author: BROWN, C. — PER CURIAM: — GRAVES, J. —

text:
    FRANK R. EDWARDS, Appellant, v. W. R. WATSON, Administrator of Estate of J. F. KILLINGSWORTH, and FARMERS BANK OF ASH GROVE,
    Division One,
    June 2, 1914.
    1 APPEAL: Death of Party: Revivor. On the death of one of a number of appellants during the pendency of an appeal, a cause may proceed in the appellate court without a revivor, if the interests of the decedent and surviving appellants are not adverse; but, if adverse, it can proceed as to decedent’s heirs or legal representative only by substitution in the manner prescribed by statute, namely, upon their voluntary appearance and consent or after "service- upon them of a summons- issued for the purpose of revivor on or before the third term of court after the suggestion of the death of such deceased person by the appellant or other adverse party.
    2. -: -:.-: Administrator or Heirs. A suit for the specific performance of a contract for the purchase of land involves title to real estate, and if the owner dies pending an appeal the suit should he revived in the name ' of his heirs, and that can be done by scire facias issued before the third term after a suggestion by appellant or other adverse party of such owner’s death.
    3; CONTRACT: Evidenced by Different Papers: Definiteness. Where several papers pertaining to the same transaction are simultaneously executed, all must be considered and the real contract ascertained from all. For instance, if the transaction pertained to the purchase of land, and what is denominated a “contract” does not describe the land, but simultaneously with its execution the p.arties executed a deed and the purchaser drew his check in part payment and the three papers were placed in an envelope and deposited in escrow with a bank, the three must be considered together, and if from all may be gathered a definite and certain contract, specific performance will not be withheld on the ground of indefiniteness and vagueness.
    4. PRACTICE: Equity: Demurrer to Evidence. At common law a demurrer to the evidence in an equity case was unknown. In Missouri the practice is to treat such a demurrer as a submission by defendant of the equities of the whole case upon the proof made by plaintiff. If the plaintiff’s proof fails his bill is dismissed, but if his proof is sufficient he is entitled to a decree granting the relief sought and justified by the evidence.
    5. SPECIFIC PERFORMANCE: Perfect Title: Tender of Payment. Where by the contract the owner agreed “to prepare and perfect title” and the purchaser was “to have a reasonable length of time to perfect loan,” it was the duty of the owner to perfect the title; and if the evidence shows there was a break in the owner’s paper title and that the purchaser was unable because of that defect to get a loan, and that when pressed to perfect the title the owmer said the title was good enough for him, a defense that the purchaser failed to make tender of payment before bringing suit for specific performance and that he was financially itnable to pay, will not avail, since the contract clearly contemplated that the purchaser would borrow the purchase money and the evidence shows he had within a reasonable time arranged to borrow the money and the lender was ready to make the loan, but refused to make it when he discovered the patent defect in the title. The fact that the evidence tends to show title in the owner by adverse possession does not excuse him from perfecting the title.
    6. -: -: -: Inadequate Price. In the absence of proof of inadequate price, fraud or overreaching, the fact that the owner thought the price at which he agreed to sell was lower than it ought to have been, is immaterial in a suit by the purchaser for specific performance.
    7. -: When Decreed: Discretion. If no earmarks of unfairness, overreaching or overkeenness appear either in the contract of purchase or the transaction, but both seem fair and just, specific performance will be decreed.
    8. -: Interest and Rents: No Tender. If no tender of payment is made except in the bill and at the trial, and specific performance is decreed, the purchaser should be charged with interest from the date mentioned in the contract as the time from which he should begin to pay interest, and the vendor should be charged with the reasonable value of the rents and profits from that date.

      Appeal from Greene Circuit Court. — Hon. J. T. White, Special Judge.
    Eeversed and remanded (with directions).

      Hamlin & Seawell for appellant.
    (1) The agreement signed-' by the parties on July 7, 1908, and the deed and check executed on same day, all should be considered together, and when that is done they constitute a valid contract between the parties and fully comply with the statute in regard to the sale of real estate. Y. M. C. A. of Kansas City v. Dubach, 82 Mo. 475; Peycke Bros. v. Ahrens, 98 Mo. App. 456; 20 Cyc. 263;' Eyan v. United States, 136 U. S. 447. (2) The papers heretofore referred to contained a sufficient description of the property to take the case out of the Statute of Frauds, and especially to admit oral evidence as to same. Black & Snyder v. Crowther, 74 Mo. App.- 480; Smith v. Wilson, 160 Mo. 657; Printing Co. v. Belcher, 127 Mo. App. 133. (3) The description of the real estate as set out in the deed executed by Defendant Killingsworth is not correct, but the same may be corrected in this proceeding, and parol evidence is admissible to show the correct description. Smith v. Wilson, 160 Mo. 657; Abbott v. Dunivin, 34 Mo. 148. (4) This is the proper proceeding. Luekett v. Williamson, 31 Mo. 54; McClurg v. Phillips & Paul, 49 Mo. 315; Harman v. Blackstone, 61 Mo. App. 254; Martin v. Nixon, 92 Mo. 26; 26 Am. & Eng. Ency. Law, 16. The contract in this case is clear, definite and certain and should be enforced. Coal Co. v. Long, 231 Mo. 605.

      Patterson & Patterson for respondents.
    (1) The first insuperable barrier to plaintiff’s recovery was his inability to perform his part of the contract, that is, pay the purchase price, either at the time of bringing the suit or during the life of the contract, or any other time. 3 Pomeroy’s Eq. Jur. (2 Ed.), sees. 1407, 1408; Clay v. Mayer, 183 Mo. 159; Craig v. Van Bebber, 100 Mo. 589; Baker v. Clay, 101 Mo. 553; Hollman v. Conlin, 143 Mo. 369; Langon v. Chesney, 186 Mo. 540; Gloeckner v. Kittlaus, 192 Mo. 477; Rosenberger v. Jones, 118 Mo. 559; Secret Service Co. v. Electric Mfg. Co., 125 Mo. 140. (2) The plaintiff cannot recover because the contract sued on is obviously so vague, uncertain and indefinite in its terms that its full meaning. cannot be determined from its language. 3 Pomeroy’s Eq. Jur. (2 Ed.), sec. 1405, p. 2162; Mastín y. Halley, 61 Mo. 196; Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Cherbonnier v. Cherbonnier, 108. Mo. 252; Butler v. Murphy, 106 Mo. App. 28; Wallace & Eaves v. Figone, 107 Mo. App. 362; Wendover v. Baker, 121 Mo. 290; Cable v. Jones, 179 Mo. 606; Rosenwald v. Middlebrook, 188 Mo. 58; Coal Co. v. Long, 231 Mo. 611. (3) The plaintiff cannot recover because of his effort to conceal from the defendant the evidence of obligation deposited with the Farmers’ Bank of Ash Grove, Missouri. 3 Pomeroy’s Eq. Jur. (2 Ed.), secs. 1405, 1465; Duretts v. Hook, 8 Mo. 374; McElroy v. Maxwell, 101 Mo. 294. The contract that is at the basis of this suit was placed in the custody of the- bank at Ash Grove with the written instruction that the envelope containing it should not be opened unless both parties were present requesting it. The plaintiff had the title examined and discovered that there was a record defect bearing date of about the year 1840. It was then that the provision of the contract, to-wit, “that the aforesaid Killingsworth agrees to prepare and perfect title,” first assumed form and meaning to plaintiff’s mind. It was then that he had his first intimation that this provision imposed the obligation on Killingsworth to bring suit for the record title. It was then that he noised this duty of Killingsworth about, that it might come to his ears. And instead of freely and willingly permitting Killingsworth to take a copy of the contract or see the contract at the bank in literal compliance with the bank’s instructions, he prevented Killingsworth from having either copy or inspection prior to the institution of this suit. Such conduct proved a disposition on the part of the plaintiff to take an unfair and undue advantage of the defendant, and brings plaintiff’s suit within the purview of the doctrine that “he who seeks equity must come into court with clean hands.”
   ON QUESTION OF REVIVOR.

BROWN, C. —

This suit was instituted October 26, 1909, against Killingsworth and the Farmers Bank, to obtain specific performance of a contract to convey land in Greene county and incidentally to reform the written contract by correcting the description of the land Among other things the petition states

“That on said date to-wit, July 7, 1908, the plaintiff purchased said real estate from the defendant for the price and sum of $3850, and entered into a written contract with defendant whereby they agreed as follows: that the plaintiff would pay for an abstract of title, and the defendant would furnish plaintiff a perfect title to said real estate, and deliver him possession of-same between the first and 15th days of August, 1908, and allow plaintiff one-third of all crops grown on sixty-four acres of said premises in the year 1908 (except the orchard) and that plaintiff should have reasonable time to procure an abstract and a loan on said real estate, and the defendant was to have a reasonable time to perfect his title if it should be defective, and on said day executed a general warranty deed to plaintiff, intending by said deed to convey the aforesaid described real estate, and plaintiff drew his check on the Bank of Ash Grove, for the sum of one hundred dollars, payable to the said Farmers Bank, and plaintiff and defendant J. F. Killingsworth. delivered the possession of said written contract, check and deed, to the Farmers Bank-aforesaid, which were enclosed in an envelope and deposited with the said bank, with the understanding and agreement on the part of the plaintiff and defendants that the said defendant, Farmers Bank, would hold said papers until called for by both parties, to-wit, the plaintiff and J. F. Killingsworth, and would deliver up said papers when requested so to do by said parties.”

It also charges, in substance, an offer to pay the consideration, and his readiness still to do so, and brings the amount into court. It also specifies certain damages which plaintiff claims to have suffered from the non-performance of the contract, and eonclucdes as follows:

“Wherefore plaintiff prays the court to ascertain the amount necessary to perfect said title in accordance with said contract, and the value of the crop belonging to plaintiff on said premises, and the rent value of the same from the 12th day of August, 1908, and the damages accruing to plaintiff by reason of being deprived of said premises. And that the possession of said premises be delivered to plaintiff, and all right, title and interest of defendant therein be decreed and vested in plaintiff upon the payment of the sum found due the defendant by him, and in the event the court should find that plaintiff is not entitled to a specific enforcement of said contract, then plaintiff prays for the sum of $1500 as damages by reason of its breach and for other proper relief.”

A trial was had before the court without the intervention of a jury on October 27, 1909, resulting in a judgment for defendants dismissing the petition. The case was treated throughout as one for equitable relief. This appeal was returnable to the April term, 1910, of this court. Killingsworth died in February, 1910, and on the 5th day of the following month the defendant Watson became administrator of his estate. On January 11, 1912, and during the October term, 1911, the death of Killingsworth was suggested in this court and a scire facias was issued to the administrator returnable on the first day of the next term. On March 12, 1913, the abstract of record and brief were filed by appellant, and on April 12th the respondents by their attorneys filed their brief.

The heirs of Killingsworth have, during the present term, appeared for that purpose only, and filed their motion to dismiss the cause for the reason that it has not been revived by substituting them as defendants, and the question is presented whether we should proceed with the parties now before us to finally dispose of this appeal.

It has been uniformly held by this court that, although new parties, as successors to those who may have died during the pendency of the appeal, can only be substituted in the mode pointed out by the statute, that is to say, upon voluntary appearance and consent of the adverse party, or after service of summons issued for the purpose of revivor on such party (Jeffries v. Flint, 55 Mo. 29), yet on the death of one of a number of appellants a cause may proceed without a revivor. [Reineman v. Larkin, 222 Mo. 156; Reed v. Colp, 213 Mo. l. c. 581; St. Louis v. Brinckwirth, 204 Mo. l. c. 286; Prior v. Kiso, 96 Mo. 303.] These cases, however, apply each to its own facts, and there is nothing in them that suggests that the court thought it impossible that circumstances might arise in which the interests of the parties ranged on the same side as appellants might in fact be so adverse that they would need protection from each other. The Legislature seemed to have some such notion when it expressly required, in what is now section 2074, Revised Statutes 1909, that the survivors on either side should suggest the death of any of their own associates which might occur up to the very time of the submission This notifies the opposite party that one of its adversaries has gone where the court has no jurisdiction over him, and that. they have an opportunity to determine whether, to affect his interest or claim, some one else must be brought in to represent it. If so, the provisions of section 2075 authorize it to be done nolens volens. Under the provisions of section 2078 it might be done “in like time and manner and with like effect as provided for in original suits in circuit courts.” This provision with respect to time can only refer, and therefore does refer, to the limitation contained in section 1921 of the statutes to which we have already referred, which is as follows: “In all cases where the representatives of -a deceased or disabled party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability, the action shall abate as to such party and the interest of his representative or successor therein; and the cause shall proceed in favor of or against the survivors.” Those two sections (1921 and 2078) read together, as they must be, give to the representatives interested, as well as to the parties to the suit, the plenary right to make the substitution authorized at any time before or during the third term after the suggestion of the death. We cannot if we would, without violation of the statute, curtail this right with respect to any one having an interest in its exercise.

This petition is framed upon the theory that the suit is one in equity for the specific performance of a contract for the sale and conveyance of land. It is to that feature that this court owes its jurisdiction of' the appeal. The heirs or devisees of the deceased defendant, whoever they may be, are the legal owners of the land, and therefore the parties interested adversely to the plaintiff in that controversy. It is true that the petition contains a prayer for damages for breach of the contract, provided the court should find itself unable to decree its specific performance, and the administrator has been substituted as a party defendant on some such ground, but this gives him no common interest with the owners, and therefore no right to represent them in their defense. The bank is a mere stakeholder having no interest whatever in the merits of the controversy. The judgment has inured to the owners of the land. It is the right of appellant to attach. it in this appeal, but the burden is upon him to overthrow it, and he can only sustain that burden by proceeding in the manner prescribed by law. The. cause will stand upon the docket during the present term for such action as may be taken in compliance with the law.

Blair, C., concurs.

PER CURIAM: —

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All concur.

ON THE MERITS.

GRAVES, J. —

This is the second opinion for this case. The suit was originally one of Frank R. Edwards v. J. F. Killingsworth and Farmers Bank of Ash Grove. After the appeal Killingsworth died, and his administrator, W. R. Watson, was made a party, and the cause revived in his name. At the April term, 1913, of this court, the heirs of Killingsworth, entering their appearance specially, sought to have the cause dismissed because three terms of court had passed after the suggestion of the death of Killingsworth. With this question our commissioner Brown dealt in his opinion —Vide ante, p. 635. The result of that opinion was a scire facias for the heirs of Killingsworth, and they have now been brought into court by proper service. The case is, therefore, here now upon its merits, with all interested parties before the court. In the previous opinion our commissioner thus outlines the case and the petition:

“This suit was instituted October26,1909, against Killingsworth and the Farmers .Bank, to obtain specific performance of a contract to convey land in Greene county and incidentally to reform the written contract by correcting the description of the land.
“Among other things the petition states:
“‘That on said date, to-wit, July 7, 1908, the plaintiff purchased said real estate from the defendant for the price and sum of $3850, and entering into a written contract with defendant whereby they agreed as follows; that the plaintiff would pay for an abstract of title, and the defendant would furnish plaintiff a perfect title to said real estate, and deliver him possession of same between the first and fifteenth days of August, 1908, and allow plaintiff one-third of all crops grown on sixty-four acres of said premises in the year 1908 (except the orchard) and that plaintiff should have reasonable time to procure an.abstract and a loan on said real estate, and the defendant was to have a reasonable time to perfect his title if it should be defective, and on said day execute a general warranty deed to plaintiff, intending by said deed to convey the aforesaid described real estate, and plaintiff drew his check on the Bank of Ash Grove, for the sum of one hundred dollars, payable to the said Farmers Bank, and plaintiff and defendant J. F. Killingsworth delivered the possession of said written contract, check and deed, to the Farmers Bank aforesaid, which were enclosed in an envelope and deposited with the said bank with the understanding and agreement on the part of the plaintiff and defendants that the said defendant, Farmers Bank, would hold said papers until called for by both parties, to-wit, the plaintiff and J. F. Killings-worth, and would deliver up said papers when requested so to do by said parties.’
“It also charges, in substance, an offer to pay the consideration, and his readiness still to do so, and brings the amount into court. It also specifies certain damage^ which plaintiff claims to have suffered from the nonperformance of the contract, and concludes as follows:
“‘Wherefore plaintiff prays the court to ascertain the amount necessary to perfect said title in accordance with said contract, and the value of the crop belonging to plaintiff on said premises, and the rent value of the same from the 12th day of August, 1908, and the damages accruing to plaintiff by reason of being deprived of said premises. And that the possession of said premises be delivered to plaintiff, and all right, title and interest of defendant therein be decreed and vested in plaintiff upon the payment of the sum found due the defendant by him, and in the event the court should find that plaintiff is not entitled to a specific enforcement of said contract, then plaintiff prays for the sum of $1500 as damages by reason of its breach and for other proper relief.’
“A trial was had before the court without the intervention of a jury on October 27, 1909, resulting in a judgment for defendant dismissing the petition.”

It should b,e noted that the printed abstract Of the record shows neither an answer nor a reply, although the case proceeded as if both had been properly lodged below. The trial court heard the plaintiff’s evidence and upon a demurrer being • interposed thereto by defendant, the same was sustained and plaintiff’s bill dismissed, with judgment for defendant for costs. From such judgment this appeal was taken. .

Under the evidence the plaintiff and J. F. Killings-worth entered into the following contract:

CONTRACT.
This Agreement made and entered into by and between J. F. Killingsworth, party of the first part, and F. R. Edwards, party of the second part, both of Green county, Missouri.
Witnesseth: That the aforesaid Killingsworth agrees to prepare and perfect title, but the aforesaid F. R. Edwards is to pay for the making of abstract containing complete title, and the said Edwards, is to have a reasonable length of time to perfect loan and abstract, and the aforesaid Edwards, is to pay interest at the rate of six per cent per annum from the 1st to the 15th day of August, 1908, at which time Edwards is to have possession and the said Killingsworth is to pay all back taxes, if there be any unpaid; and Edwards is to pay taxes from 1908, crop of sixty-four acres and Edwards one-third of same except orchard. Said deed to land is to be placed in escrow in Farmers Bank of Ash Grove, and held by said bank until the loan is provided and title finally finished.
Dated this 7th day of July, 1908.
J. F. Killingsworth,
Frank R. Edwards.

This contract, together with a deed, which with one slight misdescription, described the property, was placed by the parties in the Farmers Bank of Ash Grove. There was also deposited with them a cheek for $100 signed by Edwards and made payable to the said Farmers Bank and drawn on the Bank of Ash Grove. When the three instruments were deposited, they were sealed, by direction of the parties, in an envelope and the bank officially notified to thus keep them and not exhibit them unless both parties were present. Plaintiff’s proof tends to show that he was unable to secure a loan on the land because of a patent defect in the paper title. He introduced evidence to .the effect that he had arranged to get $2500 from a Springfield loan agent, and the agent had the money ready on August 21, but refused to furnish the loan, because of the defect in the paper title. The evidence conclusively shows a fatal break in Killingsworth’s paper title, but it likewise tends to show title by adverse possession. It also shows, aliunde the contract, that Killingsworth understood that plaintiff was relying upon a loan on the premises for at least a part of the purchase price. At the close of the testimony we find this offer of record:

“Plaintiff offers now to pay into court the full purchase price for the lands in controversy, together with six and one-half per cent interest from the date of the alleged contract to the present time, and asks the court to decree to him all the right, title and interest which the defendant now has in the lands in controversy.”

, I. The evidence does not show that the plaintiff at any time prior to trial tendered the actual cash and demanded delivery of the deed, but Edwards does testify that he had all arrangements for the money, if defendant had made the perfect paper title. Some of his evidence perhaps goes further than this, but with the view we have of the case, that portion may be passed, at least for the present.

One contention of the respondent is that this contract is too indefinite and uncertain to be enforced in equity. This question is one of the basic matters in the controversy. Standing alone the contract paper, or rather the paper called the “contract” is rather vague and indefinite, but is this paper alone to be considered under the faets of this case? We think not. It stands undisputed that three documents, i. e. the contract,the deed and the check were executed at one and the same time, and pertained to one and the same matter. Not only so, but they were sealed up and deposited together as representing the doings of the parties, and placed in escrow. Under well-established rules we must look to all of the simultaneously executed instruments for the real contract, and if from them all can be gathered a definite and certain contract, i. e. one enforceable in equity, then it is sufficient in form. [Y. M. C. A. of Kansas City v. Dubach, 82 Mo. l. c. 484; 20 Cyc. 263.] As to what the contract should show and how it may be shown the Court- of Appeals in Peycke Bros. v. Ahrens, 98 Mo. App. l. c. 458 and 460, says:

“It is an old practice to put in evidence several papers, as letters, etc., relating to the same contract and by their references to or connections with each other, to establish all the requisites of a proper memorandum under the statute. Brown, Stat. Frauds, 346b et seq.; Heideman v. Wolfstein, 12 Mo. App. 366; Greeley-Burnham Grocer Co. v. Capen, 23 Mo. App. 301; Cunningham v. Williams, 43 Mo. App. 629; Armsby Co. v. Eckerly, 42 Mo. App. 299; Moore v. Mountcastle, 61 Mo. 424.] . . . In making a contract involving the Statute of Frauds there are three essential and inevitably necessary ingredients: (1) the parties; (2) the subject-matter; and (3) the price. Where any one of these essentials is wanting, there is no contract. [Kelly v. Thuey, 143 Mo. 422; Martin v. Mill Co., 49 Mo. App. l. c. 29.] The dominating question here is, whether or not, if we take the several writings and construe them together as an entirety, they disclose a contract of sale sufficient to satisfy the requirements of the Statute of Frauds?”

When the three simultaneously executed instruments involved in this ease are read, we have no trouble in getting the facts. They show that Killingsworth ■had sold to Edwards certain described lands for a stipulated price. In other words, they show (1) the parties, (2) the subject-matter of the sale, and (3) the price. Not only so, but they further show that Killings-worth was to “prepare and perfect title,” but Edwards was to pay for the abstract which should show “complete title.” It does not show that Edwards was to pay for perfecting the title, but on the contrary “Killingsworth agrees to prepare and perfect title,” clearly expressing the idea that the parties recognized that something might have to be done in order that the abstract (which was to be paid for and was paid for by Edwards) might show a “complete title.” Taking the instruments together it is Clear that Edwards was to have a reasonable time in which to “perfect loan and abstract” and that this would be after Killingsworth had prepared and perfected the title. Further along the same line in the paper called the “contract,” it is said: “Said deed to land is to be placed in escrow in. Farmers Bank of Ash Grove, and held by said bank until the loan is provided and title finally finished.” All this goes to show that it was contemplated that something was to be done to the title, and the first 'paragraph of the paper shows that Killingsworth was to-do this perfecting of title. Not only so, but the fair construction of the contract would be that such should be done prior to the perfecting of the loan. We cannot say that the contract is too indefinite and vague to be enforced. Was the chancellor nisi justified in not enforcing it? This question we take next.

II. Much is said in respondents’ brief about the plaintiff’s failure to tender the cash and his financial abil- ^ Pay- Unfortunately for respondents they rest their cause in equity upon the plaintiff’s evidence. At common law a demurrer to the evidence in equity cases was unknown, and in our practice we have treated such action by the defendant as submitting the equities of the whole case upon the proof made by the plaintiff. Of course if the plaintiff’s proof fails, his bill must be dismissed, but if his proof is sufficient he is entitled to a decree granting the relief sought and justified by the evidence. That the defendant refused to “perfect the title ” as by the contract he was required to do is apparent. When pressed he said the title was good enough for him. That it was his duty to make the first move upon this checker board is clear, because the missing link in the paper title is apparent. This contract cannot be tortured into one for other than a perfect paper title. The wording of it, by which Killingsworth was bound, shows that a perfect paper title was the one contemplated by the parties. Plaintiff could not move under the contract until Killings-worth first moved. The contract contemplated a loan to secure the purchase money, or a part of it, and this could not be made until -Killingsworth perfected the title. All this clearly appears in the evidence. Killing's-worth was the party at fault from first to last. His reasons are immaterial. It may have been he thought, as suggested in the brief, that the price was lower than it should have been, but what he thought is immaterial, absent proof of inadequate price.

There is no question in the case of fraud or overreaching. The parties were dickering about the trade for several weeks prior and dealt with each other at arms’ length. Plaintiff offered in his bill and again offered at the trial to put up the consideration, and asked that the deed be ordered corrected in a slight particular as to two acres of the land. We can see no good reason for refusing to enforce this contract. Our brother Lamm has so elegantly expressed my views of when contracts should be enforced in equity that I leave the rule he announced to be reannounced in his own language. In Kirkpatrick v. Pease, 202 Mo. l. c. 493, he says:

“Finally, we-are asked to sustain the judgment because specific performance is not a matter of absolute right, but rests in the discretion of the chancellor. In a sense specific performance does rest in the discretion of the chancellor. But discretion does ‘ not mean caprice. A discretion measured by a capriciously elastic yardstick would present a false measure of equitable right. This discretion is spoken of in the books as a sound discretion — sound, meaning judicial. The right doctrine is elegantly put by Wagnek, J., thus: ‘A bill for the specific performance of a contract is not granted as a matter of right by the court to which it is addressed, but from a just and reasonable discretion. But this discretion is not to be exercised in an arbitrary or capricious manner, but is to be governed by sound legal rules and principles. If, upon a whole view of the facts and. .circumstances, the court shall be of the opinion that the contract is fair, just and equitable! it will use its extraordinary authority and decree specific performance; but, if, on the contrary, it appears inequitable and unjust, the remedy will be denied and the party left to Ms action at law.’ [Ivory v. Murphy, 36 Mo. l. c. 542.]
“Courts' of justice sit to enforce the law. Now, the law may be said to be a general rule of action— a rule of civil conduct prescribed by the supreme power in a State. A contract is but a rule of action binding upon the parties thereto — i. e., a contract is but a law unto the parties thereto. Therefore, courts sit to enforce contracts — not to abrogate them. [Evans v. Evans, 196 Mo. l. c. 23; Kilpatrick v. Wiley, 197 Mo. l. c. 172.] If (for instance) the bargain in tMs instance was overkeen and unjust, or if the party against whom specific performance was sought was laboring under some disability and had been overreached, then (or in similar cases) there would be sometMng for the discretion of the chancellor to take hold of — sometMng binding his conscience. But, absent any earmarks of unfairness, overreacMng or overkeenness (as here) and present a fair, just real estate contract (as here), to deny specific performance is to wound and vex the soul of eqrnty itself.”

There are no earmarks of unfairness, overreaching or overkeenness in tMs contract or in tMs transaction. So far as the record speaks tMs is a' just and fair real estate contract. On the record the court nisi should have decreed title in plaintiff upon the payment of the purchase price and interest, and should have charged the defendant with rents and profits. The judgment will, therefore, be reversed and the cause remanded with directions to the trial court to enter a decree vesting the title to the land by its proper description in the plaintiff upon his payment into court, within a reasonable time to be fixed by the court, of the purchase price stated in the contract, with interest thereon from August 15, 1908, at six per cent less such sum as the court may find upon a hearing upon that one issue to be the reasonable rents and profits of such land from that date to the time of the trial on the one question of rents and profits.

Judgment reversed and cause remanded with the directions aforesaid.

All concur.


source: Caselaw Access Project

author: BLAIR, C. — PER CURIAM. —

license: Public Domain

text:
    EDWARD PRENDERGAST, Appellant, v. CITY OF ST. LOUIS and MODERN CEMENT PRODUCTS COMPANY.
    Division One,
    June 2, 1914.
    CITIES: Contracts: Signature of Bidder. Under an ordinance providing that if a bid be not properly signed it should he rejected, the contract of a corporation with the city, based on a bid signed in the corporate name by a director at the direction of the president, but lacking the signature of an officer,' is not invalid, absent any showing of fraud or disadvantage to the city.
    Appeal from St. Louis City Circuit • Court — / ron. Daniel D. Fisher, Judge.
    Appikmed.

      C. Porter Johnson for appellant.

      William E. Baird and Truman P. Young for respondent City of St. Louis.
    Mere irregularities in the bid would not affect the contract subsequently executed in due form between the Modern Cement Products Company and the city of St. Louis. The provisions for bidding are directory merely. Asphalt Co. v. Hunt, 100 Mo. 22;.Dillon on Mun. Corp., sec. 464; Devers v. Howard, 88 Mo. App. 253; Water Co. v. Aurora, 129 Mo. 540; State ex rel. v. Milling Co., 156 Mo. 620; Abbot on Mun. Corporations, 262; 26 Am. & Eng. Ency. Law, p; 689; Kelley v. Mayor, 4 Barb. 263; County Court v. Sparks, 10 Mo. 119; People v. Yonkers, 39 Barb. 266.
   BLAIR, C. —

This is an appeal from .a judgment dismissing a bill filed to enjoin respondents from carrying out a contract whereby the respondent agreed to furnish the city 3000 reinforced interlocking concrete boxes at $5.50 each.

Appellant sued as a resident taxpaying citizen of St. Louis. As the sole ground of the suit it is urged that the bid of the company was not properly signed. There is no objection made as to the advertisement for bids or any other requisite proceeding on the part of the city officials. The contract itself is concededly in proper form, duly executed and signed by sufficient surety. No fraud is alleged. Appellant is president and principal owner of the stock of a corporation which unsuccessfully bid for the same work. It is not contended the price fixed in the contract is not lower than that bid by any other company or person.

The bid of the respondent company was signed only by the corporate name and this was signed by a director of the corporation under the eye and at the immediate direction of the president thereof.

An ordinance in force required that “each bid shall be signed by the bidder, or by an authorized officer or agent, where the bid is by a firm or corporation” and provided that “if in any bids, blanks are not properly filled up so as to make a bid complete and without any ambiguity as to its intended meaning; or, if a bid has any alteration or erasure upon it; or, if it be not properly signed; or, if the certified cheek has not been enclosed with the bid as hereinbefore provided, then said bid shall be rejected.”

Appellant argues that the signature to respondent company’s bid was legally a nullity and that the ordinance required that it be rejected and (he contends) the contract is therefore void.

The purpose of letting contracts in the manner the ordinance prescribes is to secure, through competitive bidding, the best possible .terms for the city. The provisions respecting the form of the bids, the signature thereto and the deposit required therewith are designed to exclude fictitious bidding and secure bids which will bind the bidder from the moment of acceptance by the city.

It is not necessary to go to the extent of saying that a lawful contract following a wholly unsigned bid would withstand the objection now made. This record shows that the name of the company was actually signed to the bid and this was done under the immediate direction of the company’s president, whose authority to sign the corporate name is not questioned. The fact that the president did not add his name as that of the person affixing the corporate signature, he having in fact caused it to be affixed, cannot be relied on to invalidate the company’s lawfully .executed contract, subsequently made, based on the bid thus signed.

There was no fraud. The city got the full benefit of the bid and it is not denied that it was the lowest and best bid.

Like the required deposit, the properly signed bid is exacted “as a guaranty that the lowest and best bidder will come forward, give the required security and sign the formal agreement” (Smith v. City, 2 Brewst. 443) and this the respondent company did in this case.

What liability for the expenses of advertising might attach to city officials who attempted to accept a bid so informally executed as to be unenforceable and not followed by a contract with the bidder need not be discussed.

The good faith, of the city and company and the benefit accruing to the city from the contract are manifest in this case. The fact that the company’s name was signed at the instance of the proper officer of the company sufficiently appears. All things considered, the judgment is affirmed.

Brown, C., concurs.

PER CURIAM. —

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: BROWN, C. — PER CURIAM. —

text:
    DELLA CROUCH, Appellant, v. WILLIAM B. QUIGLEY.
    Division One,
    June 2, 1914.
    1. ACCORD: Satisfaction. An accord is an adjustment of former difference; a satisfaction is a performance of the terms of the accord.
    2. -:--: Executory: Partial Performance. Where the terms of an accord and satisfaction are executory a partial performance of the terms is not sufficient to constitute such a complete satisfaction as will extinguish the original debt or claim.
    3. CAUSE OF ACTION: Partial Satisfaction: Tender. Defendant broke his contract to marry plaintiff and then paid $100 to her in the course of some sort of settlement. Plaintiff sues him for breach of the promise of marriage and does not tender the $100 mentioned. Held, that plaintiffs suit is not barred — the defendant could not take advantage of an accord and satisfaction, if any there was, for he did not plead it, and since the evidence tends to show that the $100 was paid in partial performance of a settlement, the original cause of action was not thereby extinguished, so that the $100 need not be tendered back as a condition to the maintenance of the suit.
    Appeal from Douglas Circuit Court — Hon. John T. Moore, Judge.
    Reversed and remanded.

      E. G. White and G. W. Barnett for appellant..
    (1) The court committed manifest error in giving the peremptory instruction directing a verdict for the defendant. The contract of marriage and the breach thereof are both admitted, so that there is no question of liability. In addition to other damages, the plaintiff .testifies that she was put to $250 expense in' preparing for her marriage, besides giving up two years’ employment at .$300 per year at defendant’s request. This evidence is uneontradieted. We are entitled to have the cause submitted to the jury on the theory of the plaintiff’s testimony. Mr. White, plaintiff’s attorney, testified that the $100 was not paid or accepted in settlement of the damages, that the agreement was defendant should pay $2000 and that this $100 was a payment upon the $2000 agreed upon. There was accord but no satisfaction in this case, and accord without it is executed or accord without satisfaction is no bar to the original cause of action. Vining v. Insurance Co., 89 Mo. App. 212; Barton Bros. v. Hunter, 59 Mo. App. 618; Goff v. Mulholland, 28 Mo. 297; Giboney v. Insurance Co., 48 Mo. App. 186; Edmonson v. Carriage Co., 149 Mo. App. 133; 1 Cyc. 307, 308, 312, 313 and 314; Humphreys v. Bank, 75 Fed. 859; Carter v. Railroad, 136 Mo. App. 324; Clifton v. Litchfield, 106 Mass. 34; Cromer v. Heim, 75 N. Y. 574; Hawley v. Foote, 19 Wend, 516; Simmons v. Clark, 56 111. 27; Hall v. Floeton, 16 Q. B. 1039; Boiley v. Homan, 3 Bing. (N. C.) 920; Clark v. White, 12 Peters 178; Shaw v. Burton, 5 Mo. 478. The thing paid by way of settlement must have been received in full settlement or satisfaction and this is a question for the jury. Edmonson v. Carriage Co., 149 Mo. App. 133; 1 Ency. PI. & Pr., p. 77. The burden of establishing accord and satisfaction rests upon the party who pleads it. Barrett v. Kern, 141 Mo. App. 23; Supply Co. v. Wolf, 127 Mo. 625; Robinson v. Railroad, 84 Mich. 658. Not only this but accord and satisfaction to constitute a bar must be full, perfect, and complete. The accord must be executed, not executory. Barton Bros. v. Hunter, 59 Mo. App. 618. (2) A return or tender of the $100 before bringing suit was not necessary, because more than that amount was due the plaintiff in any event. The defendant admits liability and damages proven in the mere outlay of money in preparation for the wedding was in excess of this sum, and defendant introduced no evidence on amount of damages to reduce the amount proved. It would be a foolish thing to require plaintiff to return the $100 that she was entitled to and then sue for it. The universal rule is, that a return of a tender is unnecessary where that amount was due plaintiff in any event. 8 Cye. 532; Humphreys v. Bank, 75 Fed. 852; O’Brian v. Railroad, 89 Iowa, 644; Evans v. Evans, 52 S. W. 12; Burnham v. Spooner, 10 N. H. 532; Howard v. McMillen, 101 Iowa, 453; McClung v. Lyster, 3 Greene (Iowa), 182; Pierce v. Wood, 23 N. H. 519; Star Aec. Co. v. Sibley, 57 111. App. 315; Kley v. Healey, 28 N. E. 593; Allerton v. Allerton, 50 N. J. 670.

      J. S. Clarke for respondent.
    Where a contract is modified or changed, and a new one substituted therefor,' or in lieu of the old one, the rights of the parties must be settled by the terms of the new contract. Higgans v. Stafford, 67 Mo. App. 469; Henning v. Ins. Co., 47 Mo. 425; Vastine v. Wayman, 5 Mo. App. 598; Merrill v. Trust Co., 46 Mo. App. 236; Lonitz v. King, 93 Mo. 513; McClurg v. Whitney, 82 Mo. App. 625; Marshall v. Larkin, 82 Mo. App. 635; Stutter v. Raeder, 149 Mo. 297; Koons v. Car Co., 203 Mo. 259; Tussing v. Mill Co., 124 Mo. App. 220; Welch v. Mischke, 154 Mo. App. 728; Her-both v. Radiator Co., 145 Mo. App. 484; McCormick v. Obanion, 168 Mo. App. 606. It was appellant’s duty before suing on the original contract of marriage to return the $100 received as part consideration for the new compromise.contract and on failure to do so, the demurrer to the evidence was properly sustained by the court. Appellant could rescind her new contract but not without returning the $100, so that both parties would be in the position as before the making of the new substituted contract. Small v. Speeee, 131 Mo. App. 513; Robertson v. Fuller, 115 Mo. App. 465; Jarrett v. Morton, 44 Mo. 275; Rodgers v. Pub. Co., 118 Mo. App. 12; Hayden v. Railroad, 117 Mo. App. 90; Culberson v. Young, 86 Mo. App. 277; Smith v. Kander, 85 Mo. App. 33.
   BROWN, C. —

This is a suit for twenty-four thousand dollars, damages for breach of promise of marriage. The petition states the promise made in February, 1906, preparation for the wedding to be held October 23, 1907, to which the friends and relatives were invited, and .that the defendant failed to attend. That the day was again set for May, 1908, with the same result, and that thereafter, during the last-mentioned year, the defendant married another woman.

The answer, after a general denial in the usual form proceeds, as follows: “Defendant further answering plaintiff’s petition, states that on or about the 5th day of May, 1909, the plaintiff herein by her attorney, E. C. White, and this defendant entered into an agreement to settle all the differences existing between plaintiff and’defendant on account of the matters and things set forth in plaintiff’s petition, in consideration of which defendant paid plaintiff the sum of one hundred dollars, which amount was to be, and was in full settlement of all claims and demands whatsoever growing out of, or in any manner affecting the demands, statements, claims in said petition set forth and that this defendant says that he does not owe this plaintiff anything on account of any marriage contract or on any other account. Defendant further answering says that since said settlement, and the payment of the said sum of one hundred dollars this plaintiff has filed three suits against this defendant asking judgment for the sum of twenty-four thousand dollars respectively, thereby violating her agreement with defendant to settle their differences, thereby attempting to extort from this defendant money in violation of her said agreement.

“The premises considered defendant asks that the court find that said defendant paid said plaintiff the sum of $100 in full settlement of said demands in plaintiff’s petition set forth and that said amount be adjudged to be in full payment of all damages that may have been due plaintiff on account of the violation of said marriage contract and for costs.”

The defendant at the trial admitted the contract of marriage as alleged, that he had refused to carry it' out and had married another woman. After the plaintiff had introduced evidence bearing upon the question of damages and rested, the defendant in his own behalf testified that after some negotiations with the plaintiff’s attorney, Mr. White, he met the latter at Fort Scott to settle, where the following took place: I got off the train and he was on the platform and I talked with him twenty minutes and told him I would give him one hundred dollars, that was all I could do, and he gave me a check and I changed it on the bank here and gave it to him, and told him to hold it a day or two until I got back to Ava. ” The check was paid. He testified that at this meeting Mr. White presented, to him written authority from the plaintiff to settle but did not remember whether or not it authorized a settlement for two thousand dollars.

Mr. White for the plaintiff testified that he met. Mr. Quigley at Mansfield to talk over the settlement. He admitted that he had broken the engagement without reason, and after some talking Mr. White offered to take two thousand five hundred dollars cash, .and Mr. Quigley wanted to know if he could make it two thousand dollars. Mr. White told him he would confer with plaintiff, and if she would agree to that amount it would be done. It was mentioned that Mr. Quigley make notes, and he asked if notes' signed by his father and Mr. Latimer would be satisfactory, and Mr. White said he would accept that kind of note provided he would pay five hundred dollars in cash. They agreed to meet at Fort Scott the 10th of May to close it out, when Mr. Quigley was to pay the five hundred dollars and deliver three notes of five hundred dollars each, signed by his father and Mr. Latimer as security. The date of the meeting was deferred by Mr. Quigley until June 12, when they met at Fort Scott for that purpose. They met as arranged, and Mr. Quigley began to make excuses about his ability to pay, but finally it was arranged that he would give his cheek then for one hundred dollars with the understanding that he would pay two hundred dollars more in a few days and in a short time he would send the other two hundred dollars with the notes which his father had already signed, but had not yet been signed by Mr. Latimer. When he received the remaining four hundred dollars and fifteen hundred dollars in notes it was to be accepted as a full settlement.

In this state of the evidence the court instructed the jury to find for defendant and it rendered its verdict accordingly, upon which the judgment was entered from which this appeal is taken by the plaintiff. While there is nothing in the record suggesting. the theory upon which the court directed a verdict for the defendant, respondent seeks to sustain the action on the theory that under the evidence the plaintiff’s only remedy was to sue upon the settlement or attempted settlement to which Mr. White testified; or that she. must at least return the one hundred dollars before suing upon the original cause of action. It is a complete answer to the first of these propositions, that there is no such issue made in the pleadings. Accord and satisfaction is an affirmative defense, and the fact relied on to establish it must be pleaded. [Karter v. Fields, 140 Ala. 352, 362; Gossett v. Railroad, 115 Tenn. 376, 391; Hancock v. Yaden, 121 Ind. 366.] Otherwise it is taken as waived. This is a most reasonable rule, for if a plaintiff chooses to ignore such a settlement of the controversy there is no reason why the defendant should not be permitted to meet him on his own ground. The defendant has chosen to place his defense squarely upon the ground that the one hundred dollars was not only paid but was accepted by the plaintiff in full satisfaction of her claim for damages; and it is now too late for him to recede from that position. Under the pleadings this constituted the only issue other than the quantum of damages, and should have been submitted to the jury.

Had the defendant pleaded the facts as Mr. White testified to them he would be in no better situation to sustain this judgment. It would then have devolved upon him not only to plead but to prove that whatever was done between the parties was accepted by the plaintiff in full satisfaction of her demand. The agreement to pay the remaining four hundred dollars and to deliver the secured notes would, no doubt, have been an accord, for an accord is an adjustment of former difference, and presupposes a difference as to what is right, but “a satisfaction in its legal significance in this connection is a performance of the terms of the accord; if such terms require a payment of a sum of money, then that such payment has been made.” [Harrison v. Henderson, 67 Kans. 194.] And “where the terms of the accord and satisfaction are executory a partial performance of the terms is not sufficient to constitute such a complete satisfaction as will extinguish the original debt or claim. ” (Note to Harrison v. Henderson, supra, 100 Am. St. 386, 452.) Although a new promise may be accepted as satisfaction of the accord there is nothing in the testimony of Mr. White that indicates a transaction of that character. This testimony, if true, indicated with great clearness that the money and notes were to be taken in execution of the accord. [Hosler v. Kursh, 151 Pa. St. 415.]

As an accord partially executed will not operate as a bar to a suit on the original claim it follows that it was unnecessary for the plaintiff to tender back the one hundred dollars received by her before bringing this suit. If, as pleaded in the answer, this money was accepted as an entire satisfaction, it is a complete bar to the plaintiff’s suit. If it was only a part performance of a settlement involving the payment of more money and the execution of notes to take the place of the original cause of action it constituted no bar. If, as defendant now claims, what was said and done at Fort Scott was accepted by plaintiff in Ml satisfaction of her claim, the defendant is at liberty to take the bitter with the sweet by so pleading, but, as in case of the novation of a contract indebtedness, such a contract is never presumed, but must be proven.

We have carefully examined the authorities cited by respondent in support of his position that the one hundred dollars should have been tendered back as a condition to the maintenance of this suit. They all refer to the well-settled doctrine that before one can, either at law or in equity, rescind a completed transaction on tke ground of fraud or deceit, he must surrender the advántages he has already accepted under it. The most of these cases relate to the release of claims for personal damages given in consideration of the full payment of an agreed sum in settlement. They have no bearing upon the question before us. Here the plaintiff is not attempting to rescind a contract, or to change any apparent contract relation.

The judgment of the Douglas Circuit Court is reversed and the cause remanded.

Blair, C., concurs in result.

PER CURIAM. —

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur; Bond and Graves, JJ., in result.


author: WOODSON, P. J. —

text:
    O. L. HALSEY, Administrator of Estate of AUGUSTUS C. HALSEY, v. AMERICAN CENTRAL LIFE INSURANCE COMPANY, Appellant.
    Division One,
    June 2, 1914.
    1. INSURANCE CONTRACTS: Liberally Construed. All courts give a very liberal construction to contracts of insurance, and never permit a miscarriage of justice by a technical or narrow construction thereof.
    2. -: Date of Delivery is Date of Contract: Tender of Premium. Where the application for an insurance policy was dated May 24th and the policy was dated May 31st, and was actually delivered June 5th, on which date the first annual premium was paid, and the policy itself in expressed terms provided it was not to become effective until delivered and the first annual premium was paid, the policy was in force until the last minute of the 4th day of the next June; and a tender of the second premium on May 31st was timely made, although the policy said the annual premium was “payable in advance on the 24th day of May.”
    3. -: Tender of Premium: To Agency: Issuing Policy. The tender of an insurance premium to the agency through which the policy was issued and put into force is a sufficient tender to the company, although the notice to the insured stated it was “payable at the home office of the company or to an agent holding a receipt signed by the president, vice-president, actuary or secretary of the company,” and the home office was in another State and the agent to which the premium was tendered did not have a receipt so signed and notified the person mating the tender that he was not authorized to accept payment or bind the company.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Affirmed.

      Judson, Green & Henry for appellant.
    (1) Insurance contracts, when unambiguous, aré construed and enforced as other contracts, and courts cannot make a new contract for the parties. Ins. Co. v. Fletcher, 117 U. S. 619; Merriwether v. Ins. Co., 127 Mo. App. 100; Steinberg v. Ins. Co., 49 Mo. App. 264; Jewett v. Life Ins. Co., 112 N. W. (Mich.) 734; Assurance Co. v. Association, 182 U. S. 308; Methvin v. Ins. Co., 129 Cal. 251; McConnell v. Life Ins. Co., 92 Fed. 769; Johnson v. Life Ins. Co., 143 Fed. 950; Joyce’s Ins., sec. 219. (2) Courts must give effect to the clearly expressed intention of the parties to this contract, so long as the terms agreed upon violate no provisions of our State statutes. Ashbrook v. Ins. Co., 94 Mo. 72; Rose v. Ins. Co., 240 111. 45; Freeh v. Annuity Co., 157 111. App. 254; Gaterman v. Ins. Co., 1 Mo. App. 300; Ins. Co. v. Fletcher, 117 U. S. 519; Ins. Co. v. Buehanon, 141 Fed. 877; Armstrong v. Provident Society, 2 Ontario L. R. 771. (3) This policy clearly provides for the payment of the second premium on May 24,1907, and stipulates an immediate lapse in case of nonpayment on that day. It was not unlawful to provide an immediate lapse, or even a forfeiture, of all rights under this policy for a failure to pay the second premium on May 24, 1907, the day stipulated. Gaterman v. Ins. Có., 1 Mo. App. 300; Ashbrook v. Ins. Co., 94 Mo. 77; Bacon on Benefit Societies, sec. 354; Rose v. Ins. Co., 240 111. 45; Freeh v. Annuity Co., 157 111. App. 254; Armstrong v. Provident Soc., 2 Ontario L. R. 771. (4) Having held the policy in his possession for one year without objection to any of its terms Halsey must be held to have consented to and approved its provisions respecting the time for payment of the annual premiums and those relating to the effect of a failure to pay any premium on the day stipulated. Ins. Co. v. Neiberger, 74 Mo. 167; Christensen v. Ins. Co'., 160 Mo. App. 486; Ins. Co. v. Fletcher, 117 U. S. 519. (5) Even if the policy had not lapsed on May 24, 1907, for failure to pay the premium due that day, yet the facts set out in the agreed statement do not show any lawful tender of the premium at any time prior to the death of the insured. The transaction of May 31, 1907, referred to in paragraph “6” of the agreed statement, did not constitute a legal tender. That transaction lacked the following essential elements of a valid tender: (a) It was not made within the time stipulated in the policy, which was essential to its validity as a tender to prevent a lapse. A tender of a premium made out of time is of no effect to prevent a lapse. Time is of the essence of such contracts. Gaterman v. Ins. Co., 1 Mo. App. 300; Howell v. Ins. Co., 44 N. Y. 276; Ashbrook v. Ins. Co., 94 Mo. 73; Bacon on Benefit Societies, sec. 354. (b) An uncertified cheek is not a valid tender. Lionberger v. Kinealy, 13 Mo. App. 4. (c) It was not made to any authorized officer or agent of the defendant company and the burden of proof was upon plaintiff to show that said Leonard was authorized by the company to receive and accept payment. Furniture & Carpet Co. v. Davis, 86 Mo. App. 296; Garnett v. Meyers, 65 Neb. 280; Smith v. Kidd, 68 N. Y. 130. Not only did plaintiff fail to make such affirmative proof, but the agreed statement shows affirmatively that said Leonard did not have authority to receive or accept payment of this premium, because he did not have the company’s signed receipt therefor. (6) But even if there had been a valid legal tender of the second annual premium on May 31, 1907, it would be unavailing, because the policy had already lapsed and become void on May 24, and there was no waiver of the lapse by the defendant. It was lawful for Halsey and the Insurance Company to contract that the policy should bear date May 24, 1-906) and that the second premium must be paid May 24, 1907, to prevent a lapse of the policy, and that is what they have done here in language so plain that it cannot be misunderstood; and it is immaterial when the policy was in fact issued by the company, so long as there was no fraud practiced. Rose v. Ins. Co., 240 111. 45; Freeh v. Indemnity Co., 157 111. App. 244; Armstrong v. Provident Society, 2 Ontario L. R. 771; Jewett v. Northwestern Mutual, 112 N. W. 734; Sydnor v. Ins. Co., 26 Sup.' Ct. (Pa.) 521; McConnell v. Provident Life, 92 Fed. 769; Johnson v. Ins. Co., 143 Fed. 950; Methvin v. Ins. Co., 129 Cal. 251; Ins. Co. v. Buehannon, Í41 Fed. 877; Gaterman v. Ins. Co., 1 Mo. App. 300; Ashbrook v. Ins. Co., 94 Mo. 77; Ins. Co. v. Fletcher, 117 U. S. 519.

      Harry Baer and F. H. Bacon for respondent.
    (1) Insurance contracts will be liberally construed in favor of the insured and against the insurer. Forfeitures are not favored and the contract, if possible, will be given an interpretation so as to avoid forfeiture. Smith v. Benefit Ass’n, 173 Mo. 329; Mathews v. Modern Woodmen, 236 Mo. 326; Dezell v. Fidelity & Casualty Co., 176 Mo. 265; Stark v. Life Ins. Co., 159 S. W. 758; LaForce v. Insurance Co., 43 Mo. App. 530. (2) The entire contract must be considered and every part of it given due consideration. The contract is uncertain in its terms for the time is variously to be reckoned by different parts of it as: “Date of the policy”) “Issue of the policy”; “Time during which policy has been in force”; “Full year’s premiums”; “Number of years for which complete annual premiums have been paid”; “Date of application”; “Anniversary of its date”; “Original issuance of this contract”; “Within two years from date”; “During first year succeeding date.” (3) Under the terms of the contract, taking into consideration every part of it, ,it must be considered that the intent of the parties was clearly •that the insurance should begin on that future indeterminate date when the policy should be delivered and the premium paid. Noyes v. Ins. Co., 1 Mo. App. 584. (4) Under a fair construction of the contract in question it must be deemed the intention of the parties that for the annual premium paid by the insured he should receive its full equivalent, namely, one year’s insurance. McMaster v. Ins. Co., 183 U. S. 25; McMaster v. Ins. Co., 78 Fed. 33; Insurance Co. v. McMaster, 87 Fed. 63; McMaster v. Ins. Co., 90 Fed. 40; Stinchcombe v. Ins. Co., 46 Ore. 316; Ins. Co. v. Ison, 65 S. E. (Va.) 463. (5) If the second premium could not be demanded, or was not payable, until on or before the 5th day of June, 1907, and said second premium was tendered on the 31st day of May, 1907, it was tendered in due time and the company can take no advantage from its refusal to accept the premium so tendered, but on that ground alone is estopped from claiming a forfeiture. McMaster v. Ins. Co., 183 U. S. 25.
   WOODSON, P. J. —

This was a suit on a policy of life insurance issued, for the sum of $10,000, by the defendant upon the life of Augustus C. Halsey, deceased. A trial was had in the circuit court of the city of St. Louis, which resulted in a judgment in favor of the plaintiff for the full amount sued for and interest. In due time and in proper form the defendant appealed the cause to this court.

The pleadings are put aside, as there is no point made in that regard.

The cause was submitted to the court upon -the following agreed statement of facts, viz.:

“It is agreed that this cause shall be submitted to the court upon the pleadings, the policy sued on, the application therefor, a certain loan agreement hereinafter referred to, copies of all which are hereto attached and made part hereof, and marked respectively Exhibits A, B, and C, and the following agreed statement of facts: All exhibits are identified by the signatures of the attorneys of the parties hereto.
“1. Augustus C. Halsey, by a writing called part one of the application, dated, signed and delivered at St. Louis, Missouri, on the 24th day of May, 1906, applied to American Central Life Insurance. Company, defendant herein, for a policy on his life in the sum of ten thousand dollars. It was agreed that the annual premium on the policy applied for should be three hundred and sixty-eight and forty-hundredths dollars, of which three hundred and seven dollars should be paid in cash, and sixty-one and forty-hundredths dollars might be at the option of the applicant paid by a loan agreement which, with interest thereon, should be a lien upon the policy applied for. The loan agreement was executed and delivered with the application.
“2. Eart one of the application and the loan agreement were received by the agent company in St. Louis, Missouri, on the 24th day of May, 1906, and on the next day forwarded by him to the home office of the company, Indianapolis, Indiana, where they were received on the 26th day of May, 1906. The same day the defendant company mailed a written request to the Kansas City, Missouri, office of Retail Credit Company for an inspection report upon Augustus C. Halsey.
“3. On the 26th day of May, 1906, the applicant, consistent with the terms of part one of the application, submitted himself to a medical examination, and such examination, being parts two and three of the application, was in due course forwarded to the home office of the company, where it was received on the 29th day of May, 3906.
“4. On May 31, 1906, a favorable inspection report upon the applicant was received at the home office of the company from the Retail Credit Company and a policy issued on that day, the same being number 10701. The policy was delivered by defendant’s agent to the applicant in St. Louis, Missouri, on the 5th day of June, 1906, at which time the agent was paid the cash part of the premium.
“5. That the defendant, more than twenty days, but not to exceed thirty-five, prior to May 24, 1907, posted in the United States mails, in an envelope stamped and addressed to Augustus C. Halsey, No. 3914 Olive Street, St. Louis, Mo., a notice stating that the second annual premium on account of said policy would be due and payable at the home office of the company or to an agent holding a receipt signed by the president, vice-president, actuary or secretary of the company, on or before May 24, 1907.
“'6. On the 31st day of May, 1907, O. L. Halsey, a brother of said Augustus C. Halsey, called at the office of H. M. Leonard, the St. Louis agent of the defendant, and handed to said Leonard a check for $307 payable to the order of defendant as payment of the second premium on said policy. Thereupon said Leonard advised the said Halsey that he did not have the company’s receipt for the premium and was not authorized to accept such payment or to bind the company in the matter; that it would be necessary for Augustus C. Halsey or some one in his behalf to take the matter up with the home office of the company; that the premium was past due and that the company would probably require, a health certificate, and said check was thereupon returned to O. L. Halsey, but no objection was made- to the check as a tender. No payment or tender, if the above facts constituted a tender, was ever made on account of such second premium other than the offer of said cheek as aforesaid, nor was there any further communication with the company or its agent concerning the same.
“7. Said Augustus C. Halsey died on the morning of the 5th day of June, 1907.
“8. On or about July 23, 1907, the representative of Augustus C. Halsey requested the defendant to furnish it with the defendant’s standard proof of claim blanks. That the defandant company then and there disclaimed all liability under said policy.
“9. It is admitted that O. L. Halsey is the duly appointed, qualified and acting administrator of the estate of Augustus C. Halsey and no question is raised as to his power to sue.”

The material parts of the application for the insurance are as follows:

“I, Augustus C. Halsey, of St. Louis, Missouri, hereby propose to insure' my life with the American Central Life Insurance Co. to the amount of ten thousand dollars. . . . The annual premium to be made payable in advance on the 24th day of May. . . . I hereby expressly agree
“ That there shall be no contract of insurance until a policy shall have been issued and delivered to me when in good health and the premium paid to said company or its duly authorized agent during my lifetime. . . .
“ That if any premiums on said insurance shall not be paid when due all previous payments shall be forfeited to the company, except as provided in its policy.
“That all premiums on any policy issued on this application shall be annual premiums. . . .
“The failure to pay any premium, or obligation given to the company therefor at the timé the same become due . . . shall render any policy issued upon this application void and terminate all liability to the company thereon, except as otherwise provided in said policy. . . .
“This application and policy hereby applied for taken together shall constitute the entire contract between the parties hereto.”

Those provisions of the policy which are necessary to be considered in this ease are:

“The American Central Life Insurance Company of Indianapolis, Indiana, in consideration of the agreements and warranties in the printed and written application for this policy of insurance and of the loan certificate given the company, all of which is hereby made a part of this contract, and of the payment in cash in advance of the sum of $307, hereby insures the life of Augustus C. Halsey, hereinafter called the ‘insured’, of the city of St. Louis, State of Missouri, for a period of one year from the 24th day of May, 1906, and in consideration of the further payment in cash of $307 on or before the 24th day of May and every year thereafter during the continuance of this policy until fifteen full annual premiums shall have been paid, hereby promises to pay ten thousand dollars to the insured’s executors. . . .
“After' this policy shall have been in force three years it cannot be forfeited as hereinafter provided.
“After three years’ premiums have been paid . . . this policy will become a non-participating paid-up policy for the amount stated in the table above in the paid-up policy column for the end of the last year for which complete annual premiums have been paid.
“After three full years’ premiums have been paid should the holder hereof so elect within sixty days from date of lapse . . . the company will, on surrender of this, issue a non-participating policy for paid-up insurance for the full amount of this policy, to cease alter the number of years and months stated in the table above for the end of the last year for which complete annual premiums have been paid . . .
“After this policy shall have been in force three full years the company within sixty days after written request will in conformity with its rules then in force loan up to the amount stated in .the table above for the end of the last year for which complete annual premiums have been paid' . . . provided ... (4) that the premiums must be fully paid to the end of the policy year in which the loan becomes due . . .
“If the.insured be living and this policy is in full force on the 24th day of May, 1921, the company will then pay to the insured, or his assigns, the accumulated surplus . . .
“The payment of the first annual premium hereon is a condition precedent to the taking effect hereof and it is expressly agreed that this policy shall not become binding upon the company until said premium is actually paid during the lifetime and good health of the insured and that the delivery of this policy without such payment shall not be a waiver of such precedent condition.”

The material portions of the loan certificate are as follows:

“This certifies that the American Central Life Insurance Company has issued to me a policy upon its fifteen-payment . . . plan and has this day loaned me the sum of $61.40 to be used in payment of part of the first annual premium on the policy above mentioned No. 10,701, issued to me on'the 24th day of May, 1906
“ It is understood and agreed that should the death of the insured occur at any time within fifteen years from the date of said policy, ... I hereby authorize the secretary of said company to insert in this loan agreement the date of the policy issued to me.”

Under the agreed statement of facts, taken in connection with the three documents referred to, it appears that this application was made May 24, 1906, the policy was dated May 31, 1906, and was put in force by its delivery on payment of premium June 5, 1906.

On May 31,1907, the amount of an annual premium was tendered as set forth in paragraph 6 of the agreed statement of facts.

I. All the courts of the country, both State and Federal, give a very liberal construction to contracts of insurance, and never permit a miscarriage of justice by a technical or narrow construction thereof.

While this record discloses the fact that the application for the insurance of the deceased was dated May 24, 1906, and that the premiums were payable upon that date, yet that was not all of the contract between the parties. The policy itself was just as important a factor in the agreement as was the application for the insurance. The policy was dated May 31, 1906, but it was not delivered until June 5th of that year, which by its express terms was not to become effective until delivered, -and the first annual premium paid, which was done on June 5, 1906.

Under the terms of this contract, which consisted of the application and the policy issued in pursuance thereto', the deceased was clearly insured for one full year from June 5, 1906, to the last minute of June 4, 1907. That being unquestionably true, and the tender made of the second premium by the brother of the deceased on May 31, 1907, while the policy was still in full force and effect, was clearly made within the time agreed to by the parties, if the entire contract is to be considered as a whole.

If this is not true then by parity of reasoning advanced by counsel for appellant, the policy was never in force, for the simple reason that the first premium was not paid on May 24, 1906, but was paid on the 5th of June, 1906, the date the policy, by its terms, went into effect. This very act of the parties, under the facts and circumstances in the case, puts a practical construction upon the contract made and entered into between them, namely, that each succeeding annual premium should be paid during the life of the policy, and thereby keep it in full force and effect for the period of time stated therein.

If 'this is not the true meaning of the parties then the appellant is driven to the conclusion that the deceased paid for a full year’s insurance, but under the terms of the policy he was only entitled to about eleven and one-half months of insurance.

This, nor any other court should allow an insurance company to thus stultify itself after taking the premium for a full year, and then escape liability by interposing the technical question that by the .application for the policy the insured agreed to pay the premium long before it was due. That contention of counsel for appellant is not in harmony with the rulings of the best considered cases disposed of by the courts of last resort in this country and in England.

These views are so thoroughly in harmony with the rulings of the various courts of America, it would be a useless waste of time and space to cite them, which, however, will be cited by the reporter in the publication of this opinion.

II. Some question is raised by counsel for appellant as to the authority of the St. Louis agent of the company to receive the tender of the premium made by the brother of the deceased on May 31, 1907.

This contention is wholly without merit. The policy was issued through that agency and put into full force and effect, and at this late date, to permit the company to say, after the parties have acted upon that actual and apparent authority to repudiate it, would be lending countenance to the grossest kind of fraud and imposition.

Entertaining these views we are clearly of the opinion that the judgment of the circuit court should be affirmed; and it is so ordered.

All concur.