year (1887), or first part of 1888,
with some others, the defendant company
defendant mining company worked the lots 23
as tenants under the claim of plaintiff, and paid
or royalty to July, 1889, when it refused to
further, assigning as a reason that plaintiff's
in the lots had expired, and that no rents or
were due him. Defendant rests this claim — thj
tiff had ceased to have any further interest in 1
ing lots — on the fact that more than three y<
expired since plaintiff entered upon the land f oi
purposes, and that, by reason thereof, and the
admitted fact that plaintiff took his interest
any printed terms, etc., being posted by the o
the land, the leasehold of the plaintiff expired i
1889 (which was three years from the time
entered on the land of the Weston Land and
Company). It is also proper to state that in F(
1889, the defendant company bought and seci
conveyance of the fee to the forty acres wherein
two lots in controversy; and during the time fc
plaintiff's rent is claimed the defendant asserts
because of its absolute ownership of the land
as plaintiff's tenants.
A trial was had by the court below sitt
jury, and from a judgment for $1,388.59 in p]
favor defendant has appealed.
Upon a careful consideration of the law ai
of this case we fail to discover any correct the
will sustain the judgment. We have in this
special statute applying to these mining matte
Digitized by VjOOQIC
666 55 MISSOURI APPEAL REPORTS,
Bobinson v. The Troup Mining Co.
eection 7034, Eevised Statutes, 1889, it is provided
that: **When any person owning real estate in this state
* * * shall permit any person or persons, other
than their servants, agents or employees, to enter and
dig or mine thereon for lead, ore or other minerals,
with the consent of such owner or owners ♦ ♦ ♦
he or they shall keep a printed statement of the terms,
conditions and requirements upon which such lands
may be mined or prospected, and the time during which
the right to mine or prospect thereunder shall continue,
posted or hung up in a conspicuous place,, in plain,,
legible characters, in the principal office or place of
business of such person or company in the county in
which said lands are situated,'' etc. * * *
And by section 7035 it is, in effect, provided that
if such owner of mining lands permit others to enter
upon the same and in good faith to dig or open up any
shafts, mines or quarry, etc., ^*but without such owner
complying with the provisions of section 7034'' (that
is by posting up the terms, etc., and reciting therein
the time such miners may continue), then such
miners ^ 'shall have the exclusive right as against such
owner giving such permit or consent, and against any
person claiming by, through or under such owner, to
continue to work,, mine, dig, etc., * * * in said
real estate, with the right of way over such lands for
the purpose of such mining, for the term of three years
from the date of the giving such consent or pennit,^^
provided, however, thflt, if such persons mining as
aforesaid fail or neglect to work such shafts, mines,
etc., for ten days m any one month, then they shall
forfeit the right so to do, etc.
When, now, plaintiff Robinson, in April, 1886,
entered upon this mining property, then owned by the
Weston Lard & Mineral Company, and proceeded to
work thereon, the said company had failed to post the
Digitized by VjOOQIC
OCTOBER TERM, 1893. 667
Bobinson v. The Troup Mining Co.
printed statement of terms, etc., as required by section
7034, and, therefore, plaintiflE's right to the use and
possession of said mining lots became fixed by the
terms of section 7035. The matter then stood, and the
rights of the parties occupied the same attitude, as
though there had existed a written contract or agree-
ment between the parties conforming to the terms of
said section. Robinson had thereby the right to use
and occupy the land for mining purposes for the period
of three years and no longer; and in return therefor
he was to pay the rent or royalty in said section pro-
vided. The plaintiff's tenancy then became fixed,
and definite as to time, and expired, as if by an express
stipulation, in April, 1889, three years from the time
he entered by the consent of said Weston Mining
Company.
Plaintiff then having this interest in the nature of
a leasehold estate for the fixed term of three years,
expiring in April, 1889, sublet the same to the defend-
ant company in the latter part of 1887. This was a
parol contract with no definite time named, but as the
plaintiff's term would expire in April, 1889, his sub-
tenant could not claim beyond that date. Before the
expiration of plaintiff's three-year term, that is on
February 8, 1889, the defendant mining company pur-
chased from the Weston company the entire reversion,
the fee of the land. When, then, plaintiff's particular
estate was determined in April, 1889, the reversionary
interest then held by the defendant company was the
whole estate, and it had the. undoubted right to hold
and use and enjoy the same free and unincumbered of
the prior claim of the plaintiff.
While now the tenant will not be permitted to set
up that his landlord had no title when the tenancy
commenced, he may yet show that the interest of the
landlord as it then existed had terminated as by efflux
Digitized by VjOOQIC
56 688
•4 661
668 55 MISSOURI APPEAL REPORTS,
Huiser ▼. Beck.
of time, etc. Meirer v, Theimann, 15 Mo. App. 307,
and cases cited at page 310 ; 2 Herman on Estoppel,
sec. 868, etc.; 2 Taylor's Landlord and Tenant [8 Ed.],
sec. 708.
And that was the extent of the defense here. The
defendant mining company did not dispute the title of
the plaintiff at the time he let this property; but it was
shown beyond question that before the period for
which rent is claimed in this action the plaintiff's
interest had expired ; that when he rented the property
to defendant he had only an unexpired leasehold
terminating by its very terms several months before
the time for which he now claims rent.
That the defendant inadvertently, or by mistaken
notion of its legal rights, may have paid to plaintiff
rents after the expiration of his leasehold, or may have
offered to purchase any rights or claims which the
plaintiff asserted to the mining lots, cannot be con-
strued into a continuance of the tenancy. As well
said by defendant's counsel, plaintiff was not thereby
induced to part with anything or to alter his position
in any respect; he lost nothing by defendant's mis-
takes; he simply received rents for about three months
to which he was not entitled.
The judgment will be reversed. All concur.
A. HuiSER, Appellant, v. A. W. Beck, Defendant.
Potter and McCracken, Interpleaders
and Respondents.
Kansas City Court of Appeals, January 8, 1894.
1. Chattel Mortgages : delivery. The infallible test of delivery is
the fact that the grantor has divested himself of all dominion and
control over the conveyance, as he appears to have done in this case.
Digitized by VjOOQIC
OCTOBEK TERM, 1893. 669
Huiser v. Beck.
: record: attachment: priority. An attachment levied
prior to the recording of a previously given chattel moi'tgage, will not
take precedence of such, mortgage. Authorities and statute dis-
cussed.
: ATTACHMENT: INTERPLEADING. The Seizing of mortgaged
property under on attachment and removing it, gives the mortgagee
an option to take it into his possession, which he may exercise by
interpleading in to the attachment.
4. Attachment : interplea: replevin. An interplea in an attach-
ment is in the nature of a replevin and engrafted thereon by the
statute.
^Appeal from the Vernon Circuit Court. — Hon. D. P.
Stratton, Judge.
Affirmed.
Burton £ Wight and Geo, Walshe for appellant. '\
(1) There was no delivery of the mortgage by
Beck to interpleaders. Turner v. Carpenter et al., 83
Mo. 333; Clemence Ells et al. v. Bailroad, 40 Mo. App.
165; Huey v. Huey, 65 Mo. 689; Miller et al. v. Lull-
man, admW, et ah, 81 Mo. 311; Hammerslough v.
Cheatham et aLy 84 Mo. 13; Scott et al. v. Scott, 95
Mo. 300. (2) Even though delivered, not having been
put upon record until after the levy of the writ of
attachment, it was of no validity against said writ.
Revised Statutes, 1889, sec. 5176; Rawlins v. Bean
et al, 80 Mo. 614; Bevans v. Bolten etal., 31 Mo. 437;
Wilson V. Milligan, 75 Mo. 41. (3) The semhle of
Judge Scott, in Bryson & Hardin v. Penix, 18 Mo. 13,
to the eflEect that the mortgage, if recorded in a reason-
able time after its execution, would be valid against a
creditor or purchaser, is: First. A mere dictum; the
question does not arise in the case. Second. The
authority quoted (4 Kent. 458) is not applicable, as it
relates to a mortgage of real estate. Third. The
supreme court in Wilson v. Milligan, 75 Mo. on page
Digitized by VjOOQIC
670 55 MISSOURI APPEAL REPORTS,
Huisei* V. Beck.
42, refuses to sanction the doctrine, virtually overruling
it. Fourth, The semhle is in conflict with the statute
and the logic of the authorities quoted in point 2.
Fifth. Way v. Braley; Hawks & Glover, interpleaders,
44 Mo. App. 457, for the same reasons, is not the law.
(4) The testimony of Hart shows that the note to him
was still due and unpaid at the time of the trial; that
the interpleaders had paid him nothing. Hence inter-
pleaders were premature. Booger v, Langenberg, 42
Mo. App. 7; Chandler V. West, 37 Mo. App. 631; Stone-
breaker et al. V. Ford et ah, 81 Mo. 532, and cases-
cited.
G. S. HosSj H. H. Blanton and J. B. Johnson for
respondents.
(1) There was suflScient delivery of the deed from
Beck to interpleaders. Washburn on Real Property
[3 Ed.], top p. 254, sec. 20a; p. 259, sec. 28 ;
William v. Latham, 113 Mo. 165, bottom p. 173, and
authorities cited in the opinion. Beck surrendered all
dominion over the deed when he delivered the same to
Mosier. (2) The record of the mortgage was in titae
to defeat the attachment. Way v. Braley, 44 Mo. App.
457. (3) Although apparently in the face of the gen-
eral understanding of the profession, yet we submit
that in the absence of fraud of any kind a chattel mort-
gage recorded any time before sale under attachment
proceedings will defeat the attachment lien ; this is the
logic of Davis v. Owensby, 14 Mo. 170, and the line of
decision following and approving the same in our
supreme and appellate courts. (4) Section 5176,
Revised Statutes, 1889, concerning chattel mortgage,
uses the same language as section 2420. Ibid., con-
cerning conveyances of real estate, an attaching credi-
tor is not a purchaser. Bank v. Hughes, 10 Mo. App.
Digitized by VjOOQIC
OCTOBER TE]
Huiser v. B<
16 ; second paragraph on said
Statutes, 1889, does not applj
Bros. V. Brewing Co., S3 Mo. A
safety clauses in the mortgaj
not premature in their actioi
Am. Decisions, p. 56; Cobby
et seq. ; Bank v. Ahernatliyj 32
last paragraph in opinion on n
Smith, P. J. — The appella
plaintiff in an action of attac
against one Beck. The sheriff,
ment, at three o'clock, p. m.,
levied upon twenty head of steer
At the return time of the writ
interpleaded in the cause, claic
the steers levied on.
At the trial the interplead
the plaintiff, in the attachn
from that judgment.
The attachment plaintiff,
the propriety of the action of t
to declare, as it was asked to
dence the interpleaders were
upon three distinct grounds, i
there was no delivery of the
which interpleaders claim, by
them. As a maj;ter of course,
of the mortgage, the judgmen
was there not a suflBcient deliv(
It appears from the undisp
promised the interpleaders tha
his surety on a note for $tO0
would give them a chattel morl
of steers. That thereupon ii
note. That two days thereafte
Digitized by VjOOQIC
672 55 MISSOURI APPEAL REPORTS,
Huiser v. Beck.
a neighboring justice of the peace, and stated the cir-
cumstances of the interpleaders having become his
sureties, and requested that he draw up a mortgage on
the twenty head of steers to secure them. The mort-
gage was accordingly prepared by the justice, signed
and acknowledged by Beck. It appears that neither
party knowing Hart's given name, the same was left
blank in the mortgage. The justice, Moseir, testified
that, after the mortgage was executed, as already stated,
he said to Beck, ''You take this down to Potter as you
go by and if he knows Mr. Hart's name he will put it
in." Beck replied, ''No, I will leave it with you. Pot-
ter told me to leave it with you and he would call for
it." He further testified that, "Beck told me that he
would tell Potter to come and get it." The interplead-
ers did not know the mortgage had been executed until
the nineteenth of November, 1891, when Moseir sent it
to interpleader, Potter, who, that same day, caused it
to be recorded.
The infallible test of a delivery is the fact that the
grantor has divested himself of all dominion and con-
trol over the conveyance. Henry v. Henry , 65 Mo.
689. In Hammerslough v. Cheatham, 84 Mo. 13, it was
ruled that to constitute a delivery of a deed by placing
it in the hands of a third party it must be done with
the intent on the part of the grantor that it should
take eflEect as his deed in favor of the grantee. It
must.be so held by the third party as to be beyond the
control and right of dominion of the grantor." And
a similar statement of the rule has been made in other
cases: Ells v. Railroad , 40 Mo. App. 165; Turner v.
Carpenter, 83 Mo. 333; Williams v. Latham, 113 Mo.
165; Miller V, Lullman, 61 Mo. 311; Scott v. Scott,
95 Mo. 300.
We think there was a delivery of the mortgage
within the mej/,ning of the above recited rule. Beck
Digitized by VjOOQIC
OCTOBER TERM, 1893. 673
Huiser v. Beck.
left it with Moseir for the interpleaders. He thereby
parted with all dominion and control over it. It is
unimportant whether the interpleaders called on
Moseir for it or whether he sent it to them. There is
nothing in the evidence negativing the intention by
Beck to irrevocably part with the control and dominion
over the mortgage after it was executed and left by
him with Moseir with directions to deliver it to the
interpleaders.
The appellants' second objection is that, even
though the mortgage was executed and delivered before
the levy of the writ of attachment it was not recorded
by the recorder until after the writ was levied, and
therefore it was invalid as against the writ.
The question thus presented depends for its solu-
tion upon the construction to be sciven to section 5176
of the statute. Bryson v, Penix, 18 Mo. 14, was where
there was a senior and junior mortgage given to diflEer-
ent mortgagees on some beef cattle. The senior mort-
gage was not filed for registry until four days after its
execution and not until after the filing of the junior
one. The cattle were sold and the proceeds thereof
were paid over to the junior mortgagee, to recover which
the senior mortgagee brought a suit on which he failed.
The case was taken to the supreme court, where the
judgment was aflRrmed. In the opinion disposing of
the case by Judge Scott in what seems to us to be an
obiter dictum^ it is stated that, *'Our statute prescribes
no time within which a deed or conveyance shall be
recorded. Under such circumstances a party must
have a reasonable time for that purpose; and when a
deed is recorded within a reasonable time it has rela-
tion back to the time of its execution." It was then
stated that the question was not raised in the case so
the judgment of the lower court was aflRrmed.
In Wilson v. Milligan^ 75 Mo. 41, the rule
Vol. 55—43
Digitized by VjOOQIC
674 55 MISSOURI APPEAL REi>ORTS,
Huiser v. Beck-
announced by Judge Scott in the preceding case is fol-
lowed by the • judge who wrote the opinion in the
case, though without giving it his sanction. The ques-
tion was not, as appellant supposes, considered in
either Bevans v. Bolton, 31 Mo. 437, or in Bawlings v.
Bean, 80 Mo. 614. But in Way v. BraUy, 44 Mo. App.
457, the exact question was presented and decided by
the St. Louis court of appeals. The rule announced
in Bryson v. Penix and followed by Wilson v.
Milligan, supra, was there again recognized and ap-
plied.
But for these adjudications, which must control our
decision of the question under consideration^ we should
not have thought that by any fair construction of the
statute, section 5176, the interpellation of this rule
into it was warranted. We are therefore constrained
to rule that defendant's second ground of objection
to the suflRciency of the evidence is not well taken.
The appellant's third and last objection is, that the
interpleaders were premature in interposing their claim
to the property, or, what is the same thing, to^the pro-
ceeds of the sale thereof in the hands of the sheriff. The
mortgage contained a clause to the effect that: **The
property hereby sold and conveyed, to remain in his pos-
session until default be made in the payment of the said
debt and interest or some part thereof; but in case of
sale or disposal or attempt to sell or dispose of said
property, or a removal or attempt to remove the same
from the premises of the said A. W. Beck without the
consent of the parties of the second part, or an
unreasonable depreciation in the value thereof, the said
H. D. Potter and James McCracken, or their legal repre-
sentatives, may take the said property in their possses-
sion,"etc., etc.
The action of the sheriff in seizing the mortgaged
property and removing it gave the interpleading mort-
Digitized by VjOOQIC
i
OCTOBER TERM, 1893.
Bank v. Lillard.
gagees an option to take it into their possession
they might exercise if they saw fit by interplea(
the attachment. Kennedy v.Dodson, 44 Mo. Ap
Bank v. Metcalf, 29 Mo.' App. 384; Brown v. H
54 Mo. App. 75; Leaman v. Paddock, 55 M(
296.
An interplea in an jtttachment is in the nati
replevin engrafted thereon by statute. Spoi
Boss, 24 Mo. App. 599; Hellman v. Pollock,
App. 205.
It results from these observations that th€
ment must be aflBrmed. All concur. .
First National Bank of Fort Scott, BIansas,
lant, V. J. W. Lillard, Respondent.
Kansas City Court of Appeals, January 8, 1&{
1. Banks and Banking: trial prac?tice: instructio
dence: negligence. It is error to instruct a jury as to the
negligence of a banker in accepting a note with a forged
when there is no evidence showing such negligence.
2. Principal and Surety: negligence op payee: disci
surety. If the payee causes the surety to forego security
would have taken it, the surety is released, without regard t
or negligence exercised by the payee.
3. : discharge op surety: evidence. The act of t
that discharges the surety must be one that causes the
forego an indemnity he would have taken, and there shoul*
dence that he would have taken such security but for the a
payee.
Appeal from the Vernon Circuit Court. — Hon.
Stratton, Judge.
Burton & Wight for appellant.
(1) Plaintiffs were not guilty of any neglig
accepting notes three and four, because the sigi
Digitized by VjOOQIC
676 55 MISSOURI APPEAL REPOKTS,
Bank v. Lillard.
of J. W. Lillard and Willis Hughes thereon were so
like their genuine signatures that it was impossible to
tell the difference. Because plaintiffs were not required
to go out and ascertain the genuineness of signatures.
Plaintiff is entitled to recover upon the note sued on.
White V. Middleworthy 42 Mo. App. 368; Allhright v.
Griffin, 78 Ind. 182; Hubhard v. Hart, 71 Iowa, 668;
Kirhy v. Landes, 54 Iowa, 150; Morkle v. Hatfield^ 3
Am. Dec. 446; Bank^. Smith, 13 Am. Dec. 37. (2)
Instruction number 1 given for defendants was erron-
eous, because it permitted the jury to determine, as a
matter of law, what acts of plaintiff were negligent ;
because, there being no dispute as to the facts, and
there being no inference of negligence therefrom, it was
the duty of the court to so declare. Barton v. Railroad^
52 Mo. 253; Bell v. Railroad, 72 Mo. 50; Goiirley v.
Railroad, 25 Mo. App. 144.
M. T. January and Hoss & King for respondents.
At this time it is apparent upon inspection that the
second count of defendant's answer is faulty in this,
that it combines two separate and distinct defenses,
namely: First. Negligence of the bank in accepting the
forged renewal notes. Second. Estoppel in pais —
stamping the note in suit **paid'' with the bank stamp,
and thus furnishing the means to J. F. Lillard to
deceive his sureties to their damage. However, objec-
tion was not taken on this point by plaintiff, but an
issue of facts is squarely presented in the reply involv-
ing both defenses and the instruction given at defend-
ant's request fairly presents both questions to the jury.
STATEMENT.
The following statement is suflBciently accurate, from
which may be ascertained sonie of the main features of
the case: The plaintiff is a national bank at Fort Scott,
Digitized by VjOOQIC
OCTOBER TERM, 1893. 677
Bank v. Lillard,
Kansas. Jas. F. Lillard, J. W. Lillard and Willis
Hughes, now deceased, were residents of Vernon
county, Missouri, living some eight or ten miles from
Fort Scott. In February, 1889, Jas. F. Lillard applied
to plaintiff for a loan. He offered as securities J. W.
Lillard and Willis Hughes. A note was made out, dated
February 20, 1889, for $1,200, payable in ninety days,
and delivered to Jas. F. Lillard, who returned it signed
by himself, J. W. Lillard and* Willis Hughes, and
received the money upon it, less discount.
Prior to that Jas. F. Lillard and Willis Hughes
had done business with plaintiff, and plaintiff's oflBcers
were familiar with their signatures. J. W^ Lillard had
not been a customer of plaintiff's, but plaintiff had fre-
quently cashed his checks on other banks, and its offi-
cers were familiar with his signature. When that note
becamp due, Jas. F. Lillard renewed it by giving a
second note, dated May 21, 1889, for $1,250, signed by
himself, J. W. Lillard and Willis Hughes, and payable
in ninety days. The first note was then stamped
'*paid" upon its face and surrendered to Jas. F. Lil-
lard. When the second note became due, Jas. F.
Lillard renewed it by giving a third note for $1,300,
dated August 19, 1889, payable in ninety days, signed
ty himself, and purporting to he signed hy J. W, Lillard
and Willis Hughes, and said second note was stamped
*'paid'' upon its face and delivered to Jas. F. Lillard.
When the third note was due Jas. F. Lillard paid
thereon a sum sufficient to reduce the debt to $1,100,
for which he gave a fourth note, dated November 17,
1889, payable in ninety days, and also purporting to be
signed by J. W. Lillard and Willis Hughes. The sig-
natures of J. W. Lillard and Willis Hughes to the third
and fourth notes were counterparts of their genuine
signatures, and were accepted by plaintiff just as the
genuine one preceding had been.
Digitized by VjOOQIC
678 55 MISSOURI APPEAL REPORTS,
Bank v. Lillard.
When the fourth note became due Jas. F. Lillard
called at plaintiff's bank, left with plaintiff the amount
of the discount, and took away a fifth note^ which
he agreed to have signed by the same securities. He
never returned, but in a few days left the country,
and has never been heard of since. Some time after
he had gone, plaintiffs learned of his leaving and sent
word to J. W. Lillard and Willis Hughes that the
fourth note was due and asking them to call and pay it.
In response to that notice J. W. Lillard and Roland
Hughes called at plaintiff's bank and examined the
fourth note, but did not inform plaintiff that it was a
forgery.
When Jas. F. Lillard left, which was on the nine-
teenth of February, 1890, he was a defaulter as tax
collector and J. W. Lillard and Willis Hughes were on
his bond. He was also owing a note to one Hughes,
of Ray county, on which note J. W. Lillard was secur-
ity. Attachment suits were brought by his bondsmen,
and by Hughes, of Ray county, and all of Jas. F.
Lillard's property was seized and sold under the
attachments, and the proceeds paid to said bondsmen
and Hughes.
In April, 1891, plaintiff brought suit in Vernon
county circuit court on the fourth note, and then
learned that J. W. Lillard's and Willis Hughes' signa-
tures thereon were forgeries. Thereupon on October
30, 1891, plaintiff brought this suit on the second note.
Defendants admit its execution, but allege negligence
on the part of plaintiff in accepting the third and fourth
notes, and in not notifying defendants. There was evi-
dence tending to show that between the time of the
second genuine note (the one in suit) was due and the
departure of Jas. F. Lillard he had ample property out
of which the amount of such note could have been
made ; but that at the time of his departure he was
insolvent.
Digitized by VjOOQIC
OCTOBER TERM, 1893. 679
Bank v. Lillard.
Ellison, J. — Under the theory upon which the
parties tried this cause and the instructions of the
court the verdict was for defendants. We have in the
first instance examined the case from the standpoint of
the theory upon which it was tried and have concluded
that the judgment should be reversed and the cause
remanded. That theory was based upon negligence
in the plaintiff bank in taking the third note (the first
forged note) in payment of the second genuine note
and stamping the latter as paid. The whole negligence
must, however, be based on the negligent acceptance
of the forged note in payment of the genuine, since
marking it paid is but the result of this. The court
instructed the jury, at the instance of the defend-
ants, on the hypothesis of such negligence. In order to
justify such instruction there should have been some
evidence tending to prove the negligence thus instructed
upon. Now, from the record here there does not appear
a syllable of such testimony. On the contrary the tes-
timony on the part of plaintiff shows, without pretense
of contradiction, that the signatures to the forged note
were exactly like those to the genuine note and that
they could not be distinguished. Nor was there any
evidence upon which the idea could be based that it
was negligence in plaintiff in not inquiring whether the
signatures of these sureties were genuine when the
genuine note was surrendered and stamped, '^paid.'^
In this respect, also, there was abundant aflRrmative tes-
timony on the part of plaintiff that rebutted such prop-
osition.
Since the case is to be retried it is proper to add
the following: We have not been able to see what
bearing any question of plaintiff's negligence can have
on the case. If plaintiff's act in surrendering the note
to the principal debtor cancelled and marked paid,
caused these surety defendants to forego or forbear
Digitized by VjOOQIC
680 55 MISSOURI APPEAL REPORTS,
Bank v. Lillard.
securing or indemnifying themselves from the principal
debtor, in consequence of which forbearance they have
lost available recourse on him by reason of his insol-
vency, then they are discharged, regardless of any neg-
ligence on the part of plaintiff. If the plaintiflf has thus
caused them to forego taking security or indemnifying
themselves when they otherwise would have done so,
then in such case plaintiff's utmost care and prudence
would be no answer to the injury done the sureties.
Both parties in such case are innocent, but plaintiff is
the party, notwithstanding, who caused the injury
and must be the one to bear the burden of such in-
jury.
We have had occasion to pass upon the general
proposition of law as to the release of sureties under
kindred conditions to those now presented. We here
state what we understand it to be. When a creditor
who knows that one occupies the relation of surety to
the principal debtor notifies such surety that the debt
is paid, or cancels the debt, the surety being apprised
thereof, and in consequence of such notice or cancella-
tion changes his situation, as by surrendering security, or
refraining from taking security which he could have
taken and which he otherwise would have takeUj he is
discharged. Triplett v. Randolph^ 46 Mo. App. 569;
Driskellv. Mateer, 31 Mo. 325; Carpenter v. King, 9
Met. 517. In Triplett v, Randolph^ the act of the plain-
tiff caused the sureties ''to forego'' securing them-
selves. That is, the act of the plaintiff caused them
not to secure themselves — ^was the reason why they
did not. So the same may be said of Carpenter v.
King,
In the case at bar there is evidence tending to show
that defendants could have secured or indemnified
themselves at the time the genuine note became due
and for a period thereafter; but there is no evidence
Digitized by VjOOQIC
OCTOBER TERM, 1893.
Bank v. Lillard.
whatever that they tvould have done so, had it
for the fact of seeing the note marked paid in the
their principal. If any infereoce at all is to b
from this branch of thie case as it now appean
the record, it is that they would not have (
They had been the sureties for this principal
times and in other relations; and during a ti
when one of them, at least, knew of his r
character and unbusinesslike habits. Conced
if defendants had known that the note had bee
up by giving another with their names forged
they would have brought matters to an im
adjustment, yet it must be remembered that t
no such information from plaintiff's act in su
ing and cancelling the note; which act is all th
them standing in court. The real question i
they and wotdd they have secured, or, otherwise ii
fied themselves, if they had not been led to beli
the note had been paid oflf and discharged and t
ter of forgery was outside the case, except for 1
pose of avoiding the cancellation of the note
As before stated, the evidence tends to show the
but does not tend to show that they would. Tl
showing is the very essence of the case. It may
if plaintiff had not cancelled the note, these
ants would have made no inquiry or effort c
ing it. We are, of course, uninformed what the
have done.
The judgment is reversed and the cause ren
All concur.
Digitized by VjOOQIC
Digitized by VjOOQIC
INDEX.
BY DAVID GOLDSMITH.
ACCOUNTING.
Insufficiency of pleadings and evidence.— The petition and the
evidence in this cause are considered ; the former is held not to
state, and the lattier not to establish, a case entitling the plaintiff
to an accounting with respect to the profits of a speculation, into
which the plaintiff and o^e of the defendants had jointly ventured.
Wetmore v. Crouch, 441.
ACCOUNT STATED.
Building contract. — When the parties to a building contract have
agreed upon the amount due for a specific portion of the work, and
the one who owes the amount thus agreed upon has paid it in
accordance with the terms of the settlement, the other is debarred
from making any further claim for the work. Dengler v. Auer, 548,
ADMINISTRATION.
1. Compensation for legal services rendered to the administra-
tor— direct liability op estate. — An attorney, who renders legal
services for the benefit of the estate of an. intestate at the instance
of the administrator, is entitled to have his claim for reasonable
compensation therefor allowed against and paid directly out of the
assets of the estate. Nichols v. Beyburn, 1.
2. original jurisdiction op circuit court in establishment
of claim. — A circuit court has original jurisdiction of an action by
an attorney for the establishment of such a claim directly against
such estate. Ih,
3. Effect? of sale of realty. — An administrator's sale of real estate
under the statute is equivalent to a sale by the heir. Page v.
Culver, 606.
4. rents. — For rulings on effect of sale of reversionary estate
in land by administrator on rents, see Page v. Culver, 606.
AGENCY. See Principal and Agent.
APPEALS. See Justices' Courts, 1 to 4.
1. Appellate jurisdiction— action to which the city of st. louis
is a party. — The city of St. Louis is a political subdivision of this
state, and the supreme court, therefore, has exclusive jurisdiction
of an appeal in a cause wherein it is a substantial, though not the
sole, party. Barmen v. City of St. Louis, 175.
(683)
Digitized by VjOOQIC
684 INDEX.
2. ACTION BY CITY OP ST. LOUIS FOR ENFORCEMENT OF MUNICIPAL
ORDINANCE. — The supreme court has exclusive appellate jurisdiction
of every cause wherein a political subdivision of the state is a
substantial party, and, therefore, of an action by the city of St.
Louis to recover a penalty or fine for the violation of one of its
ordinances. City of St. Louis v. Robinson, 256.
3. TITLE TO OFFICE— SCHOOL COMMISSIONER. -—In an action
involving the title to the office of county school commissioner,
the supreme court, and not the court of appeals, has appellate
jurisdiction. State ex rel. Wood v. Meek, 202.
4. CONPEMNATION PROCEEDING— TITLE TO LAND.— A proceeding
to condemn land for a railroad right of way involves title to real
estate, and the supreme couit has exclusive appellate jurisdiction
and is required to exercise exclusive superintending control over
the trial court in such caubes. Chicago Santa Fe ^ California B'y
Co. V. Eubank, 335.
ASSIGNMENT.
1. ASSIGNMENT OP CHOSE IN ACTION —ABSENCE OF FORMAL TRANSFER.
A corporation was formed to carry on the business of a partnership.
It was intended to transfer all the assets of the partnership to the
corporation in partial payment of its capital stock, but no formal
transfer was executed. Though no other payment was made, the
articles of incorporation lecited that half of the capital stock had
been paid. Held, that members of the partnei-ship, who had acted
as incorporators, \rere estopped from disputing the title of the
corporation to the property thus intended for it. Sunday Mirror
Co. V. Oalvin, 412.
2. ASSIGNABIUTY OF CONTRACT RIGHTS.— A Contract, which
stipulates for the support of a newspaper for a publication, does not
rost on a personal confidence. The owners of the newspaper may
therefore assign their rights under it to a corporation formed to con-
duct the newspaper. lb.
ASSIGNMENTS FOE THE BENEFIT OF CREDITORS.
1. Assignment by one of several partners.— Though one partner is
not authorized, by virtue of the partnership relation alone, to
make a voluntary assignment for the firm, yet he may do so with
the express assent and direction ^f the other members; and
the other partners alone have the right to complain of soeh
assignment, and not firm creditors. Eock Island Plow Co. v. Lamg
4' Gray, 349.
2. Filing of deed — attachment.— A plaintiff in an attachment insti-
tuted and tried after the execution and delivery of the deed of
assignment and the possession of the assignee therounder, but before
it is filed for record, does not acquire a right superior to the assignee.
Digitized by VjOOQIC
INDEX. 685
ATTACHMENT. See Assignments for Benefit of Creditors, 2.
1. Attachment in action ex delicto. — The Missouri statute furnishes a
remedy by attachment in all civil actions, whether resting on "con-
tract or sounding in tort. Pearson v. Gillett, SIS.
2. Debt fraudulently contracted. — The conversion of money,
though fraudulent on the part of the tort feasor, will not constitute
a fraudulent contraction pf a debt within the purview of the statute
defining the grounds of attachment. Sunday Mirror Co. v. Galvirif
dig.
3. iNTERPLEA— nature OF PROCEEDING.— An interplea is an attach-
ment is in the nature of a replevin and engrafted thereon by the
statute. Huiser v. Beck, 668.
4. Same. — The seizing of mortgaged property under an attachment
and removing it, gives the mortgagee an option to take it into his
possession, which he may exercise by interpleading in the attach-
ment. Ih.
5. Interplea— JURISDICTION of ju^ice's courts. — Where a justice
acquires jurisdiction of an attachment proceeding, he also has
jurisdiction to hear and determine an interplea for the attached
property, although such projferty exceeds in value the amount fixed
by statute as the limit of justice's jurisdiction, such interplea
being an incident growing out of the principal action. Springfield,
etc., Co. V. Glazia-, 95.
6. nature of issue. — On an interplea for property seized in
attachment, the only issue to try is whether the attached property
is the interpleader's or not, and an instruction as to the value of
such property is. error; and on a finding for the interpleader
the court shoijld adjudge the fund in its custody, arising from
the sale of the property, to the interpleader. I b.
7. Same. — An instruction directing the jury to find for the interpleader
for such of the property, sold under attachment, as they believe to
be included in his mortgage is affirmed. lb.
8. Effect of recovery of judgment on lien of attachment.
When the plaintiff in a suit by attachment recovers judgment, the
lien of the judgment merges that of a levy of the writ of attachment
on land, subject to the doctrine of relation in the determination of
priorities. Accordingly, the lien of such levy is lost, if the lien of
the judgment is allowed to expire by limitation. Ch-ven v.
Douqheriy, S17.
9. Rights of attachment creditor.— The defense of usury is a
personal privilege of the debtor, his privies in representation, in blood
or in estate, as his vendee, execution creditor, or, as in this case, his
attachment creditor who may defend against his debtor's mortgage
on the ground that it secures usury, as provided in section 2, page
171, Laws, 1891. American Rubber Co, v. Wilson, 656.
Digitized by VjOOQIC
686 INDEX.
10. PRIORITIES. — An attachment levied prior to the recording of
a previously given chattel mortgage, will not take precedence of
such mortgage. Authorities and statute discussed. Huiser v.
Beck, 668.
11 . Action for malicious attachment— pleading — aider by verdict.
The petition in an action for malicious attachment must allege
either that the attachment proceeding has terminated in favor of
the attachment defendant, or that*it has terminated against him
and that he had no opportunity to defend against it; nor is the
want of such allegation cured by verdict. Freymark v, McKinney
Bread Co., 435.
12. nature of the action. — Heldf in the course of discussion,
that the dissolution of the attachment is not sufficient in itself to
sustain an action for malicious attachment by the attachment
defendant ; that the basis of such action is malice and the want of
probable cause; and that the issue as to the want of probable
cause is whether the sicts and conduct of the attachment defendant
were such as to warrant the belief that attachment would lie. lb.
ATTORNEYS. See Administration, 1, 2.
BANKS.
1. Negligence in failing to collect draft— law and pact.
Whether conduct amounts to negligence is a question of law, when
the facts are not in dispute and but one inference can reasonably
be drawn therefrom. This rule is applied to the failure of a bank
to either collect a draft received by it for collection, or to notify the
drawer of its nonpayment in due time. Selz v, Collins, 55.
2. Same. — But whether the drawer, in the case of such negligence on
the part of a bank, is entitled to a verdict for the full amount of
the draft is held under the evidence in this cause to be a question
of fact, dependent upon the probability of the collection of the
draft if the bank had used due diligence in pressing the drawee for
payment, or in notifying the drawer of the nonpayment of the
draft. Ih.
3. Same — cumulative remedies. — In the case of such negligence,
the drawer can prove his claim against the drawee under an assign-
ment for the benefit of creditors, made by the latter, and collect
dividends thereon, and can at the same time pursue his right of
action for the negligence of the bank; these remedies are cumula-
tive. Nor need the prosecution of his suit against the bank be
delayed to await, the outcome of the assignment. Ih.
4. Breach op promise to pay check— nature op action. — The
petition charged the breach of a parol promise to pay a check, and
that plaintiff was induced thereby to sell certain cattle to L. and
receive in payment said check, which defendant refused to pay, to
plaintiflTs damage, etc. Held, the action was ex contractu, since
there is no allegation of fraud or deceit. Nichols v. Bank, 81,
Digitized by VjOOQIC
INDEX. 687
5. Action for negligence— instructions.— It is error to instruct a
jury as to the effect of negligence of a banker in accepting a note
with a forged signature when there is no evidence showing such
negligence. First Nat. Bank v, Lillard, 676.
. 6. Frauds and perjuries— original promise — collateral promise
— estoppel. — The evidence in this case is reviewed and it is
held:
(1) That the representations of defendant's cashier did not con-
stitute an unconditional promise, but a mere expression of
opinion.
(2) Nor were they an original promise that would bind the
defendant.
(3) But if such representation amounted to a promise at all, it
was in its nature collateral and within the statute of frauds.
(4) That the check in question was an inland bill of exchange
and a promise to accept it must be in writing.
(5) That plaintiff's case did not come within the provisions of
section 723, Revised Statutes, 1889.
(6) That the words and conduct of defendant's cashier could not
operate as an estoppel in paiSj as one cannot invoke the
doctrine of estoppel to validate a promise which the statute
declares absolutely void. /6.
BENEPU SOCIETIES.
1. Nature op insurance afforded. — A benefit certificatfe differs
from an ordinary policy of life insurance, in that it speaks with
reference to the conditions existing at the death of the member
whose life has been insured by it. Order of Railway Conductors v.
Koater, 186.
2. designation op beneficiary. — Accordingly, when the
stattis of the beneficiary under such certificate is the main, if not
the sole, inducement to the insurance, — as where the certificate is
in favor of the wife of the insured, and she is designated mainly by
that relationship — the rights of such beneficiary lapse, if that status
does not exist at the time of the death of the insured. lb.
3. INSURABLE INTEREST OF BENEFICIARY. — And when the laws
of the benefit society stipulate that the beneficiary must have an
insurable interest in the life of the insured member, that interest
must exist at the death of such member. Accordingly, a divorced
wife who has remarried, and moreover has no living issue by the
insured member, is not under such laws entitled to the benefits. Ih.
4. Construction of certificate of insurance. — A benefit certifi-
cate provided on stipulated conditions for the payment to the holder
of a sum of ^'not exceeding $1,000/' but contained no other pro-
Digitized by VjOOQIC
688 INDEX.
vision for the determination of the amount of the liability j nor did
the constitution or by-laws of the benefit society help out the cer-
tificate in this regard. Held, that the certificate entitled the holder
to the full amount named, to-wit, $1,000. Bobyn v. Supreme Sittifig,
Order of Iron Hall, 198.
5. Inadequacy of consideration for benefits cojitracted for.
The certificate provided for the payment of said sum at the end of
seven years, and required as a condition thereto that the holder of
it should pay the benefit society such assessments as might be made
during that period. The assessments made by the society during
these seven years against the holder of the certificate amounted to
Only $351. Held, that this fact could not operate in reduction of
the claim under the certificate. Ih.
6. Legality of benefits.— The charter of a benefit society set
forth that one of the objects of the association was to afford relief,
comfort and protection to members, and empowered the association
to make by-laws to carry out those objects. Heldf that the adop-
tion of a by-law for the payment of benefits to defray the funeral
expenses of members and of their wives was authorized thereby.
Lysaght v. St. Louis, etc., Astt^n, 538.
7. Garnishment— assessments by benefit society. — An assessment
made by a benefit society against a subordinate lodge reached the
hands of the treasurer of the lodge, whose duty it then was to
immediately forward the fund to the treasurer of the society; nor
did the lodge thereafter, under its own laws or those of the society,
h^ve any control over the fund. Held, that the fund was subject to
garnishment under a writ of attachment against the society, not-
withstanding that the lodge had directed its treasurer not to for-
ward, but to hold, the same, owing to the failing condition of the
society. Collins v. Kammann, 464.
BILLS OF EXCHANGE. See Banks, 5; Negotiable Paper, 1 and 2.
BOARD OF EQUALIZATION. See Taxes, 1 to 3.
BONDS. See Principal and Surety.
Breach— rendering impossible to perform— damages. — The prin-
ciple, that a party to a contract may breaking it by rendering the
performance of its condition impossible, is applied to a recogniz-
ance given on a temjMjrary stay of execution, and it is heldy that
where the principal in such obligation suffered the property seized
under such execution to be subsequently sold under an execution
enforcing a prior lien, thereby rendering it impossible to turn out
the property to satisfy the execution upon the dissolution of the
stay order, he suffered a breach of his bond, and he and his sure-
tics would be compelled to perform the other alternative of their
obligation, to-wit, pay the debt and costs to be recovered by the
• exttfcution, and even if it was impossible to render said property in
Digitized by VjOOQIC
INDEX. 689
execntion at the time the recognizance was entered into, still it
remained for them to pay the debt and costs ; and in this case the
terms of the contract fixed the measure of damages. Seaman v.
Paddock, £96.
BURDEN OF PROOF.
iNfeTRUCTiON. The burden of proof is not affected by evidence of
facts which establish a prima facie case. It remains the same
throughout the case ; and, notwithstanding such prima facie case,
the jury may accordingly be instructed that it is on the party who
has it at the outset. Marshall Livery Co, t?. McEelvy, 240.
CHECKS. See Banks, 5.
CHATTEL MORTGAGE.
1. Delivery.— The infallible test of delivery is the fact that the
grant9i has divested himself of all dcnninion and control over the
conveyance, as he appears to have done in this case. Huiserv. Bechf
668.
2. DELIVERY TO AGENT. — A delivery to a third person for the mortga-
gee's use is a good delivery, if accepted by the mortgagee; and
delivery to an agent is as effective as delivery to the mortgagee.
Springfield, etc.f Co. v. Glazier, 95.
3. Insufficiency op description op property — deuvery. — Though
the description in a chattel mortgage be insuffieient, yet if posses-
sion is delivered to the mortgagee before the rights of third parties
attach, they can take no advantage of the faulty description, as
delivery cures such defects. Ih.
4. Description — orowino crop. — A description in a chattel mort-
gage, calling for seventy acres of growing com, raised by the mort-
gagor on his farm in section 35, will not cover corn raised by him
on an adjoining rented farm in the same section; nor is parol evi-
dence admissible to show the mortgagor intended to include the
com on the rented place. Mayer v. Keith, 157.
5. Same. — Such description is not of that grade of sufficiency as to
enable third parties, after reasonable inquiry suggested by the
instrument, to identify the com on the rented farm as intended to
be covered. Ih.
6. Same. — A description in a chattel mortgage calling for forty acres of
com, standing and grown on a certain subdivision of section 35, etc.,
is sufficient ; though it is not stated that the land is in the county,
yet the mortgagor is described as being of a certain county, and, as
having the corn in his possession. Ih.
7. Effect op power op sale on part of mortgagor. — To render a
chattel mortgage constructively fraudulent, a power of sale or sub-
stitution on the part of the mortgagor must be reserved at the time
of the execution of the mortgage; if conferred subsequently thereto,
it will not have that effect. State ex rel. Smith v. Soever, 148,
Vol. 55—44
Digitized by VjOOQIC
690 INDEX,
8. C0NSTRUC3TIV1C FRAUD — EPPEOT OP ACTUAL DELIVKRT OF CHATTELS
TO MORTGAGEE.^- A chattel mortgage which is only oonBtmctively
fraudulent is purged of the fraud, if the mortgagee rightfully takes
possession of the mortgaged property prior to any levy on it under
process against the mortgagor. Ih,
9. Record — attachment — priority. — An attachment levied prior to
the recording of a previously given chattel mortgage, will not take
precedence of such mortgage. Authorities and statute discussed.
Huiser v. Beck, 668,
10. INTERPLEA BY MORTGAGEE IN ATTACHMENT PROCEEDING.— The
seizing of mortgaged property under an attachment, and removing
it, givQS the mortgagee an option to take it into his possession,
which he may exercise by interpleading in the attachment. lb.
11. Trover— RIGHT of action by mortgagee. — An action of trover
cannot be maintained by one who has neither the right of property
in the chattel alleged to have been converted, nor the right of
possession ; and neither of said rights follows from the mere fact
that the plaintiff is a mortgagee of the chattel before condition
broken. Bank v. Fisher, 61,
CIRCUIT COURTS. See Courts.
COMMON CARRIER.
1. Sleeping car companies, liability of— contributory neg-
ligence OF PASSENGER. — A passcngcr on a sleeping car, who
leaves his watch in his berth while he is in the toilet room, is, as a
matter of law, guilty of contributory negligence if it is stolen in his
absence, and therefore cannot recover from the company for the
loss ; but it is otherwise, if he directs the porter in charge of the car
to look after his effects in his absence. Chamberlain v. Pullman
Palace Car Co., 474.
2. Shipment beyond carrier's line — evidence of authority
OF LOCAL AGENT. — The evidence in this cause is considered, and it
is held sufficient to show authority upon the part of a local agent of
a common carrier to make a contract for the through shipment of
stock beyond the carrier's line. The evidence is also held insufS-
cient to conclusively establish an abrogation of that contract by the
delivery of the stock by the carrier to the shipper at the terminus of
the carrier's line. Eandley v. Railroad, 499.
CONTRACTS. See Frauds, Statute of.
1. Contracts, validity of — extra-territorial effect of sunday
LAWS. — Our statutes against the performance of labor on Sunday
have no extra-territorial effect, and, therefore, do not invalidate a
contract which is made in this state, but is wholly to be performed
beyond its limits. Said v. Stromherg, 4S8.
2. : CONTRACT FOR WORK ON SUNDAY.— A Contract for work
and the transaction of business on a Sunday is not invalid at com-
mon law. lb.
Digitized by VjOOQIC
INDEX. 691
3. Wagerinq contract — INSTRUCTIONS. — Instructions relating to a
sale of hogs and presenting the issue of a wagering contract are set
out and approved in the opinion. Harding v, Manard, 364.
4. Gambling contracts— sales op grain on biargins without intent
TO DELIVER. — Since the act of 1889 (Revised Statutes, 1889, sec.
3931, ei seq, ) contracts for the sale of grain are void, if one of the
parties thereto does not intend to receive or deliver the commodity
sold, and the other party is aware of this intent, whether, he shares
in it or not. That statute also affects middlemen. Schreiner,
Flack ^ Co. V. Orr, 406,
6. EVIDENCE OP INTENT NOT TO RECEIVE OR DELIVER.— The
intent of a party to the contract, that there shall be no delivery of
the commodity, may be gathered from all the attending circum-
stances. And held, that the evidence in this cause warranted the
inference* Ih.
6. Independent agreements. — Two promises are not necessarily
dependent because concurrent. Terry v. Greer, 507.
7. . When a contract requires a payment to be made at a time
which may happen before a certain covenant of the payee is to
be performed, such covenant and that for the payment are inde-
pendent covenants. Burris v. Shrewsbury Park, etc., Co., 381.
8. Discharge op contract under seal — consideration. —A contract
under seal may be discharged, before or after breach, by parol for
valuable consideration ; and a legal consideration for an agreement
is furnished by the least advantage under it to the promisor or the
least detriment to the promisee. Lancaster v. Elliott, £49.
9. Consideration. — A contractor for the erection of a building sub-
let a portion of his contract, which the subcontractor failed to
execute in accordance with its provisions. Thereon it was agreed
between the contractor and subcontractor that the work should be
repaired at their joint expense so as to make it answer the require-
ments of the contract in respect to the deficiencies then known to
the contractor. After the repairs had been partly proceeded with,
the contractor ascertained that the work was deficient in other
respects and refused to carry out this agi*eement. Held, that this
agi'eement for repairs at joint expense was without consideration,
and, notwithstanding its partial performance, was not obligatory
on the contractor. Storck v. Mesker, 26.
10. Right op rescission. — ^The breach of a contract will not warrant
the rescission thereof by a party, if it was occasioned by his own
default. Burris v. Shrewsbury Park, etc., Co., 381.
11. Principal and surety— alteration op instrument— seal — dis-
charge.— Changing a simple contract to a specialty by adding the
word "seal" in a scrawl after the names of the obligors is such
alteiation of the instrument as to discharge the surety. The
Digitized by VjOOQIC
692 INDEX.
authorities are diseussed and distingaished, and the holding reaf-
firmed on motion for a rehearing. Freci Heim Brewing Co, v, Haeen,
£77.
12. For rulings in relation to building contracts, see Principal and
Surety, 1 and 2.
13. Measure op damages for breach. — When there is a breach of an
agreement by a contractor to erect a building within a stipulated
time,* the value of the use of the building, while the owner is
delayed in its occupancy by the fault of the contractor, is recover-
able as damages. DengUr v, Auer, 548.
' 14. Evidence op damages for breach. — Wben a contractor sublets a
part of his contract, and the subcontractor fails to perform his
part of the work in conformity with the contract, the former cannot
establish the quantum of his damages against the latter, nor his
right to substantial damages, by proof that he had agreed upon
their amount with another person with whom he relet the work,
and thereon paid it. Storck v. Meeker, £6.
15. Oral evidence in aid or variance op its terms.— Evidence of
a contemporaneous oral agreement between the parties to the con-
tract, attaching a specific meaning to a technical term used in it, is
not competent. lb.
16. extrinsic evidence op custom. — ^Extrinsic evidence is
admissible in the construction of a building contract to show that a
term in it, such as a requirement for '*old style roofing tin," had by
the usage of trade acquired a peculiar signification. lb.
17. Stated account between parties. — When the parties to a build-
ing contract have agreed upon the amount due for a specific portion
of the work, and the one who owes the amount thus agreed upon
has paid it in accordance with the terms of the settlement, the
other is debarred from making any further claim for the work.
Dengler v. Auer, 648.
CONVERSION. See Trover.
CONVEYANCES.
1. Consideration— PAROL evidence. — The consideration of a deed is
ordinarily open and not concluded by that which is recited, and
additional consideration may be shown, but it must not be incon-
sistent with the terms of the deed itself. Hickman v, Hickman, SOS.
2. General warranty — parol agreement for reservation op pos-
session.— A contemporaneous oral agreement that the grantor in a
general warranty deed is to remain in possession of the premises
and enjoy the profits thereof, is inconsistent with the deed itself
purporting to convey the title, and is in contradiction to the cove-
nants therein. lb.
Digitized by VjOOQIC
INDEX.
3. Implird covenant. — The sale of a thing imparts, from
natnre, the obligation on the part of a seller to secure to
chaser the possession and enjoyment of the thing bought,
to possess and enjoy being really that which is purchased.
4. Deed— CONSIDERATION — parol agreement — RESULTING
On motion for rehearing, the authorities are further revie
the foregoing propositions again asserted, and it is furt
that the consideration of a deed cannot be so questioned
as to have the effect to create a resulting trust in the
lb.
CORPORATIONS. See Municipal Corporations.
1. Corporate action— agent's power in and out op con
Certain individuals, convened and acting as a body corpoi
transact certain business and exercise certain powers g
corporations, yet, these same parties not so convened are p
even by unanimous consent, as individuals to perform t]
enjoined on the body. State ex rel. Bank v. Wray, 646.
2. Mandamus — expulsion op member by corporation. — A
tion whose members have property rights in it has no
expel a member without due notice to him of the groun<
proceeding, and a trial at which he has been afforded an
nity to be present. When a member has been expalled
tion of this rule, he may compel the restoration of his \
by mandamus, Lysaght v. Stonemasons* Ass'n, 538.
3. Same — When the laws of a mutual benefit society provid
payment of benefits to defray the funeral expenses of mem
of their wives, the members have property rights in th
within the purview of this rule. lb.
4. Defense op ultra vires. — A corporation cannot plead u
against an act by it merely in excess of its charter authorit
the consideration has been received by it and the transa<
been executed by the other party. lb.
COSTS.
Costs op appeal. — As defendant was compelled to appei
relieved of the error in assessing a fee for plaintiff's atto:
docket fee is taxed against the respondent. DUly v. .
125.
COURTS.
1. Appointment op special judge op circuit court undei
1891.— The act of 1891 (Session Acts, p. 113), providing
appointment of a special judge of a circuit court when th<
judge is labM'ing under a temporary disability, applies to tJ
court of the city of St. Louis. Bremen Bank v. Umrath, 4S
Digitized by VjOOQIC
694 INDEX.
2. DETERMIKATION BY SPECIAL JUDGE OP MOTION POB NEW
TRIAL OP CAUSE TRIED BEPORB THE REGULAR JUDGE. — A Special
judge appointed under that act has the power to act on a motion
for the new trial of a cause tried before the regular judge, and to
sustain it for the reason that under the circumstances he cannot
dispose of it upon its merits. A mere protest against his hearing
of the motion will, therefore, not render his action in this regard
erroneous; but whether it would have been so, had the objection
been supported by affidavits showing a likelihood of an early return
of the regular judge to the bench, is not decided. lb,
3. Jurisdiction op circuit courts— interperence with process
' OF SUPREME COURT. Held, BoND, J., expressing no opinion, that a
circuit court has no power to interfere with process of the supreme
court, and that it has, therefore^ no jurisdiction to restrain the levy
of an execution issued by that court, where the execution creditor
is insolvent, and the execution debtor holds an unpaid judgment
against hitn for more than the amount of the execution. Kinealy v.
Staed, 176.
COVENANTS. See Contracts, 7; and Conveyances, 2 to 4.
CRIMINAL LAW.
1. Maucious destruction op pence— inpormation.— An information
under section 3592, Revised Statutes, 1889, charged that the
defendant did willfully and maliciously cut down, break and injure
a portion of a certain fence, and contained words descriptive of
the offense, in addition to those employed in the statute ; but as
they neither enlarge nor diminish the meaning of the statutory
words, they may be rejected as surplusage. State v. Morse, 33S,
2. suppiciENCY OF COMPLAINT. — The Same technical accuracy
is not required in a complaint as in an information, and though the
former does not use the statutory words, yet if it use words of equiva-
lent import, it authorizes the filing of an information. lb.
3. AFFIDAVIT. — It is no objection to an information that it fails
to charge that it is based upon an affidavit. / b.
4. Criminal proceedings— fiunq information.- It is enough that
the information is lodged with the justice, and the defendant
arraigned and tried thereon, and it is then sent up to the circuit
court on appeal, although the justice's minutes fail to state its filing
and it is not marked filed. State v. Piummer, S88.
6. JUSTICE OP WHAT COUNTY — EVIDENCE. — This record suffi-
ciently shows that the justice before . whom the proceeding began,
and the one before whom it was tried, were both justices of the
county where the offense occurred; and the evidence sustains the
conviction, lb.
6. Arraignment. — Where there is no arraignment of the defendant,
there must be a reversal of the judgment of conviction. State v.
MiMeU, tes.
Digitized by VjOOQIC
INDEX. 695
7. Carrying weapon — self- defense. — On the evidence in this case
the sole issue to be tried is whether defendant was justified in cany-
ing the pistol in his necessary self-defense, and the instructions
should be confined to that issue. lb.
8. Information — ^filing of complaint. — If an information discloses
on its face that it is not made upon "the knowledge, information or
belief of the prosecuting attorney, but upon the complaint, either
filed before a justice or delivered to the prosecuting attorney, it must
in the one case be founded upon such complaint, and in the other
accompanied by it, or otherwise the information should be quashed.
(Per Smith, P. J.) State v. White, 356.
9. prosecuting attorney. — The prosecuting attorney holds
not only the position of the attorney general or solicitor general of
England, by virtue of which he may institute a criminal informa-
tion at his will without the oath of himself or the affidavit of a
third party, but also the position of the coroner as well, whereby he
may file an information at the suggestion or instigation of a private
citizen in the shape of an affidavit. Such affidavit should contain all
matters necessary to criminate the defendant, and should be returned
into court with the information, so that the defendant and the court
may see its sufficiency and that the information follows it. lb.
10. Gaming — indictment. — Whether an indictment for permitting the
setting up of a gaming device would be sufficient by simply alleging
that the house was occupied by the defendant, qu(Bre; and whether
occupancy is tantamount to control, qucere; but the indictment in
this case negatives defendant's control by alleging possession and
control in another. State v. Mohr, SS5.
11. Qaming — indictment — IDEM SONANS. — "Mohr*' and '*Moores" are
not idemsanans, and an indictment charging *'Mohr" with permitting
gaming in a room, of which "Moores'' had possession and control,
is bad. lb.
12. Idem sonans — ^rule. — Names are idem sonans, when the attentive
ear finds difficulty in distinguishing them when pronounced In ordi-
nary usage. I b.
13. Gaming — ^indictment, objections To.—It is not fatal to an indict-
ment under section 3810, Revised Statutes, 1889, for permitting gam-
ing device on premises, that it charges the device was "called" a
pack of cards, instead of "was" a pack of cards. lb.
14. gaming device.-— a pack of cards is a gaming device ; and an
indictment is not bad for using the word "gambling" instead of
"gaming."
15. Common gaming house — room of house. — A common gaming house
may be set up and kept in a single room of a house of many rooms,
and the indictment need not allege the other rooms were unoccu-
pied, lb.
Digitized by VjOOQIC
696 INDEX.
DAMAGES. See Banks, 2; Sales, 5.
1. Contracts — evidence op damages for breach. — When a contrac-
tor sublets a part of his contract, and the subcontractor fails to
perform his part of the work in conformity with the contract, the
former cannot establish the quantum of his damages against the
latter, nor his right to substantial damages, by proof that he had
agreed upon their amount with another person with whom he had
relet the work, and thereon paid it. Storck v, Mesker, S6,
2. Instructions— measure of damages.— nondirection. — While it
is the better practice to instruct the jury as to the measure of the
damages, the failure of the court to do so amounts only to nondirec-
tion, and therefore is not ground for the reversal 'of the judgment.
lb.
3. Building contract, breach of— measure of damages.— When
there is a breach of an agreement by the contractor to erect a
building within a stipulated time, the value of the use of the
building, while the owner is delayed in its occupancy by the fault
of the contractor, is recoverltble as damages. Dengler v, Auer, S48,
4. Injury op minor — ^bvidbnob op loss of earning capacity. In an
action by a father for damages for injuries to his minor child,
whereby the child (a boy) was crippled, there was evidence tending
to show that boys thus crippled could not find employment in a
number of avocations, and that their earning capacity was, therefore,
lost entirely, or nearly so. The defendant adduced no evidence of
an earning capacity on the part of such a cripple in any avocation.
Held, that there was sufficient proof of the plaintiff's damages in
this regard. Schmitz v. JRailroad, S76.
DEPOSITIONS.
1. Not signed by witness— waiver.— Where the signing of a deposi-
tion is waived at the close of the finding, this is sufficient to
authorize its use at the trial. StecJcman v. Harbeff 71,
2. Waiver of process— deposition.— The mere presence of defendant
at the time and place of plaintiff's taking of depositions, without
any participation therein, will not amount to a waiver of service
of process, though notice of their taking was given to defendant.
Anderson v. Andersonf S68,
DIVORCE.
1. Desertion.— If a husband sees fit to invite members of his familv
to live with him, his wife has no right to leave his home on thii
account. Jones v, Jones, 62S.
2. . When a separation by a wife from her husband, though
without justification, takes place with the tacit consent or connivance
of the latter, it does not amount to desertion within the meaning of
the law of divorce. Droege v. Droege, 481.
Digitized by VjOOQIC
INDEX. 697
3. ALIM0N7 — CONSTBUCTIVE SERVICE. — An aetion to disolve the mar-
riage relation is a quasi snit in remy the marriage status being the
res; and on oonstructive service, and nonappearance of the
defendant, the most that can be done is to abrogate the marriage
relation to the relief of plaintiff; but there can be no personal
judgment for alimony against the defendant. Anderson v. Anderson^
868.
4. MODIFICATION OP JUDGMENT. — When there has on construc-
tive service only been a decree of divorce entered "without any
judgment of alimony, whether at a subsequent term the court can
modify such decree by making an allowance for alimony, qucere.
JSeld, however, that to such supplementary proceeding the defend-
ant must be brought in by regular process, or enter his appearance.
6. Interest on payments for maintenance.— When a decree of
divorce adjudges the payment of fixed installments of money
from the husband to the wife for the maintenance of their child,
each installment bears interest from the time when it is payable.
Lancaster v, Elliott, S49,
ELEVATORS. See Negugence, 1 to 5.
EQUITY. See Quiet Title, Action to; also Injunctions.
1. Conduct of plaintiff — The maxim, "He who seeks equity, must
do equity,' ' applied to the facts of this case and the conduct of
plaintiff in concealing a trustee's sale from the defendants to get
even with one of them on account of another trade, results in the
af&rmance of a decree requiring the plaintiff to convey certain land
to the defendants before he can have judgment against them on
certain notes. Steckman v. Barber, 71,
2. Illegal trusts— enforcement in equity. — A court of equity will
not lend its aid to the enforcement of an illegal trust, and accord-
ingly will not, at the suit of a debtor who has conveyed his property
to hinder or defraud his creditors, compel a reconveyance to him.
Scudder v. Atwood, 6 IS.
3. PLEADING. — Under the general issue evidence may be
received, which tends to show a cause of action never existed, or
that it was void ab initio. Accordingly, when a petition alleges a
lawful trust in favor of the plaintiff and seeks to enforce it in
equity, it may be shown under a general denial that the trust was
made for fraudulent purposes. lb.
4. Enforcement op dormant judgment — status in equity of holder
of such judgment. — Held, by Bond, J., that a judgment which has
lain dormant for more than ten years does not entitle its owner to
. any relief in equity beyond that of a general creditor of the judgment-
defendant, and, accordingly, that it is not a proper basis for an injunc-
tion against the enforcement of another judgment obtained by such
defendant against such owner. Kinealy v. Staed, 176.
Digitized by VjOOQIC
698 INDEX.
ESTOPPEL. See Assignment, 1.
1. Statxjtk op frauds. —The doctrine of estoppel cannot be invoked
to validate a contract ivhich the statute of frauds declares abso-
lutely void. Nichols v. Bank, 81.
2. Breach op warranty. — An action on the warranty of a machine
will not be defeated by a paper signed after the sale, stating that
the machine was working satisfactorily, and such paper does not
estop the warrantee from the setting up of a breach of warranty,
and testifying to matters inconsistent with such paper; nor will
such paper be excluded in this case because it prevented plaintiff
from claiming back from the machine company, nor because it was
an injury to plaintiff to have the admission in the report disproved.
McManus v. Watkins, 9i.
EVIDENCE. See Depositions; also Witnesses.
1. Judicial cognizance op facts. — Courts will notice judicially on
what day of the week a given date fell. Said v. Siromberg, 4SS,
2. Declarations oP agent— res gest^. — The declarations of an
agent who issued an insurance policy and gave notice of the loss
made dumfervet opus in the course of his employment, are admissible
in evidence ; and in this case, if improperly admitted, were merely
cumulative and harmless. Arnold v. Hartford Fire Ins. Co., 149.
3. Competency op declarations op alleged copartner.— The
declarations of one member of an alleged partnership in reference
to its business are admissible against another, when the existence
of the partnership between them has been established aliunde by
substantial evidence. Bainwater v. Burr, 468.
4. Oral evidence in aid or variance op writings. — ^A description in
a chattel mortgage, calling for seventy acres .of growintr com,
raised by the mortgagor, on his farm in section 35, will not cover
com raised by him on an adjoining rented farm in the same section ;
nor is parol evidence admissible to show the mortgagor intended to
include the com on the rented place. Mayer v. Keith, 157.
5. RECORDS. — Though the recital of a thing or matter of fact
in a record, order or judgment will not control in the face of the
thing itself, which being produced shows the contrary, yet, in the
absence of such production, the record cannot be contradicted by
a witness' memory of the consents of the absent paper. Atwood v,
Atwood, S70.
6. CONTRACTS. — Extrinsic evidence is admissible in the con-
struction of a building contract to show that a term in it) such as a
requirement for ''old style roofing tin,'* had by the usage of trade
acquired a peculiar signification. Storck v. Mesker, fS6.
7. . But evidence of a contemporaneous oral agreement between
the parties to the contract, attaching a specific meaning to a tech-
nical term used in it^ is not competent. Ih.
Digitized by CjOOQIC
INDEX. 699
8. DEEDS. — The consideration of a deed is ordinarily open and
not concluded by that which is recited, and additional considera-
tion may be shown, but it must not be inconsistent with the terms
of the deed itself. Hickman v, Hickman, SOS,
9. POSSESSION. — A contemporaneous oral agreement, that the
grantor in a general warranty deed is to remain in possession of
the premises and enjoy the profits' thereof, is inconsistent with the
deed itself purporting to convey the title, and is in contradiction to
the covenants therein .lb,
10. . On motion for rehearing, the authorities are further
reviewed and the foregoing propositions again asserted, and it is
further held, that the consideration of a deed cannot be so ques-
tioned by parol as to have the effect to create a resulting trust in
the grantor. lb,
11. For ruling on the insufficiency of objections to evidence, see Prac-
tice Trial, 5.
EXECUTIONS. See Bonds; Courts, 3.
1. Crops. — Growing crops being fructus industriales are subject to
seizure and sale under execution. SeUcman v, Einnard, 6S5.
2. LIEN ON CROP — INJUNCTION. — A judgment creditor of a
tenant, who pays his rent in part of the crop, cannot levy his execu-
tion on the immature crops growing on the rented premises, nor can
he compel the landlord to take an estimated value of such crops so
as to discharge his lien, and the* landlord may enjoin the officer
having such execution . lb,
3. For rulings on the effect of levies, see Attachment, 9 and 10.
FIXTUEES.
1. Mirror not built in wall.- A mirror not set in the wall but put
up after the building was finished, so that its removal did not inter-
fere with the wall, is a chattel and not part of the freehold, and
does not pass therewith. Loan v. Gregg, 681.
2. Intention and other elements— law and pact. — Intention to
make a chattel a permanent accession to a building is not alone
sufficient, without adaptability and annexation, and all of these are
matters for the consideration of the jury in a proper case. lb.
FORCIBLE ENTBY AND DETAINER.
1. SuppiciENOT OP THE EVIDENCE. — The evidence in this case for
forcible entjy and detainer reviewed and found not to support a
finding in favor of plaintiff, as it shows defendant was in peaceable
possession under plaintiff's husband. Kennedy v. Broyles, £57.
2. Possession — husband and wipe. — When the husband permitted
the defendant to enter under the deed and himself quit the premises
with his effects, having already taken his wife away, defendant
Digitized by VjOOQIC
700 INDEX.
was in the 8ol« peaceable possession, and a subsequent entry for
the plaintiff, the wife, was a trespass, lb.
3. Instructions — res adjxjdicata. Instructions given and refused
in reference to forcible entry and detainer, and a judgment set up
in defense, are considered. Myers v. Miller, 338.
FRAUD AND FRAUDULENT CONVEYANCES. See Banks, 4; Chattel
Mortgages, 7, 8.
1. Evidence op praud. — Fraud does not have to be shown by direct
testimony, and may be inferred from circumstances, though it
must be proved and never presumed; and where there is evidence
thereof, as in this case, the finding of the lower court will not be
disturbed. Gordon v. Isniayf 3S3.
2. Suppiciency op the evidence.— The evidence in this case is suffi-
cient to take the question of fraud in obtaining the judgment, on
which appellant relied, to the jury, and support the finding.
Myers v. Miller, 338.
3. Validity op preperenoe. Where a creditor of an insolvent firm,
without knowledge of any fraud, and only endeavoring to secure
payment of his own claim, takes no more goods than is necessary,
he is not answerable as garnishee of the firm at the suit of another
creditor. Hellman j- Co. v. Bick, garnishee, 168.
4. Insuppicienct op the evidence — INSTRUCTIONS. — The evidence
in this case fails to show fraud, and the instructions^ if erroneous,
are so in being unnecessarily liberal to plaintiff. Trorlicht Bunker
4- Benard Carpet Co. v. Hatton, 320.
5. . The evidence in this case shows no fraud on the part of
assignor or assignee, and there is no estopi^el in the case, since
none is pleaded. Bock Island Plow Co. v. Lang 4" Cray, 349.
FRAUDS^ STATUTE OF.
1. Promise to pay por goods sold to another person— instruc-
tions.— To show that a promise to pay for goods sold and delivered
to a third party was original and not within the statute of frauds,
it is essential, if the purchase was not a joint one, that the credit
for the goods should have been given solely to the promisor. And,
held, that an instruction which submitted such an issue in this
cause was not sufficiently definite and clear. QUI v. Beed, 246.
2. Memorandum op sale op land — supplying deficiency by parol
EYIDBNCE. — The memorandum of a contract for the sale of land is
insufficient under the statute of frauds, if the land cannot be
identified from its terms, aided by its references to external
standards of description. To have the effect of identification, the
external standard thus referred to must have been known or exist-
ing at, or before, the making of the contract; a provision merely for
Digitized by VjOOQIC
INDEX. 701
f atare occupancy will not suffice . Nor can the failure of the
memorandum to thus definitely locate the land be obviated by
parol evidence. Weil v. Willard, 376.
3. Original promise— collateral promise— estoppel.— The evi-
dence in this case is reviewed and it is lield that, if the representa-
tions of the cashier of the defendant bank in reference to the
payment of a check drawn on the bank amounted to a promise at
all, it was, in its nature, collateral and within the statute of frauds;
also thatlhe words and conduct of defendant's cashier could not
operate as an estoppel in pais, as one cannot invoke the doctrine of
estoppel to validate a promise which the statute declares abso-
lutely void. Nichols v. Bank, 81.
FRAUDULENT CONVEYANCES. See Fraud and Fraudulent Con-
veyances.
GARNISHMENT.
1. Effect op answer op garnishee. — The answer of a garnishee to
the interrogatories filed by the attaching creditor is evidence in his
favor of all affirmative facts stated therein by way of avoidance ;
accordingly it casts upon such creditor the burden of rebutting the
allegations made in it. Walker v. N. K, Fairbanks j- Co., gar-
nishee, 478.
2. Jurisdiction. — A debt must have its situs within the terriorial
limits of the jurisdiction of a court, in order to be subject to g^amish-
ment under the process of that court ; and its situs for this purpose
is the place where it is payable. Ih^
3. Garnishment op assessments by 'benefit society.— An assess-
ment made by a benefit society against a subordinate lodge
reached the hands of the treasurer of the lodge, whose duty it then
was to immediately forward the fund to the treasurer of the society;
nor did the lodge thereafter, under its own laws or those of the
society, have any control over the fund. Held, that the fund was
subject to garnishment under a writ of attachment against the
society, notwithstanding that the lodge had directed its treasurer
not to forward, but to hold, the same, owing to the failing condition
of the society. Collins v. Kammann, garnishee, 464.
HIGHWAYS. See Negugence, 2.
HOMESTEAD.
Wipe's claim. — Until the wife's claim of homestead is made, acknowl-
edged and filed for record, the husband's right to convey the title
and possession is unafifected. Kennedy v. BroyUs, SS7,
HUSBAND AND WIFE. See Mechanics' Liens, 7.
INJUNCTION.
1. Dissolution — attorneys' pees as damages. — Reasonable attor-
neys' fee for procuring the dissolution of an injunction are rightly
Digitized by VjOOQIC
702 INDEX.
considered in the assessment of damages on plain tifTs bond, yet,
the amount to be allowed therefor is limited to fees paid the attor-
ney for procuring the dissolution, and do not include fees paid
for defending the entire case; and where the injunction is, as in
this case, only incidental to the main contention and is dissolved
by the judgment on the main controversy, couosel fees for the dis-
solution are not recoverable in an action on the bond. Anderson v.
Anderson, 868,
2. PBELIMINARY restraining order — EXACTION OF NON-STATUTORT
BOND. — A temporary injunction was granted on condition that the
plaintiff should give bond in statutory form, and furthermore exe-
cute a bond of idemnity to the party enjoined as trustee for persons
who were not parties, but whose interests were affected, and both
bonds were given. Subsequently the injunction was dissolved, and
the plaintiff moved for the cancellation of the non- statutory bond.
Held, that this motion was without merit. Kinealy v. Stwd, 176.
3. Jurisdiction op circuit courts — interference with process of
SUPREME COURT. JSeld, BoND, J., expressing no opinion, that a
circuit court has no power to interfere with process of the supreme
court, and that it has, therefore, no jurisdiction to restrain the levy
of an execution issued by that court, where the execution creditor
is insolvent, and the execution debtor holds an unpaid judgment
against him for more than the amount of the execution. lb.
i. Enforcement op dormant judgment — status in equity of holder
OP such judgment. — Hcldf by Bond, J., that a judgment which has
lain dormant for more than ten years does not entitle its owner to
any relief in equity beyond that of a general creditor of the judg-
ment-defendant, and, accordingly, that it is not a proper basis for
an injunction against the enforcement of another judgment
obtained by such defendant against such owner. lb.
INSTRUCTIONS.
1. Abstractions— covering case. — Instructions which are mere
abstractions, and do not cover the whole case, are properly refused.
Arnold v. Hartford Fire Ins, Co., 149.
2. Commenting on character of the cause. — It is objectionable for
the court in an instruction to the jury to state that it considers the
cause a very simple one both as to the law and the facts, and to
urge the jury to come to some agreement, owing the small amount
of money involved. Skinner v. Stifel, 9.
3. Instruction given orally and in absence of counsel.— It is
error for the trial court, after the submission of a cause to the juiy,
to give to them additional instruction orally or in the absence of
counsel whose attendance can be procured. Jh.
Digitized by VjOOQIC
INDEX. 703
4. Banks and banking — instructions— not supported by evidence.
It is error to instruct ajury as to the effect of negligence of a banker
in accepting a note ^ith a forged signature, when there is no evi-
dence showing such negligence. First National Bank v. Lillard, 675.
5. Measure of damages — non- direction. — While it is the better prac-
tice to instruct the jury as to the measure of damages, the failure of
the court to do so amounts only to non-direction, and therefore is not
ground for the reversal of the judgment. Stork v. MesJcer, 26,
6. Burden op proof — The burden of proof is not affected by evidence
of facts which establish a prima facie case. It remains the same
throughout the case ; and, notwithstanding such prima facie case,
the jury may accordingly be instructed that it is on the party who
has it at the outset. J. D. Marshal Livery Co., v. McKelvy.SdO.
7. Wagering contract. — Instructions relating to a sale of hogs and
presenting the issue of a wagering contract are set out and approved.
Harding v. Manard, 364.
8. Contributory NEGLiokNCE. — When, in an action for damages for
a physical injury, there is substantial evidence of contributory
negligence on the part of the person injured, it is error to instruct
the jury that there is a legal presumption that he exercised ordi-
nary care. Lee v. Publishers, Oeo. Knqpp ^ Co., S90.
9. Negligence. — An instruction authorizing a recovery by a servant
against his master for injury from a defect in the appliances furn-
ished by the latter, is fatally erroneous, if it does not require a
finding that the defect was the cause of the injury. Moore v. St.
Louis Wire Mill Co., 491.
10. Manner of making and preserving objections to instructions.
Exceptions to instructions given by the court need not be taken
specifically; a general exception addressed to the instructions in
the aggregate will suffice. Whipple v. Building and Loan Ass' n, 664.
11. Witnesses. — Instructions calling attention to the veracity of wit-
nesses are not favored by the courts, and the propriety and necessity
is left largely with the discretion of the trial courts, and, when
given, they should be drawn so as to confine their application to
material facts. White v. Lowenberg, 69.
12. . An instruction telling the jury if they believe any witness has
willfully sworn falsely they are at liberty to disregard the whole
of his testimony, is fatally faulty in not confining the false swear-
ing to a material fact. lb.
13. For instruction on waiver of proofs of loss under fire insurance
policy, see Arnold v. Hartford Fire Ins. Co., 149.
14. For ruling on the office and effect of instructions in cases tried
by the court sitting as a jury, see Practice, Appellate, 18 to 20.
Digitized by VjOOQIC
704 INDEX.
INSURANCE <FIRE).
1. Construction op terms op pouor.^-In the solutioir of langaage of
doubtful import; as it may appear in the policies of insuranoO; the
courts will resolve the doubts in favor of the assured, for the reason
that such clauses are interjected into the policy for its protection
and serve to qualify and restrict its m&in obligation ; and in this
case it is assumed thafr the language was intended to have such
meaning as people ordinarily affix to it. Ethington v. Dwelling
House Ins. Co., It9,
2. Stipulation against change of title— unpaid mortgage debt.—
A mortgage existed at the time the insurance was effected. After
the debt became due, and before it was paid; a loss occurred.
Held, such default in payment did not avoid the policy under the
stipulation therein, providing that any change in the interest, title
or possession, etc., rendered it void. Ih,
3. Proofs of loss — waiver — evidence — instructions. — ^Though
proofs of loss are not as full and complete as required by the con-
ditions of the policy, yet if they are timely received and objections
are withheld until after time of making proofs and after negotia-
tions for compromise, such objections are waived, and the proofs
are admissible in evidence. An instruction on the point set out in
the opinion is approved. Arnold v. Hartford Fire Ins, Co., 149,
4. Evidence— declarations of agent — res gest^b — harmless error.
The declarations of an agent who issued the policy and gave
notice of the loss, made dum fervet opus in the course of his em-
ployment, are admissible in evidence ; and in this case, if improp-
erly admitted, were merely cumulative and harmless. Ih,
5. Waiver op proofs op loss^law and fact. — Waiver of proofs of
loss is a jury question, and the appellate court is concluded by the
finding, if there is any evidence to sustain it. lb. i
INSURANCE (LIFE).
1. Waiver of forfeiture. — Waiver differs from estoppel in that it
depends solely on the intention of the party against whom it is
invoked. Stiepel v. German Am. Mut, Life As^n, 224,
2. sufficiency of evidence. — When the failure of the insured
does not absolutely avoid his life insurance, but entitles him to a rein-
statement of it within one year upon payment of the delinquent dues,
a showing of good cause and satisfactory proof of good health, proof
that the insurer, after default but within the year, mailed circulars
to him advising him of assessments, is not sufficient evidence of a
waiver of the forfeiture. /6.
Digitized by VjOOQIC
INDEX. 705
INTEREST.
Usury — who may take advantage of statute — attachment
CREDITOR. — The defense of usury is a personal privilege of the
debtor, his privies in representation, in blood, or in estate, as bis
vendee, execution creditor, or, as in this case, his attachment
creditor who may defend against his debtor's mortgage on the
ground that it secures usury, as provided in section 2, page 171,
Laws, 1891. American Rubber Co, v, Wilson, 656.
INTERPLEADER. See Attachment, 3 to 7.
JUDGES, SPECIAL. See Courts, 1 and 2.
JUDGMENTS. See Jurisdiction, 1 and 2.
1. Attachments — effect op recovery op judgment on lien op
attachment. — When the plaintiff in a suit by attachment recovers
judgment, the lien of the judgment merges that of a levy of the
writ of attachment on land, subject to the doctrine of relation in
the determination of priorities. Accordingly the lien of such levy
is lost, if the lien of the judgment is allowed to expire by limita-
tion. Chreen v. Dougherty, 217.
2. Lien on land. — The duration of the lien on a judgment on land
of the judgment debtor will not be extended through the recall and
stay of execution on motion of such debtor and the giving of bond
under section 2406 of the Revised Statutes of 1879 by him. / b.
3. Collateral attack — strangers— inferior court. When a court
has j.urisdlction of the parties and the subject-matter, the judg-
ment is binding and effectual upon all the parties and their privies
and cannot be questioned in a collateral proceeding, and this rule
obtains as well in cases in justices' courts and other statutory
courts as in courts of record ; but such rule does not expend to
strangei's, who may set up the defense of fraud in obtaining it
whenever it is attempted by it to affect their rights. Myers v. Mil-
ler, S38,
4. Forcible, entry and detainer — res adjudicata. — Instructions
given and refused in reference to forcible entry and detainer,
and a judgment set up in defense, are considered. lb.
5. Evidence op fraud. — The evidence in this case is sufficient to take
the question of fraud in obtaining the judgment, on which appel-
lant relied, to the jury, and support the finding. lb.
JURISDICTION. See Administration, 2; Appeals, 1 to 4; Garnish-
ment, 2 ; Justices' Courts, 3, 5, 6 and 8.
1. Order op publication— affidavit — presumption. — ^When a court
of general jurisdiction has jurisdiction over the subject-matter, it
will be presumed that, in acquiring jurisdiction over the person, it
has acted correctly ; and an order of publication reciting that "it
Vol. 55^^5
Digitized by VjOOQIC
706 INDEX.
appearing to the satisfaction of the clerk that defendant was a non-
resident/' a sufficient affidavit will be presumed. Atwood v,
AtW9od,'S70.
' 2. Record, contradiction of— parol iviDKNCB.--Thongh the reci-
tal of a thing or matter of fact in a record, order or judgment will
not control in the face of the thing itself, which being produced
shows the contrary, yet in the absence of such production, the
record cannot be contradicted by a witness' memory of the contents
of the absent paper. 1 ft.
3. Jurisdiction op circuit courts— interperencb with process of
SUPREME COURT. Heldf Bond, J., expressing *no opinion, that a
circuit court has no power to interfere with process of the "supreme
court, and that it' has. therefore, no jurisdiction to restrain the levy
of an execution issued by that court, where the execution creditor
is insolvent, and the execution debtor holds an unpaid judgment
against him for more than the amount of the execution. Kineaiyn.
Staed, 176.
JUSTICES' COURTS.
1. Affidavit for appeal— jurisdiction.— Although the affidavit for
appeal from a justice's court fails to state whether the appeal is
from the merits or an order taxing costs, yet on the granting of the
appeal by the justice and the filing of the papers in the clerk's
office, the circuit court becomes possessed of the cause, and if the
appellee proceeds without objection, the defect is waived. Limiting
Whitehead v. Cole, 49 Mo. 428. Welsh v, Bailroad, 699.
2. Same. — Although an affidavit for an appeal from a justice's court
fails to state whether the appeal was from the merits or matter of
costs, it still confers jurisdiction on the circuit court and may be
^mended before the motion to dismiss is passed upon. Watson v,
Barbee, 147,
3. Same. — The circuit court has concurrent jurisdiction with a justice
of the peace in an action to recover damages for injuries to plain-
tiff's crops; and where the justice grants an appeal and files the
paper in the circuit clerk's office, and the parties apear and go to
trial on the merits without objection to the appeal affidavit or the
jurisdiction, it must be construed as an admission of the jurisdic-
tion of the court and a waiver of all defects in taking the appeal.
Pearson v. Gillette SIS.
4. Defective affidavit— appearance. — A defect in an affidavit for
an appeal from a justice's court is waived by the general appear-
ance of the appellee ; and a proceeding to trial after making objec-
tion to the affidavit waives the objection. Nicholson v. Railroad,
59S.
5. Waiver op objection to want op jurisdiction. — The doctrine
that jurisdiction over persons may be conferred by consent or
waiver, is applicable to justices' courts. Qrimm v, Dundee Zand
and Investment Co., 467.
Digitized by VjOOQIC
INDEX.
6. Jurisdiction — attachment — interplea. — When
jurisdiction of an attachment proceeding, he als
to hear apd determine an interplea for the a
although such property exceeds in value the amc
ute as the limit of justices' jurisdiction, such i
incident giowing out of the principal action. S^
V, Glazier, 95,
7. FILING OP PAPERS.— The filing of a paper— in tl
tract sued upon — is its actual delivery to the offi
is to file it. The filing need not be shown by a 1
V. Eammann, garnishee, 464,
8. Jurisdictional facts.— It is not essential to t
judgment of a justice of the peace that the ji
should appear from his docket entries; it suffic
anywhere on the face of the proceedings. Ih.
9. Setting aside default — computation of time.
allowed by statute for the filing of a motion to
ment by default in a justice court, should expire <
motion must be filed before that day. State ex re\
66.
LANDLORD AND TENANT.
1. Lease — construction— sale by landlord. — A
that, in case of sale, the lessee was to have a fair
and all improvements made by him. The lesso
term, subject to all the lessee's rights under the 1
attorned to the purchaser and occupied the premii
tion of the lease, when he abandoned the premii
ment, and brought this action against his lessor f<
improvements. Held, he could not maintain ti
above stipulation was only intended to apply
the lessee's rights would not be protected. Ch
139.
2. Disputing landlord's title — estoppel. — A ter
pute his landlord's title at the commencement of i
show that his interest has terminated by the efflux
fact that, by inadvertence or mistake of his rig
paid rent for the expiration of leasehold, will not
a continuance of the tenancy. Robinson v. T\
662.
.3. Lease — lien on goods for rent. — An unacknow
corded lease, providing for a lien on the goods i
a security for the rent, will create no lien on su
third parties who have knowledge of it. Wm,
Co, V, Bain, 264,
Digitized by VjOOQIC
708 INDEX.
4. Lien on orop^execution v. tenant.—A judgment creditor of a
tenant who pays his rent in part of the crop, cannot levy his exe-
cution on the immature crops growing on the rented premises, nor
can he compel the landlord to take an estimated value of such
crops so as to discharge his lien, and the landlord may enjoin the
officer having such execution. Selecman v. Kiwnard, 6S5,
5. Conveyance op reversion — rents. — The sale of the reversion
carries with it, unless expressly reserved, all rents that may sub-
sequently become due under a lease previously given, and the
grantee may recover the same in his own name. Page v. CulveTf 606.
6. apportionment op rents. — At common law, as rent fol-
lowed the reversion, no apportionment would be made; but
monthly, quarterly and annual rent would follow the land and
belong to the owner at the time it accrued. lb,
7. interest in crops. — An administrator's sale of land effect-
ually carries the reversion with rent to accrue as an incident
thereto, though it be part of the crop, and this, without reference to
the condition of the crop as to maturity or immaturity at the time
of the sale. lb.
8. Sufficiency op service op notice to quit.— When the statute
requires notice in writing, as in the case of notice for the termfaia-
tion of a tenancy from month to month, the reading of a written
notice to the pereon to be served does not satisfy the requirement.
Langan v. Schlief, SIS.
9. Same. — A landlord's notice to quit was addressed to two persons.
It was served on one of them by the reading of it to him, and a
copy of it was furthermore delivered to him for the other. Heid,
that evidence of these facts warranted a finding of adequate
service on the person to whom the copy was thus delivered. lb,
10. Mines and mining — posting notice op lease — subtenant's pur-
chase op landlord's title. — Where the landlord on leasing
mining lots fails to post the notices required by section 7034,
Revised Statutes, 1889, the lease will expire at the close of three
years, and the subtenant, who, during the currency of the three
years, bought the landlord's title, will take the same at the expira-
tion of that time, free from the prior claim of the first tenant.
Robinson v. Troup Mining Co., 662.
LAW AND FACT. See Fixtures, 2.
1. Interpretation op writings — rescission op contract op sale.
The interpretation of writings is always for the court, except when
they are ambiguous and the ambiguity must be solved by extrinsic
un conceded facts, or when they are adduced merely as containing
evidence of facts from which different inferences can be drawn
and when it is for the jury and not for the court to draw these
inferences. And held that oorrespondence in evidence in this
Digitized by VjOOQIC
INDEX. 709
oanse, which was offered to establish the rescission of a contract
of sale, did not fall within either of these exceptions. Enterprise
Soap Works v, Sayers, 16,
2. Banks— NEGLiQBNCE in failing to collect draft— law and
FACT. — Whether conduct amounts to negligence is a question of
law, when the facts are not in dispute and but one inference can
reasonably be drawn therefrom. This rule is applied to the failure
of a bank to either collect a draft received by it for collection, or to
notify the drawer of its nonpayment in due time. Selz v, Collins,
65.
3. Same. — But whether the drawer, in the case of such negligence on
the part of a bank is entitled to a verdict for the full amount of the
draft is held under the evidence in this cause to be a question of
fact, dependent upon the probability of the collection of the draft,
if the bank had used due diligence in pressing the drawee for
payment, or in notifying the drawer of the nonpayment of the
draft. Ih.
4. Risks assumed by servant — apparent defects in appliances.
Whether a defect in an appliance furnished by a master to his
servant is obvious, so as to impose upon the latter the risk of injury,
is a question of fact when different conclusions in regard thereto
can reasonably be drawn from the evidence. Moore v. St, Louis
. Wire Mill Co,, 491.
5. Railroads— fencing station ground. — Whether a railroad com-
pany has placed its fence and cattle guards as near the head of its
switch as is consistent with the safety of trainmen in switching
trains at the station is a question for the jury under proper instruc-
tions. Welch V. Hannibal ^ St, Joseph Ry Co., 699.
C. Sales— warranty — rescission— reasonable time. — The vendee of
a chattel mortgage on breach of warranty may rescind the con-
tract and recover back the purchase price, yet he must act within
a reasonable time, which is ordinarily a question for the jury;
but where, as in this case, the delay is without excuse or fair expla-
nation, the courts will as a matter of law (declare, the same
unreasonable. Viertel v. Smith, 617.
LAWS. See Municipal Corporations, 1 and 2.
Justices' courts— setting aside default- computation of time.
If the ten days, allowed by statute for the filing of a motion to set
aside a judgment by default in a justice court, should expire on a
Sunday, the motion must be filed before that day. State ex rel.
Kerr v. Sheehan, 66.
LIENS. See Judgments, 2 ; also Landlord and Tenant, 3 and 4.
MALICIOUS ATTACHMENT. See Attachment, 11 and 12.
Digitized by VjOOQIC
710 INDEX.
MANDAMUS.
1. Expulsion op member by corporation.— A corporation whose
members have property rights in it has no power to expel a member
without due notice to him of the grounds of the proceeding, and a
trial at which he has been afforded an opportunity to be present.
When a member has been expelled in violation of this rule, he may
compel the restoration of his privileges by mandamus. Lysaght v.
8t, Louis f etc,, As^n, 6S8.
2. . When the laws of a mutual benefit society provide for the
payments of benefits to defray the funeral expenses of members
and of their wives, the members have property rights in the society
within the purview of this rule. Ih,
MASTER AND SERVANT. See Negligence, 6 to 10.
Proof op incompetency op servant. — A servant, employed in a stated
capacity for a fixed term on condition that he was competent
therefor, was dismissed by the master after he had been engaged
for a month in the discharge of his duties but during the term of
the employment. The master sought to justify the dismissal by
proof of the servant's incompetency. HeldfthdX evidence of the
servant's general reputation as a workman, and of his failure to
give satisfaction in other like employment, was not admissible for
this purpose. Rich v, FejidleVf fS6.
MECHANICS' LIENS.
1. Suppiciency op account piled as lien. — A lumping charge in
an account filed as a mechanic's lien, though not accompanied by
any detailed statement of the work for which it is made, is sufficient,
when it is a fact, and the account on its face shows, that there was
a special contract for the work at the amount of the charge, and
when, moreover, the action for the enforcement of the lien is based
upon the contract, and not upon a quantum meruit. Especially is
this true, when the lien is filed by an original contractor as distin-
guished from a subcontractor. Busso v. Fette, 45S.
2. . Jt Is not necessary that the lien paper should, in terms,
allege that the person to whom the material was furnished was the
original contractor; it is sufficient if it states the names of the
contracting parties, with whom the plaintiffs agreed to do the work
and furnish the material without stating that the contractor made
a contract with the owner; and the lien paper in this case is KM
sufficient, since it gave the owner all the information necessary to
protect himself. Cahill, Collins 4' Co. v. Ely, lOS.
3. LIENABLB AND NON-LIENABLE ITEMS.— A lien paper iS BOt
inadmissible because some of the items are non-lienable, when they
are separately stated and not mingled with lienable items. Friee
V, Merritt, 640.
Digitized by VjOOQIC
INDEX. 711
4. COMMISSION — DRATAGE. — Items for drayage, freight and
commission are proper charges in a lien account, where the contract
for furnishing the material was that the material-man should have
ten per cent, above cost and carriage to him. lb,
5. WORK ON PROPERTY NOT DESCRIBED IN LIEN ACCOUNT.— ^(PW,
in the cours^ of discussion, that a mechanic's lien cannot be
established for work, or against property, broader than the statements
of the lien account, and, therefore, that work done on an outhouse
cannot be considered in determining the date of the accrual of the
lien account, when the lien ia fded against the main building only.
Krah v. Weidlich, 636.
6. Application op payments. — Payments were made without direc-
tion as to their application, and were not at the time applied by the
creditors, fleld, the court properly applied them to the noh-liena-
ble and unsecured portion of the account. Price v. Menritt, 640.
7. Agency op husband por wipe. — The evidence In this cause is con-
sidered, an,d it is held to justify the submission to the jury of the issue
whether a contract in writing, entered into by a husband in his-own
name for the erection of a building on land of his wife, had been
mitde by him as agent for the wife, so as to render the land charge-
able with a mechanic's lien for materials furnished for the building.
Carthage, etc., Co. v. Bauman, 204.
8. Title in mortgagee. — Where the title to the real estate is in a mort-
gagee, who directs and assents to an improvement, such real estate
will be subject to the lien for such improvement. Price v. Merritt,
640.
9. Entirety op judgment— eppect op appeal. — The judgment in an
action by a subcontractor to enforce a mechanics' lien is an entirety.
Accordingly, when in the trial court it is against both the original
contractor personally and the claim of lien, the reversal of it by
this court on appeal by the plaintiff vacates it altogether, and
necessitates a retrial of the cause in both respects. Carthage, etc.,
Co. V. Bauman, £04.
10. Same. — The plaintiff herein, who was a surety on the bond of a
contractor for a building, sued to enforce a mechanic's lien for
work done on the building, and recovered judgment. The defendant
owner recovered judgment on a counterclaim based on the bond.
Eeld, on appeal by the plaintiff, that error in the trial of the coun-
terclaim should work a reversal of both judgments. Killoren v.
Meehan, 427.
MINING.
Posting notice op lease — subtenant's purchase op landlord's
title. — Where the landlord on leasing mining lots fails to post the
notices required by section 7034, Revised Statutes, 1889, the lease
will expire at the close of three years, and the subtenant, who,
Digitized by VjOOQIC
712 INDEX.
during the currency of the three years bought the landlord's title,
will take the same at the expiration of that timO; free from the
prior claim of the first tenant. Robinson v. Troup Mining Co,, 66$,
M0I4TGAGES. See Chattel Mortgages.
1. Effect op default in payment— security.— Though, on failure to
pay a mortgage debt according to the terms, the legal title passes
to the mortgagee, yet the substantial interest remains where it
was before, and the mortgage is still a mere security .for the debt.
Ethington v. Dwelling House Ins, Co,, 129.
2. Mechanics' liens — title in mortgagee. — ^Where the title to the
real estate is in a mortgagee, who directs and assents to an improve-
ment, such real estate will be subject to the lien for such improve-
ment. Price V. Merritt, 640,
3. For effect of usury on a mortgage taken to secure the usurious
debt, see Interest.
MUNICIPAL CORPORATIONS.
1. Ordinance referring to another ordinance. — A special ordi-
nance, directing the construction of a sidewalk, ordered it to be
constructed in the manner and of the material named in a certain
section of a general ordinance relating to sidewalks. Held, such
section of the general ordinance was thereby made a part of the
special ordinance. Oallaher v. Smith, 116,
2. Delegation of legislative authority — pine or oak sidewalk.
An ordinance provided that a sidewalk might, at the option of the
contractor, be constructed of pine, white or burr oak of certain
dimensions. Held, the ordinance was not void, and did not con-
stitute a delegation of legislative authority, distinguishing CkU-
breath v, Newton, 30 Mo. App. 380, and Buggies v. Collier, 43 Mo.
363. lb.
3. Public corporations— agent's power in and out op conven-
tion.— Certain individuals, convened and acting as a body corporate,
may transact certain business and exercise certain powers given the
corporation, yet these same parties not so convened are powerless,
even by unanimous consent, as individuals to perform the duties
enjoined on the body. State ex rel. v. Wray, 646,
NEQLIOENCE.
1. Law and pact. — When the evidence in an action at law is conflict-
ing, or warrants the deduction of different rational inferences, it is
the province solely of the jury to reconcile it, or to determine
which of these inferences is to be drawn from it. This rule is
applied in this cause to issues in regard to the existence of negli-
gence. Lee V. Publishers, Geo. Enapp if- Co., S90.
Digitized by VjOOQIC
INDEX. 713
2. Contributory negligence— law and fact. — The evideooe in this
oause is considered, and held not to exclusively establish contrib-
utory negligence on the part of the plaintiff in failing to observe an
excavation in a public highway. Skinner r. Siifel, 9,
3. Damages— EVIDENCE op loss op earning capacity. — In an action
by a father for damages for injuries to his minor child, whereby
the child (a boy) was crippled, there was evidence tending
to show that boys thus crippled could not find employment in a
number of avocations, and that their earning capacity was, there-
fore, lost entirely, or nearly so. The defendant adduced no evi-
dence of an earning capacity on the part of such a cripple in any
avocation. Held, that there was sufficient proof of the plaintiff's
damages in this regard. Schmitz v. Railroad, 567.
4. Instruction as to presumption op care. — ^When, in an action
for damages for a physical injury, there is substantial evidence of
contributory negligence upon the part of the plaintiff, it is error to
instruct a jury that there is a legal presumption that he exercised
ordinary care. Lee v. Publishers, Geo. Knapp ^ Co., 390.
5. Elevators — standard op care required op owner. — Held, in the
course of discussion, that, in determining whether the owner of an
elevator has exercised due diligence in making it reasonably safe
for its intended uses, the usage of others is not the sole criterion,
and that such diligence does not, as a matter of law, follow from
the fact that the elevator is such as is ordinarily used for like
purposes by reasonably prudent men. Ih.
6. Master and servant — instructions. — An instruction authorizing
a recovery by a servant against his master for injury from a defect
in the appliances furnished by the latter, is fatally erroneous, if
it does not require a finding that the defect was the cause of the
injury. Moore v. St. Louis Wire Mill Co., 491.
7. negligence op fellow servant.— While a building was in
process of erection, lumber was hoisted to one of the upper floors by
means of an apparatus operated by steam power. Held, that one of
the workmen who received the lumber thus hoisted, and the engineer
in charge of the engine by which the steam power was generated,
were j>rtwia /acre fellow servants within the rule making the negli-
gence of a fellow servant a risk incident to the employment.
Sheehanv. Prosser, 669:
8. pleading. — The defense, that personal injuries sued for
were caused by the negligence of a fellow servant of the plaintiff,
is available in an action by a servant against his master without
being specially pleaded . 1 h.
9. ACCEPTANCE OP RISKS BY SERVANT.— A Servant assumes all risks
arising from defective appliances of which he knew, or which were
80 obvious as not to escape the observation of an ordinarily
prudent person. Moore v. St. Louis Wire Mill Co., 491,
Digitized by VjOOQIC
/
/
V-
714 INDEX.
10. LAW AND FACT. — Whether the risk is thus obTious is
% question of fact, when different conclusions in regard thereto
ean reasonably be drawn from the evidence. lb.
11. Railroads — signals at crossing. — A railroad company, when it
fails to ring the bell or sound the whistle as the train approaches a
highway crossing, violates the statute and is guilty of negligence.
McNown V. Wabash Railroad Co., 685.
12. CONTRIBUTORY NEGLIGENCE.— In Order to justify the
court in taking a case from the jury and declare plaintiff negligent,
as a matter of law, it should clearly and incontrovertibly appear
that no other conclusion than that of plaintiff's negligence is fairly
deducible from the evidence, giving him the benefit of every reason-
able inference that may be drawn from it; and the evidence in that
case does not justify the court in declaring plaintiff guilty of con-
tributory negligence, Ellison, J., dissenting, lb.
13. Same.— A person on the highway approaching a railroad crossing is
only required to use ordinary care, which does not mean that every
possible precaution shall be adopted, but only that care and cir-
cumspection which should be expected of one of ordinary prudence.
lb.
14. Sleeping oar companies, uability op— contributory neguoenoe
OF PASSENGER. — A passenger on a sleeping car, who leaves his
watch in his berth while he is in the toilet room, is, as a matter of
law,guilty of contributory negligence if it is stolen in his absence,
and therefore cannot recover from the company for the loss ; but it
is otherwise if he directs the porter in chaise of the car to look
after his effects in his absence. Chamberlain v. Pullman Palace
Car Co.f 474.
15. Nequgencb in overdriving — EXPERT EVIDENCE.— The plaintiff
sued herein for the death of a horse, alleged to have been, caused
by overdriving. He sought to establish this allegation by the
opinion of an expert, and with that purpose put to the expert a
hypothetical case, which substantially covered the facts shown in
evidence, with the exception of the speed at which the horse was
driven. Held, that this omission rendered the hypothetical case
objectionable. J. D. Marshall Livery Co. v. McKelvy, 240.
16. For rulings in regard to the liability of bankers for negligence in
the collection of a draft, see Banks, 1 to 3.
17. For rulings in regard to the killing of stock by railroads, see
Railroads, 1 to 7.
NEGOTIABLE PAPER. See Banks, 5.
1. Promissory notes— discharge of party by materdll alteration.
The material alteration of a promissory note discharges a party
to it, if it is made without his consent. Bamett v. Nolte, 184,
Digitized by VjOOQIC
INDEX. 715
2. Justices' coitrts — suit on promissory note — election op theory
OP ACTION. — ^When suit on a promissory note is brought before a
justice of the peace against one whose name is written on the back
of the note above that of the payee, the plaintiff may be required
to elect in the circuit court on appeal, if he has not done so there-
tofore, in what capacity he seeks to charge the defendant — whether
as joint maker, indorser, surety or guarantor — and is bound by his
election, when made. lb.
NEW TRIAL. See Practice, Trial, 13 to 15.
NOTICE. See Landlord and Tenant, 8 to 10.
PARTNERSHIP.
1. Assignment by partner on behalf of firm. — Though one partner
is not authorized, by virtue of the partnership relation alone, to
make a voluntary assignment for the firm, yet he may do so with
the express assent and direction of the other members ; and the
other partners alone have the right to complain of such assignment,
and not firm creditors. Bock Island Plow Co. v. Lang ^ Qray, 549,
2. Sale op partner's interest — action at law. — ^A partner may
sell to his copartners his interest in the partnership and recover the
purchase price in an action at law, and this, too, whether such
interest is incumbered or unincumbered by the condition of the
partnership, or whether its amount is fixed or the price thereof
agreed upon. Baker v. Bobinson, 171.
3. Competency op declarations op alleged copartner. — The
declarations of one member of an alleged partnership in reference
to its business are admissible against another, when the existence
of the partnership between them has been established aliunde by
substantial evidence. Rainwater v. Burr, 468.
PAYMENT.
Application op payments. — Payments were made without direction as
to their application and were not at the time applied by the cred-
itors. Held, the court properly applied them to the non-lienable
and unsecured portion of a mechanic's lien account. Price v. Mer-
Htt, 640.
PLEADING.
1. Default. — The answer of one defendant to a petition against sev-
eral applies to a subsequent amended petition, which does not
change the effect of the original petition as to him ; hence his fail-
ure under these circumstances to plead to the amended petition
does not put him in default. Bremen Bank v. Umrathf 48.
2. Answer— CONSISTENT defenses. — Non est factum and nonperform-
ance of the contract are not so inconsistent that they cannot stand
together, the proof of one not necessarily disproving the other. Cox
V. Bishop, 1S5,
Digitized by VjOOQIC
716 INDEX.
3. DEOTAL op contract in writing — ^MANNER OP INVOKINQ STATU-
TORY RULE. — The statutory rule, that the defendant admits the exe-
cution of a contract in writing, upon which the action is founded,
by failing to deny it under oath when he is charged therewith, can-
not be invoked for the first time in this court ; to be available, it
must be urged in the trial court as ground of objection to the intro-
duction of evidence controverting the execution of the contract.
Handley v. Bailroadj 499.
4. General denial, eppbot op. — Under the general issue, evidence
may be received, which tends to show a cause of action never
existed, or that it was void ah initio. Accordingly, when a petition
alleges a lawful trust in favor of the plaintiff and seeks to enforce
it in equity, it may be shown under a g^eral denial that the trust
was made for fraudulent purposes. Scudder v. Atwood^ 51S.
6. . The defense that personal injuries sued for were caused by
the negligence of a fellow servant of the plaintiff, is available in
an action by a servant against his master without being specially
pleaded. Sheehan v. Frosser, 669.
6. Recovery on cause op action not pleaded.— A plaintiff must
must recover, if at all, on the cause of action stated in his petition.
Accordingly, when the petition alleges one contract and its breach,
and the answer denies these allegations and states another and
wholly different contract, an instruction which authorizes a recov-
ery for the breach of the latter contract is erroneous. Whipple v.
Building and Loan Ass'n, 554.
7. Malicious attachment — pleadino — ^aider by verdict. — The peti-
tion in an action for malicious attachment must allege either that
the attaphment proceeding has tei*minated in favor of the attach-
ment defendant, or that it has terminated against him and that he
had no opportunity to defend against it ; nor is the want of such
allegation cured by verdict. Freymarh v. McKinney Bread Co.,
4S5.
8. Replevin—general denial— return op property.— When in
replevin the answer is merely a general denial, and the property
has been turned over to the plaintiff, and the finding is for the
defendant, the pleadings will not sustain a judgment ordering a
return of the property, or a money judgment for its assessed value.
Fowler v. Carr, 146.
PRACTICE, APPELLATE.
1. What is open to review — preserving objections.— Objection
and exception must be preserved in the bill of exceptions to war-
rant the consideration of objections to admission of evidence in
the appellate court. Pea/rson v. Qillett, S12.
2. Same. — Objections to the admission of evidence cannot be noticed
on appeal, unless exceptions are saved. Wm. W. Kendall, etc.,
Co. V, Bain, £64.
Digitized by VjOOQIC
INDEX. 717
3. Rbvibw op matters not covered by motion for neW trial. Errors
not referred to in the motion for new trial will not be considered
on appeal. McManus v, J^atkins, 9£.
4. Failure op transcript to show purport op rejected evidence
op appellant. — The court cannot review a ruling of the trial
court in excluding a writing offered in evidence by the appellant,
when the Ynriting is not embodied in the transcript, and its effect
Is, therefore, not disclosed. Schreiner, Flack 4- Co. v. Orr, 406,
5. Examination of voluminous evidence. — An appellant is not
entitled to the examination of voluminous evidence by this court,
when he himself makes no statement of it and lends no assistance
thereto. Paxson v. St. Louis Drayage Co., 666.
6. Disposition of cause on theory op trial. — The appellant must
abide by the case he presents to the trial court, and stand in the
appellate court upon the theory he presents below. Qttcrbach v»
Arnold, 286.
7. Objections not raised in trial court — denial of contract in
writing — MANNER OP INVOKING STATUTORY RULE. — The Statutory
rule, that the defendant admits the execution of a contract in
writing, upon which the action is founded, by failing to deny it
under oath when he is charged therewith, cannot be invoked for
the first time in this court ; to be available it must be urged in the
trial court as ground of objection to the introduction of evidence
controverting the execution of the contract. Handley v. Railroadj
499.
8. Abstract, sufficiency of. — Although appellant's abstract does nol^
contain the affidavit for an attachment filed with the justice, yet,
as the justice's transcript states one was filed, and defendant's
plea in abatement in the circuit court denies the allegations of the
affidavit, the contention that the affidavit was not filed to authorize
the attachment must be held unfounded. Pearson v. Gillett, SIS,
9. De minimis non curat lex.— a judgment will not be reversed for
error in a trifling amount — in this cause $1.89. Paxson v. St. Louis
Drayage Co., 666.
10. Presumptions — finding of trial court on different counts.
The appellate court will not interfere with the judgment below, on
the ground that the trial court did not make a separate finding on
each count, where the record fails to show affirmatively that the
court did not pass on the merits of each count separately. Chom
V, Missouri, Kansas 4" Texas Ry Co., 16S.
11. Harmless error. — Instructing the jury that the law restraining
swine was in force in the county where the injury occurred, is
harmless, and not reversible error. Dilly v. Railroad, 12S,
Digitized by VjOOQIC
718 INDEX.
12. Waiver op demurrer to evidence. An insfraotion of nonsnit
was offered and refused at the close of the plaintiff's evidence, and
thereon renewed at the close of the case . Held that, in review
of those rulings, the entire evidence should be considered. Storek
V. Mcsker, 26.
13. Evidence— REASONABLE inference.-— In considering the sufficiency
of evidence to go to the jury, the appellate court must allow it the
weight which every reasonable inference can properly give it.
Dilly V. Railroadf ISS.
14. Weiohinq the evidence. This court will not weigh the evidence
in an action at law, when there is a substantial conflict in it.
Raimcatei' v. Burr, 468; Smith ». Carondelet, etc.. Power Co., 569;
Chom V. Railroad, 16S; Harding v, Manard, 564,
15. . When the solution of an issue of fact in an action at law
depends upon the credibility of witnesses whose testimony is con-
flicting, this court will not review the verdict of the jury thereon
on the ground that it is opposed to the weight of the evidence.
Rich V. Fendler, SS6.
16. Trial before court — sufficiency op evidence.— Where the trial
was before th^ court without instructions and the evidence supports
the finding, the appellate court will presume the trial court enter-
tained a correct view of the law, and not disturb the judgment.
Pearson v. Gillett, SIS,
17. Trial before court— rulings on evidence.— The same rigid
rules in regard to the admission and exclusion of evidence ought
not to be enforced in a trial before the court, as before a jury, for
^ it is not to be presumed that the court would, in its deliberation
and judgment, be influenced by evidence that might probably mis-
lead a jury. Hellman f Co. v. Bick, garnishee, 168,
18. sufficiency op instructions. — In a trial before the court,
the same strictness is not required in the instructions as is demanded
before a jury. Trorlicht, Dunker 4' R^nard Carpet Co., v, HatUm^
SSO,
19. Same. — A judgment will not be reversed because the trial eouit,
sitting as a jury, fails to declare the law as fully as it might have
done ; especially so, when the instructions given announce correct
rules of law applicable to the facts, and the whole evidence justifiee
the finding. Myers v. Miller, SS8.
20. Office of instructions in trial before court. — In trials before
the court instructions are unimportant, save as showing upon what
theory the court arrived at the result. Price v. Merritt, 640,
21. Judgment on agreed statement op pacts. — ^When a cause is saV
mitted to the trial court on an agreed statement of facts, and the
proper judgment thereon is a mere conclusion of law, it is tiie
Digitized by VjOOQIC
INDEX. . 719
duty of this court to render such judgment as the trial court should
have rendered; if that of the trial court is found erroneous. Burris
V. Shrewsbury Park, etc., Co., S81.
22. Mechanics' liens — reversal op entire judgment. — The plaintiflP
herein, who was a surety on the bond of a contractor for a building,
sued to enforce a mechanic's lien for work done on the building,
and recovered judgment. The defendant owner recovered judg-
ment on a counterclaim based on the bond. Held^ on appeal by the
plaintiff, that error in the trial of the counterclaim should work a
reversal of both judgments. Killoren v. Meehan, 497, See also
Carthage Marble and White Lime Co. v. Bauman, S04.
23. Costs. — As defendant was compelled to appeal to be relieved of
the error in assessing a fee for plaintiffs attorney, the docket fee is
taxed against the respondent. Dilly Vi Railroad, 12S.
PRACTICE TRIAL. See Instructions, Law and Fact, and Pleading.
1. Filing op papers. — The filing of a paper — in this cause the contract
sued upon — is its actual delivery to the oflScer whose duty it is
to file it. The filing need not be shown by a file mark. Collins r.
Eammann, 464.
2. Suit on promissory note— appeal prom justice— election op
theory op action.— When suit on a promisory note is brought
before a justice of the peace against one whose name is written on
the back of the note above that of the payee, the plaintiff may be
required to elect in the circuit court on appeal, if he has not
done so theretofore, in what capacity he seeks to charge the defend-
ant— whether as joint maker, indorser, surety or guarantor — and
is bound by his election, when made. Bamett v. Nolte, 184.
8. Failure op proop — non est pactum. — Where the answer in an
action on a written instrument presents the issue of non est factum,
and there is no evidence tending to prove the signature, and the
paper itself is not offered, there can be no recovery. Cox v. Bishop,
155.
4. Stipulation — abiding result. — It was stipulated that this case
should abide the result of F. case appealed to the Supreme court,
provided that case was determined on its merits. F. case was
determined on its merits, though no point was made on a question
of interest. Held, this case cannot farther be prosecuted on the
question of interest, which might have been settled in F. case.
City of St. Josqph ex rel. Gibson v. Hax, SOS.
5. iNSUPPioiENCY OP objection TO EVIDENCE. — Objection to the
admission in evidence of a letter as a whole is insufficient, when a
portion of it is competent. Orimm v, Dundee Land and Investment
Co., 457.
Digitized by VjOOQIC
720 INDEX.
6. Motion for new trial — objections to instructions.— Excep-
tions to instructions given by the court need not be taken epeoifio-
ally; a general exception addressed to the instructions in the
aggregate will suffice. Whipple v. Building and Loan A88*n, 554,
7. Reopening case. — It is proper for the trial court to pennit the
reopening of the evidence when once closed, if the ends of justice
at the time appear to require it. Pearson v. Oillett, SIS.
8. Instruction given orally and in absence of counsel. — It is
error for the trial court, after the submission of a cause to the
jury, to give to them an additional instruction orally or in the
absence of counsel whose attendance can be procured. Skinner v,
Stifel, 9.
9. Comment by court on character op the cause. — It is objec-
tionable for the court in an instruction to the jury to state that it
considers the cause a very simple one both as to the law and the
facts, and to urge the jury to come to some agreement, owing to the
small amount of money involved. lb,
10. Instructions. — For rulings on office and effect of instructions in
cases tried by the court sitting as a jury, see Practice, Appellate,
16 to 18.
11. Attorney's closing argument. — In an action for delay in sending
a telegram, the sole question submitted to the jury was whether the
preoccupied condition of the wir.es was the cause of the delay. The
plaintiff's counsel in his closing argument told the jury he was an
operator and had worked on the line in question, and it was all
nonsense to say that any office could not be reached in twenty
minutes. Defendant's counsel objected and called the court's
attention to the matter, and excepted because the court made no
ruling but permitted the plaintiffs counsel to proceed with further
matter of the same kind. At the close of the argument defend-
ant's counsel further objected and asked that the jury be dis-
charged and the cause continued. The court thereupon told the
jury not to consider statements of counsel concerning his personal
knowledge as an operator, as he was not a witness in the cause ;
and defendant again excepted. Eddy the conduct of the paintiff's
counsel was prejudicial to the defendant, and the direction of the
court to the jury was insufficient to cure the same, and the judg-
ment should be reversed and a new trial granted. Smith v.
Western Union Tel. Co., 626.
12. Motion in arrest of judgment — railroads— attorney's fee.
The attorney's fee allowed by the statute in an ^action against a
railway company for killing stock, is an issue of fact for the
jury, which cannot be waived, except by written consent, or oral
consent, in open coui^t entered on the minutes, and advantage can
be taken of the failurevto submit it to a jury by motion in arrest,
though no objection be made except in such motion. IHlly v,
Omaha j- St. Louis E'y Co,, 12$,
Digitized by VjOOQIC
INDEX. 721
13. Determination by special judge of motion for new trial of
CAUSE tried before THE REGULAR JUDGE. — ^A Special judge ap-
pointed under the act of 1891 |has the power to act on a motion for
the new trial of a cause tried before the regular judge, and to sustain
it for the reason that under the eireumstanoes he cannot dispose of
it upon its merits. A mere protest against his hearing of the motion
will, therefore, not render his action in this regard erroneous; but
whether it would have been so, had the objection been supported
by affidavits, showing a likelihood of an early return of the regular
judge to the bench, is not decided. Bremen Bank v. Umrath, 4S,
14. Motion for new trial— effect, when not filed by all of the
DEPENDANTS AGAINST WHOM JUDGMENT WAS RENDERED.— When all
of the defendants against Whom a judgment was rendered do not
join in a motion for new trial, tad their liability is several and not
dependent upon the same conditions, as where it is against one as
the maker and others as the indorsers of a note and the former
does not join in it, it is error to sustain the motion as to all of the
defendants. lb.
15. NEWLY DISCOVERED EVIDENCE.- IT^W, arguendo, that a new
trial on the ground of newly discovered evidence is not warranted,
when such evidence ought not to change the result upon a retrial.
Terry v. Greer, 607.
16. Mechanics' uens— entirety of judgment— effect of appeal.
The judgment in an action by a subcontractor to enforce a
mechanic's lien is an entirety. Accordingly, when in the trial
court it is against both the original contractor personally and the
claim of lien, the reversal of it by this court on appeal by the
plaintiff vacates it altogether, and necessitates a retrial of the cause
in both respects. Carthage Marble and White Lime Co. v, Bauman,
£04.
PRINCIPAL AND AGENT. See Insurance (Fire), 4.
Application op proceeds of the sale of realty. — ^The plaintiff
through his agent authorized the defendants to sell certain real
estate for him. The sale was made, and the proceeds paid to this
agent, excepting that a portion of them was applied to the satisfao-
tion of a forged deed of trust on the realty which this agent had
executed prior to his employment, and of the existence of which
the plaintiff was ignorant. Held, that the plaintiff was entitled to
recover from the defendant the amount thus applied. Kelly v.
Gay, 39.
PRINCIPAL AND SURETY. See Bonds.
1. Building contract— discharge of surety of contractor.
When a building contract provides against any material variation
from its terms, unless the differenoe in the contract price resnltmg
Vol. 55-46
Digitized by VjOOQIC
722 INDEX.
from the variation be first agreed upon by the parties in writing,
and a material change in the work is agreed upon between the
parties but not in writing, the surety of one of them will be dis-
charged from further obligation, if he has not consented thereto.
Killoren v Meehcm, 427,
2. Same. — But the surety will not be discharged by a change in the
work contracted for, which was rendered necessary solely by the
negligence of his principal in the execution of the contract; nor by
an independent contract made after the completion and acceptance
of the work with respect to which he has bound himself. Ih.
3. Discharge op surety. — If the holder of a judgment releases a
lien obtained under it on property of the judgment debtor, the
sureties on a bond of the latter, given for th^ payment of the judg-
ment, are thereby discharged to the extent of the value of the prop-
erty released. Qreen v. Dougherty f fS17,
4. Alteration of instrument— seal— discharge.— Changing a sim-
ple contract to a specialty by adding the word ''seal" in a scrawl
after the names of the obligors is such alteration of the instrument
as to discharge the surety. The authorities are discussed and dis-
tinguished, and the holding reaffirmed on motion for a rehearing.
Fred Heim Brewing Co, v. Hasen, 277.
5. Discharge op surety. — If the payee causes the surety to forego
security when he would have taken it, the surety is released with-
out regard to the care or negligence exercised by the payee. First
Nat. Bank v. Lillard, 675. '
6. . The act of the payee that discharges the surety must be
one that causes the surety to forego an indemnity he would have
taken, and there should be evidence that he would have taken such
security but for the act of' the payee. Ih.
7. Strict construction. — The obligations of sureties are to be strictly
construed, and their liabilities are not to be extended by implica-
tion; and a statute prescribing their liabilities must be strictly
construed. Erath j- Flynn v. Allen ^ Son, 107,
8. Subrogation. — A subcontractor who has paid wages to laborers
cannot be subrogated to the rights o$ such laborers so as to main-
tain an action on the bond against the sureties thereon, as
the statute confers a mere personal privilege or right upon the
laborers, which is in no sense assignable. 1 6.
9. Construction— NEBRASKA statute providing bond for mechan-
ics, ETC. — subcontractor. The Nebraska statute requiring county
boards to take from contractors erecting public buildings a bond for
"the payment of all laborers and mechanics for their labor, etc.,"
does not include subcontractors, and an action cannot be main-
tained against the sureties on such bond by a subcontractor for a
balance due him from the principal contractor for material fur-
nished and wages paid to laborers. J&.
Digitized by VjOOQIC
INDEX. 723
10. Subrogation — partial payment bt surety. — So long as a deljt
has not been entirely paid, the partial payment of it by a surety
will not entitle him, by way of snbrogation, to any of the collat-
erals in the hands of the creditor by which it is secured. Ames v.
Huse, 422.
PROMISSORY NOTES. See Negotiable Paper, I and 2.
PROSECUTING ATTORNEY. See Criminal Law, 9.
PUBLICATION. See Jurisdiction, 1 and 2.
QUIET TITLE, ACTION TO.
Statutory ACTION to quiet title — ^when it lies. — The plaintiff in
a proceeding under section 2092 of the Revised Statutes to compel
the defendant to bring an action to try the title to land is entitled to
the statutory relief sought, when he is in possession of the land
(Claiming the fee^ and the defendant claims an adverse and imme-
diate interest in the property, which is capable of being at once
tested by appropriate proceedings in the courts ; the form of the
action in which such title or adverse interest is to be asserted is
not material. Ck>dk v. Von Phul, 487,
RAILROADS. See Common Carriers; also Negligence, 11 to 14.
1. Fencing station ground. — Whether a railroad company has
placed its fence and cattle guards as near the head of its switch as
is consistent with the safety of trainmen in switching trains at the
station is a question for the jury under proper instructions.
Welsh t;. Bailroad, 599.
2. Killing stock— notice. — An instruction, if a gate was left stand-
ing open for such length of time directly previous to the accident,
the defendant knew, or could by the exercise of ordinary care have
discovered, it in time to have closed it before stock killed passed
through it, then the defendant is liable, is supported by the evi-
dence in this case, as is also an instruction summarized in the
opinion which was given for the defendant. Nicholson v. Bailroadj
69S.
3. circumstantial evidence. — ^If the triers of the facts can
with reasonable certainty infer from the surrounding circumstances
that the stock was killed in the manner charged, then the appellate
court is not authorized to interfere. Chom v. Railroad, 163.
4. Damage bt stock — fence. — The statute makes it the duty of a
railroad to so fence its track that stock cannot enter upon its
track, or, being there, cannot escape on the adjoining fields and
commit damage ; and this applies to tenants as well as to owner of
the fee. Langkop v. Bailroad, 611.
6.* cornering tracts. — Plaintiffs were tenants of a
triangular piece of land adjoining defendant's right of way, which
was in a common enclosure with a cornering eighty owned by them
Digitized by VjOOQIC
724 INDEX.
in fee, and a passage oould not be effected from one tract to another
without passing over another triangular piece belonging to another
cornering tract, which latter triangular piece plaintiffs had enclosed
in a lane connecting these two tracts, without the apparent consent
of the owner, and so kept it enclosed for two years ; held, such owner
at least acquiesced in the use of his land by plaintiffs, and defend-
ant was not relieved of its duty to fence its track, and, failing to
do so, is liable for damage done on the land owned by plaintiffs in
fee, by hogs escaping from its right of way over the two triangular
pieces. lb,
6. Killing stock — evidencb. — Held, the reasonable inference to be
drawn from all the evidence in the case, was that the injury to
plaintiff* s stock occurred in Benton township. Dilly v. Railroad,
103.
7. ATTORNEYS' PEE— MOTION IN ARREST. The attorney's fee
allowed by the statute is an issue of fact for the jury, which cannot
be waived, except by written consent, or oral consent in open court
entered on the minutes, and advantage can be taken of the failure
to submit it to a jury by motion in arrest, though no objection be
made, except in such motion. lb.
REPLEVIN.
1. Right op successful party to hold the other, for conversion
PENDING THE PROCEEDING. — The defendant in an action of replevin
retained the property in controversy by giving a forthcoming bond. "
The judgment in the action was in favor of the plaintiff, and gave
him an election to take the property or its assessed value. The
defendant, nevertheless, sold the property without affording the
plaintiff any opportunity to take it under the judgment. Held,
t^iat the defendant was guilty of a conversion of the property, and
that he was, therefore, answerable for its actual value at the time of
the sale in a new action by the plaintiff on that theory. Hanlon
V, (yKeefe, 628.
2. Election by successful party.— The fact that an execution was
issued under the judgment in the action of replevin, and that the
defendant paid to the sheriff the value of the property assessed in
that action, does not establish an election by the plaintiff under
that judgment ; accordingly, the plaintiff having refused to accept
the collection from the. sheriff, his right to the property remained
I unimpaired, lb.
. 3. General denial— return op property.— When in replevin the
i answer is merely a general denial, and the property has been
I turned over to the plaintiff, and the finding is for the defendant,
I the pleadings will not sustain a judgment ordering a return of the
property, or a money judgment for its assessed valuer Fowler v.
Cart, 146.
Digitized by VjOOQIC
INDEX. 725
RES ADJUDICATA. Bee Judgments, 3 and 4.
REVENUE. See Taxes. 1 to 3.
SALES. See Frauds, Statute op, 1.
1. GAHBUNG contracts — SALES OP GRAIN ON MARGINS WITHOUT INTENT
TO DELIVER. — Since the act of 1889 (Revised Statutes, 1889, sec.
3931, et seq.) contracts for the sale of grain are void, if one of the
parties thereto does not intend to receive or deliver the commodity
sold, and the other party is aware of his intent — whether he shares
in it or not. That statute also affects middlemen. Schreiner,
Flack #• Co. V. Orr, 406.
2. EVIDENCE OP INTENT NOT TO RECEIVE OR DELIVER. — The
intent of a party to the contract, that there shall be no delivery of
the commodity, may be gathered from all the attending circum-
stances. And held, that the evidence in this cause warranted the
inference. lb.
3. INSTRUCTIONS. — Instructions relating to a sale of hogs,
presenting the issue of a wagering contract, are set out and
approved. Harding v. Manard, 364.
4. Delivery op possession. — If the vendor agrees to transfer the
absolute property in the thing to the vendee for a money price, the
contract is complete and binding, the vendee is entitled to the spe-
cific chattel and the vendor to the price ; and no actual, manual
delivery of possession is necessary. lb.
5. bailee. --When the goods are in the possession of a bailee,
an absolute sale confers an immediate and valid title upon the pur-
chaser without any formal delivery of possession; and the* bailee's
possession becomes the purchaser's possession. lb.
6. Rescission op sale— tender, when unnecessary.— A tender need
not be shown, when it conclusively appears that it would have been
fruitless, if made. Enterprise Soap Works v. Sayers, 16.
7. RECOVERY OP PURCHASE MONEY— MEASURE OP REOOVBRT.
, A vendee of merchandise, after payment of the purchase money,
duly rescinded the sale. Subsequently he caused this merchandise
to be attached in a suit against the vendor in a foreign jurisdiction
for the recovery of this purchase money, and to be sold under a
judgment in rem recovered by him therein. Later, still, he sued
the vendor in personam for the purchase money. Held, in the latter
suit, that the vendor was entitled to credit only for the net proceeds
of the sale under the judgment in rem, and not for the reasonable
value of the merchandise sold. lb,
8. Warranty— rescission— reasonable time— jury question.— The
vendee of a chattel mortgage on breach of warranty may rescind
the contract and recover back the purchase price, yet, he must act
within a reasonable time, which is ordinarily a question for the
Digitized by VjOOQIC
726 INDEX.
jnry ; but where, as in this case, the delay is without excuse or fair
explanation, the courts will, as a matter of law, declare the same
unreasonable. Viertel v. Smith, 617,
9. Warranty— COMMENDATIONS— INTENTION— JURY QUESTION. — Mere
assertions of the quality or condition of a chattel at the time of a
sale is not, as matter of law, a warranty, but is merely evidence
thereof, as it may tend to show the intention of the parties, which
is a question for the jury. Ransherger v, Ing, G21,
10. ADVERTISEMENT OP AUCTION. — The Statement in the posted
notice of an auction sale, that certain "sh^oats were in good health
and condition," is not a warranty of their condition at the time of
the sale; as a warranty, though called a collateral undertaking,
yet forms a part of the contract by agreement of the parties at ti^e
time of sale. Ih.
11. Warranty op capacity op machine — evidence. — An action on the
warranty of a machine will not be defeated by a paper signed after
the sale, stating that the machine was working satisfactorily, and
such paper does not estop the warrantee from the setting up of a
breach of warranty, and testifying to matters inconsistent with
such paper; nor will such paper be excluded in this case, because
it prevented plaintiff from claiming back from the machine com-
pany, nor because it was an injury to plaintiff to have the admis-
sion in the report disproved. McManus v. Watkitis, 9i,
SLEEPING CAR COMPANIES. See Neguoence, 14.
STATUTES. See Laws; also Sunday, 2.
STATUTE OP FRAUDS. 'See Frauds, Statute op.
SUBROGATION. See Principal and Surety, 8 and 10.
SUNDAY.
1. Validity at ooicmon law op contract for work on sundat. — A
contract for work and the transaction of business on a Sunday is
not invalid at common law. Said v. Stromberg, 438.
2. Contracts, validity op— extra-territorial eppect op Sunday
laws. — Our statutes against the performance of labor on Sunday
have no extra-territorial effect, and therefore, do not i&validate a
contract ^hich is made in this state but is wholly to be performed
beyond its limits. Ih.
TAXES.
I. Board op equalization— record— clerk's assistance— correct-
ing mistakes. — A mere assistant to the secretary of the boad of
equalization has no authority to make the record of the board, and
his attempt to do so is a mere mutilation, unless made under the
secretary's direction; and if made under such direction, the secre-
tary, upon discovering mistakes immediately thereafter, may correct
any error and make it conform to the truth. State ex rel, v, Wray,
646.
Digitized by VjOOQIC
INDEX, 727
2. CORPORATE ACTION. — While the persons composing the board
of equalization, convened and acting in their official capacity, may
exercise the powers conferred upon that board, still these same
persons, when not so convened and when not acting as an organized
body, but individually, have no authority to exercise these powers,
even though all should severally concur in what is done. lb.
3. APPROVAL OF RECORD. — The Statute does not require the
approval of its record by the board of equalization, and the absence
thereof cannot impair the record's legal effect; and if the board
were required to sign the record, the failure to do so would not
invalidate it. T^.
TAXES, SPECIAL. See Municipal Corporations, 1 and 2
TENDER. See Sales, 4.
TROVER.
1. Right op action by mortgagee.— An action of trover cannot be
maintained by one who has neither the right of property in the chatt*, .
^ alleged to have been converted, nor the right of possession ; and
neither of said rights follows from the mere fact that the plaintiff is
a mortgagee of the chattel before condition broken. Bank of Little
Bock V. Fisher, 51.
2. Replevin— right op successful party to hold the other for
conversion pending the proceeding.— The defendant in an action
of replevin retained the property in controversy by giving a forth-
coming bond. The judgment in the action was in favor of the
plaintiff and gave him an election to take the property or its assessed
value. The defendant, nevertheless, sold the property without
affording the plaintiff any opportunity to take it under the judgment.
Heldf that the defendant was guilty of a conversion of the property,
and that he was, therefore, answerable for its actual value at the
time of the sale in a i^ew action by the plaintiff on that theory.
Hanlonv. O'Eeefe, 528.
TRUSTS. See Equity, 2 and 3.
USURY. See Interest.
WITNESSES.
1. Negligence in overdriving — expert evidence.— The plaintiff sued
herein for the death of a horse alleged to have been caused by
overdriving. He sought to establish this allegation by the opinion
of an expert, and with that purpose put to the expert a hypothet-
ical case, which substantially covered the facts shown in evidence,
with the exception of the speed at which the horse was driven.
Held, that this omission rendered the hypothetical case objection-
able. Marshall Livery Co. v. McKelvy, €40,
Digitized by VjOOQIC
728 INDEX.
2. iKSTRUCnON-— WITNESS SWEARING PALSELT—MATEBIAL FACT.— An
instruction telling the jury that, if they believe any witness has
willfully sworn falsely, they are at liberty to disregard the whole of
his testimony, is fatally faulty in not confining the false swear-
ing to a material fact. White v. Loweiiberg, 69.
3. Same. — Instructions calling attention to the veracity of witnesses are
not favored by the courts, and the propriety and necessity of
giving them is left largely with the discretion of the trial courts;
when given they should be drawn so as to confine their application
to material facts. /&.
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RULES GOVERNING PRACTICE
IN THE
KANSAS CITY COURT OF APPEALS.
It is ordered by the Court that the following Rules of Practice in the Kansas
City Court of Appeals shall be in force and observea from and after the
first day of Aprils 1885:
Rule 1.— Presiding Judge. The Presiding Judge shall superintend
all matters of order in the Court room and entertain and dispose ol hU
oral motions.
Rule 2. — All motions in a cause shall be in writing, signed by the
counsel and filed of record, and no motion shall be argued orally, unless
the Court so directs.
Rule 3. — Hearing op Causes. No cause shall be heard before it is
reached in its regular order on the docket, unless circumstances exist
such as entitle it to precedence ; and any motion to advance a cause on
the docket shall be accompanied by affidavits, showing particularly the
facts on which such motion is based. When a cause is advanced, the
record, as -well as the briefs, shall be printed, unless the Court shall other*
wise order. This rule has no application to causes whereof this Court has
original jurisdiction.
Rule 4. — Taking Records prom Clerk's Oppice. Connsel in a cause
are permitted to take the records of such cause from the Clerk's office to
the library room of the Court, and to no other place, and then they must
leave a written receipt therefor, but shall not be retained from the Clerk's
office over night.
Rule 5. — Diminution op Records. No suggestion of diminution of
record in civil cases will be entertained by the Court after joinder in
error, except by consent of parties.
Rule 6. — Certiorari to Perpect Record. Whenever a writ of
certiorari to perfect record is applied for, the motion shall state the defect
in the transcript it is designed to supply, and shall be verified by affidavit.
At least twenty-fonr hours' notice shall be given to the adverse party, or
his attorney, previous to the making of the application.
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n K. C. COUKT OF APPEALS.
Rule 7. — Notices op Writs of Error. All notices of writs of error,
^ith the aooeptanoe, waiver or return of service indorsed thereon, shall
be filed with the Clerk of this Court, and by him attached to the transcript
in the cause, and shall be the only evidence that such notice has been
given.
Rule 8.— Review of Instructions on General Statement op
Evidence. In actions at law it shall not be necessary, for the purpose of
reviewing in this Court the action of aay oirenit court, or any other
court having by statute jurisdiction of civil oatet, in giving or refusing
instructions, that the whole of the testimony given or excluded at the
trial in the Court of first instance should b« embodied in the bill of excep-
tions ; but it shall be sufficient. ^- ^ the purpose of such review, that the
bill of exceptions should td aA that ''evidence tending to prove'' a par-
ticular fact or issue waa given, and that an exception was saved to the
giving or refusal of the instruction founded on it.
BuLi 9.— Bill of Exceptions When General Statement of Evi-
DEKCI 18 A^'LOWlD BY Tbial Court. If the opposite party shall contend
that there was no evidence tending to prove a fact or issue, and the Court
of <r8t instance shall be of opinion that there was such evidence, it shall
be the duty of the Court to allow the bill of exceptions in the form stated
in the last preceding rule, and then the other party shall be at liberty to
set out in a bill of exceptions, to be prepared by him, the whole of the
testimony supposed by him to be applicable to such fact or issue, and to
except to the opinion of the Court that the same tends to prove such fact
or issue.
Rule 10. — Evidence— Bill of Exceptions to be Allowed, When.
If the Court of first instance shall be of opinion that there is no evidence
tending to prove a particular issue of fact, the party alleging that there is
such evidence shall tender a bill of exceptions detailing all ther evidence
given and supposed to tend to the proof of such fact or issue, and except
to the opinion of the Court that it does not so tend, which bill of exceptions
shall be allowed by the Court by which the cause is tried.
Rule 11.— Exceptions— Questions to be Embodied in Bill. When
an exception is saved to the admission or exclusion of any evidence, or the
allowance or disallowance of any question, the question itself shall be
stated in the bill of exceptions, or the substance of the evidence shall be
fully stated.
Rule 12.— Duty of Circuit Court Clerks in Making Transcripts.
The clerks of the several circuit courts and other courts of first instance,
before which a trial of any cause is had) in which an appeal is taken or
writ of error is sued out, shall not (unless an exception is saved to the regu-
larity of the process or its execution, or to the acquiring by the court of juris-
diction in the cause), in making out transcripts of the record for this Court,
set out the original or any subsequent writ, or the return thereof, but in
lieu thereof shall say (e. g.): ** Summons issued on the day of ,
188-, executed on the day of , 188-;** and if any pleading be
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K. C. COURT OF APPEALS. lU
amended the Clerk in making out transcripts will treat the last amended
pleading as the only one of that order in the cause, and will refrain from
setting out any abandoned pleadings as part of the record, unless it be
made such by a bill of exceptions ; and no Clerk shall insert in the tran-
script any matter touching the organization of the Court, or any mention
of any continuance, motion or affidavit in the cause, unless the same be
specially called by for bill of exceptions.
Rule 13, — Presumption that Bill op Exceptions Contains all the
Evidence. The only purpose of a statement in a biU of exceptions, that
it sets out all the evidence in the cause, being that this Court may have
before it the same matter which was decided by the court of first instance,
it shall be presumed, as matter of fact, in all bills of exceptions, that they
eontain all the evidence applicable to any particular ruling to which
exception is saved.
Rule 14.— Bill op Except^ns in Equity Cases. In all cases of
equitable jurisdiction the whole of the evidence shall be embodied in the
bill of exceptions, unless the parties shall agree upon an abbreviated
statement thereof.
Rule 15. — Abstract and Briefs to be Filed and Served. In all
oases the appellant or plaintiff in error shall file with the Clerk of this
Coui^t, on or before the day next preceding the day on which the cause is
docketed for hearing, five copies of a printed abstract or abridgment of
the record in said cause, setting forth so much thereof as is necessary to
a full understanding of all the questions presented to this court for
decision, together with a brief containing, in numerical order, the points
or legal propositions relied on, with citation of such authorities as counsel
may desire to present in support thereof.
. The appellant or plaintiff in error shall also deliver a copy of said
abstract, brief, points and authorities to the attorney for respondent, or
defendant in error, at least twenty days before the day on which the cause
is docketed for hearing, and the counsel for respondent, or defendant in
error, shall, at least eight days before the day the cause is docketed for
hearing, deliver to the counsel for appellant, or plaintiff in error, one copy
of his brief, points and authorities cited, and such further abstract of the
record as he may deem necessary, and shall, on or before the day next
preceding the day on which said cause is docketed for hearing, file with
the Clerk of this Court five copies of the same ; and the counsel for appel-
lant, or plaintiff in error, may, if he desires, within five days after the
service on him of the respondent's, or defendant in error's, abstract and
brief of aforesaid, prepare, file and sei-ve a reply thereto in the manner
aforesaid; and the evidence of the service of such abstracts, briefs, points
and authorities, as above required, shall be filed by each party at the
time of filing said copies with the Clerk.
Rule 16. — Citing Authorities in Briefs. In citing authorities in
support of any proposition, it shall be the duty of counsel to give the
names of the principal parties to any case cited from any report of
adjudged cases as well as the number of the volume and the page where
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IV K. 0. COURT OF APPEALS.
the same will be found ; and when reference is made to a passage in any
elementary work or treatise, the number of the edition, the volume, the
chapter, the section, the paging and sidepagDig shall be set forth.
Rule 17.— Appellant's Brief to Allege Errors CJomplained of.
The brief on behalf of appellant or plaintiff in error shall distinctly and
separately allege the errors committed by the inferior court, and no ref-
erence will be permitted in the oral argument to errors not thus specified,
nor any reference by either counsel to any authority not cited in his brie^
tmless for good cause shown the CJourt shall otherwise direct.
Rule 18.— Penalty for Failure to Comply with Rule 15. If any
appellant or plaintiff in error, in any civil cause, shall fail to comply with
the provisions of rule numbered 15, the court, when the cause is called
for hearing, will dismiss the appeal or writ of error, or, at the option of
respondent or defeudant in error, continue the cause, at the costs of the
party in default. No oral argument will be heard from any counsel failing
to comply with the provisions of Rule 15.*
Rule 19. — Agreed Statement op the Cause of Action. Parties
may, in the courts of first instance, agree upon any statement of the
cause of action, the defense and the evidence, together with the rulings
of the court thereupon and the exceptions saved to any ruling, which may
intelligently present to this Court the matters intended to be reviewed,
and this statement, with a certificate by the judge before whom the Cause
was tried, that the same is a substantial history of what occurred at the
trial of the cause, shall be treated as the record in this Court, and the
judgment rendered in the court of first instance 3hall be affirmed or
reversed, according to the opinion entertained by this Court respecting
the same.
Rule 20.— Motion for Rehearing. Motions for rehearing must be
accompanied by a brief statement of the reasons for a reconsideration of a
cause, and must be founded on papers showing clearly that some question
decisive of the cause, and duly presented by counsel in their brief, had
been overlooked by the Court, or that the decision is in conflict with an
express statute, or with a controlling decision to which the attention of
the Court was not called. Such motion and statement must be filed
within ten days after the delivery of the opinion, and a copy of the
motion, with the accompanying statement or brief, shall be served upon
the opposite counsel ; but no motion for a rehearing shall be filed after the
final adjournment of the Court.
Rule 21. — Motion for Affirmance. On motion for affirmance,
under section 3717, Revised Statutes of 1879, as amended by act con-
cerning Practice in Civil Cases, approved March 24, 1883, the mere fael
that appellant has on file, or presents a copy of the transcript, at the time
such motion is made, shall not of itself be deemed good cause within the
meaning of said law.
Rule 22.— Extending Time for Filing Statements, Abstracts,
Etc. In no case will extension of time for filing statements, abstracts
and briefs be granted, except upon affidavit showing satisfactory cause.
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K. C. COURT OF APPEALS. V
Rule 23. — Oral Arguments. When a caase is called for argument,
the appellant; or plaintiff in error, will read the statement of the cause
prepared by him ; the defendant in error, or respondent, will thereupon
read his statement, in each case without comment of any kind. The
plaintiff in error, or appellant, will then proceed to argue for a reversal
or modification of the judgment of the court below ; the defendant in error,
or respondent, will answer him ; and the appellant, or plaintiff in error,
will reply and close the argument. The whole time consumed by either
side, in this statement and argument, shall not exceed sixty minutes,
unless the CJourt, for cause shown before the commencement of the argu-
ment in any particular case, shall otherwise order. Cross-appeals shall be
treated as one cause, and the plaintiff in the trial court shall be entitled
to open and close the argument. Counsel will not be permitted in any
case to read to the Court a written or printed argument.
Rule 24. — Notice on Motion to Dismiss or Affirm. A party in any
cause filing a motion, either to dismiss an appeal or writ of error, or to affirm
the judgment of the trial court, shall first notify the adverse party or his
attorney of record, at least twenty-four hours before making the motion,
by telegraph, by letter, or by written notice, and shall, on filing such
motion, satisfy the Court that such notice has been given.
Attest:
L. F. McCoy, Clerk,
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RULES OF PRACTICE
OP THE
ST. LOUIS COURT OF APPEALS.
REVISED OCTOBER 17, 1888.
TO BE IN FORCE NOVEMBER 1, 1888,
Rule 1. — Presiding Judge. The Presiding Judge shall superintend
all matters of order in the Court room.
Rule 2. — Motions. All motions in a cause shall be in writing
signed by counsel and filed for record, and no motion shall be argued
orally, unless the court so directs.
Rule 3.— Hearing op Causes. No cause shall be heard before it is
reached in its regular order on the docket, unless circumstances exist such
as entitle it to precedence; and any motion to advance a cause on the
docket shall be accompanied by affidavits showing particularly the facts
on which such motion is based. When a cause is advanced, the record,
as well as the briefs, shall be printed, unless the Court shall otherwise
order. This rule has no application to causes whereof this Court haa
original jurisdiction.
Rule 4. — Taking Records from Clerk's Office. — Counsel in a
cause are permitted to take the records of such' cause from the Clerk's office
to the law library, and to no other place, and then they must leave a
written receipt therefor, but shall return such record to the Clerk's office
within five days after taking the same.
Rule 5. — Diminution of Record. No suggestion of diminution of
record in civil cases will be entertained by the Court after joinder in error
except by consent of parties.
Rule 6. — Certiorari to Perfect Record. Whenever a writ of cer-
tiorari to perfect record is applied for, the motion shall state the defect in the
transcript which it is designed to supply, and shall be verified by affidavit.
At least twenty-four hours' notice shall be given to the adverse party, or
his attorney, previous to the making of the application. The Court may
of its own motion, at any time, require the clerk of the trial court to send
up a complete transcript, when the transcript of the record is formally
insufficient.
Digitized by VjOOQIC
ST. LOUIS COURT OF APPEALS. VU
Rule 7. — Notices op Writs op Error. All notices of writs of error,
with the acceptance, waiver or return of service indorsed thereon, shall be
filed with the Clerk of this Court, and by him attached to the transcript in
the cause, and shall be the only evidence that such notice has been given.
Rule 8.— Review op Instructions on General Statement op
Evidence. In actions at law it shall not be necessary, for the purpose
of reviewing in this Court the action of any circuit court, or any other
court having by statute jurisdiction of civil cases, in giving or refusing
instructions, that the whole of the testimony given or excluded at the trial
in the court of first instance should be embodied in the bill of exceptions;
but it shall be sufficient, for the purpose of such review, that the bill of
exceptions should state that "evidence tending to prove" a particular
fact or issue was given, and that an exception was saved to the giving or
refusal of the instruction founded on it.
Rule 9. — Bill op Exceptions— When General Statement op.
Evidence is Allowed by Trial Court. If the opposite party shall con-
tefnd that there was no evidence tending to prove a fact or issue, and the
court of first instance shall be of opinion that there was such evidence, it
shall be the duty of the Court to allow the bill of exceptions in the form
stated in the last preceding rule, and then the other party shall be at
liberty to set out in a bill of exceptions, to be prepared by him, the whole
of the testimony supposed to be applicable to such fact or issue, and to
except to the opinion of the Court that the same tends to prove such fact
or issue.
Rule 10.— Bill op Exceptions— When General Statement op Evi-
dence is Disallowed by Trial Court. If the court of first instance shall
be of opinion that there is no evidence tending to proye a particular issue
or fact, the party alleging that there is such evidence shall tender a bill
of exceptions detailing all the evidence given, and supposed to tend to the
proof of such fact or issue, and except to the opinion of the Court that it
does not so tend, which bill of exceptions shall be allowed by the trial
court.
Rule 11. — Exceptions to Admission or Exclusion op Evidence.
When an exception is saved to the admission or exclusion of any evidence,
or the allowance or disallowance of any question, the question itself shall
be stated in the bill of exceptions, or the substance of the evidence shall
be fully stated.
Rule 12. — Bill op Exceptions in Equity Cases. In causes of
equitable jurisdiction, the whole of the evidence shall be embodied in the
bill of exceptions, unless the parties shall agree on an abbreviated state-
ment thereof.
Rule 13.— Duty op Clerk in Making out Transcripts. The clerks
of the several circuit courts and other courts of first instance, before
which a trial of any cause is had in which an appeal is taken or writ of
error is sued out, shall not (unless an exception is saved to the regularity of
the process or its execution, or to the acquiring by the Court of jurisdiction in
the cause), in making out transcripts of the record for this Court, set out
Digitized by VjOOQIC
Vm ST. LOUIS COURT OF APPEALS.
the original or any subsequent writ, or the return thereof; but in lien
thereof shall say (e. g.): '* Summons issued on the day of , J8S-,
executed on the day of , 188-;" and if any pleading be amended,
the clerk in making out transcripts will treat the last amended pleading as
the only one of that order in the cause, and will refrain from setting out
any abandoned pleadings as part of the record, unless it be made such by
a bill of exceptions ; and no clerk shall insert in the transcript any matter,
^uchiug the organization of the Court, or any mention of any continuance,
motion or affidavit in the cause, unless the same be specially called for by
bill of exceptions.
Rule 14.— Presumption That Bill op Exceptions Contains all
THE Evidence. The only purpose of a statement in a bill of exceptions
that it sets out all the evidence in a cause being that this Court may have
before it the same matter which was decided by the court of first instance,
it shall be presumed as matter of fact in all bills of exceptions that they
contain all the evidence applicable to any particular ruling to which
exception is saved.
Rule 14a.— Abstracts in Lieu op Transcripts When Filed akd
Served. In those cases where the appellant shall, under the provisions
of section 2253, Revised Statutes of 1889, file in this court a copy of the
judgment, order or decree, in lieu of a complete transcript, he shall
deliver to the respondent a copy of his abstract at least thirty days before
the cause is set for hearing, and shall in like time file four copies thereof
with the Clerk of this Court. If the respondent is not satisfied with such
abstract, he shall deliver to the appellant a complete or additional abstract
at least fifteen days before the cause is set for hearing, and within like
time file four copies thereof with the Clerk of this Court. Objections to
such complete or additional abstract shall be filed with the Clerk of this
Court within five days after service of such abstract upon the appellant,
and a copy of such objections shall be served upon the appellant in like
time. ITobe in force from and after October SO, 1891.'\
Rule 146.— Costs for Printing Abstracts and Record. Costs will
not be allowed either party for any abstract filed in lieu of a full tran-
script under section 2253, Revised Statutes, 1889, which fails to make a
full presentation of all the record necessary to be considered in disposing
of all the questions arising in the cause. But in those cases brought to this
court by a copy of the judgment, order or decree instead of a full tran-
script, and in which the appellant shall file in this court a printed copy of
the entire record as and for an abstract, costs will be allowed for printing
the same. The aflldavit of the printer shall be received in every case,
where costs may properly be taxed for printing, as prima facie evidence of
the reasonableness thereof; and, if the adverse party objects thereto, such
objection shall be filed within ten days after service of notice of the
amount of such charge. [To he in force from and after October 20, 1891.)
Rule 15.— Briefs, When to be Filed. In all civil cases the appel-
lant, or plaintiff in error, shall file with the Clerk of the Court, at least
one day before the cause is called for trial, four copies of a brief, con-
taining: First. A clear and concise statement of the pleadings and facts
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ST. LOUIS COURT OF APPEALS. IX
shown by the record. Second, An enameration in numerical order of the
points or legal propositions made or relied on, accompanied by the cita-
tion of authorities supporting each proposition. Third. If he so elects,
an argument supporting each proposition made or relied on.
The appellant, or plaintiff in error, shall also deliver a copy of said
brief to the attorney of respondent, or defendant in error, at least ten
days before before the day on which the cause is called for hearing, and
the respondent, or defendant in error, shall at least five days before the
cause is called for hearing, deliver to counsel for appellant, or plaintiff in
error, one copy of his brief, points and authorities cited, and such further
statement as he may deem necessary, and shall file four copies thereof
with the Clerk, at least one day before the case is called for hearing.
Counsel for appellant, or plaintiff in error, if he so elects, may reply to
such brief, by delivering a copy of his reply to counsel for respondent, or
defendant in error, at least one day before the cause is called for hearing.
The evidence of the service of such briefs and statements shall be filed
with the Clerk before the day of hearing.
Bulb 16.— Briefs After Submission. After a cause has been sub-
mitted, or has been taken as submitted, no leave to file briefs will be
granted, except upon good cause shown. Counsel obtaining such leave
will be required to serve a copy of his brief on counsel on the other side,
who shall have five days' time after such service to reply to the same.
Evidence of such service shall be furnished, as required by the preceding
rule.
BuLE 17. — Citing Authorities in Briefs. In citing authorities in
support of any proposition it shall be the duty of counsel to give the names
of the principal parties to any case cited from any report of adjudged
oases, as well as the number of the volume and the page where the
same will be found; and when reference is made to a passage in any
elementary work or treatise the number of the edition, the volume, the
chapter, the section, the paging and sidepaging shall be set forth.
BuLE 18. — Appellant's Brief to Allege Error Complained of.
The brief filed on behalf of appellant, or plaintiff in error, shall distinctly
and separately allege the errors committed by the inferior court, and no
reference will be permitted in the o'ral argument to errors not thus speci-
fied, nor any reference by either counsel to any authority not cited in his
brief, unless for good cause shown the Court shall otherwise direct.
Bulb 19.— Penalty for Failure to Comply with Bule 15. If
any appellant, or plaintiff in error, in any civil cause, shall fail to comply
with the provisions of rule numbered 15 the Court, when the cause is
called for hearing, will dismiss the appeal or writ of error, or at its dis-
cretion continue or reset the cause on proper terms. No oral argument
will be heard from any counsel failing to comply with the provisions of
Kule 15.
Bule 20. — Agreed Statement of Cause of Action. Parties may,
in the courts of first instance, agree upon any statement of the cause of
action, the defense and the evidence, together with the rulings of the
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X ST. LOUIS COUBT OF APPEALS.
court thereupon, and the exoeptionB saved to any ralings, which may
intelligibly present to this Court the matters, intended to be reviewed; and
this statement, with a certificate by the judge before whom the cause was
tried, that the same is a substantial history of what occurred at the trial
of the cause, shall be treated as the record in this Court, and the judgment
rendered in the court of first instance shall be affirmed or reversed,
according to the opinion entertained by this Court respecting the same.
Rule 21. — Motions roR Behearino. Motions for rehearing must be
founded upon statements showing clearly that some fact or question deci-
sive of the cause, and duly presented by counsel in their brief, has been
overlooked by the Court, or that the decision rendered is in conflict with
an express statute or with a controlling decision to which the attention of
the Court has not been directed. Such motion and statement must be filed
within ten days after the delivery of the opinion, and a copy of the motion,
with the accompanying statement or brief, shall be served upon the oppo-
site party.
Rule 22. — Motion for Affirmance. On motion for affirmance,
under section 3717, Revised Statutes of 1879, as amended by act concern-
ing Practice in Civil Cases, approved March 24, 1883, the mere fact that
the appellant has on file, or presents a copy of the transcript, at the time
such motion is made, shall not of itself be deemed good cause within the
meaning of said laws.
Rule 23.— Oral Arguments. When a cause is called for argument
the appellant, or plaintiff in error, will read the statement of the cause
prepared by him; the defendant in error, or respondent, will thereupon
read his statement; in each case, without comment of any kind. The
plaintiff in error, or appellant, will then proceed to argue for a reversal or
modification of the judgment of the court below ; the defendant in error,
or respondent, will answer him ; and the appellant, or plaintiff in error,
will reply and close the argument. The whole time consumed by either
side, in the statement and argument, shall not exceed sixty minuteSf unless
the Court, for cause shown before the commencement of the argument in
any particular ease, shall otherwise order. Cross- appeals shall be treated
as one cause, and the plaintiff in the triiQ court shall be entitled to open
and close the argument. Counsel will not be permitted in any case to
, read to the Court a written or printed argument.
Rule 24.— Notice on Motion to Dismiss or Affirm. A party in
any cause, desiring to present a motion either to dismiss an appeal or writ
of error, or to affirm the judgment of the trial court, shall notify the
adverse party or his attorney of record, by telegram, by letter or by
written notice of his proposed proceeding. When said adverse party or
his attorney of record resides in the city of St. Louis, such notice shall be
given at least twenty-four hours before the time appointed for the hearing
of the motion ; when the adverse party or his attorney of record resides
outside the city of St. Louis, twenty- four hours' additional notice for each
one hundred miles shall be given ; and in all cases the court will require
satisfactory proof that proper notice has been given.
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ST. LOUIS COURT OF APPEALS. XI
Rule 25. — Appearance of Coitnsel, The Counsel who represented
the parties in the trial court, in any cause coming to this Court, will be
held to represent the same parties, respectively, in this Court; but, should
other counsel be engaged, they must enter their appearance in writing,
the counsel for the appellant, or the plaintiflf in error, ten days, and the
counsel for the respondent, or the defendant in error, five days, before the
first day of the term to which the appeal or writ of error is returnable ;
and, if counsel are employed after said time, their appearance must be
entered as soon as they are retained. Counsel failing to comply with this
rule will not be recognized in a cause, unless the consent, in writing, of
the counsel of the opposite party, to such appearance, be filed with the
clerk ten days before the day on which the cause is set for hearing.
Appearance may be entered by written notice to the Clerk of this Court
giving the name and address of the counsel. Additional counsel may
enter their appearance at any time before the cause is called for hearinnr.
The following additional rules were adopted to taJce
effect December 19, 1893:
Rule 26. — In view of the rulings of the Supreme Court, confining the
jui'isdiction of this Court in issuing original remedial writs to such cases
wherein it has appellate jurisdiction, it is ordered: No original remedial
writs, excepting such as are in aid of the appellate jurisdiction of this
Court and excepting also writs of Habeas Corpus and Prohibition, will
hereafter be issued by this Court or any of the Judges thereof, except in
cases where the application for such writs cannot be effectually presented
to the Circuit Court or the Supreme Court, or some Judge thereof. Nor
will any writ of Prohibition be issued unless by order of a majority of the
Judges, nor in any case whereof the Supreme Court has appellate juris-
diction.
Rule 27.— Garnishees claiming any allowance in this Court must do
so on or before a final submission of the cause on briefs They shall
accompany the claim for allowance with a sworn statement of expendi-
ture paid or incurred upon the appeal.
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