author: WHITE, C.

text:
    EARNEST R. POLLARD, Appellant, v. WILLIAM N. WARD.
    Division Two,
    July 19, 1921.
    1. DIVORCE: Estoppel by Judgment in Alienation Suit. A Judgment for divorce, in an action brought by the wife against her husband, to which he made no defense, determines the status of the parties to it, but is not conclusive upon strangers as to the facts in said suit litigated, and does not operate as an estoppel in a suit by the husband against the seducer of the wife for criminal conversation and the alienation of her affections, even though her petition in the divorce suit alleged as one ground for divorce that her husband had charged her with adultery with the said seducer. The seducer not having been a party to the action for divorce, a judgment for the wife therein was not such an adjudication that the seducer had not committed adultery with the wife as estops the husband from maintaining an action for .damages against the seducer for alienation and criminal conversation with the wife pri&r to the time the divorce judgment was rendered.
    2. -: -: Petition and Judgment as Evidence. But the petition and judgment in the wife’s suit for divorce brought against the husband, in which she alleged as a ground therefor that he had charged her with adultery with a certain man, are admissible in evidence in a subsequent action by the husband against such man for damages for alienating the affections of the wife, as admissions, even though the husband filed no answer in said suit, but they are admissible not as conclusive against him, but only as any other admissions which may go to the jury for what they are worth,
    3. -: Estoppel by Conduct. The husband is not estopped by his failure to file an answer in the divorce suit brought by his wife, in'whieh she alleged as one ground for divorce that he had charged her with adultery with a certain man, from maintaining an action for damages against said man for alienation and criminal conversation committed prior to the time the suit for divorce was instituted; for, even though it be conceded that the husband’s conduct in the divorce suit in defaulting and failing to meet the wife’s charge is inconsistent with his claim for damages in the alienation suit, two necessary elements of estoppel in pais are lacking, namely, the defendant did not act upon the faith of the husband’s conduct in the divorce suit, for his criminality" with the wife occurred before that suit was brought, and, second, the defendant is not injured in any manner by the husband’s failure to contradict or controvert the wife’s charges in the divorce suit.
    4. -: Estoppel by Property Settlement. The fact that the husband in the divorce action brought by his wife paid his wife tour thousand dollars as alimony and obtained from her a deed by which she conveyed to him her interest in property which he had acquired from her father, in no wise affects the defendant in the husband’s suit for alienation and criminal conversation with the wife, and hence does not constitute estoppel.
    5. EVIDENCE: No Objection. Unless objection is raised to testimony at the time the witness states it, its competency will not be ruled on appeal.
    Appeal from Linn Circuit Court. — Ho». Fred Lamb, Judge.
    Reversed and remanded (with directions).

      Pross T. Cross, PL. J. West and Scott J. Miller, for appellant.
    (1) The husband has a right and a cause of action against a defendant, who lias had criminal conversation with his wife and who has debauched his wife, and this cause of action still exists notwithstanding plaintiff’s wife has secured a divorce by default in a divorce suit-against plaintiff. Wales v. Minor, 89 Ind. 118; Wood v. Mathews,' 47 Iowa, 411; Dickerman v. Graves, 6 Cushing 308; Ratcliff v. Wales, 1 Hill, 63; Barney v. Adriance, 142 N. Y. Supp. 479; Burdey v. Robinson, 117 N. Y. Supp. 295; (2) The cause of action in the divorce suit was between plaintiff’s wife and'plaintiff; the cause of action for the criminal conversation is between plaintiff and defendant Ward. The debauchiiig of plaintiff’s wife in the suit for criminal conversation, while she was his wife, has no connection and is no bar to plaintiff’s suit for damages against the debaucher of his wife. Deford v.-Johnson, 251 Mo. 253; Prettyman v. Williamson, 39 Atl. 731. (3) A judgment for divorce, even at the husband’s fault is not a bar to an action of this kind. Michael v. Dunkle, 84 Ind. 545. The defendant violated the right of plaintiff, he wronged the plaintiff and while the marital relations existed; then afterwards plaintiff’s wife obtained a divorce from plaintiff and the question then arises to bar the plaintiff in his right of action for criminal conversation. The tort was complete before the divorce; that such an action is a tort and a personal action belongs to the injured spouse, is a settled fact and adjudicated law. Bennett v. Bennett, 116 N. Y. 584; Nolen v. Pierson, 191 Mass. 283; Modisett v. McPike, 74 Mo. 636; Clow v. Chapman, 125 Mo. 105; Deford v. Johnson, 251 Mo. 253.

      Bailey & Hart, James L. Farris’ Sons and Lave-lock & Kirkpatrick for respondent.
    (1) One of the alleged causes of action in the divorce suit and- the only alleged cause of action in this suit, is identical in all respects, namely, the improper relations between Hope Pollard and William N. Ward; in such cases, the doctrine of estoppel applies, and respondent is permitted to avail himself of the divorce judgment, to which he was neither a party nor privy. Hill v. Bain, 15 R. I. 75; Atkinson v. White, 60 Me. 396. (2) An election is in the nature of an estoppel, and when made to appear from a final judgment, it concludes the party against whom it is invoked. Trimble v. Bank, 71 Mo. App. 467, 486. (3) The doctrine of election is a branch of the law of estoppel, and when Hope Pollard sued appellant for divorce and charged in her petition that appellant had wrongfully accused her of improper -relations with William N. Ward, she thereby put the appellant to an election between one of two inconsistent courses of action, namely, he must answer the divorce suit, prove the guilt of his wife, and thereby establish the right to maintain this suit, or he might refuse to answer,' withhold his evidence, if any, allow his wife to judicially establish her innocence, obtain a decree for divorce and defeat this suit by estoppel. Fox v. Windes, 127 Mo. 502, 511; Plow Co. v. Wayland, 81 Mo. App. 305. (4) Appellant received, at least, a part of the fruits of the judgment for divorce, namely, a deed from his former wife for her interest in all of his real estate, and “where a party has taken the fruits of a judicial proceeding, he should not afterwards be heard to question it.” Railroad v. Bridge Co., 215 Mo. 286, 298; Hector v. Mann, 225 Mo. 228, 248. (5) Hope Pollard charged in her petition for divorce, that appellant had' wrongfully accused her of having improper relations with one Ward; if appellant had information to that effect at the date of the institution of the divorce suit, and failed to set it up by way of answer, he is now estopped from averring that his wife was guilty of criminal conversation with Ward. 2 Bishop on Marriage, Divorce & Separation, sec. 1589; Gleason v. Knapp, 56 Mich. 291. (6) There are “forms of estoppel in which knowledge of the facts upon the part of the person invoking the estoppel and reliance upon the facts and a change of situation based upon that reliance, is not an element.” Hector v. Mann, 225 Mo. 228, 245. (7) “Ordinarily, judgments have been held conclusive only between parties and their privies, and only when both parties are bound, but this rule is subject to exceptions.” Portland Gold Min. Co. v. Stratton’s Independence, 158 Fed. 63; Hill v. Bain, 15 R. I. 75; Atkinson v. White, 60 Me. 396. (8) Appellant appeared, by counsel, to the divorce suit of his wife, but failed to answer the allegations of her petition; he assented, at least, to that part of the judgment settling property rights, received the benefits therefrom, and in so doing, elected to adopt- the theory that his wife was innocent, and that he was guilty of the allegations contained in her petition; by this act, he estoppe'd and precluded himself from averring to the contrary. Stone v. Cook, 179 Mo. 534, 542; Bensieck v. Cook, 110 Mo. 173, 182; Austin’s Estate, 73 Mo. App. 61; Welch & Harvey v. Dameron, 47 Mo. App. 221; Boyd v. Redd, 118 N. C. 180; In Re Countryman’s Estate, 151 Pa. St. 577; Bigelow on Estoppel (2 Ed.) 503. (9) To the divorce suit of the wife, appellant appeared by counsel, agreed with her as to the amount the court should adjudge to her as and for alimony, and also agreed with her that on the payment o'f $4,000 she was to make him a deed for all her interest in his real estate, which agreement was to be made a part of the judgment for divorce; by these acts and agreements, appellant confessed that under the petition of his wife, she was legally entitled to a divorce; for if guilty, he, and not she, was entitled to the divorce if guilty. She was not entitled to alimony, and a deed would be useless; having' deliberately adopted this course of action, he cannot now recede therefrom. Stone v. Cook, 179 Mo. 534, 542; Bensieck v. Cook, 110 Mo. 173, 182; Austin’s Estate, 73 Mo. App. 61. (10) Appellant cannot have two strings to his bow; he appeared to the divorce suit of his wife, he was served with a copy of her petition and was fully informed as to each and every allegation contained therein. With this information in his possession, he enters into an agreement with her, adjusting certain property rights; this agreement, beneficial to him, is carried into and made a part of the judgment for divorce. Pie accepts and receipts for his benefits, and now seeks to make respondent liable for that which was decided’ against him in said divorc/e suit. The two proceedings are incompatible and appellant having made his election and received certain benefits from said election, he is bound thereby. Nanson v. Jacobs, 93 Mo. 345.
   WHITE, C.

The plaintiff recovered judgment in the the Circuit Court of Linn County, Missouri. A motion for new trial filed by defendant was sustained by the trial court, and from that order the plaintiff has appealed.

The petition charges that the plaintiff has been damaged because of criminal conversation of the defendant with the plaintiff’s wife', and alienation of her affections. The answer of defendant, after a general denial, pleads estoppel. It alleges that the wife of the plaintiff, Hope Pollard, on February 24, 1917, instituted a divorce proceeding in Ray County, Missouri, against the plaintiff herein; • that in June 1917, a decree of divorce was granted to said Hope Pollard, the finding of the judgment being that the defendant therein, Earnest Pollard, was • the guilty party, and the said Hope Pollard was the innocent party; that the alleged facts recited in plaintiff’s petition, as to the unfaithful acts and conduct of Hope Pollard toward her husband, were reported to plaintiff and within his knowledge long before the 24th day of February, 1917, and by reason .of plaintiff’s acts and conduct his failure to answer the petition of the said Hope Pollard, and by the judgment in the divorce proceeding, plaintiff is estopped from maintaining his action herein. The suit was brought in Caldwell County; change of venue was granted to Linn County, where the trial was had, beginning on the third day of June, 1919.

At the time of the occurrences complained of the plaintiff, Pollard, thirty-eight years old, lived on his farm in Caldwell County with his wife and four children. He separated from his wife January 29, 1917. Another child was born to his wife two or three months afterward. The defendant, William Ward, then a single man, lived with his parents about a quarter of a mile from the Pollard home.

A volume of evidence was introduced by the plaintiff tending to prove improper intimacy between the plaintiff and the defendant’s wife, which ran over a peiod of two or three years before the separation, January 29, 1917. A number of witnesses, including neighbors and others, testified that they saw the defendant visit plaintiff’s home during plaintiff’s absence, and apparent secret meetings between Hope Pollard and the defendant. Some of the witnesses swore to seeing -acts of a criminal nature between them.

On January 28, 1917, plaintiff became convinced that a clandestine meeting had taken place between his wife and Ward, and procured bloodhounds which traced the tracks of someone to Ward’s house. Plaintiff separated from his wife the next day. It is unnecessary to state the evidence any further than to say it is sufficiently clear and substantial to support the allegations of the petition.

The defendant denied all charges, and introduced evidence to show his good character. He introduced the pleadings and judgment in the divorce proceeding begun by Hope Pollard a short time after the separation from her husband. Other facts necessary in consideration of the points to be determined will be noted later in the opinion.

The jury in their verdict assessed the plaintiff’s actual damages at five thousand dollars and his punitive damages at seven thousand dollars. The motion for new trial was sustained on the ground that the matters charged and put in issue by the petition in the divorce proceeding “were largely if not entirely matters involved in the present trial.” The trial judge clearly stated his reason for sustaining the motion, thus:

“Under these facts the court is of the opinion that having failed to deny the allegations of the said divorce petition and having made a money settlement upon the charges confessed in it, and having confessed the truth by having failed to answer, plaintiff in this case is estopped from further asserting the infidelity of said wife and ought not in good conscience be permitted to maintain this action.”

The petition in the divorce proceeding alleged that the defendant in that suit, Earnest R. Pollard, had offered his wife, Hope Pollard, such indignities as to make her condition intolerable. The indignities enumerated consisted of several specifications of cruel and barbarous treatment, abuse and villification. The petition then alleged that on the evening of January 28th, the plaintiff, Hope Pollard, left the house for a few minutes and when the defendant saw his wife coming back he charged her with meeting a man “out there,” and . “repeatedly said and accused plaintiff of having met the son of Mr. Ward that night, . . . and plaintiff says that the defendant has repeatedly since then accused the plaintiff of improper relations with other men and has ordered her to leave him.”

The judgment in the divorce proceeding recites a finding that during all the time plaintiff faithfully demeaned herself and discharged all of her duties to the defendant as his wife, “but 'that the defendant cursed and abused her at divers times and did such other and improper conduct towards her as his wife as to render her condition intolerable as set forth in plaintiff’s petition.” Alimony to the plaintiff was allowed in the sum of four thousand dollars, and she was required to execute a quit-claim deed to defendant for all the land of defendant. The acknowledgment of the receipt of such deed is recited in the decree.

I. The general rule is that a decree, of divorce does not bar an action for previous alienation of affections, or criminal conversation or seduction. [21 Cyc. 1626; DeFord v. Johnson, 251 Mo. 244, l. c. 253 to 256, and cases there cited.] This court in the opinion by Graves, J., in that case, said at page 255, speaking of cases cited:

“They declare the general doctrine that although the jury may believe that plaintiff’s wife obtained a divorce from him, and that she made plaintiff’s misconduct ground for obtaining said divorce, yet if the jury believe that notwithstanding such misconduct on the part of the plaintiff, his wife Avould not have separated or remained apart from him, or sued him for a divorce if it had not been for the acts, conduct and influence of defendant toward her; and that defendant purposely and intentionally, by such acts, conduct and influence, induced her to so separate or remain apart from plaintiff, or sue him for a divorce; then, the fact that plaintiff’s wife obtained such a divorce on account of plaintiff’s misconduct, does not, of itself, constitute any defense to this suit.”

This is quoted from Modisett v. McPike, 74 Mo. l. c. 646. The DePord case is reported in 46 L. R. A. (N. S.) 1083, with copious notes citing numerous cases where the subject is illustrated. There is no direct allegation in the petition for divorce which puts in issue the criminal conversation of Ward with the plaintiff’s wife alleged in this case^ so that it could be said to have been adjudicated in that case.

The point made by the defendant, and the point in the mind of the court in sustaining the motion for new trial, is that the plaintiff could have defeated-his wife’s suit for divorce by proving the facts as to her relations with the defendant; that the very issues presented for determination in this case must have been determined there, because plaintiff failed to present a defense to that divorce proceeding, which was. complete if true; the judgment, therefore, is conclusive that his wife was not guilty of misconduct.

In taking that position the respondent assumes that a judgment in a divorce proceeding is different from other judgments in that it is binding upon others than parties to it. There was such a holding in the case of Gleason v. Knapp, 56 Mich. 291, a case followed in-some jurisdictions. That case, however, has been modified, and deprived of much of its force by subsequent adjudications by the Supreme Court of Michigan. [Knickerbocker v. Worthing, 138 Mich. 224, l. c. 228; Philpott, v. Kirkpatrick, 171 Mich. 495.]

The precise point has never been determined in this State, but it was approached in the DePord case, supra. A number of decisions in other jurisdictions take a position contrary to that assumed by the trial court. In Luke v. Hill, 137 Ga. 159, 38 L. R, A. (N. S.) 559-563, it is held that a decree of divorce is a judgment quasi in rem. “So far as adjudication fixes the status of the parties the judgment concludes both parties and strangers; but, beyond the adjudication of the status, the decree does not conclude strangers. . . . A divorce decree will not estop a party thereto from contesting with a stranger the truth of the grounds as affecting his liability in another suit upon a cause of action arising pending the divorce suit, but before the decree.”

Leading cases are cited in support of the proposition. The case of Coney v. Harney, 53 N. J. L. 53, was a suit brought by the plaintiff’s wife, and it was held that a decree of divorce in favor of plaintiff’s wife was not a bar to his suit for damages for criminal conversation, although he had filed in the divorce proceeding a cross-bill, afterwards dismissed, in which he charged his wife with the very criminal acts alleged as a cause of action in the suit on trial. The court said, l. c. 54-55: “An estoppel, even by the judgment of the court, must be mutual to be admissible in bar, and such a judgment will bind only those who are party or privy thereto. Here defendant was neither party nor privy. There was no mutuality, for it had been adjudicated that defendant had committed the adultery charged in the cross petition, such adjudication manifestly could not have been* set up against him” — a statement of the law particularly applicable to this case.

The case of Michael v. Dunkle, 84 Ind. 544, was an action for criminal conversation brought by the husband against the seducer of his wife; the defendant set up a decree of divorce granted to her on account of her husband’s cruelty. The husband knew of the criminal conduct before the divorce decree was granted. The court held that because the acts complained of occurred while she was still his wife, he had a cause of action, and then used this language at page 545: “After this discovery, it is not strange that the appellee permitted his wife, without resistance, to obtain a divorce; but he did not thereby waive or lose his right to redress for the injury done. It would not be in the interests of good order and the public morals to permit the seducer of the wife to set up a disagreement, or even a separation, between her and the husband, as a complete defense to an action by the latter for the wrong.”

From these authorities and the others reviewed in the notes in 46 L. R. A. (N. S.) 1083 to the DeFord Case, and the Luke Case, 137 Ga. 159, supra, the general rule appears that a judgment of divorce is conclusive upon strangers as determining the status of the parties to it, but not conclusive upon strangers as to the facts litigated. The position taken in the Gleason Case cited from 56 Mich. 291, is not supported by reason nor by the weight of authority. There was no mutuality, as said in the New Jersey case, supra. Had the court in the divorce proceeding found the wife guilty of adultery with Ward, Ward would not be bound by it in this suit.

The pleadings and judgment in the divorce proceeding were probably admissible in evidence in this case as showing an admission on the part of the plaintiff. If Pollard, in his wife’s divorce proceeding had filed a pleading which admitted any fact, or if by his silence he had failed to controvert the facts alleged there, it would be proper to show it as an admission against him. Such-admission would not be conclusive against him here, but like any other admission it could go to the jury for what it was worth. [See Sickler v. Mannix, 68 Neb. 21; l. c. 23.] Logically it must follow that the plaintiff is not concluded by the judgment in the divorce proceeding.

■ II. Next, the question arises as to whether the plaintiff is estopped by his conduct. I-t is true that he permitted a decree of divorce to be rendered against him upon the allegations of his wife’s petition. While that petition did not 'in direct terms allege that he had falsely charged her with illicit relations with Ward it may be conceded that he was put upon his notice that such charge was intended. As said in the Indiana case cited -.above, after he discovered the nature of her conduct he might very well desire a divorce and make it as easy as possible for his wife to obtain one. But the proceeding lacks every element of estoppel by conduct, or estoppel in pais.

To constitute estoppel in pais three things must occur: First, an admission, statement, or act inconsistent with the claim afterwards asserted and sued on; second, action by the other party on the faith of such admission, statement or act; and, third, injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act. [First National Bank of Mexico v. Ragsdale, 171 Mo. l. c. 185; Wyatt, v. White, 192 Mo. App. l. c. 560; DeLashmutt v. Teetor, 261 Mo. l. c. 441; Thompson v. Lindsay, 242 Mo. l. c. 76.]

It may be conceded that in the divorce proceeding Pollard’s conduct was inconsistent with the claim he puts forth here, but it cannot be said that the defendant in this case acted upon the faith of any such conduct. His criminality with the plaintiff’s wife occurred before the divorce suit was brought, and before the separation. Likewise, the third requisite does not appear here. The defendant is not injured in any manner by the failure of the plaintiff to contradict or controvert the allegations of his wife’s petition. If the plaintiff had asserted and maintained in the divorce proceeding the facts which he alleges in this suit, the defendant here would have been in no better position than he is. [Thompson v. Lindsay, 242 Mo. l. c. 76; DeLashmutt v. Teetor, 261 Mo. l. c. 441.] Ward did not in any manner nor to any degree rely upon anything plaintiff did in his wife’s divorce suit, and is not injuriously affected in any manner by the plaintiff’s position maintained here because it happens to be different from what he assumed there. The defendant is in no position to invoke the principle of estoppel in pais.

III. It is further claimed by the respondent that the plaintiff herein has obtained the benefit of a transaction and seeks to repudiate it in this case in that he obtained the divorce from his wife, a deed from her, and paid her four thousand dollars alimony, and having obtained that advantage and assumed that position, he has elected so that he cannot assume a different position here. This is another way of attempting to state an estoppel. It is impossible to see how that transaction affects the defendant. The business settlement which the plaintiff made with his wife at the time of the decree consisted simply of the purchase by him of her interest in property, which he had acquired from her father. It may have been worth more than he paid her, but he is not retaining the fruits of another transaction which affects the defendant or bears any relation whatever to the issues to be determined in this case.

IV. Another ground is urged by the respondent in support of the propriety of the ruling: it is claimed,that improper evidence was offered on behalf of the appellant showing the incident in relation to the blood-bounds. We cannot find that the evidence in the way it arose was incompetent, and if it was the -point was not raised in time. When the plaintiff in his direct examination related the facts about calling the bloodhounds no objection was made to his evidence.

The judgment is reversed and the cause remanded with directions to the trial court to set aside the order granting a new trial, and to render judgment for the plaintiff upon the verdict as returned by the jury.

And Bailey and Mosley, GG., concur.

PER CURIAM :■ — -The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    WILLIAM A. MONTAGUE, Appellant, v. MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY et al.
    Division Two,
    July 19, 1921.
    1. PLEADING: Departure: Negligence: Cause Under Kansas Statutes. A petition which states the ultimate fact of a cause of action for negligent personal injuries under Sections 4218 and 4219, Revised Statutes of Missouri of 1919, also states a cause of action under Sections 7323, 7324 and 11829 of the Kansas statutes; and where the petition states a cause of action under these Missouri statutes, an amended petition in which these Kansas statutes are pleaded for the purpose of showing that under them plaintiff had a right to sue, and that they create a cause of action for negligence committed in Kansas, is not a departure. The ultimate fact of negligence being alleged in both petitions, the character of proof required, the measure of damages and the judgment Lo be rendered upon a finding for plaintiff are the same.
    2. -: -: Explanatory Amendments. A petition which states a cause of action, but states it imperfectly, may be amended so as to cure the defect. The addition by way of an amended petition of allegations which maintain, explain, fortify and strengthen the cause of actjon stated in the original petition, does not constitute a departure. Whether a change from law to law is a change of the cause oj action depends on whether the facts essential to constitute a cause of action are the same or different in the two pleadings, rather than whether the pleader intended the one law or the other to apply. Where the original petition states the facts essential to a cause of action for damages based on unpleaded Missouri statutes, for negligent personal injuries inflicted in Kansas, an amended petition, containing the same essential allegations, to which are added others showing plaintiff’s right to sue and that the same facts constitute negligence under the statutes of Kansas, which are for the first time pleaded as an amendment, is not a departure.
    g. -: -: Amendments Liberally Allowed. Under the Missouri statute (Sec. 1274, R. S. 1919), amplifying and liberalizing the right to amend pleadings, and limiting the right only by the sound judicial discretion of the court applicable to the facts of each particular case, the proper rule is to allow amendments and the exception to refuse them, and not to refuse them unless the opposite party will-be injured by the amendment; and where the amended petition does not require a different character of evidence from that necessary to support the original petition, the measure of damages -and the identity of the subject-matter are the same in both, and a judgment rendered upon either will constitute a complete bar to an action on the other, the amendment should be allowed, and not held to be a departure.
    4. -- — :-: Amendment Required by Answer. Where an amended petition is made necessary by an issue tendered in defendant’s answer, filed by leave of court upon the eve of the trial, defendant is in no position to complain of an amendment which controverts or avoids the new matter set up by way of defense.
    Appeal from Jackson Circuit Court. — How. 0. A. Lucas, Judge.
    Reversed and remanded {with directions).

      Kelly, Buchholz, Kimbrell $ O’Donnell and Lyon *<& Lyon for appellant. ,
    (1) The court erred in sustaining defendant’s motion to strike out for the reason that the petition, as amended by interlineation, did not operate to change the plaintiff’s cause of action and did not constitute a departure. Hanson v. Springfield Traction Co., 226 S. W. (Mo.) 1; Madden v. Mo. Pac. Ry. Co., 192 S. W. 455; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400, 415; L. & N. Railway v. Pointers, 69 S. W. 1108; Texas & N. 0. Railway v. Cross, 128 S. W. 1173; Railroad v. Foster, 78 Tenn. 351; De Valle Da Costa v. Southern Pac. Co., 176 Fed. 843; Lustig v. Railway, 65 Hun, 547, 20 N. Y. Supp. 477; Cunningham v. Patterson, 89 Kan. 684; Texas & N. O. Railroad v. Miller, 221 IT. S. 408, 417; Neubeck v. Lynch, 37 App. D. C. 576; Robinson v. Railway, 133 Pac. 537; Shroeder v. Edwards, 205 S. W. (Mo.) 47; Martin v. Cotton Oil Co., 194 Mo. App. 106; Breslauer v. Barwick, 36 L. T. 52. (2) The court erred in striking out and sustaining defendant’s motion to strike out plaintiff’s petition for the reason that by-doing so the court ha,s prevented any recovery by the plaintiff, for the reason that the Missouri statute (Sec. 1324, R. S. 1919) prevents the maintenance of a new action against defendants, as a new action based on the Kansas statutes is barred by the Statute of Limitations of both states. Bowen v. Buckner, 171 Mo. App. 384; Lottman v. Barnett, 62 Mo. 170; Lilly v. Tobbein, 103 Mo. 490; Courtney v. Blackwell, 150 Mo. 271. (3) Even had there been a departure, it was a departure made necessary by the allegation of the defendant in its amended answer, and it cannot be heard to urge that an amendment to a pleading, which its act and that of the court made necessary, should be stricken out. Lemon v. Chanslor, 68 Mo. 340; Oakley v. Richards, 204 S. W. (Mo.) 505; Sonnefeld v. Rosenthal, 247 Mo. 238; Frederickson v. Renard, 247 U. S. 207; Irwin v. Childs, 28 Mo. 578;'Laughlin v. Leigh, 226 Mo. 620; Little River D. D. v. Railway, 236 Mo. 94. (4) The court erred in assuming jurisdiction to strike out the plaintiff’s petition as amended by interlineation, after said amendment had been made pursuant to leave granted by the court while the order granting the leave to amend was not revoked. Critchfield v. Linville, 140 Mo. 191; Broyles v. Eversmeyer, 262 Mo. 384.

      Reed & Harvey for respondent.
    (3) The court properly sustained defendants’ motion to strike out the amended petition as a departure, and, plaintiff declining to plead further, in dismissing the petition, for the following reasons: The Missouri and Kansas statutes do not vest a cause of action for wrongful death in the same.person. The Missouri statute vests the right of recovery absolutely in the husband; the Kansas statute does not vest a right of action in the husband at all. Sec. 4217, R. S. 1919; Sections 7323 and 7324, General Statutes of Kansas; Railway Co. v. Ryan, 62 Kan. 682; Shawnee v. Motesenbacher, 138 Pac. (Oída.) 790; Jeffries v. Farmers’ Union, 103 Kan. 782; Jones v. Railway Co., 178 Mo. 541. (2) So absolutely different is the Kansas statute from the Missouri statute that the courts of Kansas will not enforce the Missouri act. Mathewson v. Ry. Co., 61 Kan. 667; Metrokas v. Ry., 137 Pac. (Kan.) 958. (3) So absolutely different is the Kansas statute from the Missouri statute that under the former a plaintiff may not settle his case. Jeffries v. Farmers’ Union, 103 Kan. 787, 176 Pac. 631.- (4) The same evidence does not support both petitions, nor is the measure of damages the same. Liese v. Meyer, 143 Mo. 555; Cytron v. Transit Co., 205 Mo. 703; Grigsby v. Barton, 169 Mo. 225; Scoville v.. Glasner, 79 Mo. 449; Vaughan v. Ry., 65 Kan. 685. (5) The Kansas statute is a reproduction of Lord Campbell’s Act; the Missouri statute is not. Crumpley v. Railroad, 98 Mo. 34; King v. Ry. Co., 98 Mo. 235.
   WALKER, J.

This is an action brought in the Circuit Court of Jackson County, for damages for the death of plaintiff’s wife, by reason of the alleged negligence of the defendants. The latter, in addition to the Railway Company, are E. K. Brown and Charles F. Dinklage, doing business as the Automobile Livery Company. The substantial allegations of the plaintiff’s petition are that the defendant Railway Company was, at the time of the accident which resulted in the death of plaintiff’s wife, operating a line of interurban railway, between Kansas City, Missouri, and Olathe, Kansas; that the individual defendants were at the time operating an automobile line for the carrying of passengers for hire, between Rosedale, Kansas, and Kansas City, Missouri; that plaintiff’s wife at the time of the accident was a passenger on one of said automobiles for the purpose of being carried from the Elm Ridge Golf Club, in Kansas, to her home in Kansas City, Missouri; that the individual defendants, thus operating said automobile line, engaged and undertook to carry plaintiff’s wife as • a passenger from said golf club to her home; that while said automoblie in which plaintiff’s wife was at the time being carried was moving eastwardly at a point in said city of Rosedale, and was approaching a point on 43rd Street, in said city, where'the tracks of the defendant Railway Company crossed said street, an employee of the individual defendants so negligently and carelessly operated said automobile that it collided with one of the railway defendant’s cars, then and there being operated by employees of said Railway Company; that as a result of said collision, plaintiff’s wife was thrown violently to the ground and her skull crushed, from which injury she died; that her death was caused by the negligence of the defendant Railway Company and the individual defendants, acting through their servants, agents and employees; that the motorman in charge of the street car of the defendant Railway Company was negligent, in that he failed and omitted to give any warning while approaching 43rd Street, or while crossing the same; that he was, at the time, negligently and carelessly operating said street car at a high, reckless and dangerous rate of speed. That an ordinance of the city of Rosedale prohibited said defendant railway company from operating its cars at a point where plaintiff’s wife received her injuries, at a greater rate of speed than fifteen miles per hour.

Other allegations of the negligence of said motorman are, that he failed* to keep said street car under reasonable control so as to avoid a collision with vehicles that might be passing along 43rd Street and across the tracks of said street car line; that by the exercise of reasonable care he could have seen said automobile approaching the point where said street car tracks crossed said street and could have stopped said car or slackened its speed in time to have avoided a collision with said automobile; that by the exercise of ordinary care, said motorman realized or could have realized that, if he did not stop or slacken the speed of said car, said collision would occur; and that he failed and neglected so to do.

Actual damages for $10,000 are asked against the defendants.

On the day the case was set for trial, the defendant Railway Company, having theretofore filed as its answer a general denial and a plea of contributory negligence, filed by leave of court an amended answer, alleging that the accident which resulted in the death of plaintiff’s wife occurred in the State of Kansas, and that there was at the time no statute in force in that State similar to the 'Missouri statute under which the plaintiff brought his suit, and that he had, therefore, no right of action under the laws of this State.' In this amended answer the plea of contributory negligence was -abandoned, and the allegation concerning the Kansas statute substituted. On the same day the plaintiff, by leave of court, filed an amended petition, which was the same as the original, except that it was alleged therein that certain statutes, to-wit, Sections 7323 and T324 and Section 11829, were in force in the State of Kansas at the time of the accident, as follows:

“Section 7323. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.

“Section 7324. That in all cases where the residence of the p.arty whose death has been or hereafter shall be caused as set forth in the next preceding section, is or has been at the time of his death in any other state or territory, or when, being a resident of this State, no personal representative -is or has been appointed, the action provided in said action may be brought by the widow, o*r where there is no widow, by the next of kin of such deceased.

“Section 11829. The common law as modified by the constitutional and statutory law, judicial decisions and the conditions and wants of the people, shall remain in force in aid of the general statutes of this State; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute in this State, but such statutes shall be liberally construed to promote their object.”

“That said plaintiff and his intestate were residents of the State of Missouri on the 16th day of August, 1914, and that no personal representative of deceased was appointed in the State of Kansas, or elsewhere, and that the plaintiff was the husband and next of kin of said deceased. ’ ’

Thereupon, the defendant Railway Company moved to strike out the amended petition, alleging that it constituted a departure from the original cause of action. This motion was sustained. Plaintiff refused to plead further. There was a judgment for the defendants and after the formal procedure necessary thereto, the case was appealed by the plaintiff to this court.

I. The gist of this action is for a breach of duty on the part of the defendants. The original petition shows that the collision which resulted in the death of plaintiff’s wife occurred in the State of Kansas. The duty or obligation created by law and arising under the facts which the defendants owed to the decedent to avoid causing her death is alleged in conventional form, as well as the breach of that duty by defendants characterized as negligence, with its resultant effect. This is followed by a prayer for damages, as authorized by the statutes. This breach constitutes the ultimate fact upon which the action is based and is of primary importance, while the evidentiary facts are of secondary importance.

A comparison will demonstrate that the amended petition is in no. wise different from the original, except that it pleads the statutes of Kansas, defining the conditions under which a personal representative of a decedent may maintain an action for the death of the latter; the maxium amount of damages that may be recovered therefor; to whom they shall inure; and that the widow of a decedent may sue where no personal representative has been appointed; declaring the extent to which the common law is in force in Kansas and that the plaintiff and the decedent were residents of the State of Missouri at the time of the accident, which resulted in her death. The allegations, therefore, as to the ultimate fact, or the cause of the death, are the same in both petitions.

The ground of the defendant’s objection to the amended petition on which the circuit court based its ruling, striking out the same, must, therefore, find its support in the Kansas statute incorporated therein. Preliminary to the determination of this fact, the correctness of the general rule where applicable, may be conceded, that where a suit is brought under the statute of one state an amendment to the petition based on the statute of another state will be construed to constitute a statement of a new and different cause of action. [Bolton v. Ga. Pac. Ry. Co., 83 Ga. 659; Boston & Me. Ry. Co. v. Hurd, 108 Fed. 116.]

The rule thus announced is to be construed subject to the qualification that a well defined change in the cause of action pleaded by the amendment, from that originally brought, must appear as in any other case. For example, the rule as applied in the Bolton case, supra, is made dependent upon the fact that the amendment changed an action founded on a common law right, to one based on a statute. A like fact sustains the application of the rule in the Boston & Maine case, supra; these cases sufficiently illustrate the application of the rule as applied to an amendment pleading another statute than that on which the action was originally based; from them it appears, as it does in other eases where the facts are similar, that it is not the fact that the amendment pleads another statute than that on which the action was brought, which renders the rule applicable, but that another and a. different cause of action is thereby set up-. It is not whether a change from law to law changes the cause of action, but whether the facts essential to constitute the cause of action are the same or different in the two pleadings.

As determinative of the effect of the incorporation in the amended petition of the Kansas statutes, it is necessary to consider the nature of the original action. Measured by its allegations from which we must determine the object and purpose of the pleader, and hence the character of the proceeding, we find that the right of the plaintiff to sue is found in Section 4219, Revised Statutes 1919, and that the' liability of the defendants is defined in Section 4218, Revised Statutes 1919. The foi'mal allegations of the petition as to the duty owing by defendants to the decedent; the breach of such duty; and that such breach caused by the death of the decedent; and the nature and amount of the damages prayed for indicate, in the language epiployed, that the action was based on said Sections 4218 and 4219, rather than upon Section 4217, Revised Statutes 1919. A comparison of the subject-matter of these statutes, with that of the Kansas statutes pleaded in the amended petition, discloses no material difference between’them.

The subject-matter and purpose of the two statutes being' the same, if the original petition stated a cause of action under the Missouri statutes, it likewise, although imperfectly, stated a cause of action under the Kansas statutes. This is true, because it is evident from the comparison of these two petitions that the character of the proof required; the measure of the damages; and th$ judgment authorized to he rendered upon a finding for the plaintiff, are the same in both eases. Under such circumstances, the basis for the contention that such a departure, due to an alleged dissimilarity in the statutes, was created by the amendment as to change the cause of action, is of exceeding tenuity. ■ " '■■! ?

II. There is no dearth of authority to sustain the conclusion that a petition which states a cause of action imperfectly, may be amended so as to cure the defect without running counter to the rule forbidding a departure. In Cravens v. Gillilan, 73 Mo. l. c. 528, Sherwood, J., speaking for the court in a quotation from Chittv’s Pleading, that storehouse of legal learning on the subject, said: “Matter which maintains, explains and fortifies the declaration or plea, is not a departure. ’ ’ Later, in Hoover v. Railroad, 16 S. W. (Mo.) l. c. 482, the same judge tersely said that “matter which maintains a pleading is not a departure therefrom.”

In Schroeder v. Edwards, 205 S. W. (Mo.) 47, it was held that an amended petition of judgment creditors of an Illinois corporation against former stockholders against whom creditors had recovered judgments, by confession before the clerk of an Illinois circuit court, did not state a different cause of action from a petition alleging judgment to have been recovered in the circuit court.

Here and elsewhere, as the cases attest, the rule obtains that there is no departure where the matter subsequently alleged, fortifies or strengthens the position in the original pleading. This may be done by restating the cause more fully or in a more specific manner. [7 Stan. Cyc. Proc., page 214.] An action brought in one state, in which the cause of action accrued in another, under statutes similar to our own (Secs. 1162 and 1163, R. S. 1919) may be amended where the cause of action has been imperfectly pleaded, ■without causing a departure. In Martin v. Cotton Oil Company, 194 Mo. App. 106, l. c. 117, the question here involved is discussed at some length, and among other things the court said: “The question of whether a change from law to law is or is not a change of the cause of action depends at times on the question of whether the facts essential to constitute the cause of action are the same or different in the two', pleadings, rather than whether the pleader intended the one law or the other law to apply.

In Madden v. Railroad, 192 S. W. (Mo.) 455, where it appeared that the injury occurred in the State of Kansas and none of the allegations of the petition referred to the existence of a Kansas statute, the court clearly indicates, without directly ruling thereon, that where the answer of the defendant alleged by proper pleading, the terms of the Kansas statute bearing on the right of the plaintiff to recover, upon the facts stated in his petition, that the proper course of the plaintiff, instead of replying by a general denial and proceeding to trial, was to amend his petition so as to set forth the statute of Kansas creating the cause of action upon which he sought to recover.

In Hanson v. Springfield Traction Co., 226 S. W. (Mo.) 1, this court in effect holds that an amendment of a petition pleading the violation of a city ordinance was proper and that the trial court erred in striking the same out. In reversing and remanding the case, Goode, J., speaking for the court, at page 3, said: “The new ground of recovery set up on the amended petition based on violations of the city ordinances did not constitute á departure or the substitution of a new cause of action. What is relied on in support of the contention that it did, is that other evidence, to-wit, proof of the city ordinances, would be required to establish it that was not needed to establish a case under the first petition. That a new cause of action is substituted by an amendment, unless the same evidence will support it that would have supported the original cause off action, must mean that the same evidence will establish the event or transaction declared on as the cause of action in the original petition and in the amended one — will show the two pleadings are based on the same occurrence. It cannot mean that every detail and every item of the evidence must be exactly the same, or otherwise, the right of amendment would be of little use. [Walker v. Railroad, 193 Mo. 453, 477 et seq., 92 S. W. 83; Clothing Co. v. Railway Co., 71 Mo. App. 241; Stewart & Jackson v. Van Horne, 91 Mo. App. 647.]”

In Cunningham v. Patterson, 89 Kansas, l. c. 689, the court in ruling upon this question said: “The existence and contents of the statute of another state are always capable of exact ascertainment and proof. With respect to a matter of this character the same definiteness of pleading ought not to be required as in the case of the disputable facts — the statement of the special circumstances upon which an action is founded. Anything should be regarded as sufficient which advises the defendant of the nature of the plaintiff’s claim. The bringing of the action amounts to an allegation that the statute of the place of injury authorizes a recovery, since it asserts a liability which could not otherwise exist. Here the original petition contained an allusion to' the Missouri statute, for it expressly alleged that the death took place within six months prior to the commencement of the action, a statement having no possible relevancy under the Kansas act, but pertinent to that of Missouri, which limits to that period the widow’s right to sue. The defendants were necessarily advised that the plaintiff sought a recovery under the laws of Missouri. They could not possibly have been misled by the failure to set out the statute. The amended petition did not state a new cause of action. It merely amplified and corrected the statement of facts constituting the only cause of action the plaintiff had or professed to have.”

In Louisville Railroad v. Pointer’s Admr., 113 Ky. 952, a petition was filed in a Kentucky Court in an action for damages for the death of plaintiff’s intestate. An amended petition was subsequently filed, setting out sections of the code of Virginia, allowing a recovery by a personal representative of one whose injuries had resulted in death and providing for the apportioning of damages. The Court of Appeals of that State held that the amendment was germane in that it supplied a lacking element of the original cause of action otherwise sufficiently pleaded.

In Tex. & Nor. Railroad Co. v. Gross, 128 S. W. (Tex. Civ. App.) 1173, the original petition by the parents of the deceased, in an action to recover for his death occurring in another jurisdiction, the State of Louisiana., alleged as damages the’pecuniary loss sustained by them from the son’s death and also the damages which deceased himself had suffered, 'as surviving to plaintiffs, both under these statutes of the state where the cause of action accrued, and the statutes of the forum. In an amended petition the latter claim for damages was abandoned, and plaintiffs alleged that by the statute law of the State where the cause of action accrued they were given a right of actioix against defendants for the damages sustained by t’hem, by the death of their son, caused by defendant’s negligence, which statute is similar to that of the forum, giving parents a right of action' for the death of their son, as a result of negligence; held, that the ameixdment was properly allowed and did not set up a new cause of action.

In Nashville Ry. Co. v. Poster, 78 Tenn. 351, the personal representative of a deceased brought suit in Tennessee against a railroad company for killing his intestate ; there was a trial and verdict for plaintiff; a new trial was granted, it having been developed that the killing took place in Alabama. An amended declaration was then filed averring the venue in Alabama and pleading the statute of that state. Defendant pleaded to the amended declaration, the Statute of Limitations of one year; it was held that the amendment neither changed the cause of action nor the parties to the suit, nor did it deprive the defendant of any defenses which he had to the original suit, and that the amendment related to the issuance of the original summons and was issued one year after the killing.

In Walsh v. Walsh, 68 So. (La.) 392, a non-resident married woman was sued by attachment on a note executed by herself and her husband in Dublin, Ireland. The petition disclosed on its face that plaintiff’s cause of action arose under and must be determined by the laws of Ireland; it was held that the trial court properly allowed plaintiff to amend during the trial so as to allege that the defendant was bound on the note, under the laws of Ireland; and that the trial judge erred in dismissing the amended petition.

In Lammers v. Chicago Gr. West. Railroad Co., 175 N. W. 311, in an original petition to recover for personal injuries, an amendment pleading the Employer’s Liability Act, made more than two years after the accrual of the cause of action, was held to relate back to the original petition and did not constitute a departure.

In Jorgensen v. Grand Rap. Ry. Co., 189 Mich. 537, the original petition, contained no allegation that the défendant was engaged in interstate commerce, but on the contrary pleaded a cause of action under the Michigan Employer’s Liability Act. By an amendment filed more than two years after the cause of action arose, plaintiff alleged that the defendant owned and was at the time the. injury was received, operating a railway, system extending through the States of Michigan and Indiana. The court held that this amendment related back to the original petition and did not state a new cause of action.

In Robinson v. Railway Co., 90 Kan. 426, a plaintiff by leave of court filed an amended petition reciting therein substantially the same facts as in her original petition, and added allegations as to the non-residence of the deceased and the authority to bring the action under the laws of another state. It was contended that no cause of action was stated in the original petition, because the plaintiff therein did not sue as the personal representative of the deceased, and it did not appear that she had the right to bring the action in her own name until the non-residence of the deceased at the time of the accident and the laws of the State of Colorado were pleaded in the amended petition. The trial court overruled this contention and held that the amendment was proper and did not constitute a new cause of action. This ruling was upheld by the Supreme Court.

In Stewart v. B. & O. R. R. Co., 168 U. S. 445, it was held: “An action may be maintained in the District of Columbia to recover damages for a death caused by negligence in Maryland, since in both jurisdictions the statutes have removed the common-law obstacle to such a suit, and permitted a recovery for the benefit of the near relatives of the deceased. The fact that in Maryland the action must be brought in the name of the State, while in the District it is brought in the name of the personal representative, or the fact that the Maryland statute names as beneficiaries the wife, husband, parent, and child of the deceased, while the District statute provides for a distribution of a recovery according to the statute of distribution, does not show such an inconsistency between the two statutes as would prevent the maintenance of the suit.”

In Seaboard Air Line Ry. Co. v. Renn, 241 U. S. l. c. 292, in ruling upon the propriety of an amendment to a petition similar in its material features to that at bar, the Court said: “The original complaint was exceedingly brief and did not sufficiently allege that at the time of the injury the defendant was engaged and the plaintiff employed in interstate commerce. . . . The defendant’s objection was that the original complaint did not state a cause of action under the act of Congress, that with the amendment the complaint would state a new cause of action under that act, and that, as more than two years had elapsed since the right of action accrued, the amendment could not be made the medium of introducing this new cause of action consistently with the provision in Section 6 that 'no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.’ Whether in what was done this restriction was in effect disregarded is a Federal question and subject to re-examination here, however much the allowance of the amendment otherwise might have rested in discretion or been a matter of local procedure. ... If the amendment merely expanded or amplified what was alleged in support of •the cause of action already asserted, it related back to the commencement of the action, and was not affected by the intervening lapse of time. . . . But if it introduced a new or different cause of action, it was the equivalent of a new suit, as to Avhich the running of the limitation was not theretofore arrested. . . : The original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina, and elsewhere, that plaintiff' was .in its employ, that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant’s trains, and that the injury was sustained at Cochran, Virginia, through the defendant’s negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition. Of course, the right of action could not arise under the laws of North Carolina when the casual negligence and the injury occurred in Virginia; and the absence of any mention of the laws of the latter state was at least consistent with their inapplicability. Besides, the allegation that the defendant Avas operating a railroad in states other than Virginia was superfluous if the right of action arose under the laws of that state, and was pertinent only if it arose in interstate commerce, and therefore under the act of Congress. In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of Congress. And this being so, it must be taken that the amendment merely expanded or amplified what was alleged in support of that cause of action, and related back to the commencement of the suit, which was before the limitation had expired.”

In Tiffany on Death by Wrongful Act (2 Ed.), sec. 202, it is said: “The .plaintiff whose right of action arises under a foreign statute must allege and prove it. Where the declaration sets out a good cause of action according to the law of the forum without alleging that the killing was in the state, the declaration will be held good as setting out a cause of action arising within the state. If the declaration fails to allege the foreign statute, an amendment alleging it is not open to the objection that it sets up a new cause of action, although the period of limitation prescribed by the foreign statute has elapsed.” This rule is in harmony with that announced in other treatises on the same subject.

From all of which it appears that the courts and the texts are in'accord in holding.that such an amendment as was made in the instant case is proper.

III. While the power of the courts in regard to the amendment of pleadings had its origin in the common law, this power has been given legislative recognition in many states, the effect of which is amplify and liberalize the courts’ rulings in that regard, limited only by sound judicial discretion applicable to the facts in each particular case.

The statute of this State authorizing such amendments is exceedingly liberal and provides that: “The court may, at any time before final judgment, in furtherance'of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” [Sec. 1274, R. S. 1919.]

The liberal trend of this statute prompts epigrammatic interpretation of same that the rule is to allow amendments; the exception to refuse them; and that the court should not be less liberal in the construction of the statute than it is in its declarations. [Corrigan v. Brady, 38 Mo. App. l. c. 657; House v. Duncan, 50 Mo. 453; Lottman v. Barnett, 62 Mo. 159; Ensworth v. Barton, 67 Mo. 622; Carr v. Moss, 87 Mo. 447.]

The discretion of the trial court as exercised under the ample provisions of this statute should not be interfered with unless it appears that it has been abused or, in other words, that the defendants have suffered injury by reason of the amendment. [Wright v. Groom, 246 Mo. 158; Broyles v. Eversmeyer, 262 Mo. 384.]

' With these textual declarations for our guidance, let us inquire how, or in what manner the amendment complained of, injured the defendants, this evidently being the limit in construing the power conferred by the statute in addition to that already possessed under the common law. The amendment did not require a different character of evidence from that necessary to support the original petition; the measure of damages and the identity of the subject-matter is the same in both petitions and a judgment rendered upon either would have constituted a complete bar to an action on the other. In the presence of these facts, there is nothing left upon which to base a contention that the amended pleading sought to impose any burden or demanded the satisfaction of any obligation other than that prayed for in the original petition. Construing the amendment, therefore, in the light of the statute, we find nothing therein which violates the rule prohibiting a departure and the consequent statement of a new cause of action.

IY. The amendment of which the defendants complain was rendered necessary by their tendering an issue on the eve of the trial. Under such circumstances they are in no position to complain. We so held in Lemon v. Chanslor, 68 Mo. 340; a like conclusion was reached in Hoover v. Railroad, 16 S. W. (Mo.) 480, where it is said that an amendment is permissible when it controverts or avoids new matter set up by way of defense.

In an early Connecticut case, it was held that where defendant by his plea in bar had rendered it necessary that the plaintiff amend his pleading to entitle him to a recovery, that such amendment might be made by replication and would not constitute a departure. [Fowler v. Macomb, 2 Root (Conn.) 388.]

Our statute (Section 1274, supra) renders the rule in the Connecticut case as to the amendment of replies applicable to petitions.

In Friederichsen v. Renard, 247 U. S. 207, it was held that where a plaintiff was compelled by an order of the court to change his suit in equity for cancellation of a contract and debt, to a suit at law for damages because of fraud, it did not constitute a departure so as to warrant the striking out of the petition or the application of the Statute of Limitations to the suit for damages. In the instant case, the plaintiff was compelled to ask for permission to amend his petition by the act of the defendants or rather by the act of the court in permitting the defendants to file an amended answer on the eve of the trial, and, consequently it comes within the rule announced in the Friederichsen Case, supra.

We have reviewed with care the cases cited and conclusions drawn therefrom in the defendants’ brief and do not find that they sustain the action of the circuit court in dismissing the plaintiff’s petition; its judgment is, therefore, reversed and the cause remanded with directions to set aside the order of dismissal herein, and to reinstate this case for trial.

All concur.


author: HIG-BEE, P. J.

text:
    CITY OF BRUNSWICK ex rel. GEORGE W. BARKWELL et al. v. OTTO K. BENEKE, Appellant.
    Division Two,
    July 19, 1921.
    1. APPELLATE JURISDICTION: Transfer by Court of Appeals. Where a case has been transferred to the Supreme Court for the reason that one of the judges of the Court of Appeals believes its decision therein is in conflict with a decision of another Court of Appeals in another case, it is the duty of the Supreme Court to hear and determine the case as it would any other case in which it had obtained jurisdiction by ordinary appellate process, and the question of conflict drops out of the case.
    2. NOTICE BY PUBLICATION: Two Consecutive Weeks. The statute required that the resolution authorizing a street improvement ' should be published in some newspaper “for two consecutive weeks; and if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days from the date of the last insertion of said resolution, file with the city clerk their protest against such improvement, then the board of aider-men shall have power to cause such improvements to be made and contract therefor.” The resolution was adopted on May 3rd, and was published in a weekly newspaper on May 7th and 14th, and on May 25th an ordinance requiring the improvement to be made and the contract to be entered into was adopted. Held, that the statute required that the resolution should be published for full two weeks, or fourteen days, and as ten days intervened between its last publication on May 14th and the adoption on May 25th of the ordinance requiring the improvement to be made and the contract to be let, the requirements of the statute were met. Where the statute requires the resolution to be published for “two consecutive weeks,” and allows property owners ten days thereafter in which to protest, it is not necessary, in order to constitute two consecutive weeks, that the resolution be inserted for three weeks in the weekly newspaper, but where the resolution is inserted the second time ten days before the council passes an ordinance authorizing the improvement, that is sufficient publication. [Overruling Munday v. Leeper, 120 Mo. 417,]
    3. STREET IMPROVEMENT: According to Established Grade: Specification. A resolution adopted by the board of aldermen reciting that “the surface of the roadway when said work is completed shall be at the established grade thereof, all according to plans, profiles and specifications therefor filed by the proper officer with the city clerk of said city,” and profiles showing the cuts and fills necessary to bring to the established grade the part of the street to be graded and paved, duly filed, sufficiently comply with the requirements of the statute (Sec. 9411, R. S. 1919) requiring the resolution to include and describe the work of bringing the street to the established grade.
    4. -: Notice to Begin Work: Waiver: Completion of Work. Where the ordinance provided that the street improvement should begin within one week from the delivery to the contractor of written notice, said notice can be waived, and where no' notice is given the time for completing the work is to be counted from the date he actually began work.
    5. -: Not Completed Within Required Time: Void Tax Bill. Where the ordinance provided that the street improvement should begin within one week from the delivery to the contractor of written notice, and be fully completed within sixty days, and no notice was given, but he began work on June 28th and completed the improvement on November 10th, a period of 135 days, no extension being granted or requested, the tax-bills issued to the contractor in payment for the improvement were void.
    6. --: -: Provisions for Interference. Time is of the essence of a contract requiring a street improvement to be completed within a specified time, and material; and where no cause appears for the delay and for aught that appears the .work was needlessly delayed, any provision in the contract that days lost on account of injunction suits, bad weather and strikes should not be counted, not being invoked or if invoked wholly inapplicable, does not relieve against the requirement for a completion of the improvement within the prescribed time.
    Appeal from Cliariton Circuit Court. — Eon. Fred Lamb, Judge.

      Reversed.

      F. G. Basse and O. P. Bay for appellant.
    (1) The preliminary resolution was not published for two consecutive weeks, as required by Sec. 9411, R. S. 1909. State ex rel. v. Tucker, 32 Mo. App. 620; State v. Dobbins, 116 Mo. App. 29; Williams v. Ettenson, 178 Mo. App.. 178; Munday v. Leeper, 120 Mo. 418; Young v. Downey, 150 Mo. 324, 330. It requires seven complete days to constitute a week. State ex rel. v. Tucker, 32 Mo. App. 620; State v. Dobbins, 116 Mo. App. 29; Russell v. Croy, 164 Mo. 69. The time within which an act is to be done, shall be computed by excluding the first day and including the last. Sec. 8057, R. S. 1909. The above section applies and is the rule for notices by publication, and the first day of publication is excluded and the last day • included. State ex rel. v. Tucker, 32 Mo. App. 620; Gray v. Worst, 129 Mo. 130; Young v. Downey, 150 Mo. 330; State v. Dobbins, 116 Mo. App. 29. To publish anything for a certain length of time means that the publication must not cease, but must continue until that time has run. State v. Dobbins, 116 Mo. App. 20; Ratliff v. Magee, 165 Mo. 466.' That there is a recognized difference in the length of time requiring a resolution to be published for two consecutive weeks, and a section requiring the resolution to be published in two consecutive insertions, is shown by comparing Sec. 9411 and See. 9255, R. S. 1909, the former applying to < cities of the fourth class, and the latter to cities of the third class. And there was a difference in the length of time for publication of the resolution, between the two above sections, and so recognized by our Legislature, appears by repeal of Sec. 9411, and enacting a new section in lieu thereof, and changing the same to read, “ shall cause to be published in two consecutive insertions.’’ (2) The preliminary resolution declaring the work and improvement necessary to be done, did not describe the work of bringing the street to tbe established grade, as provided for and required by Sec. 9410, R. S.. 1909. Kirksville v. Coleman, 103 Mo. App. 219; Kansas City v. Askew, 105 Mo. App. 86; Smith v. Westport, 105 Mo. App. 221; Phoenix Const. Co. v. Gentry County, 257 Mo. 392; Const. Co. v. Whitmer, 206 S. W. 387. Since the publication of the resolution is the only provision of the statute for notifying the property owners of what .the council proposes to do-, it should either be explicit in itself, or inform the property owner where he can ascertain exactly what is proposed. Webb City v. Ayler, 163 Mo. App. 155; Const. Co. v. Gentry County, 257 Mo. 392, approving City of Kirksville v. Coleman, 103 Mo. App. 215. (3) The work and improvement was not completed within the time required by the ordinance of the city, and no extension of time was-granted by ordinance to the contractor. Smith v. City of Westport, 105 Mo. App. 225; McQuiddy v. Bran-no.ck, 70 Mo. App. 535; Barber Asphalt Co. v. Ridge, 169 Mo. 376. The clause providing a penalty cannot change or extend the time for completing the work. McQuiddy V. Brannock, 70 Mo. 535; Neil v. Gates, 152 Mo. 592; Hernán v. Gilliam, 171 Mo. 268. The clause in the contract providing for working days lost in consequence of injunction, court proceedings, etc., cannot be considered in this case, for the reason that none of these grounds were pleaded in plaintiff’s reply or any other pleading, for the further reason that there was no evidence offered whatever that any of these grounds had caused the delay. The ordinance and contract provide for the same time for completing the work, but the contract requires that any additional time allowed shall be fixed by an ordinance of the city.

      E. G. Anderson and Russell E. Holloway for respondents. ,:
    (1) The publication of the preliminary resolution for the two consecutive weeks in the Brunswicker, viz., May 7 and 14, 1915, was a sufficient publication to satisfy the statute. Haywood v. Russell, 44 Mo. 254; Fleming v. Tatum, 232 Mo. 678; Ratliff v. Magee, 165 Mo. 465; Brown v. Howard, 264 Mo. 501; Young v. Downey, 150 Mo. 323; Russell v. Croy, 164 Mo. 69; 37 Cyc. 512;. 28 Cyc. 1007; Webb v. Stroback, 143 Mo. App. 469; Trenton v. Collier, 68 Mo. App. 494; 29 Cyc. 1121; 12 C. J. 513, note 84; Ricketts v. Hyde Park, 85 111. 110, 13 L. R. A. (N. S.) 197; State v. Johnson Co., 138 Mo. App. 429, 122 S. W. 316; State v. Brown, 130' Mo. App. 214, 109 S. W. 99; Gray v. Worst, 129 Mo. 122, 131; State v. Polk, 144 Mo. Ápp. 329, 127 S. W. 933. (2) The preliminary resolution was sufficient to fully advise all property owners of the nature of its improvement, manner and material to be used. Blair v. Glenn, 187 Mo. Apr). 392; Muff v. Cameron, 134 Mo. App. 607; Const. Co. v. Gentry Co., 257 Mo. 392, 395; Haughamont v. Bonijughl, 83 Pac. 54; Haughamont v. Raymond, 83 Pac. 53; Kirksville v. Coleman, 103 Mo. App. 215, 218; Inv. Co. v. Lewis, 271 Mo. 317. (3) The improvement was completed within a reasonable time and within the time provided by ordinance. Hund v. Rackliffe, 119 Mo. 312; Boulton v. Kolkmeyer, 97 Mo. App. 530; Gist v. Const. Co., 224 Mo. 379;,Hilbert v. Paving Co., 107 Mo. App. 385, 398; Carlin v. Cavender, 56 Mo. 256; Inv. Co. v. Hall, 255 Mo. 681.

      Willard P. Cave and E. C. Anderson for respondents.
    (1) The statute requiring publication for two successive weeks has been held to be complied with by publication on the 7th and 14th of the same month. 2 Jones on Taxation by Assessment, sec. 763, p. 1315; Ricketts v. Village of Hyde Park, 85 111. 110. (2) If the notice is published in a weekly newspaper it is not necessary that it shall be for two full weeks. 2 Jones on Taxation bv Assessment; sec. 763, p. 1315; Brewer v. Springfield, 97 Mass. 152; Webb v. Strobach, 143 Mo. App. 459; Russell v. Croy, 164 Mo. 69. (3) In Springfield v. Weaver, 137 Mo. 667, the Supreme Court expressly holds that the order in which the various steps taken necessary to make the improvements is not a matter of substance and should not invalidate the tax. The resolution was sufficient in substance. (4) It was admittedly published for two consecutive insertions in a weekly newspaper, and hence, at some time the two publications had performed their function, which was to notify the resident property owners. And there was no protest filed in this case. Hence, after the lapse of the statutory time after the last publication, and no protest filed, the city had jurisdiction to proceed to make the improvement. Webb v. Strobach, 143 Mo. App. 459; Russell v. Croy, 164 Mo. 69.
   HIG-BEE, P. J.

This case was transferred to this court by the Kansas City Court of Appeals for the reason that one of the judges believed the decision of that court was in conflict with the decision «of the Springfield Court of Appeals in Webb v. Strobach, 143 Mo. App. 459, 470. Under the Constitution it is our duty to hear and determine the cause as in case of jurisdiction obtained by ordinary appellate process; in other words, the question of conflict drops out of the case. [Section 6 of Amendment of 1884-to the Constitution; Epstein v. Railroad, 250 Mo. 1, 156 S. W. 699.]

The action is to enforce the lien of a special tax bill issued by the city of Brunswick, a city of the fourth class, for grading and paving a part of a public street, against the property of the appellant abutting on said street and liable to taxation therefor. On May 3, 1915/ the board of aldermen of the city adopted a resolution under the provisions of Section 9411, Revised Statutes 1909, declaring it necessary to bring to the established grade a designated portion of Broadway Street by fills or excavations, as may be necessary, and to pave the same with vertical fiber paving blocks and asphalt filler, all upon a concrete base, four inches thick, according to specifications therefor filed by the proper officer with the city clerk of said city. It directed that the resolution be published for two consecutive insertions in the “Brunswicker,” a weekly newspaper published in said city. The resolution was published on May 7th and 14th in said newspaper.'

On May 25th, an ordinance was adopted requiring the designated portion of said street to be brought to the established grade and paved with three inch vertical vitrified paving blocks upon a four-inch Portland cement concrete base, with an asphalt filler and a oie- and-a-one'-half inch sand cushion, “and said improvement shall be commenced within one week from the delivery by the board of aldermen to the contractor of written notice to commence, and shall be fully completed within sixty days after the date of such notice, provided that for good cause shown the board of said city may extend the time for completing said improvement ’upon the application of the contractor made as soon as the necessity therefor appears and before the expiration of the time herein fixed for the completion of the same.”

The relator, Barkwell, was the successful bidder, and on June 22nd, entered into a written contract with the city to do the work. It provided that no additional time for the completion of the work should be allowed except for reasons that should appear sufficient to the board; working days lost on account of injunction, court proceedings, bad weather, strikes, etc., shall not be held to be-working days and shall be added to the number of days specified within which the work shall be completed; in consideration of the completion of the contract in accordance with the specifications, the contractor shall receive $1.74 per square yard.

No notice was given the contractor to begin the work, but he did so on June 28th, and completed it November 10th. No extension of time was asked or given. The tax bill was issued November 19th. The cause was tried to the court, and judgment rendered for the relator, Barkwell, from which the defendant appealed to the Kansas City Court of Appeals.

I. Section 9411, Revised Statutes 1909, authorizing the improvement of streets in cities of the fourth class, reads:

“When the board of aldermen shall deem it necessary to pave . . . any street . . . the board of aldermen shall, by resolution, declare such work or improvement necessary to be done, and cause such resolution to be published in some newspaper published in the city, for two consecutive weeks; and if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days from the date of the last insertion of said resolution, file with the city clerk their protest against such improvement, then the board of aldermen shall have power to cause such improvements to be made and contract therefor.”

The appellant contends that three insertions are necessary to constitute a publication of the resolution for two consecutive weeks within the meaning of this section of the statute, and that resident owners of property liable to taxation for the contemplated improvements were entitled to file their protest within ten days from the date of the last insertion, which would have been June 1st. It is clear that the publication required is for full two weeks or fourteen days.

In Haywood v. Russell, 44 Mo. 252, 254, Bliss, J., said: “The objection to the time of publication is not well taken. The statute requires that notice should be published for four weeks, and that the last insertion should be at least four weeks before the commencement of the term. If the first publication is for one week, surely the other three are for one week each, and it is only necessary that ‘the last insertion’ — not the last week — should be four weeks before the term. The notice objected to was published in a weekly paper, in four consecutive numbers, which makes four weeks. The objection assumes that the commencement of the publication should be eight weeks before the term, which is not required, nor is it required that the four weeks should end four weeks before the term. It is sufficient if it be for four weeks, and if the last insertion, which is the commencement of the fourth week, be four weeks before the commencement of the term.” Wagner and Currier, JJ., concurred.

In Cruzen v. Stephens, 123 Mo. 337, the defendant contended that a judgment for delinquent taxes was void because the notice of publication to the defendant was not published for four consecutive weeks. It appeared in the issues of the newspaper designated on March 7, 14, 21 and 28, 1889. In the opinion of Barclay, J., concurred in by all the members of Division One, it is said:

“Defendants argue that publication four times, at these intervals, is not publication for ‘four weeks’; and cite the argument of the Court of Appeals in State ex rel. v. Tucker (1888), 32 Mo. App. 620, claiming that the 'latter demonstrates that the ruling on this subject in, Haywood v. Russell (1869), 44 Mo. 252 (where such a publication was held good), is unsound, and should not be followed.

■ “Whatever we might think of the ruling in the forty-fourth report as an original proposition, it has been acquiesced in so fully, and been treated as a settled point of practice in making publications in all sorts of proceedings, for so many years, that we decline to re-examine it. We consider that the rule it declares has become a rule of property, on the faith of which great numbers of titles, founded on judicial sales, depend.”

Ratliff v. Magee, 165 Mo. 461, is in point. Syllabus 1 reads: “The statute required that the notice for the final settlement of an estate should be ‘published for four weeks’ prior to the term. Held, that this statute required a notice .to be published for four weeks or twenty-eight days prior to the beginning of the term, but did not require that four weeks should intervene between the date of the last publication of the newspaper and the first day of the term; and, hence, a notice published in a newspaper on March 24, March 31, April 7, and April 14, prior to the beginning of the term on May 8, met the requirements of the statute and was sufficient.”

The opinion was by Valliant, J., in which all the members of Count in Banc concurred on the point in question.

In Fleming v. Tatum, 232 Mo. 678, the order of publication in a tax suit was published on June 8, 15, 22 and 29. It was held, in an opinion by Valtjant, J., to be a publication for four successive weeks.

A notice in an action against non-residents to reform and foreclose a deed of trust, was published in a daily newspaper (except Mondays) in the consecutive issues from Sunday, June 29, to July 26. The opinion, by Roy, C., in Division Two, in which all concurred, held that the notice was published for four consecutive weeks (citing and reviewing Haywood v. Russell and Cruzen v. Stephens, supra; Young v. Downey, 150 Mo. 317; Howard v. Brown, 197 Mo. 36; Brown v. Howard, 264 Mo. 501). It will be seen that by excluding the date of the first issue, June 29th, the publication extended over a period of only 27 days.

In State ex rel. v. Tucker, 32 Mo. App. 620, the notice for a local option election, held October 11, 1887, was published in a weekly newspaper on September 17, 24, and October 1 and 8. From the first insertion to the date of the election was a period of 24 days. Obviously, the notice was not published four weeks as required by statute.

In Young v. Downey, supra, it was held, approving State v. Tucker, that a notice published on September 8, 15, 22 and 29, when the term began October 2, was not a publication for four weeks, biit only twenty-four days. Burgess, J., quotes the rule, at page 327, from 1 Elliott’s General Practice, page 450, as follows:

“Where the notice is required to be published once each week for a certain number of weeks, the full number of days necessary to constitute the requisite number of weeks must, according to the weight of authority, elapse between*the date of the first publication and the return day. So, it has been held that a statutory provision requiring publication for ‘three successive weeks’ means that twenty-one days must elapse between the first publication and the return day, and not simply three insertions in a weekly newspaper covering only fifteen days.”

Judge Burgess, however, drew a distinction between that case and Haywood v. Russell, and, in effect, repudiated the Cruzen case. But this court, in Brown v. Howard, 264 Mo. l. c. 504, expressed its approval of the Haywood and Cruzen cases. There pan be no question that on the facts the Tucker and Young cases were soundly ruled.

In Norton v. Reed, 253 Mo. 236, the question arose over the sale of real estate by the probate court to pay debts of the decedent. The affidavit of the publisher showed that notice of the application for the order of sale was published in a weekly newspaper on April 21, 27, and May 4 and May 11. The first day of the term was May 14th, and the order of sale was made on the following day. The first insertion was only 24 days previous to the first day of the term. The court, however, entered an order reciting that the order of publication has been published for more than four wéeks prior to the first day of the term. It was held that the recital referred to the publication as shown by the record and (following Young v. Downey, supra) that the notice had been published 24 days and not for four weeks, and that the order of sale and the deed made thereunder were void.

The Court of Appeals based its ruling on Munday v. Leeper, 120 Mo. 417, in which it was held that insertions in a weekly newspaper on August 12, 19 and 26,-of notice of the granting of letters of administration, was a publication for two weeks only.

In Ratliff v. Magee, supra, l. c. 466, Judge Y allí ant distinguishes Munday v.’ Leeper and others from Haywood v. Russell, supra. He said at page 467: “These decisions are not in discord, and they are cited to show the inmportance of observing the difference in the context and purpose of this statute under discussion from those of other statutes in which like terms are used.”

The learned Court of Appeals also relies on State v. Dobbins, 116 Mo. App. 29, wherein the court held, in effect, that if the notice is published in a weekly paper there should be five insertions and that a publication in four consecutive weekly issues of the. paper would not meet the requirements of the statute.

In State v. Brown, 130 Mo. App. 214, l. c. 219, Bland, P. J., and Goode and Norton, JJ., concurring, said: “The Dobbins case seems to assume that the notice ceases to be published the day after the paper leaves the press; that it does not continue to be published from one issue of the paper to the next succeeding one. If this were true, a notiqe published in a weekly newspaper four times would only give four days’ notice and, to comply with the requirements of the statute, it would be necessary to publish the notice for twenty-eight days in a daily paper, or for twenty-eight weeks in a weekly newspaper. The notice, as such, when published in a weekly does not cease to impart notice the day after the paper leaves the press, but continues, within the meaning of the statute, to be published until the issuance of the next current number of the paper, or for seven days. The last insertion should be held to continue for the same length of time to impart notice of the election. ’ ’

We approve this enunciation, and think the rule applicable to the question under consideration and in harmony with all other rulings of this court. Munday v. Leeper is out of harmony with prior and subsequent decisions. To give it our sanction would needlessly breed confusion and overrule well-considered cases that have become a rule of property, on the faith of which many titles, founded on judicial sales, depend. The resolution was published for two consecutive weeks.

II. The resolution recites that “the surface of the roadway when said work is completed shall be at the established grade thereof, all according to plans, profiles and specifications therefor filed by the proper officer with the city clerk of said city.” The fills and cuts necessary to bring to the established grade that part of the roadway of said Broadway Street proposed to be graded and paved are shown on said profile. This complies with the requirement of Section 9411, Revised Statutes 1909, as to including and describing in the resolution the .work of bringing such street to the established grade. [Phoenix Brick Co. v. Gentry County, 257 Mo. 392, 396; Blair v. Glenn, 187 Mo. App. 392, 395.]

III. ' The ordinance provided that said improvement should be commenced within one week from the delivery to the contractor of written notice, and be fully completed within sixty days thereafter, with a proviso f°r extension of time for good cause shown. The contractor began the work on June 28th and completed it on November 10th, a period of 135 days.

When we consider the circumstances, it is evident that the giving of the notice provided in the ordinance was waived. While the contractor was entitled to notice to begin the work there is no reason why that formality could not be waived. The intention need not necessarily be proved by express declarations, but may be shown by the acts and conduct of the parties from which an intention to waive may be reasonably inferred. [40 Cyc. 263.]

It is agreed that no extension of time was asked or given. There was a provision in the contract that days lost on account of injunction, bad weather, strikes, etc., should not be held to be working days, but this term of the contract is not invoked, nor need be, because the ordinance authorized an extension for good cause. For aught that appears, the work was needlessly delayed, to the great annoyance of the public. As time was of the essence of the contract and material, the tax bill issued for the work and here sued on must be held void. The penalty proviso does not relieve against the requirement to complete the work within the time prescribed. [Neill v. Gates, 152 Mo. 585, 592; Barber Asphalt Paving Co. v. Munn, 185 Mo. 552, 569; Gilsonite Constr. Co. v. Coal Co., 205 Mo. 49, 79; 28 Cyc. 1137.]

“In French v. Wallace, 13 Wall, 506, it is said: ‘When the requisitions prescribed are intended for the protection of the citizen and to prevent a sacrifice of his property, and by disregard of which his rights might be and generally would be injuriously affected, they are not directory, but mandatory. They must be followed or the acts are invalid. The power of the officer in all such cases is limited by the measure and conditions prescribed for its exercise. ’ Accordingly we are of the opinion that the proviso in the ordinance, requiring the completion of the improvement within a prescribed time, was mandatory, and that a compliance with it was a condition precedent to the right of the contractor to any lawful demand against the abutting landowner.” [Rose v. Trestail, 62 Mo. App. 352, 358.]

In Barber Asphalt Paving Co. v. Munn, 185 Mo. 552, 568, 569, it was held that the ordinance must control, and that the failure to complete the work within, the time prescribed by the ordinance rendered the tax bills void. In that case the ordinance provided that a penalty of ten dollars per day after the time fixed by the ordinance should be deducted. In Gilsonite Constr. Co. v. Coal Co., 205 Mo. 49, 79, it was said “that it was not within the power of the municipal corporation to extend the time by ordinance for the completion of the work after the time for completing it has expired,” citing Neill v. Gates, 152 Mo. l. c. 592, and Hund v. Rackliffe, 192 Mo. l. c. 324, 325.

In the case last cited, the ordinance provided that the -work should he begun within ten days after the approval of the ordinance, and completed within forty days. The ordinance was approved June 12th. “They actually began work before that date, but the fact that they did so, does not reduce pro tanto the time for the completion of the work. The forty days for the completion of the work began to run at the expiration of the ten days allowed for the commencement of the work and not from the time the work was actually commenced within the ten days.” [P. 322.] Counsel argue that since the work was to be commenced within one week from the giving of written notice and such notice was not given, ergo, plaintiff did not fail to complete the work within the time prescribed by the ordinance.' We think there is not analogy between the cases, and that there is no merit in the contention.

The judgment is reversed.

All concur.