author: WILLIAMS, C.

text:
    ARTHUR J. ARN, ELIZA WAHLENMAIER and ISABELLA E. LIND v. GRACE ARN and EDWARD F. ARN, JR., Appellants.
    Division Two,
    February 23, 1915.
    1. EXPRESS TRUST: Deed from Father to Son: Created by Subsequent Letter: Barred by Delivery. Where Ferdinand, being threatened with lawsuits, without valuable consideration in 1874 conveyed -by deed unrestricted in its terms land to his minor son Arthur, who in 1888, at Ferdinand’s request and without consideration, by deed on its face properly acknowledged, conveyed it back to Ferdinand, which deed without being recorded was laid away and forgotten for more than twenty years, and upon its being found, upon the advice of counsel a new deed was made by Arthur in 1909 conveying the land to Ferdinand, who shortly thereafter conveyed the land unreservedly to his children Arthur, Eliza and Isabella, a letter written by Arthur in 1906 to his brother Edward in which he stated he had no “individual right” to the land, but held the title for the said Edward and his sisters, did not create an express trust in favor of Edward and the other children, and did not have the effect of defeating the deed of Ferdinand of 1909 which omitted Edward as grantee, if the deed of 1888 was actually delivered, for if delivered the title had already passed out of Arthur when he wrote the letter in 1906; and the evidence is examined, and is held to preponderate in favor of the chancellor’s finding that the deed was actually delivered.
    2. EVIDENCE: On Issue Not Pleaded. It is not error to exclude evidence offered to establish a contract creating an interest in land where no such contract was pleaded.
    3. GUARDIAN AD LITEM: Written Acceptance. Where the record shows that a guardian ad litem was appointed for the minor defendant, and that he appeared for said minor and filed an answer, it will be held, notwithstanding the record fails to show that the guardian ad litem filed with the clerk his written consent to act as such guardian, that he did accept such appointment.

      4. GENERAL GUARDIAN: Judgment Recital. General guardians appointed by tbe probate courts are authorized and directed by statute to represent tbeir wards in legal proceedings and to prosecute and defend for them in the several courts of this State, and where the minor defendant has a legal guardian it is unnecessary that a guardian ad litem be appointed; and where the judgment recites that the minor defendant “appears by his general guardian appointed hy the probate court” of the proper county, and that recital is not contradicted by any other portion of the record, it is presumed to be true.
    Appeal from. Jackson Circuit Court. — Hon. Joseph A. Guthrie, Judge.
    Affirmed.

      Clarence I. Spellman and William L. Wood for appellants; T. C. Sparks of counsel.
    (1) The court erred in excluding parol evidence to show the circumstances surrounding the parties to this case, and Ferdinand Arn and Edward F. Arn, Sr., deceased, in aid and explanation of the construction of the writings offered in evidence' hy defendants; and in refusing to admit parol evidence to aid the writings, and to show the purpose and terms of the trust, after its existence had been established by written evidence. Adams v. Canutt, 66 Wash. 428; Reid v. Reid, 12 Rich. Eq. (S. C.) 213; Kingsbury v. Burnside, 58 111. 329; Johnson v. Calnan, 19 Colo. 175; Railroad v. Durant, 95 U. S. 579; Nesbitt v. Stevens, 16Í Ind. 522. (2) The court erred in excluding parol evidence offered by defendants to show the trust in Arthur Arn to sell the land in controversy and divide the proceeds among the four children of Ferdinand Arn in equal parts. Mulrooney v. Building Assn., 249 Mo. 646; Forest v. Rogers, 128 Mo. App. 9; Watson v. Payne, 143 Mo. App. 726; Logan v. Brown, 20 L. R. A. (N. S.) 298; 39 Cyc. 52. (3) The court erred in excluding the testimony of Flora Sells, W. H. Weaver and other competent witnesses to show a contract between Ferdinand Arn and. Ed. F. Arn, Sr., wherein Ferdinand Arn agreed to convey an interest in his real estate to Ed if he would abandon his home in Texas and come to Kansas City and make a home for his father. Sutton v. Hayden, 62 Mo. 114; Hiatt v. Williams, 72 Mo. 214; Gupton v. Gupton, 47 Mo. 37; Healey v. Simpson, 113 Mo. 340; Hall v. Harris, 145 Mo. 614; Koch v. Hebei, 32 Mo. App. 103; Sharkey v. McDermott, 91 Mo. 647; Oliver v. Johnson, 238 Mo. 376; Kirk v. Middlebrook, 201 Mo. 245; Walker v. Bohannon, 243 Mo. 119. (4) The court erred in proceeding to trial in this case without the proper appointment of a guardian ad litem on behalf of the-infant defendant, Edward F. Arn, Jr., as required by the statutes covering such cases. R. S. 1909, secs. 1714, 1748,1749; Reineman v. Larkin, 222 Mo. 156; Kurtz v. Eisenstein, 123 Mo. App. 288.

      Gage, Ladd & Small for respondents.
    (1) There is not a scintilla of evidence to show that Arthur J. Arn held title to this property for himself and his brother and sisters, as alleged in the answer. (2) None of the alleged parol declarations of Arthur are shown to have been made prior to the re-conveyance of the property in question to his father, in 1888, and for that reason alone they were properly excluded, or ignored by the court. (3) The trust relied on is an express trust and it is hardly necessary to say that under our statute a declaration of such trust must be evidenced by some writing and for that reason the parol declarations were inadmissible. Hunter v. Briggs, 254 Mo. 63; Goodman v. Crowley, 161 Mo. 657; Hillman v. Allen, 145 Mo. 638; Crawley v. Crafton, 193 Mo. 421; Heil v. Heil, 184 Mo. 665; Mulock v. Mulock, 156 Mo. 431. (4) The letter of Arthur to his brother, of Aug. 8, 1906, was properly ignored by the court, because, if for no other reason, Arthur then had no interest in this property, but had transferred it to his father eighteen years before, by his deed of 1888. (5) It is not necessary to determine whether Arthur’s letter of Aug. 8, 1906, to his brother, is or-is not sufficiently definite and certain to establish a trust, because he did not own this property at the time, and therefore he could not -create a trust in the property in favor of anyone; but it may be said, in passing, that such indefinite expressions as are relied on here,, from one member of a family to another, fail in that: definiteness and certainty required to establish a trust. Authorities, supra, point 3; Steere v. Steere, 5 John. Ch. 12. (6) Besides, the trust pleaded is one for Arthur and his brother and sisters; that is, a one-fourth interest each, and Arthur’s letter says he could not convey without the consent of his father and sisters,, which, if sufficient to create a trust (which we deny)',, would exclude the letter as not within the pleadings, under the rule laid down in Walker v. Bohannon, 243-Mo. 137. (7) Besides, the charge in the answer distinctly is that the trust which was declared for the use- and benefit of Edward Arn was declared by his father,, Ferdinand Arn, when he conveyed the property to Arthur on the 14th day of December, 1874, and the only charge against Arthur is that he recognized this trust-on behalf of himself, and his brother and sisters, so alleged by the answer, to have .been declared by his-father in 1874. It is not pretended in the evidence that Ferdinand Arn, at the time of said conveyance in 1874,, executed any writing declaring any such trust, yet such-trust could only have been proved by “some writing signed by the party who is or shall be by law enabled to-declare such trusts, or by his last will in writing, or-else they shall be void. ” R. S. 1909, sec. 2868; Hunter . v. Briggs, 254 Mo. 63.
   WILLIAMS, C.

This is a suit to determine the-title to lot No. 480, Block 35, in MeG-ee’s Addition to-Kansas City, Missouri. The three plaintiffs are chil'dren of Ferdinand Arn. The defendant Grace Arn is the widow, and defendant Edward F. Arn a minor son,, of one Edward F. Arn, a deceased son of said Ferdinand Arn.

The petition is in the nsnal form.

The answer, in substance, contained the following allegations: 1st, Denies that plaintiffs are the owners of the property. 2nd, States that another and prior suit is pending, involving the same subject-matter. 3rd, That Edward F. Arn, deceased, owned an undivided one-fourth interest in said property which now belongs to the defendants, as his son and widow. 4th, That on December 14, 1874, said Ferdinand Arn and wife, the then owners of said real estate, “executed and delivered to the said plaintiff, Arthur J. Arn, a warranty deed whereby they conveyed to the said Arthur J. Arn, for the use and benefit of Arthur J. Arn, Isabella C. Lind, Eliza Wahlenmaier and the said Edward F. Arn, Sr. (now deceased), the legal title” in and to said property. That thereupon said four persons, above named, became the owners as tenants in common in equal shares of said real estate. That said conveyance was a gift, the sole consideration thereof being love and affection which the grantors had for their said children. That said Arthur J. Am frequently recognized the tmst on behalf of his brother and sisters and himself and admitted that he so held title to said real estate for their common use and benefit and could not convey the same without the explicit consent of each. That said Edward F. Arn, Sr., died in 1906 and that said defendants, as widow and son of said Edward F. Arn, Sr., deceased, became the owners of his undivided one-fourth interest in said property. That later, and on September 11,1909, in furtherance of a conspiracy formed between the plaintiffs and said Ferdinand Arn to deprive defendants of their interest in said property, the said Arthur J. Arn, without the knowledge and consent of defendants, conveyed said property, without consideration, back to said Ferdinand Arn, and that, thereafter, on September 30, 1909, said Ferdinand reconveyed said property by warranty deed, for a consideration of one dollar, to the plaintiffs herein. That said last-mentioned deed was obtained from said Ferdinand Arn by undue influence on the weakened and enfeebled mind of said Ferdinand Arn. 5th, That prior to the death of said Edward F. Arn, Sr., said Arthur J. Arn conveyed said property to Edward F. Arn, but that the deed was unrecorded and that the same is now lost. 6th, That in 1901- said Ferdinand Arn, eig’hty-three years of age and enfeebled in mind and body, induced Edward F. Arn, deceased, then living in Texas, to abandon his home in Texas and move to Kansas City, Kansas, so as to look after the property interests belonging to the children in the two Kansas Cities, as well as to provide a home for Ferdinand Arn. He yielded to this request and moved to Kansas City where he looked after said properties, collected rents, and retained the general management of said properties until his death in 1906. That the real estate in controversy is worth in excess of seventy-five thousand dollars. The answer prayed that the deed of September 11, 1909, from Arthur J. Arn to' Ferdinand Arn and also the deed of September 30, 1909, from said Ferdinand Arn to the three plaintiffs, be cancelled and set aside; that the real estate in controversy be adjudged and decreed to belong to the three plaintiffs and to defendant Edward F. Arn, Jr., as heir of said Edward F. Arn, Sr., deceased, subject to the dower interest of Grace Arn in Edward F. Am, Jr.’s, one-fourth interest; that an accounting be had of rents collected since the death of said Edward F. Arn, Sr., and that the rents so collected be distributed to the respective owners in proportion to their interest in the same. The reply admits the execution of the deeds of December 14,1874, September 11,1909, and September 30, 1909, and further states that said Arthur J. Arn never ‘ ‘ executed any instrument in writing evidencing, in any manner, any such trust as is set up in said an-' swer.” The other allegations were denied. Trial was had, before the court, which resulted in a decree 'in favor of the plaintiffs and against the contention of the defendants, and the property was decreed and adjudged to belong to the three plaintiffs. Thereafter defendants duly perfected an appeal to this court.

The evidence upon the part of the plaintiffs tended to establish the following facts:

The following deeds, conveying the property in controversy, were admitted in evidence:

Warranty deed, dated December 14,1874, executed by Ferdinand Arn and wife to Arthur John Arn.

Deed, dated December 2,1888, executed by Arthur J. Am, a single man, to said Ferdinand Arn. This deed was acknowledged December 27, 1888, before a notary public, and delivered to the grantee, but was never recorded.

Deed, dated September 11, 1909, executed by Arthur J. Arn and wife to said Ferdinand Am. This deed was recorded September 21, 1909.

Deed dated September 30, 1909, executed by said Ferdinand Arn to the three plaintiffs.

Said Ferdinand Arn was present at the trial and testified that he was eighty-eight years of age and had lived in Kansas City, Kansas, for forty years; remembered the occasion of buying this property and later, in 1874, of deeding the property to his son Arthur; that, at the time the deed was made, Arthur was a school boy, under age, away from home, and knew nothing about the deed until his return from college about 1888. That he transferred the property to Arthur in 1874 because he was threatened with some law suits; that when Arthur came home in 1888 he informed him of the deed and requested Arthur to reconvey the property to him. That thereupon, in 1888, they went to Lawyer Garrett’s office. The above-mentioned deed of December 2, 1888, was prepared and executed by Arthur and acknowledged before Mr. Garrett, a notary •public. Garrett died a number of years before the trial. That Arthur delivered the deed to him and he was in no hurry to put it on record and finally forgot about having the deed recorded until one summer when he and his wife returned from a trip to California he thought about the deed. That he had kept the deed in a trunk which was unlocked and which was left in his residence when he went to California. That his son, Edward F. Arn, Sr., occupied the house in his absence. Upon his return he looked in the trunk for the deed, but it was gone. This was about eight years before his wife’s death which occurred in 1898. That he was the father of the three plaintiffs and of said Edward F. Arn, Sr., deceased, and that they were his only children. That Arthur was the youngest child. Witness stated that he had always retained possession of said property, collected rents, and paid the taxes thereon. That after his son Edward’s death the deed-made by Arthur to him in 1888 was found “down stairs” where Edward F. Arn, Sr., and wife had lived. That when the deed was found, they sought the advice of a lawyer about having it recorded and their lawyer, Mr. Jenkins, told them that if the old deed was put on rec.ord it would have to lay in the recorder’s office one year and the lawyer advised that a new deed be made. Following this advice, the new deed, being the one dated September 11, 1909, from Arthur J. Arn to witness, was executed and recorded. The witness further testified that the doctor told him that his heart was “out of fix” and that he might drop off at anytime; the witness wanted his three living children to have the property in question and for that reason executed the deed dated September 30, 1909. That he provided for his grandson, Edward F. Arn, Jr., by willing him a house and lot in Kansas City, Kansas, and that he had intended to give his grandson another house, hut that the defendant Grace Arn had sued him and that he had not given the other property to his grandson. Witness stated that there was never, at any time, an agreement that the property was to be held by the plaintiff Arthur J. Arn for the benefit of his brother and sisters. On cross-examination, the witness stated that he had deeded other property, in Kansas City, Kansas, to his children, at different times, but that none of the property was deeded to them in trust for the others. Witness stated that when his son Edward returned from Texas, he agreed to give Edward ten per cent of all the rents that Edward would collect for him. The arrangements were that Edward was to collect the rents and deposit such money in the bank and then, at the end of the year, he was to divide it up with his sisters and brother; that Edward collected the rents .and kept all; that he started his son Edward in the business of making cement blocks; that Edward, at the time of his death, owed the witness three thousand dollars for rents collected. That his son, after coming back from Texas, married the defendant Grace and they lived at his house until Edward’s death; he boarding with them for the use of his house. After Edward’s death, the widow and child stayed at his home •and he boarded with them and paid for his board, and allowed the widow to collect some of his rents, for which he paid her.

U. G. Burris, tenant, for about twenty years, of a part of the property in controversy, testified that Ferdinand Arn rented the property and collected the rents the greater portion of the time; that a part of the time the rents were collected by Edward F. Arn, '.Sr. That when the tenant wanted any repairs made or anything done about the premises, the son, Arthur J. Arn, said he would have to consult his father about it.

Arthur J. Am, one of the plaintiffs, testified that, he was born in 1861 and was, therefore, thirteen years, old in 1874 when the deed was made to him by his father. That he knew nothing about the deed until about. 1887, at which time he returned home from Germany where he had been attending college; that he was educated for the ministry and was ordained in 1892, at which time he accepted a pastorate in Wisconsin where he remained for thirteen years, and then accepted a second pastorate in Wisconsin where he remained until 1907, at which time he moved back to Kansas City and since that time has resided there in one of his father’s. houses. That after he returned from college, and sometime in 1888, his brother Ed. told him that this property stood in the name of the witness and that it could be sold for fifty thousand dollars. Later his father came to him and asked him if he would not deed the property back to him and he said, “Certainly,” and that the deed of December, 1888, was thereupon executed and delivered. That in 1906, after the death of his brother Edward, the witness was looking over some papers of his deceased brother’s, in the presence of deceased’s wife and'sister, and in those papers he found the old deed which the witness had executed in 1888; ■that he laid the deed down for a few minutes and stepped out of the room and upon returning the deed had disappeared. The witness then went upstairs and told his father about the incident and his father told him to make out another deed. Sometime afterwards, the witness found the old deed of December, 1888, in a secretary which had been used by his deceased brother. He then took the old deed upstairs and showed it to his father and his father asked him to have it recorded, but Mr. Jenkins, a lawyer,' told him that the Old deed would have to remain for a year in the recorder’s office and that he had better execute a new one. He thereupon executed the deed dated September 11, 1909. On ■cross-examination, the witness testified that it was never called to his attention that the other children had any interest in the property or that they would have to make quit claim deeds to the property; that he never discussed any division of the property or the sale of the property, or that certain children be charged with advancements. The following letter was written by the witness to his brother Ed.

Eau Claire, Wis.
Aug. 8, 1906.
Dear Brother Ed:
I was glad to have your letter and would have answered sooner hut.have been away from home and busy besides. It does me good to know that you are so happy in that boy. He’s a buster I know, and will give you all a lot of joy. I am sorry to know that you are not in better health. I wish you were able to work. We have so much to do and have strength to do it. Anna is well but working too hard. Alden has grown since you saw him. He remembers K. C. as the place where they called him Taruntzer. He wants to visit there again. I will gladly sign the deed sent me but should like to have the written consent of Father, Eliza and Bell while the lot happens to be in my name I have no individual right to it in any way. I can make no disposition of any of the property which is in my name without the consent of all. I think that is right. If I should deed this lot to you without order of the others why can I not deed any other piece away which happens to be in my name? The others I don’t think will object giving their consent and then I will sign deed. I am thinking that I may come down this fall and then we could make the transference at that time. You need not delay the building. We can make the transfer any time but it must be done in the right way. You will see the justice of this position. If I can sign deed on the individual request of any one, Bell can do the same thing and then we would get into a muddle. I think we ought to get together and see what should be done. With best wishes to all and a hug to the boy, I remain, Yours affectionately,
Arthur.

The witness denied that he had ever made any ■deed to his brother Edward conveying the property involved in this snit. After his brother Edward’s death, the witness, in talking to a Mr. Grilday, a lawyer representing a prospective tenant for the property in question, was told that the defendant Grace Arn claimed that she had a deed to the property. The witness said that he never claimed to own the property while it stood in his name.

The evidence upon the part of the defendants tended to establish the following facts:

Defendant Grace Arn testified that she married Edward F. Arn, December 31,1901, and from that date until her husband’s death in September, 1906, she and her husband lived with Ferdinand Arn in Kansas City, Kansas, and after her husband’s death she continued to live at the same place until sometime in 1907. Over plaintiffs’ objection, she testified that after her husband’s death, some of the children of Ferdinand Arn stated that she and her child would inherit her husband’s one-fourth interest in the property. She had never heard Ferdinand Arn say anything to her husband about the ownership of the property, and that Ferdinand Arn never told her why he asked Edward to come home from Texas. She heard plaintiff, Arthur J. Arn, discuss the matter of looking after Edward’s “one-fourth interest in the family real estate” for herself and child. That Arthur said he wanted to divide the property up, one-fourth for the witness and her child, and one-fourth for each of the plaintiffs; that Ferdinand Arn was never present at any of these controversies; that prior to Edward’s death Mrs. Lind (one of the plaintiffs) often insisted on Edward getting the children together and having the matter settled, stating that she didn’t trust Arthur and that Arthur held the property here in controversy, and that Mrs. Lind thought he would keep it. The witness testified that her husband had collected the rents and repaired the properties and that after paying for the repairs on the property there was nothing left out of the rents. The witness stated that after her husband’s funeral, Arthur stated that he was ready to go over the papers in Ed’s desk; that she was busy taking care of the baby and told him to “go on in and he went in” and that Mrs. Lind went in with him. That Arthur took some papers upstairs and threw the rest in the. coal scuttle and afterwards burned them; that Arthur stated that he had laid a deed out and had gone upstairs and upqn his return the deed was gone and that he asked the witness if she had seen the deed and she said, “No,” and his sister said, “No.” That sometime afterwards and in 1907 the following occurred: “He [Arthur] asked me one day, ‘Grace, do you remember that deed I asked you about?’ and I says, ‘Yes,’ and he said, ‘Do you know anything about that deed I asked you about?’ and I says, No, I didn’t. T says, ‘What deed was it?’ and he says, ‘It was a deed to this property over here at Nineteenth and Main, that he had deeded to Ed,’ and he says, ‘I intended to burn that deed and I guess I did.’ ” She stated that she never saw the deed from Arthur to his father in 1888. In 1907 there was a controversy concerning one of the leases on a part of this property. A brewing company was desiring to get a lease on a part of the property and was represented by its lawyer, Mr. Gilday. Arthur requested the witness to go to Mr. Gilday’s office for the purpose of making an affidavit and they went to the lawyer’s office. When they got to the lawyer’s office, Arthur said to her: “Grace, if this is ever found out on me, I will he ruined for life. ” That after they reached the lawyer’s office, Arthur departed and she remained. That she there signed and swore to an affidavit which had been prepared before her arrival. The affidavit was as follows:

My name is Grace Arn. I reside at 706 Barnett Avenue, Kansas City, Kansas. I am the widow of Edward F. Arn who died September 17, 1906. I have one child, a boy, Edward F. Arn. I know the property in Kansas City, Missouri, known as the Southwest % of Lot 480, in block 35, McGee’s Addition to Kansas City, Jackson county, Missouri, being the Northwest corner of 19th. & Main streets in said city. The title to said property, to the best of my knowledge and belief, has been in Arthur J. Arn for the past six years. Previous to that time I know nothing about it. I never knew of any deed being made from Arthur J. Arn conveying said property to my husband Edward F. Arn and if any such deed is in existence, it was never, to my knowledge, delivered to my husband and no consideration was ever paid therefor by him. That said deed, if any such is in existence, was never in my custody or possession and is not now in my custody or possession, nor do I know the whereabouts of such deed, if there is any such deed in existence.
Grace Arn.

The lawyer told her that this was the affidavit which Arthur wanted her to sign. Witness further stated that Arthur requested her not to tell his sister about it, and that Arthur told her that the reason why he wanted the affidavit was that “he had made a deed to Ed to that property” (the property in controversy). That night, Ferdinand Am, in talking to witness, said: “Grace, if you got that deed, you give it up,” and that she replied that she did not have it. That she had never said anything to Ferdinand Am about this deed before. On cross-examination, the witness stated that the statements made in the affidavit were true - and that she had never seen any deed of that kind and that she had never heard of it until Arthur spoke of it and wanted the affidavit. That on the occasion when Arthur went upstairs and came down and asked the witness if she had seen the deed, he did not say what deed, but in 1907 he said the deed was one he had made to “Ed.”

Edward N. Meier testified that about 1890, he tried to lease the property in controversy for a saloon and applied to Ferdinand Am and that Ferdinand Arn told him that the boys had charge of it; that he would never make a lease unless he asked the boys. This witness testified that Ferdinand Arn told him that the boys owned the property, but on further examination it was shown that the witness had received this impression from the statements made by the old man to the effect that he would not lease it without asking the boys and that the boys had charge of it and from the further fact that one of the boys sometimes collected the rent.

George Hughes testified that he rented a portion of the property from Ferdinand Arn; that the father collected the rent part of the time and his son Edward collected it part of the time and that Edward once fixed the roof.

E. B. Masterson was introduced as a witness for defendants. Defendants offered to prove by this witness that in 1906, immediately after the death of Edward F. Arn, Arthur Arn admitted that he did not own for himself the title to the lot in question, but that he held said property for himself, his two sisters and for the estate of his deceased brother, Edward F. Arn, and that defendants should receive the same share as each one of the plaintiffs. This offer was excluded and defendants saved an exception. This witness further testified that at the time that Arthur and defendant Grace Arn were on their way to Lawyer Gilday’s office, Arthur told him that there was a missing deed or paper about which they were bothered, and he wanted Grace to make an affidavit that she did not know anything about the deed.

Mrs. Sarah Edwards, mother of the defendant Grace Arn, testified that after Edward Arn’s death, Arthur was going to burn some papers in the gas stove and later “she” took them in the back yard and burned them there herself. Sometime after that Arthur, in a conversation had with defendant Grace Arn, referred to the incident of a deed having disappeared at the time he looked through Edward’s papers, and said that “they” were making an abstract of the property and “we have got as far as that deed,” and asked Grace if she had the deed, and Grace asked him what deed it was and stated that she did not have anything but the tax title deed and Arthur said, “That don’t amount to anything.” Witness did not remember whether he said he made the deed or not. Grace told him that she did not know there was such a.deed in existence, and that Arthur said, “Oh, well, perhaps I burned it. I intended to burn it; and I guess, then, I did. ’ ’■ That on a later date the old gentleman Arn told Grace that if she had the deed she had better give it up. And that Grace replied: “Why, Grandpa, I haven’t that deed. I never saw it. I didn’t know there was such a deed in existence.”

Defendants offered to prove by this witness that “Arthur Arn had several conversations with the defendant Grace Arn, in the presence of these witnesses, in which Arthur Arn stated that, as soon as a sale could be effected, the property at Nineteenth and Main, .and other tracts, which various of the Arn children owned, would be divided, and that Edward Arn’s wife and child would receive the one-fourth interest therein, if sold; otherwise, they would receive a vested one-fourth interest in all of said tracts.” - And that at some of these conversations, prior to Edward Arn’s death, he advised that a sale be not made but that a larger price could be secured later. This offer was rejected and defendants excepted.

Defendants offered to prove by witness Edward • D. Kelley that Ferdinand Arn, between the years 1905 and 1910, told the witness that he did not own the property in controversy, but that it belonged to his four children, and that their consent would have to be- obtained to the making of either a contract or a deed. The court excluded this offer and the defendants excepted. In excluding the offer, the court said: “Now, I may as well shorten this thing.. I think it sufficiently appears already, but in order that there may be no-doubt about it, it is the view of the court that you cannot establish this trust that you are seeking to establish here, by parol testimony, and that any evidence in this case of declarations by either Mr. Ferdinand Arn or Arthur Arn, his son, along the lines that you have suggested, or as to which was the owner of this property, and what was the respective interests in it may have been, would be incompetent, and the court would not receive it. ”

Defendants offered to prove by witness William L. Wood that in July, 1907, Arthur Arn told him that he was very much worried concerning the title to this property; that some time prior, he, Arthur, had made a warranty deed to his brother Edward wherein he had conveyed to Edward the fee to this property in furtherance of a family arrangement that existed among the Arn children for the holding of their real estate. This was excluded by the court on the theory that the witness was an attorney-at-law and that the communication was made to the witness in such a manner as to bring it within the rule of privileged communications.

W. H. Weaver testified that, at the request of Ferdinand Arn, he wrote a letter to Edward Arn, then in Texas, requesting him to come back to Kansas City. The defendants offered to prove the contents of said letter. The absence of the letter was not accounted for and the offer to prove the contents was excluded.

The deposition of Flora Sells was offered. She testified that Ferdinand Arn was her uncle and that in 1901, at the dictation of Ferdinand Arn, she wrote a letter -to Edward Arn, who was then in Texas. That she signed Ferdinand’s Arn’s name to the letter,.at his request. Upon objection by plaintiffs, the letter was excluded. The letter was as follows:

Kansas City, Kas.
•Feb. 18, 1901.
Dear Edd:
■I received you letter of the 8th of January. My health has been very poorly this winter. ' I am scarcely able to get around and am not able to collect the rents and look after the other business, so I would like for you to come and look after your interests, that is if you want any interest in the affair. It would he a great help to me if you would come and help me, or if you would come and see what you could do. I want you to have your share so you had better come now and get it and not put it off any longer before it is too late. There is nobody to look after things. I have only seen Bell once since she moved away, and that has been about three years. I have the lower part of the house rented. I live up-stairs keeping batch. There are a great many houses being built and they are going to build more. Business is picking up and the rents are better. If you do not come I have to turn things over to some stranger.
I remain your Father,
F. Arn.

On the back of the letter is the following:

“P. S. You ought to try and see what you can do for grandpa is very feeble if the winter would have been colder it would have gone pretty hard with him. Flora.”

The defendants offered in evidence a number of deeds executed' by Ferdinand Arn and wife conveying property other than that in controversy to different ones of the plaintiffs, and also from the children back to Ferdinand Arn, and also a deed from Ferdinand to his son Edward. These deeds were quitclaim or warranty deeds and none of them contained any declarations of trust.

Testifying in rebuttal, Arthur J. Arn, plaintiff, denied that he had told Grace Arn that he had conveyed the property in controversy to Edward; that when the lease controversy arose, Attorney Gilday told him that Grace Arn and her mother, Mrs. Edwards, claimed to have a deed to the property. Witness stated that he had never known anything about any such deed and that he told defendant and her mother that if there was any such deed it was a “bogus” deed, and that the attorney told him that he wanted his clients protected on these leases and requested that an affidavit be procured from Mrs. Arn to the effect that she had no such deed; that the witness then asked Mrs. 'Arn if she would make an affidavit; that he was not present when the affidavit was made, but had accompanied Mrs. Am to the attorney’s office; that the deed mentioned by him in his conversation with Mrs. Arn- and his sister on the day after his brother’s funeral, was the deed made in 1888 by him to his father, which deed he subsequently found; that on the 2nd of October, 1907, he was taken to a sanitarium at Kansas City, Kansas, where he remained for about three weeks; that this was two or three weeks after the controversy over the lease and the controversy he had with his sister-in-law, the defendant here. That he was taken to the sanitarium because of his mental condition. That he was worried and needed rest.

Mrs. Lind, one of the plaintiffs, testified that the day after her brother’s funeral, Arthur was looking through some of Edward’s papers and laid some of them aside and later asked the defendant, Grace Arn, if she had taken the papers which he had laid aside, and that Mrs. Am said she had not; and that Arthur then asked the witness if she knew anything about them, and she replied that she did not. Witness testified that she had never heard of a deed from Arthur to Edward. That Arthur was worried over losing the deed of 1888 (the deed from Arthur to his father), but that this deed was afterwards found. On cross-examination, Mrs. Lind testified that at different times her father had made conveyances to her, but that she would turn it back to him. That, “Whenever Father wanted to, he would sign a deed in my name and one in Arthur’s name, but we never held them as our own. ’ ’

Appellants contend that the court erred in failing to decree that an undivided one-fourth interest in said land was vested in defendant Edward Arn, Jr., subject to the dower interest of his mother, his codefendant.

In support of this contention, appellants insist that they are entitled to said interest in said land either (1) on the theory that an express trust was created in said land in favor of Edward Arn, Sr., deceased, or (2 if the evidence is insufficient to prove the express trust then they are entitled to said interest by virtue of an agreement made between Ferdinand Arn and Edward Arn, Sr., deceased, in 1901, whereby said Ferdinand Arn agreed to give Edward Arn, Sr., an interest in said property if he would return from Texas and care for the property and person of said Ferdinand Arn. These two propositions will be discussed in their order.

I. It will be recalled from the above statement of facts that in December, 1871, Ferdinand Arn, the then owner of said land, by straight warranty deed conveyed the land to Arthur J. Arn; that on December 2, 1888, Arthur J. Arn reconveyed said property back to Ferdinand Arn; that this last deed was delivered to Ferdinand Arn, but for reasons given in the above statement, was never recorded. On September 11, 1909, for reasons set forth in the foregoing statement, Arthur J. Arn executed a second deed conveying the land to said Ferdinand Arn, and later said Ferrlinand Arn conveyed the property to the three plaintiffs.

Appellants do not contend that an express trust was in any manner evidenced by any of the above-mentioned deeds, but insist that the letter dated August 8, 1906, written by Arthur Arn to Edward Arn, Sr., did supply sufficient written evidence of an express trust to satisfy the Statute of Frauds, and that they should have been permitted to show by parol the surrounding circumstances which they contend when taken together with said letter, would show that an express trust as claimed by appellants was created in said land. Appellants’ contention is based upon the assumption that on August 8, 1906, the date of the above-mentioned letter, the title to said land was in Arthur J. Arn, the writer of said letter, and that the deed of December 2, 1888, from Arthur to Ferdinand Arn, was never in fact executed and delivered. Appellants do not contend that they are entitled to recover on the theory of the existence of an' express trust if the above deed of December 2, 1888, is a valid one, but take the position that if said deed is valid then they are entitled to win on the second theory, to-wit, on the theory of the contract of 1901 above referred to. It therefore becomes at once apparent that a serious question stands at the very threshold of the consideration of the theory as to the creation of an express trust in §aid lands. If the deed of December 2, 1888, was in fact made and delivered then as admitted by appellants’ contention it would become unnecessary to discuss the case on the theory of an express trust, or to determine whether the letter of Arthur J. Arn was a sufficient writing to prove such a trust, or still further to discuss the assignment of error as to the exclusion of certain offered testimony in connection with that theory. Are we able upon an examination of the testimony to say that said deed of December 2, 1888, was never made and delivered as claimed by plaintiffs'? This deed was introduced in evidence at the trial and its execution and delivery positively testified to by the grantor and grantee therein. The notary who took the acknowledgment was dead. No effort was made by appellants to show that his signature thereon was not genuine, nor are we able to gather from the evidence any hint or suggestion that the deed (twenty-two years old at the date of the trial) did not have the earmarks of age which its date would infer. The chancellor had the deed before him and in this regard had an advantage which is denied this court. Appellants offered no evidence contradicting this positive evidence upon the part of the respondents, but attempt to draw inferences, casting suspicion upon the validity of said deed, from the fact that the deed was lost and afterwards found in a secretary belonging to Edward Arn, deceased, and that appellants knew nothing of the existence of the deed until the trial. We are unable to say that said deed was not executed and delivered in 1888 as claimed by respondents, but on the other hand the greater weight of the evidence is in favor of the validity of said deed. Arriving at this view upon the facts, it necessarily follows that said Arthur J. Arn had no title to said land at the time he wrote said letter in 1906, and having no title his declaration in writing could not affect the same, and it therefore becomes unnecessary to determine what effect said Ittter and the excluded evidence would have on the case had the title been in the writer when said letter was written, and further as to whether or not such evidence was within the pleadings. Those questions are not here determined, because a discussion of the same' is precluded by the fact above found to exist.

II. In their brief appellants state: “If the deed from Arthur Arn to his father was and is valid and had been delivered to the grantee, and if it is held to have conveyed the lot in controversy prior to 1901, the defendants still insist that they are entitled to recover by virtue of Ferdinand Aim’s contract and agreement made with Ed Arn in 1901.”

Concerning the above point, it is contended that ‘ ‘ the court erred in excluding certain testimony which tended to prove that in 1901 Ferdinand Arn entered into a contract with said Edward F. Arn whereby Ferdinand Arn agreed to convey an interest in his real estate to Edward if Edward would abandon his home in Texas and come to Kansas City and make a home for his father.”

With regard to this contention, it is sufficient to say that no such contract was pleaded by appellants, and therefore the exclusion of such evidence was not error. [Walker v. Bohannan, 243 Mo. 119, l. c. 137; Oliver v. Johnson, 238 Mo. 359, l. c. 373.]

III. One further point remains to be considered. It is contended by appellants that “the court erred in proceeding to trial in this case without the proper appointment of a guardian ad litem on p}epLa£-p 0f £]le infant defendant, Edward F. Arn, Jr., as required by the statutes of Missouri covering such cases.”

The above assignment is very general in its terms and we would perhaps be justified in passing the matter because of the failure to specify some alleged defect in the proceedings. However, we have carefully examined the record and have reached the conclusion that it shows that the court had jurisdiction over the person of said minor and that he is bound by said decree.

From the record it appears that one W. IT. Maloney was appointed guardian ad litem of said minor and that thereafter said guardian ad litem appeared in said cause for said minor and filed answer. It is true that it does not appear from the record that the guardian ad litem filed with the clerk of the court his written consent to act as such guardian as contemplated by the statute, yet the record does show that said guardian ad litem did accept said appointment. This is sufficiently shown by the record showing that he appeared in said cause and filed answer for such minor and performed generally the duties of such appointment. We think such showing sufficient to satisfy the statutory requirement of written consent upon the part of the guardian ad litem. [See, Reineman v. Larkin, 222 Mo. 156, l. c. 170-1; 10 Ency. Pl. & Pr., pp. 662-3-4.]

But in the present case, even if it should be conceded, arguendo, that the failure of the guardian ad litem to file his written consent with the clerk would deprive the court of jurisdictional authority to render a decree against said minor yet other facts appear from the record, to-wit, from the decree entered in the cause, that the court had ample jurisdiction over the person of said minor. The decree of the court contains the following recitals:

“Now come the parties by their respective attorneys and the infant defendant Edward Arn having been duly summoned in this cause, appears by Walter H. Maloney, his' general guardian duly appointed by the probate court of Jackson county, Missouri, and also duly appointed guardian ad litem herein, and this cause having been heretofore submitted to the court and all the evidence and arguments of counsel having been heard and duly considered, ’ ’ etc.

If the minor defendant,was in fact represented by his general guardian, little importance could be attached to the claim of irregularities in the appointment of a guardian ad litem, this because by statute, section 423, Revised Statutes 1909, general guardians are authorized and directed to represent their wards in legal proceedings and to “prosecute and defend for their wards without further admittance, in the several courts of the State, ’ ’ and when the minor has a general guardian it would appear unnecessary that a guardian ad litem be appointed. [Clark v. Crosswhite, 28 Mo. App. 34; Robinson v. Hood, 67 Mo. 660, l. c. 661.] Was the minor defendant represented by his general guardian! The decree of the court so states and this statement in the decree is not contradicted by any other portion of the record in the case nor has any attempt been made, in any manner, to contradict said recital. Under such conditions, the judgment recitals are presumed to be true. [Adams v. Cowles, 95 Mo. 501, l. c. 508-9; State ex rel. v. Broaddus, 216 Mo. 336, l. c. 347.]

The judgment is affirmed.

Boy, G., concurs.

PER CURIAM. — -The foregoing opinion of Williams, C., is adopted as the opinion of - the court.

All the judges concur.


source: Caselaw Access Project

author: FARTS, P. J.

license: Public Domain

text:
    ADOLPH REMOVICH Appellant, v BAMBRICK BROTHERS CONSTRUCTION COMPANY.
    Division Two,
    February 23, 1915.

    1. PLEADING: Motion to Make More Definite: Refusal to Amend: Demurrer. If the ruling of the court sustaining defendant’s motion to require plaintiff to make his petition more definite and certain was correct, then, upon plaintiff’s refusal to file an amended petition, the court’s action in sustaining defendant’s demurrer on the ground that the petition does not state a cause of action is also correct. But if the allegations amount to a sufficient statement of a cause of action, the sustaining of the demurrer is error.
    2. -: Negligence: Master and Servant: Excavating Sewer: Break of Hoisting Cable. .A petition charging that' defendant was engaged in removing earth from the bottom of a large trench preparatory to building a sewer therein; that defendant used a hoisting machine for the purpose of lifting said earth, and after same had been lifted by steam power in buckets to the surface of the street said earth was conveyed in buckets by a carrier running upon a steel track to a point where said concrete sewer had been built into said trench, and there dumped upon said sewer thus laid, and thereby was used to fill up said trench above said sewer; that for the purpose of lifting said earth from the bottom of said trench defendant used large steel buckets to which were attached steel cables, which were pulled by steam power; that plaintiff was employed by defendant as a laborer to dig in the bottom of said trench and to fill up said- buckets; that while thus engaged and when one of said buckets over his head was being conveyed by said steam power, “by reason of the carelessness and negligence of defendant the steel cable attached to said bucket broke, causing said bucket to fall upon plaintiff, thereby inflicting a comminuted fracture of his arm,” etc., does not state a cause of action of negligence under the law of master and servant.
    3. -:-:-:-:--: Res Ipsa Loquitur. The petition cannot be held, under the doctrine of res ipsa loquitur ', to state a cause of action of negligence on the master’s part, if it states nothing more than the fact that the steel cable broke and the bucket fell and the servant was thereby hurt. The presumption of the master’s negligence cannot be held to arise from the mere fact that an accident happened and an allegation of its bare physical cause, wholly unaided by any circumstance tending to show any negligent act of either omission or commission on the part of the master, as the responsible human cause of the accident. A prima-facie case for the servant is not, as a rule, made out, either in pleading or in proof, by the mere fact of accident and the consequent injury to him resulting therefrom. It cannot be stated dogmatically that the doctrine of res ipsa loquitur is never applicable as between master and servant; for there are isolated occurrences which of themselves show they must have happened from a negligent cause chargeable to the master. But where the accident concededly may have been produced from causes for which the master in law is not liable, it is plaintiff’s duty to allege such affirmative facts as show it was due to some omission of duty which the law imposes on him to provide safe tools and a safe place at which his servant is to work.
    Appeal from St. Louis City Circuit Court.- — Hon. George G. Hitchcock, Judge.
    Affirmed.

      Joseph A. Wright for appellant.
    (1) Tire doctrine of res ipsa loquitur applies in an action against the master for personal injuries sustained by the servant, where, as in the case at bar, the facts point to an omission of proper care, and the master has superior means of knowing the particular cause. 4 Labatt on Master and Servant (2 Ed.), par. 1601, and cases cited; Klebe v. Distilling Co., 207 Mo. 486, 13 L. R. A. (N. S.) 140; Turner v. ITaar, 114 Mo. 346; Blanton v. Dold, 109 Mo. 74; Johnson v. Railroad, 104 Mo. App. 592; St. Clair v. Railroad, 122 Mo. App. 528; Sackewitz v. Biscuit Mfg. Co., 78 Mo. App. 151; Anderson v. Railroad, 149 Mo. App. 272; Lucid v. Powder Co., 199 Fed. 377; Byers v. Steel Co., 159 Fed. 347, 16 L. R. A. (N. S.) 214; Golden v. Mannex, 214 Mass. 502; Ckiuccariello v. Campbell, 210 Mass. 532; Doherty v. Booth, 200 Mass. 522; Sullivan v. Rowe, 194 Mass. 500; Armour v. Golkowska, 202 111. 144; Howard v. Railroad, 179 111. App. 380; Chenall v. Brick Co., 117 Ga. 106; Robinson v. Gas Co., 106 N. T. Supp. 1088; Penson v. Wall Paper Co., 73 Wash. 338. (2) The petition alleges only general negligence, and therefore plaintiff is in a position to invoke the rule of res ipsa loquitur. Orcutt v. Building Co., 201 Mo. 441; Kirkpatrick v. Railroad, 211 Mo. 83; McGrath v. Transit Co., 197 Mo. 104. '

      Holland, Rutledge & Lashly for respondent.
    The court did not err in sustaining defendant’s motion to make the petition of plaintiff more definite and certain and subsequently it did not err in sustaining defendant’s demurrer to plaintiff’s petition, (a.) Because originally the petition of respondent did not state facts sufficient to constitute a cause of action, but merely stated the pleader’s conclusion, (b.) Because the court below properly made an order on respondent to make his petition more definite and certain, because the doctrine of res ipsa loquitur has no application in a case of this kind. Oglesby v. Railroad, 177 Mo. 272; Klebe v. Parker Dist. Co., 207 Mo. 480; Fuchs v. St. Louis, 167 Mo. 620; Bohn v. Railroad, 106 Mo. 429; Patton v. Railroad, 179' IT. S. 658 ; Railroad v. Barrett, 166 U. S. 617; Shandrew v. Railroad, 142 Fed. 320; Westinghouse v. Iieinlich, 127 Fed. 92; Reilly v. Campbell, 59 Fed. 990'; Ash v. Verlending, 154 Pa. St. 246; Stackpole v. Wray, 74 App. Div. (N. Y.) 340; Searles v. Railroad, 101 N. Y. 661; Dobbins v. O’Brien, 119 N. Y. 188; Mining Co. v. Kitts,-42 Mich. 35; Kepner v. Traction Co., 183 Pa. St. 24; Railway v. Campbell, 97 Ala. 147; Kaye v. Rob Roy Co., 51 Hun (N. Y.), 519; Starer v. Stern, 100 App. Div. (N. Y.) 383; Reid v. Railroad, 81 Ga. 694; Davidson v. Davidson, 46 Minn. 117.

      NOTE. — Decided January 4, 1915; motion for rehearing filed; motion overruled February 23, 1915.

   FARTS, P. J.

Action for personal injuries on appeal from the circuit court of the city of St. Louis, which court having sustained a motion to make the be.low petition more definite and certain, on plaintiff’s refusal to do so-, sustained defendant’s demurrer thereto. Plaintiff has appealed in due form.

The petition, caption and merely formal parts, allegation of nature and permanency of injuries and prayer for judgment, omitted, is as follows:

“Plaintiff, hy leave of court first obtained, files this, his amended petition, and for cause of action against defendant states that defendant is and was at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri and engaged in construction work, and more particularly in digging for and building in a concrete sewer in the city of St. Louis, Missouri, at or near the intersection of Ashland and Arlington avenues, in said city.

“That on the 24th day of May, 1911, defendant was engaged in digging for and building in said sewer at or near said intersection, and for that purpose was then and there engaged in removing earth and soil from the bottom of a large trench preparatory to building said sewer therein; that defendant used a hoisting machine for the purpose of lifting said earth and soil from the bottom of said trench and after said soil and earth had been lifted by steam power in buckets to above the surface of the street, said soil and earth was then conveyed in said buckets by carrier running upon a steel track to the ground eastwardly from where said dirt was being removed and to a point where said concrete sewer had been built into said trench, and then and there said dirt was being dumped upon said concrete sewer thus laid and thereby used to fill up said excavation above said sewer.

“That for the purpose of lifting said earth and soil from the bottom of said trench, as aforesaid, defendant used large heavy steel or iron buckets to which were attached iron or steel cables, which said cables were pulled and drawn by steam power.

‘ ‘ Tliat on said 24th day of May, 1911, plaintiff was employed by defendant as a laborer to dig in the bottom of said trench and to fill np said buckets; that at or about two o’clock on the afternoon of said 24th day of May, 1911, when plaintiff was thus engaged, and when one of said buckets over and above his head was being conveyed by said steam power, by reason of the carelessness and negligence of defendant, the iron or steel cable attached to said bucket broke, causing said bucket to fall upon the plaintiff, thereby inflicting a comminuted fracture of his right arm, inflicting a multiple fracture of his right leg, wrenching his left foot, fracturing three of his right ribs, and injuring his lungs. ’ ’

The motion to make more definite and certain was specifically leveled at the last paragraph of the above petition. Since such motion was in proper form and no point is made thereon, we need not cumber the record with it. Upon the trial court’s sustaining the motion to make more definite and certain, and upon plaintiff’s neglect and refusal to do so, defendant, a few days thereafter, but at the same term, successfully demurred on the ground that the petition did not state facts sufficient to constitute a cause of action against •defendant. Plaintiff refused to further plead and final judgment followed.

OPINION.

It is plain that there is but one question in the case. "We might discuss it from the point of view of the action of the court nisi in sustaining the motion to require plaintiff to make his petition more definite and certain; or it may treated as alleged error arising from sustaining the demurrer to the petition. If allegations of negligence were sufficient then the court erred in requiring plaintiff to malee these allegations more definite and certain. In discussing the matter in issue we will then consider this point. We are not called on to determine whether defendant, in order to save the point for ruling, was required first to move that the court order plaintiff to make his petition more definite and certain, as a condition precedent to demurring. Both points are in the case; a conclusion reached upon either disposes fully of the other, and we will therefore leave any mooted question of procedure till a discussion shall become necessary and not academic. But if the court nisi was right in sustaining-defendant’s said motion and thereby impliedly ordering plaintiff to so amend his petition as to make it more definite and certain, then upon plaintiff’s refusal to do so, it was proper to sustain the demurrer.

It is conceded by defendant that the question raised turns upon the sufficiency of the last paragraph of plaintiff’s petition. It may even he said to he plain that it turns upon whether one clause contained in this paragraph, the same being the sole charge of negligence in the petition, is sufficient to charge a master with negligence under the law of master and servant. This is the clause which contains the only specification and the sole allegation qf negligence to he found in the petition, to-wit: “By reason of. the carelessness and negligence of defendant.”

Plaintiff contends that under the facts in this case as they are set forth in the petition, i. e., that the iron or steel cable broke and the bucket fell and plaintiff was hu,rt thereby, it falls within the doctrine of res ipsa loquitur; defendant insists that it does not. To this contention, in the broad sense, in the last analysis, the case resolves itself, involving the above doctrine in its strict and distinctive interpretation which allows a presumption of negligence to arise from the mere fact that, an accident happened when coupled with the allegation of its hare physical cause wholly unassisted by any circumstances tending to show any fault of omission. or commission on the part of the master, as the responsible human cause of the accident in question.

This rule has long been applied to pleading negligence in personal injury suits for damages accruing to passengers on common carriers, and its sufficiency in such ordinary case has here become so well settled as to be no longer in question. [Dougherty v. Missouri R. R. Co., 81 Mo. 325; Furnish v. Railroad, 102 Mo. 438; Sharp v. Kansas City Cable Ry. Co., 114 Mo. 94; Clark v. Railroad, 127 Mo. 197; Och v. Railroad, 130 Mo. 27; Partello v. Railroad, 240 Mo. 122; Nagel v. United Rys. Co., 169 Mo. App. 284.] Likewise this rul.e has been applied in favor of mere strangers whose business or duties requires them to go about cars and railroad tracks. [Tateman v. Railroad, 96 Mo. App. 448.]

It will not do to state broadly or dogmatically that the doctrine of res ipsa loquitur is never applicable as between master and servant. There are isolated cases wherein the nature of the accident prima-facie indicates negligence of the master t'o a degree making rebuttal proof on his part necessary. [McGrath v. Railroad, 197 Mo. 97; Hamilton v. Railroad, 123 Mo. App. l. c. 620; Klebe v. Distilling Co., 207 Mo. l. c. 487, and cases cited; Blanton v. Dold, 109 Mo. 64; Jones v. Railroad, 178 Mo. l. c. 540; Stoher v. Railroad, 91 Mo. 509; Kelley v. Railroad, 105 Mo. App. 365; Folk v. Schaeffer, 126 Pa. St. 253; Turner v. Haar, 114 Mo. 335; Doherty v. Booth, 200 Mass. 522; Fitzgerald v. Southern Ry. Co., 6 L. R. A. (N. S.) 337, and cases cited in note.] Naturally in the absence of the adventitious aid of fellow-servant statutes, which have very greatly broadened the field of the application of this doctrine (Jones v. Railroad, 178 Mo. l. c. 545), such cases are, of necessity, comparatively rare. To make out a case for the application of this doctrine, the facts relied on ought to be such as reasonably to exclude all defensive inferences attributable by operation of law to the negligence of the plaintiff or that of a fellow-servant (absent a fellow-servant statute), defects in the lethal instrumentality which are latent or so recent in happening as to afford no reasonable opportunity for their discovery, lack of causal connection, and the assumption of the usual hazards of the employment. [Jones v. Railroad, supra; Folk v. Schaeffer, supra; Chenall v. Palmer Brick Co., 117 Ga. 106; Fitzgerald v. Railroad, supra, and note with cases cited.]

Do the facts in the instant case so speak as inevitably to charge prima-faeie negligence from the bare statement 'that the wire cable broke and the bucket fell and the defendant was hurt? We do not think so, nor do we think that the adjudged cases in this State or elsewhere, so hold by even a respectable weight of authority.

In the case of Oglesby v. Railroad, 177 Mo. 272, l. c. 301, a case in which a train was derailed and an employee hurt, and in which train a car was found with sills broken from rot and “dotiness,” and which may, we think, upon close examination and logical criticism, be found to show the phase of lack of causal connection, it was nevertheless said:

“For plaintiff in this case the error has been made throughout of assuming.instead of proving the existence of the very fact assigned as his cause of action. Thus it is said: 'Certain it is if the timbers of this car [the “U. L.” car] were rotten they were liable to break from that fact. Therefore given the rotten timbers, the broken car and the wreck, what more is needed to make out a prima-facie case for plaintiff?’ And again it is said, 'If the timbers of this “U. L.” car were doty and worm eaten, if they broke in two, dropped down, plowed into the roadbed and formed a barrier against which the rear cars of the train were thrown, the jury needed no expert testimony to assist them in finding the cause of the wreck.’ Had plaintiff "been a passenger upon defendant’s train riding in a place assigned to him, "by defendant’s authorized agents, the fact of the wreck, and the existence of the decayed sill timbers of this broken ‘U. L.’ car would have been ample to have raised the presumption of negligence on the part of defendant, and properly could have been declared to have made out a prima-facie case for plaintiff, but not so when his relation to defendant was shown to have been that of employee to employer, and when he was at [he time of receiving his injuries one of the train crew in the actual management and conduct of this wrecked train. To maintain an action against defendant it was necessary for plaintiff to allege, as he did, the particular cause of the wreck, and it was necessary that he prove the cause as alleged, either directly by witnesses who saw the occurrence or by proof of facts and circumstances from which the existence of the alleged cause might fairly and reasonably be inferred.”

Again in the case of Fuchs v. St. Louis, 167 Mo. 620, l. c., 645, an action brought by a wife for the death of her husband, caused by the explosion of a sewer, it was said:

“But the mere fact of an accident and the consequent injury resulting therefrom does not, as a rule, make out a prima-facie case. There are cases where the doctrine of res ipsa loqtoihtr applies, but we can find no adjudicated case where that doctrine was applied to a case like the one before us. Except in cases relating to common carriers of goods and passengers or arising out of other contractual relations, the mere fact of an explosion, without affirmative proof of negligence, does not raise a prima-facie presumption of negligence on the part of defendant. [Huff v. Austin, 46 Ohio St. 386; Cosulich v. S. O. Co., 122 N. Y. 123; Walker v. Railroad, 71 Iowa, 658; Losee v. Buchanan, 51 N. Y. 476.] The plaintiff, therefore, made out no case to be submitted to tbe jury and slie is not aided by any testimony introduced by defendant. ’ ’

In tbe case of Bohn v. Railroad, 106, Mo. 429, l. c. 433, an action for damages accruing from injuries received by tbe breaking of a “prize-pole” which was being used by a servant in raising a broken turntable of the master, at page 433 it was said:

“It is not the duty of the master to furnish any particular kind of tools, implements or appliances. His duty in this respect is to use ordinary care and diligence in selecting and furnishing safe and suitable tools and implements. No inference of negligence can arise from evidence which shows that the implement was such as is ordinarily used for like purposes by persons engaged in the same kind of business. The timber used in this case was new, sound and suitable for all the purposes for which it was used, and there is no evidence showing or tending to show that it had any inherent defects whatever.”

Likewise in the case of Beebe v. Transit Co., 206 Mo. l. c. 441, which was an action for injuries caused to an employee by the explosion of the controller box on a street car, by which plaintiff’s decedent was injured, it was said:

‘ ‘ The general rule is that the burden rests upon the plaintiff to prove the negligence of the defendant as alleged in the petition, and that such negligence was the proximate cause of the injury. ‘In other words, negligence is not presumed, but must be proved. The difficulty of proving the negligence charged does not affect the principle.’ [6 Thomp. on Law of Neg., sec. 7695; Miller v. Railroad, 186 Pa. St. 190.]

“"We are firmly of the opinion that the doctrine of res ipsa loquitur is not applicable to the facts in this case. This, we think, is clearly demonstrated by the opinion of the St. Louis Court of Appeals in the case of Breen v. St. Louis Cooperage Co., 50 Mo. App. 202. Judge Rombauer,, speaking for the court, said:

“ ‘In Jones v. Yeager, 2 Dillon, 68, the injury was the result of a boiler explosion.. Judge Dillon, after briefly stating the well-known rules of law governing the master’s liability in such cases, charged the jury as follows: “In the application of these principles to the evidence, you will first inquire whether the boilers in. this case were unsafe or unfit for use, and, if so, whether the defendant knew it, or as a reasonable man, having a due regard for the safety of his employees, ought to have known it; for if he ought,'his neglect in this respect would be equivalent in imposing liability to actual knowledge; and in the next place you must inquire, and, in order to hold the defendant liable, must find from the evidence, that this defect was the direct and immediate cause of the accident, without which it would not have happened; and, if you thus find, then the defendant would thus be liable. ’ ’ That charge was given in a case where there was ample evidence tending to show that the boiler which burst was weak and worn, and expert evidence tending to show that it burst owing to such weakness. This clearly shows that the rule of res ipsa loquitur cannot be applied with any sense of .reason to a case of complicated machinery, nor can the jury, from the mere fact that some defect exists in some part thereof, conjecture not only that such defect was the direct and immediate cause of the accident, but also that it was the duty of the defendant to foresee such conjectural result and guard against it. The employer fulfills his duty by guarding against the probable result of defects, even if such defects are shown. Holding him responsible for conjectural results shifts his liability from the ground of negligence to that of insurance. ’ ’ ’

In the case of Howard v. Railroad, 173 Mo. l. c. 530, an action precisely like this in principle, and which was based on injuries caused by the breaking of the handle bar upon a hand car on which plaintiff was riding to his work, this court said:

“We are familiar with the well-settled doctrine and we'fully approve of it, .that the master must furnish the servant with reasonably safe machinery in the course of his employment, and that if the machinery is defective and unsafe and the master has knowledge of it, or by the exercise of ordinary care could ascertain such defects, then and in that case he must respond in damages for such injuries to the servant as result from.such unsafe machinery.

“But, on the other hand, it is equally well settled that the master is not an insurer of the absolute safety of the machinery furnished his servant. He is only bound to use ordinary care in furnishing reasonably safe appliances in pursuit of the work in which the servant is engaged. [Blanton v. Dold, 109 Mo. 64; Covey v. Railroad, 86 Mo. 635, and 'numerous cases.]

“In this case the fact that the handle bar broke does not necessarily make defendant liable for the injury resulting from such broken bar; but it is incumbent upon plaintiff, before he is entitled to recover, to show that the appliance was unsafe and defec+ive, and that defendant had knowledge of it, or by the exercise of ordinary care could have discovered the defect. [Bohn v. Railroad, 106 Mo. 429; Yarnell v. Railroad, 113 Mo. 570.]”

So similarly say our Courts of Appeals: In the case of Hamilton v. Railroad, 123 Mo. App. l. c. 627, which was an action by an employee for hurts accruing from a defective brake wheel, one of the ablest jurists who ever sat upon any bench in this State, in a scholarly and fairly exhaustive examination of this whole question, among other things, said:

“The occurrence here in controversy was not óf such nature as to be classed with those which themselves show they must have happened from a negligent cause for which defendant would be chargeable. When the evidence shows a state of affairs where an inference could be reasonably drawn that the occurrence was due to a cause or causes other than culpable, negligence of the defendant, a case is not made for the plaintiff. [McGrath v. Transit Co., 197 Mo. 97.] This occurrence, of course, had a cause. But it by no means follows that such cause was one for which defendant could be charged with liability. If it was something connected with the brake which broke or gave away, it may have been the brake clasp itself, or the chain, or the brake rod, or the wheel at the top with which the brake is set. There is nothing to show which of these it was. Either of them may have had a concealed defect, which inspection, however painstaking, would not have shown, and for the nondiscovery of which defendant could not be blamed. It has always been understood in this State to be the law that for a servant to hold the master liable for an injury received in the course of his employment, he must produce competent affirmative evidence of the master’s negligence. [Howard v. Railroad, 173 Mo. 524.] The injury of which plaintiff complains may have been the result of his negligenc, or of his own misadventure. His-hands may have slipped; his hold on the wheel may have unconsciously loosed as he swung his weight in his efforts to tighten the brake. So as he swung his weight around with the wheel, his feet necessarily bearing hard upon the roof of the car, they may have slipped and caused his fall. Yet, with all these contingencies, and more which might be suggested, we are asked to supply the lack of evidence with a presumption in plaintiff’s favor. We do not believe it would be sound policy to carry the rule so far as that;, neither could we do so without coming in contact with the views of the Supreme Court. ’ ’

In the ease of Goode v. Coal Co., 167 Mo. App. l. c. 175, an action for injuries accruing to an employee in a coal mine by the falling of rock from the roof, it was said:

“It will be noticed that in this instruction, which assumes to cover the whole case and to direct a verdict, the jury were required to find for plaintiff on the sole hypothesis that her husband was killed by a rock falling from the roof of the entry at a place that was not his working place, without reference to the issues of whether or not the dangerous character of the rock would have been discoverable to an ordinarily careful and prudent master, in the exercise of due care towards his servant, and whether or not defendant did employ due care in the discharge of its duty of mastership. The fact that the rock fell, of itself, was not sufficient proof of negligence. [Wojtylak v. Coal Co., 188 Mo. 260.] The burden was on plaintiff to satisfy the jury that the rock not only was in a dangerous condition but that such condition would have been discovered by defendant had reasonable care been exercised in time to have prevented the injury.”

To the same general import are the cases of Glasscock v. Dry Goods Co., 106 Mo. App. 657; Copeland v. Wabash R. R. Co., 175 Mo. 650; Deckerd v. Railroad, 111 Mo. App. l. c. 123; Bowen v. Railroad, 95 Mo. 268; Fugler v. Bothe, 117 Mo. l. c. 491; 26 Cyc. 1411, and cases cited; Cothron v. Cudahy Packing Co., 98 Mo. App. 343; Carnegie Steel Co. v. Byers, 82 C. C. A. 115, and cases cited in note; Fitzgerald v. Railroad, 6 L. R. A. (N. S.) 337, and cases cited in note; Walkowski v. Penokee, etc., Mines, 41 L. R. A. 33, and note; Byers v. Carnegie Steel Co., 16 L. R. A. (N. S.) 214, and cases cited in note. Also the curious may consult the cases set out pro and con upon this question in Klebe v. Distilling Co., 207 Mo. 480, and Hamilton v. Railroad, 123 Mo. App. 619. The above authorities and the cases cited therein will be found to comprehend practically all of the case law in the United States against applying the doctrine of res ipsa loquitur to the relation of master and servant generally, and in a case like the instant one, as also much of what learning there is in the case law in favor of the application of said doctrine in a proper case to the relation aforesaid. A summary of the general rule and of the exceptions calling for an application of the doctrine of res ipsa loquitur is thus stated in 26 Cyc. 1411:

“No presumption of negligence on the part of the master arises from the mere existence of a defect or the happening of the accident through which the servant was injured. The maxim ‘res ipsa loquitur’ is applicable only where the matter of the occurrence or the attendant circumstances are such that the jury can reasonably infer that the occurrence would not have taken place unless the master was lacking in diligence, and where there is the slightest evidence to- explain the happening of the occurrence on any other theory than that of the negligence claimed, the jury should disregard the inference arising from the fact of the injury. ’ ’

But pursuing the matter further would but add more length without more light to these views. The petition of plaintiff here under discussion did not attempt to set out any reason for the breaking of the steel cable. It broke, and the bucket fell, and plaintiff was hit and hurt. That is all. It may have broken from having been coneededly overloaded by plaintiff, or by his fellow-servant; it may have broken from a latent undiscoverable defect; it may have broken because of a sudden jerking or unnecessarily hard movement, of the hoisting engine; it may have suddenly become defective, too recently to thrust on defendant the legal-duty of discovery; any.of these things, or even others, may have operated to produce plaintiff’s injury. Therefore, it was, we think, the duty of plaintiff to state such affirmative facts, touching the manner of the happening of the casualty, as to negative by fair inference the theory that it occurred by reason of some efficient defensive cause precluding as a matter of law the liability of defendant. This much we think, is due in a case, in fairness and candor to the courts, that they may not sit and fritter away time in doing vain and futile things; in trying alleged lawsuits wherein, if the conceded facts were candidly stated, it would instantly be seen that no cause of action lies.

It follows that tbe judgment should be affirmed. Let this be done.

All concur.


author: GEAVES, P. J.

text:
    J. H. HUDSON et al., Appellants, v. E. T. BROWNING.
    Division One,
    March 2, 1915.
    1. CONTRACT: Mutuality: Promise for Promise. Mutuality of contract means that an obligation must rest upon each party to do or permit to be done something in consideration of the act or promise of the other. A promise is a good consideration for a promise, but there must be two promises, and each must be a promise to do some definite thing. And if one of the parties is not bound, neither is.
    2. -: -: Uncertain and Indefinite Thing: Tie Contract. By a written contract for the purchase and sale of ties, plaintiffs “do not bind themselves to make or purchase and deliver the full two hundred thousand ties, but they do bind themselves to use every effort at their command to secure as many of the 200,000 ties as their time, money and efforts will permit;” and defendant “does, however, agree to purchase and receive from said parties, the full 200,000 ties enumerated above, or any portion thereof, within the time limit stated above, if said first parties, with their best efforts, are able to secure that many ties within said time limit, and at the price of fifty-five cents each tie.” Held, that defendant undertook to receive and pay for 200,000 ties, but plaintiffs did not undertake to deliver that or any definite number, and the agreement is void for want of mutuality, for defendant should not be held bound to receive unless plaintiffs were bound to deliver.
    Appeal from Cole Circuit Court. — lion. B. A. Breuer, ■Special Judge.
    Affirmed.

      Charles M. Hay and A. T. Dwnm for appellants; N. T. Gentry of counsel.

      (1) In an action for a breach of contract, the first point necessary for the court to ascertain is whether or not a valid contract was entered into between plaintiff and defendant. The evidence shows that the plaintiffs went to work under this contract, made a large number of the railroad ties, which were the subject of the contract, and that a large number of these ties were delivered to the defendant and paid for by him. (2) In a case where a plaintiff executed a contract with a railroad company to make and deliver two hundred thousand ties, and a part of said ties were made and delivered, and the defendant’s tie agent wrote plaintiff a letter “not to get out any more,” and a suit was brought for damages, this court said, “It has been repeatedly held that where a party engaged in the performance of his contract is notified by the other party to proceed no further, the party so notified is fully justified in quitting the work and suing for damages for breach of contract.” Chapman v. Eailroad, 146 Mo. 493; Halpin v. Manny, 57 Mo. App. 61; Gabriel v. Brick Co., 57 Mo. App. 520; Anson on Contracts (2 Am. Ed.), p. 373; Cort v. Eailroad, L. E. 17 Q. B. 127; Derby v. Johnson, 21 Vt. 17; Berthold v. Elec. Con. Co., 165 Mo. 304; Canda v. Wick, 100 N. Y. 127; Hincley v. Steel Co., 121 U. S. 246; Hosmer v. Wilson, 7 Mich. 293; Clark on Contracts, p. 444; Bishop on Contracts, sec. 827; Bean v. Miller, 69 Mo. 384; Little v. Mercer, 9 Mo. 218; Pond v. Wyman, 15 Mo. 175; Nearns v. Harbert, 25 Mo. 352. (3) The proper measure of damages is what the plaintiffs would have received for completing the contract, less the cost to them of completing the same. Berthold v. Elec. Con. Co., 165 Mo. 304; Southerland on Dam. (2 Ed.), sec. 715; Gabriel v. Brick Co., 57 Mo. App. 520; Danforth v. Eailroad, 93 Ala. 614; Heine v. Meyer, 61 N. Y. 171; Preble v. B attorn, 27 Vt. 249. (4) The contract is definite and mutual. Trans. Co. v. Bolt & Nut.Co., 114 Fed. 81; Eozier v. Eailroad, 147 Mo. App. 297.

      . F. G. Harris and. Ralph T. Finley fox* respondent.
    The trial court properly sustained the defendaxxt’s demurrer at the close of the evidence, becaxxse the written contract sued on is void for lack of mutuality, (a) One party to a contract is not bound thereby when it does xxot bixxd the other party; when there is no liability, there is no obligation. 1 Parsoxxs on Contracts (9 Ed.), p. 486, note. Where the parties assume to make a coxxtract in which a promise is the consideration for a promise, and analysis shows that one of the promises does not impose any legal duty upon the party making it, such promise is not a consideration for the other promise. This is what is oftexx meant by saying that promises must be mutual. 1 Page on Contracts, p. 452; Hammon on Contracts, p. 682; 7 Am. & Eng. Ency. Law (2 Ed.), 114. (b) The plaintiffs did not agree to furnish any certain number of ties, but on the contrary expressly provided that they did not agree to furnish any certain number. Therefore, as they were not bouxxd themselves to furnish a definite number of ties and could not be made to respoxxd in damages for failure to do so, they cannot recover damages from defendant for his failure to receive them. Campbell v. Handle Co., 117 Mo. App. 19; Jones v. Durgin, 16 Mo. App. 370; Coldblast Co. v. Bolt & Nut Co., 114 Fed. 77; Hoffman v. Maffioli, 104 Wis. 630. (c) The contract not oxxly fails to designate the number of ties to be furnished by the plaintiffs, but it also fails to furnish any reasonable basis from which the xxumber could be approximated. We admit that the exact number need xxot have been stated, but plaintiffs must have agreed to some basis from which the number could be computed. Rozier v. Railroad, 147 Mo. App. 298; Santaella v. Lang, 155 Fed. 719; Rehm-Zeiher Co. v. Walker & Co., 156 Ky. 6; Rockwell v. Knights Templar, 119 N. T. Supp. 515; Higbie v. Rust, 211 111. 337. (d) It is well settled that the fact that a part of the ties were delivered under the contract, void for lack of mutuality, does not have the effect of dispensing with the necessity of mutuality, nor does it make such contract mutual. The contract is void because the plaintiffs were and are not bound thereby and the delivery and acceptance of a part of the ties had the effect of completing the sale of the'ties so delivered. Campbell v. Handle Co., 117 Mo. App. 19; Cold Blast Co. v. Bolt Co., 114 Fed. 77; Eehm-Zeiher Co. v. Walker, 156 Ky. 6.
   GEAVES, P. J.

Action for damages for alleged breach of contract. By the petition the damages are charged in the sum of $18,082.10. Plaintiffs were tie contractors doing business in Boone and Callaway counties. Defendant is a tie contractor doing business at Kansas City, Missouri. At the close of plaintiffs’ case the court gave a peremptory instruction to find for the defendant, and so entered judgment, from which the plaintiffs have appealed. The crux of the case is the validity or invalidity of the following contract :

“Memoranda of Agreement and Specifications for Cross ties between J. H. Hudson & Phillip A. Cain of Ashland and Guthrie, Mo., parties of the first part, and E. T. Browning and Company of Kansas City, Missouri, parties of the second part.

“Witnesseth: The said first parties agree to make and purchase and deliver to the second party, and the second party agrees to purchase and receive from said first parties, all the No. 1, hewn, white, post, burr oak or black walnut ties that said first parties may be able to purchase or make up, to 200,000 ties; commencing on this date and ending June 1, 1911. Said first parties do not bind themselves to make or purchase and deliver the full two hundred thousand ties, but they do bind themselves to use every effort at their command to secure as many of the 200,000 ties as their time, money and efforts will permit them, and so long as they do this, said second party will not permit any other person or firm to purchase ties for them in the territory along or adjacent to the North Missouri Central Railway Company’s line of road, for which the above ties are to be used for construction of said road. Said second party does, however, agree to purchase and receive from said first parties, the full 200,000 ties enumerated above, or any portion thereof, within the time limit stated above, if said first parties, with their best efforts, are able to secure that many ties within said limit, and at the price of fifty-five cents each tie.

“Specifications: All ties must be hewn from sound live and straight, white burr oak, or black walnut timber, free from wind shakes, rot, splits, and black or rotten knots. They must be hewn straight and smooth with the ends squared at right angles and must not vary more than one and one-half inches from eight feet in length.

“All the No. 1 ties must be of uniform thickness, which shall not be less than six inches nor more than seven inches and must be stripped of all bark. Sixty per cent of the No. 1 ties contracted for must have two hewn parallel faces, not less than eight inches wide at the narrowest part of each hewn face. Forty per cent of the the No. 1 ties may have two hewn faces less than eight inches, but not less than six inches at the narrowest part thereof, and in all other respects the ties must fill the foregoing specifications. Pole ties having a face from eight inches to six inches in width will be accepted under the same specifications as a tie with an eight inch face hewn from a large stick.

“The above are the specifications under this contract for No. 1 cross ties.

“For all No. 2 ties that may accumulate in the making of above ties (when they are sound, free from wind shakes, rot, splits, black or rotten knots and other defects) said second party will purchase said No. 2 ties at price of twenty-seven and one-half cents each.

“Delivery: All ties must be delivered at any point on and along the outer edge of the right of way of the North Missouri Central Railway Company as surveyed, at and between the towns of Mexico, Columbia and Jefferson City, Missouri; delivery to commence at once and continue as fast as said ties can be secured. All the ties to be piled 2x7 in piles as high as first parties desire.

“Each tie shall be subject to inspection by second party, or their authorized agent, when piled on right of way, beginning May 1, 1910, and on the first day of each month thereafter during the life of this contract.

‘ ‘ Terms of payment to be cash or by check on the 15th day of each month (first payment being May 15, 1910) for all ties delivered and inspected up to the 10th day of each month; said second party agreeing to inspect all ties that may be piled on said right of way under this contract up to 10th day of each month.

“Witness, our hands and seals in duplicate (each being an original), this 25th day of February, 1910.”

Defendant’s counsel contend that the contract pleaded in the petition of plaintiffs is void for want of mutuality, and for that reason the court nisi was right in sustaining the demurrer to the evidence. An answer to this proposition disposes of the case. If the contract is void, there can be no action for damages for the breach thereof. The case therefore falls within a very narrow compass.

I. It should be noted that the present action only involves the profits that plaintiffs claim they would have made on No. 1 ties, and for that reason No. 2 ties are out of consideration. It must noteci that whilst the defendant does agree to receive and pay for 200,000 No. 1 ties at fifty-five cents each, yet plaintiffs, by their contract do not agree to furnish the full 200,000, or any definite portion thereof. The contract upon this point reads: “Said first parties (plaintiffs) do not bind themselves to malee or purchase and deliver the full 200,000 ties, but they do bind themselves to use every effort at their command to secure as many of the 200,000 ties as their time, money and efforts will permit.”

The foregoing is the promise of the plaintiffs as outlined in their contract. The promise of the defendant, as indicated by the contract, was: “Said second party does however, agree to purchase and receive from said parties, the full 200,000 ties enumerated above, or any portion thereof, within the time limit stated above, if said first parties, with their best efforts, are able to secure that' many ties within said time limit, and at the price of fifty-five cents each tie. ’ ’

The time limit was June 1,1911. The date of contract was February 25, 1910. The evidence discloses some ties delivered and received under the contract. It also discloses a refusal to receive ties. These matters, however, are largely incidental. The vital question in the case is whether or not there was mutuality of agreement in this contract.

As stated the petition pleaded and counted upon this contract, and it was filed therewith as an exhibit. The defendant objected to the introduction of any evidence under the petition, because it failed to state facts sufficient to constitute a cause of action and then interposed its demurrer challenging the sufficiency of the facts shown. "Without the introduction in evidence of this contract plaintiff made-no case, and if it is void upon its face, their case is not helped by its introduction. ■

In our judgment this written instrument is void and non-enforceable for want of mutuality. Mutuality of contract is thus defined in 7 Am. & Eng. Ency. of Law (2 Ed.), at page 114;

“Closely related to the doctrine of consideration is the rnle as to the mutuality of contract. Mutuality of contract means that an obligation must rest upon each party to do or permit to be done something in consideration of the act or promise of the other, that is, neither party is bound unless both are bound. ’ ’

Now applying this rule to the contract before us how stands the instrument? There is an undertaking to receive and pay for 200,000 No. 1 ties, but there is no undertaking by plaintiffs to deliver that number, or any other definite number. Defendant should not be bound to receive, unless plaintiffs were bound to deliver. That the plaintiffs conld not be sued for a failure to deliver 200,000 ties is evident, because they have not obligated themselves so to do. That defendant should not be obligated to take such number appears to us equally plain, because there was no mutuality of agreement such as made one promise a consideration for the other. The doctrine that neither should be bound unless both are bound determines the invalidity of this contract.

In a contract a promise is a good consideration for a promise, but there must be two promises to do .some definite thing or things. The idea is fully illustrated in 1 Parsons on Contracts (9 Ed.), at p. 486, whereat it is said:

■ “A promise is a good consideration for a promise. And it is so previous to performance and without performance. As, if one promises to become a partner in a firm, and another promises to receive him into the firm, both of these promises are binding, each being a sufficient consideration of the other. So a promise by a seller to refund in case of deficiency in the thing sold is a good consideration for a promise to pay for any excess therein. If one promises to teach a certain trade, this is a consideration for a promise’to remain with the party a certain length of time to learn, and serve him during that time; hut without such promise to teach, the promise to remain and serve, though it be made in expectation of instruction, is void. The reason of this is, that a promise is not a good consideration for a promise unless there is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement.”

To like effect 1 Page on Contracts, page 452: “Where the parties assume to make a contract in which a promise is the consideration for a promise, and analysis shows that one of the promises does not impose any legal duty upon the party making it, such promise is not a consideration for the other promise. This is what is often meant by saying that promises must be mutual.”

In Hamm on on Contracts, page 682, the rule’ is thus stated: “When the only consideration for a contract is that which arises from an exchange of promises, there must be mutuality of obligations, else the consideration is not sufficient. Both parties must be bound, so that, in case of breach by either, the other would have a right of action therefor. Thus, if, by reason of some informality or, disability, one of the parties to a contract consisting of mutual promises could not be sued thereon, the contract is void as to the other party also, since' there is no consideration for his promise.”

In Campbell v. Handle Co., 117 Mo. App. 19, the St. Louis Court of Appeals had up. for consideration a contract very similar to the one at bar. The contract there pleaded and the fácts in the trial are thus stated in the opinion:

“'Plaintiff was to cut and deliver at defendant’s factory in the city of Caruthersville, Missouri, ash timber of the length of six feet and two inches and four feet and nine inches, and none less than seven inches in diameter at the small end, at the price and sum of $4.50 per cord, and all ash suitable size for saw stocks to be cut in lengths of twelve feet and four inches, fourteen feet, and sixteen feet, at the price and sum of $10 per thousand feet, and that by the terms of said contract, said prices were to be paid plaintiff by the defendant for all the timber that plaintiff could cut and haul off of what is known as the Cunningham land west and south of what is known as King millsite, in Pemiscot county, Missouri, from the time of making said contract until the first day of January, 1904. That the plaintiff, in order to prepare himself to perform his part of the contract, built roads and put up a boardinghouse, which he furnished, all at a great expense, and laid out other sums of money for tools necessary to enable him to carry out the contract, and that he, under the contract, cut and delivered on defendant’s mill yard, a large quantity of both kinds of timber named in the contract and that he continued to cut and deliver the timber until October 23, 1903, when the defendant forbade and refused to let him continue to cut and del liver any more of the timber. ’ ’

The court thus disposes of the case:

“We think the contract is void for want of mutuality. Plaintiff was not bound to cut and deliver any specific number of cords of bolts of any specific number of feet of saw stocks, nor was he bound to cut all the ash timber on any particular tract of land or any tract of land. The law, in respect to this class of agreements, is well stated by Sanborn, Circuit Judge, in Cold Blast Trans. Co. v. Kansas City Bolt and Nut Company, 57 L. R. A. l. c. 699, 114 Fed. 77, as follows:

“ ‘But an accepted offer to sell or deliver articles > at specified prices during a limited time in such amounts or quantities as the acceptor may want or desire in his business, or without any statement of the. amount or quantity, is without consideration and void, because the acceptor is not hound to want, desire or take any of the articles mentioned.....Accepted • orders for goods under such, void contracts constitute sales of the goods thus ordered at the prices named in the contracts, but they do not validate the agreements as to articles which the one refuses to purchase, or the other refuses to sell or deliver, under the void contracts, because neither party is bound to .take or deliver any amount or quantity of these articles thereunder. ’

“In Bailey v. Austrian, 19 Minn. 535, it was held that £a contract to supply the proprietor of a foundry with all the pig iron wanted in his business until a certain date specified, was not binding because it does not bind the purchaser “to want” any quantity whatever.’ ‘Mutuality of contract means that an obligation rests upon each party to do or permit.to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.’ [7 Am. & Eng. Ency. Law (2 Ed.), 114.]

“In Crane v. Crane & Co., 105 Fed. 869, it was held that ‘ an agreement by a wholesale dealer to supply a retailer during a certain time at a stated price with so much of a commodity as the purchaser might require for his trade and which leaves it practically optional with the purchaser to increase or decrease his orders with rise or fall of prices, as may be most to his advantage, and the corresponding disadvantage of the seller, was void for want of mutuality.’

“Plaintiff was not bound under the terms of the contract to furnish any specified number of cords of bolts nor any specified number of feet of saw stocks. If he found it profitable to himself to cut and deliver all of the ash timber on the tract of land, he might do so. If, on the other hand, he found it unprofitable, he was at liberty to cease cutting and making deliveries at any time. There was therefore no mutuality of contract and the court should have so declared as a matter of law by granting defendant’s instruction in the nature of a demurrer to the evidence.”

Many cases conld be cited, but they are all along the same line. There must be mutuality of agreement to give a valid contract. A written instrument which undertakes to create liability as to one party, without liability or obligation upon the other party thereto, is void as to both. In the case at bar there was no liability upon the part of the plaintiffs to furnish any definite number of ties. The clause in the contract which undertakes to fix a number less than 200,000, is entirely too vague, indefinite and uncertain to be effective. Note the language: “Said first parties do not bind themselves to make or purchase and deliver the full two hundred thousand ties, but they do bind themselves to use every effort at their command to secure as many of the 200,000 ties as their time, money and efforts will permit them.” Nothing is said in what territory their efforts should be used. The amount of time to be used is uncertain and indefinite as is also the money to be used.

Had plaintiffs failed to perform their contract, and defendant had sued them for damages, it is clear that there could have been no recovery, because of the indefinite terms of the purported obligation. We see no good reason for making this opinion longer with excerpts from the books, or with further elaboration of a well-established rule. The contract is clearly void, and so being, furnished no basis for the present action. The judgment nisi is for the right party and is therefore affirmed. Blair, J., concurs; Bond, J., concurs in result; Woodson, J., concurs not only for the reasons expressed in the opinion, but also for reasons expressed in Reigart v. Coal Co., 217 Mo. 142.