author: BLÁIB, C. PEE CUEIAM.

text:
    SESSINGHAUS MILLING COMPANY, Appellant, v. CHRISTOPHER J. HANEBRINK.
    Division Two,
    December 31, 1912.
    1. MILLER: Purchasing Grain for Future Delivery: Liability to Corporation. The mere purchase of wheat for future delivery by the miller having charge of and managing and controlling the business of a mill owned by a corporation, without any showing that losses resulted either from said purchases or from injudicious sales of grain so bought, does not render him liable to said corporation.
    2. -: -: Appeal: Omjtting Parts of Record. Where the trial court had before it accounts, statements, books and exhibits bearing on the question of defendant’s indebtedness, which are omitted from the record on plaintiff’s appeal from a judgment in favor of defendant, the appellate court will not undertake to say the evidence was sufficient to establish plaintiff’s right to recover.

      3. MISJOINDER OF CAUSES: Not Raised in Trial Court: Demurrer: Appeal. An objection that there is a misjoinder of causes of action in the petition must be raised in the trial court, and unless so raised will not be considered on appeal. A demurrer to the first count to the effect that it does not state a cause of action does not raise the point of misjoinder.
    4. PLEADING: Cheating and Defrauding Customers: Inferior Flour: Miller’s Liability to Company. A petition alleging that plaintiff corporation had established a good reputation for fair dealing and created a lucrative business in certain brands of flour, that respondent was the paid manager and president of the company, that he had charge of and conducted the business, and that’ as such manager he “wilfully, knowingly and wrongfully manufactured and without any right or authority repeatedly manufactured and sold inferior flour as and for plaintiff’s high grade flour,” thereby destroying the company’s reputation for fair dealing and the reputation of its established finer brands of flour, and impairing its business, capital stock and assets, charges bad faith and intentional deception, and, without any charge of negligence or incompetency, states a cause of action as to defendant’s wrong-doing, and of the company’s right to recover.
    5.-:-: -: -: Destruction of Good Will: Deceit: Damages. The company’s right to recover in such case is not dependent on the right of the purchasers of the inferior flour to recover for deceit, but upon the destruction by the defendant of the company’s good will by his wilful manufacture ' and sale of the inferior “as and for” the flour of the higher grade; and good will is a species of property, and for its destruction the law permits the recovery of damages. Nor does the fact that the proof is difficult justify the court in holding the petition does not state a cause of action.
    Appeal from St. Louis City Circuit Court. — Hon. ' Moses N. Sale, Judge.
    REVERSED AND REMANDED {%% part).

      Henry H. Oberschelp for appellant.
    (1) The first count of the petition stated a cause of action. Myles v. Myles, 69 Ky. 237; Cooley on Torts (3 Ed.), p. 997, sec. 615; 21 Am. & Eng. Ency. Law (2 Ed.), 875, 876 and 878; Mecliem on Agency, secs. 454, 473 and 474; 1 Am. & Eng. Ency. Law (2 Ed.), 1058; Huff cut on Agency (2 Ed.), p. 106, sec. 87; Sliea v. Mabry, 1 Lea (Tenn.) 319. (2) Tbe evidence sustained the allegations of the second count of the petition. Hingston v. Montgomery, 121 Mo. App. 451.

      W. B. Thompson and Ford W. Thompson for respondent.
    "(1) There was no evidence to sustain the second cause of action stated in the petition, which was an action to recover for a loss of $3603.08 and interest on account of purchases, in which it is alleged that the defendant, as president and manager, entered into the contracts for the purchase of wheat to be delivered at a future date, with no intention of receiving the grain or using it for plaintiff’s business, but solely to settle the difference between the contract and market prices. R. S. 1909, sec. 4780; State v. Gritznor, 134 Mo. 512; Lane v.' Grain Co., 105 Mo. App. 215; Murman v. Rose, 132 Mo. App. 73; Connor v. Black, 119 Mo. 126; Edwards Brokerage Co. v. Stevenson, 160 Mo. 516; Taylor v. Sebastian, 158 Mo. App. 157; State v. Miner, 233 Mo. 333. (2) There was no cause of action stated in the first count of the petition, because (a) there was no allegation that any person was deceived by the purchase of any of the barrels'of flour; (b) it appears that the flour was sold in the trade and that such sales were made subject to the rule of caveat e'mptor; (c) it is not actionable to sell unsound property, knowing it to be unsound; (d) there is no allegation in the petition that any purchaser did not know that any of the 'flour purchased was unsound or -was sold under any false brand. Cooley on Torts, 465-475; Stewart v. Dugan, 4 Mo. 245; Stewart v. Dugan, 28 Am. Dec. 348; Harrison v. Walton, 89 Mo. App. 164; Whitmore v. Coates, 14 Mo. 10; Graff v. Foster, 67 Mo. 512; Stevens v. McKay, 40 Mo. 224; Nugent v. Packing COi, 81 S. "W. 506; Tufts v. Morris, 87 Mo. App. 98; 35 Cyc. 240. (3) The first cause of action in plaintiff’s petition was an action ex delicto; the second cause of action was an action ex contractu. These two pauses of action cannot he joined in the same petition. E. S. 1909, sec. 1800, par. 5; Hingston v. Montgomery, 121 Mo. App. 451; E. S. 1909, sec. 1795; Otis v. Bank, 35 Mo. 129; Mooney y. Kennett, 19 Mo. 551: Christal r. Craig, 80 Mo. 367; Courtney v. Blackwell, 150 Mo. 273.
   BLÁIB, C.

Appellant commenced this action in the circuit court of the city of St. Louis to recover from respondent, its former president and manager, damages for injuries to its business from his misfeasance and also to recover certain sums of money alleged to have been lost in speculative transactions in grain. The petition, contains two counts. In the first count it is alleged appellant is a Missouri corporation, engaged in manufacturing and selling flour; that respondent was its president and paid manager, having charge and managing and conducting the business from June 29, 1901. to January, 1906; that appellant “at all times herein mentioned had several grades and kinds of flour, three of which were known respectively as 'SSSS,’ 'Patent’ and 'Extra Fancy’; that it had gained an excellent reputation for fair dealing and had created a big market for its said grades and brands of flour which were well known, and by reason thereof plaintiff did a lucrative business, all of which defendant well knew; ’ ’ that ‘ ‘ during the aforesaid period, as such president and manager, and in the management and control of plaintiff’s business, defendant knowingly and wilfully and without any right or authority repeatedly manufactured and sold and caused to be manufactured and sold inferior flour as and for plaintiff’s high, grade flour, known as ‘SSSS,’ ” numerous specific sales being set out in the petition, coupled with a further allegation of like sales to unknown persons aggregating 10,000 barrels. There are similar allegations as to the manufacture and sale of inferior flour “as and for the high grades” known as “Patent” and “Extra Fancy,” aggregating 10,000 barrels in each instance. It is further alleged: “and defendant, as aforesaid, knowingly, wilfully and without any right or authority, repeatedly caused to be ground into flour unsound wheat, uncleaned wheat, and dirt and foreign substances with wheat, and sold and caused to be sold such flour as and for clean, sound, pure flour, which sales were to various persons ■ and customers in various quantities, aggregating in amount fifteen thousand barrels, but the name of the vendee and amount and date of each sale plaintiff does not know and cannot ascertain. And plaintiff states that as a direct result thereof plaintiff’s reputation for fair dealing and the reputation of its finer grades or brands of flour were greatly impaired, and its business was well nigh ruined, and its capital stock and assets were seriously impaired, all of which defendant knew and must have known would be and all of which was the direct consequence of his said conduct, and all to plaintiff’s damage,” etc.

The second count alleges respondent used funds of appellant in paying losses in certain designated speculative ventures, and prays judgment for the sums thus dissipated.

A general demurrer to the first count was sustained and on a trial on the second count a verdict was directed for defendant. Judgment was entered on the demurrer and the verdict and this appeal followed.

The evidence offered on the trial on the second count tended to show respondent made a number of purchases of grain for future delivery. Witnesses explained the mysteries of “puts” and “calls,” but there was no-evidence respondent’s transactions fell with in either of such-terms. The evidence indicates, so far as it indicates anything, that the purchases assailed were made on the Merchants Exchange where appellant sold its flour. There were boohs and exhibits put in evidence which do not appear in this record. The evidence is confusing, uncertain and much of it irrelevant, but the above is a sufficient summary for the purposes of the case.

I. There was no error in directing a verdict on the second count. Flour cannot be made without wheat. Appellant produced no wheat. It had to buy it. With a capacity of four or five hundred barrels per day it was doubtless necessary to mabe purchases somewhat in advance in order to insure at all times a, supply of grain for use in manufacturing flour. It was respondent’s duty to do this. The second count does not proceed on the theory of negligence, inattention or poor judgment in buying, but upon the theory there had been no purchases at all, merely pretended' purchases. The evidence, in so far as it indicates anything, indicates purchases were made. Eespondent had authority to buy. It is not contended he had no authority to sell grain previously purchased, nor that loss resulted from injudicious sales. Eecovery is not sought on such grounds. Further, the trial court had before it accounts, statements and the books of the corporation relating to the transactions forming the basis of the second count and several of these exhibits are not in the record before us. When the question at issue is the sufficiency of the evidence, it is seldom safe to omit abstracting any part of it. The omitted exhibits may have negatived appellant’s claim. There is nothing in the record as presented to convict the trial court of error .in directing a verdict and, as to the second count, the judgment must be affirmed.

II. It is contended there was a misjoinder of causes of action in the petition and as a consequence the ruling on the demurrer to the first count must be sustained. It is sufficient answer to this that no such question was raised in the trial court. The demurrer to the first count was put solely on the ground that the count stated no cause of action. There was an answer to the second count and no demurrer to the petition as a whole. Demurrers must he specific (Sec. 1801, E. S. 1909) and the objection.for misjoinder of counts in a petition must be raised by demurrer in the trial court before it can be considered here. [Jamison v. Copher, 35 Mo. l. c. 486, 487; House v. Lowell, 45 Mo. l. c. 383.]

III. The demurrer to the first count was sustained on the ground that the facts stated were not sufficient to constitute a cause of action. This presents the real question in this case. With mere uncertainties in the allegations and with surplusage we are not now concerned since no motions aimed at such defects were filed below.

The code provides (Sec. 1831, R'. S. 1909) that for the purpose of determining the effect of a pleading “its allegations ■ shall be liberally construed, with a view to substantial justice between the parties,” and even at common law in. case of ambiguity that meaning is to be taken which will' support the pleading. With these principles in- mind an analysis of the first count of the petition discloses that while its allegations are halting and inartificial, yet these facts, among others, appear: (1) appellant had established a good reputation for fair dealing and created a lucrative business in certain brands of flour, (2) respondent was the paid manager and president of appellant, (3) had charge of and conducted appellant’s business, and, (4) as such manager, wilfully and wrongfully manufactured and sold large quantities of inferior flour (5) as and for appellant’s high grade flour (of different named brands), thereby (6) destroying appellant’s reputation for fair dealing and the reputation of appellant’s established finer brands of flour and impairing its business, capital stock and assets. Neither under the statute (Sec. 1833, B. S. 1909) nor at common law is it necessary to plead presumptions of law. The court takes judicial notice that special skill and knowledge are necessary to the proper performance of the duties devolving upon one who assutnes to conduct and manage the business of manufacturing and marketing large quantities of flour and from the fact of respondent’s acceptance, for compensation, of the management of appellant’s business, nothing more appearing, the law implies an obligation on his part to bring to the discharge of such duties the usual degree of skill commonly possessed by others in like employment and also implies an obligation to act in good faith in the transaction of appellant’s business in so far as it was intrusted to him. [Cooley on Torts (3 Ed.), p. 1386; Tiffany on Agency, p. 405.] In this case neither incompetency nor negligence is charged. The allegation is that respondent “knowingly, wilfully and without right or authority” ■ manufactured inferior flour and sold it “as and for” appellant’s higher and finer' grades. This is equivalent to an allegation of bad faith, intentional deception of customers. From the allegation of respondent’s acceptance of paid employment arises a presumption of the assumption of an obligation on his part to act in good faith. While it is possible appellant might knowingly employ an incompetent or negligent manager and therefore might not ordinarily, in such circumstances, be permitted to- recover for losses resulting from ignorance and inefficiency, yet it cannot be presumed appellant contracted with respondent on the theory he would cheat and defraud its customers. The presumption of right action negatives any such inference and amplifies the allegations of the count to that extent. The obligation to act in good faith is added by presumption. of law to the allegation of the acceptance of employment and compensation therefor and respondent’s disregard of that obligation is actionable. [Thompson v. Greeley, 107 Mo. l. c. 592.] The violation of dntv is sufficiently charged in that it is stated respondent “knowingly, wilfully and without any right or authority” manufactured inferior flour and sold it “as and for” appellant’s higher grades. Let it he conceded a mere allegation that respondent manufactured inferior flour would not suffice, since such a product might be nevertheless wholesome and marketable,, though relatively inferior. The wilful and unauthorized substitution, however, of the inferior grade for the higher and the intentional sale of the inferior under the brand of- the higher grade would he in violation of appellant’s duty to its customers and, consequently, of respondent’s duty to .appellant. It is not specifically alleged that buyers were deceived, hut the allegation that the inferior product was sold “as and for” the superior implies as much and is, in itself, the statement of a fact which could not exist if the buyers were aware of the substitution. Eespondent’s obligation and its violation are, in view of what has been said, sufficiently set forth to withstand the general objection taken.

The remaining question respects the allegations as to damages suffered. This, according to respondent’s counsel, seems to have been the particular in which the count was deemed defective. It is contended the purchasers of the inferior flour could not have recovered for deceit, the sales being in the open market, and that this conclusion demonstrates the insufficiency of the count. The case cited as decisive of the question (Harrison v. Walden, 89 Mo. App. 164) was a suit on a note and is grounded on the general principle that “when parties are on an equal footing, representations and exaggerations of the value of the property will not be considered fraudulent. The law will presume that, a man will take care of himself, ’ ’ •etc. Whether or not this rule might be pertinent in a suit by a customer to recover from appellant the difference between the value of the flour delivered and an equal amount of the quality indicated by the brand, it is inapplicable to the case made by the petition. This is not an action by a customer, nor is there any allegation of repayment or liability on appellant’s part to repay to any customer the purchase price or any part of it on account' of sales of inferior flour. Recovery is not sought on grounds of that kind. The ■damages claimed are for injuries to appellant’s business, reputation, etc. The effect of the allegation is that respondent’s course practically destroyed the good will of the business. G-ood will is a species of property. [Pope-Turnbo v. Bedford, 147 Mo. App. l. c. 698; Pox Co. v. Glynn, 191 Mass. 344.] It is “the advantage or benefit which is acquired by an establishment beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers on account of its local position, or from celebrity or reputation for skill or affluence or punctuality or from other incidental circumstances or necessities, or even from ancient partialities or,prejudices.” [Brown v. Benzinger, 84 Atl. (Md.) l. c. 81, and cases cited; Millspaugh Laundry v. Bank, 120 Ia. l. c. 4, and cases cited; 3 Sutherland on Damages (3 Ed.), sec. 658.] Good will is a thing of value, which may be bought and sold (Bloom v. Ins. Agency, 91 Ark. l. c. 374; Mfg. Co. v. Hall, 61 N. Y. l. c. 230; Haugen v. Sundseth, 106 Minn. l. c. 133); is, in some instances, said to be subject to appraisal and inventory as an asset of an estate (In re Vivanti, 138 App. Div. 281) and transmissible by will. [In re Teller, 136 N. Y. Supp. 457.] Its destruction by the vendor has been once held to entitle the vendee to plead, to that extent, want of consideration when sued on a note given in consideration of its purchase. [Potter & Co. v. Wait, 15 Ky. L. Rep. 60.] If wrongful attachment result in injury to the good will of a business it seems redress may be had in an action for damages. [Hansen Mercantile Co. v. Wyman, Partridge & Co., 105 Minn. l. c. 494, 495.] An action lies for fraudulent representations inducing the purchase of good will at a price beyond its value. [Maxwell v. Sherman, 172 Ala. 626, 55 So. 520.] The good will of a business is property which the law protects and for injuries to it damages may be recovered.

The brands used by appellant were quasi trademarks (Peltz v. Eichele, 62 Mo. l. c. 179), trade names, and are objects of the law’s protection on principles analogous to those applied in protecting trade-marks. A corporation may acquire, possess and insist upon the protection of good will as well as a natural person or firm (Dodge Stationery Co. v. Dodge, 145 Cal. l. c. 388), and no reason is perceived why respondent is not at least as liable for injuries to the reputation, business, good will of appellant as if he had been wholly unconnected with the latter’s affairs. [See Lampert v. Drug Co., 238 Mo. 409.] Respondent’s duty, his violation of it and the consequent injury fix his liability and these three things are alleged. So far as concerns the difficulties which will confront appellant in making its proof, of damages inflicted that question is not before us. The fact that such proof is difficult does not justify the sustaining of the demurrer in this case. [3 Sutherland on Damages (3 Ed.), Sec. 658; Moorman & Givens v. Parkerson, 59 So. (La.) 122; Gordon v. Knott, 199 Mass. l. c. 180; Millspaugh Laundry v. Bank, supra.] The circumstances considered, appellant will be called upon, in order to recover substantial damages; to “furnish sufficient data to enable the jury, with a’reasonable degree of certainty and exactness, to estimate the actual damages” (Shaw v. Jones, 133 Ga. l. c. 450, citing 20 Cyc. 1282), taking into consideration the peculiar nature of tlie property injured, but that can have nothing to do with the case now before ns. If respondent has wil-fully wronged appellant “his is the loss which may arise from the uncertainty pertaining to the nature of it and the difficulty of accurately estimating the results of his own wrongful act.” [3 Sutherland, supra.]

The first count of the petition is far from being a model. It is doubtful whether the allegations as to grinding into flour unsound and uncleaned wheat are sufficient to warrant the admission of evidence in their support, it not being specifically alleged respondent did so in appellant’s service or sold the flour so made for anything other than it was, In determining the question on the demurrer the paragraph mentioned has been ignored. The judgment on the second count is affirmed' and the judgment on the first count is reversed and the cause remanded for further proceedings not inconsistent herewith. Roy, C., concurs.

PEE CUEIAM.

The foregoing opinion of Blaie, C., is adopted as the opinion of the court. All the judges concur.


source: Caselaw Access Project

author: EOY, C. PER CURIAM.

license: Public Domain

text:
    SAM M. BREWSTER v. LACLEDE LAND AND IMPROVEMENT COMPANY, Appellant.
    Division Two,
    December 31, 1912.
    1. TRIAL: Practice: No Reply. The trial of a cause without any reply being filed and without any motion by the defendant for default for want of such reply, is the same, in effect, as if a general denial had been filed to the answer.
    2. LIMITATIONS: Real Actions: Suit to Quiet Title. A suit to determine and quiet title to land under Sec.'2535, R. S. 1909, falls under the head of real actions, and limitations to such actions are prescribed in Art. 8, Ch. 21, R. S. 1909.

      3. -: -: -: Possession: Interest in Lands. .Where, in an action to quiet title under Sec. 2535, R. S. 1909, the cause of action stated is that plaintiff owns the land and defendant claims an interest therein, and the evidence shows nothing as to possession, then, since the law presumes possession in harmony with the title, which is shown to he in plaintiff, the finding must be that the plaintiff and those under whom he claims have been in possession at all times since the title emanated from the government, and he cannot be barred by any Statute of Limitations. The mere claim of some interest in the land by defendant, however long continued, will not bar the plaintiff, simply because there is no statute creating such bar.
    Appeal from Reynolds Circuit Court. — Hon. Joseph j. Williams, Judge.
    Affirmed.

      J. B. Daniel for appellant.
    A suit to quiet title to lands under Sec. 2535, R. S. 1909, is barred at tbe expiration of ten years from tbe date tbe cause of action accrues. R. S. 1909, sec. 1879; Haarstick v. Gabriel, 200 Mo. 237;'Summers v. Abernathy, 234 Mo. 167. That tbe plaintiff’s alleged cause of action accrued more than ten years before tbe filing of tbe petition was admitted by the pleadings, being alleged in tbe answer and not denied. R. S. 1909, sec. 1830; Kansas City Co. v. McDonald, 118 Mo. App. 471; Bowles v. Bennington, 136 Mo. 522; Equitable, etc. y. Pettus, 140 U. S. 226.

      Arthur T. Brewster for respondent.
    (1) Respondent is entitled to recover because be was “possessed” of tbe premises in question within ten years before tbe commencement of this action. R. S. 1909, sec. 1879. (2) In tbe absence of actual possession, constructive possession follows tbe legal title. Weir v. Lumber Co., 186 Mo. 397; Stone v. Perkins, 217 Mo. 599; Bradley v. West, 60 Mo. 33. (3) Tbe original Act of 1897 prescribed no period within •which actions under it are barred and none has since been prescribed. E.' S. 1899, sec. 650; E. S. 1909, sec. 2535; Haarstick v. Gabriel, 200 Mo. 244. (4) Actions nnde.r Sec. 650, E. S. 1899, fall under the limitations ■of real actions prescribed in art. 1, ch. 48, E. S. 1899. Haarstick v. Gabriel, snpra. . (5) Upon respondent’s failure to file a replication to new matter in appellant’s answer, appellant should have moved the court nisi for judgment on the pleadings and he cannot now be heard to complain. Stevens v. Fitzpatrick, 218 Mo. 720; Atterbury v. Hendricks, 127 Mo. App. 51.
   EOY, C.

This is a suit to quiet title to real estate. The petition is in the ordinary form under section 650, E. S. 1899, now section 2535, E. S. 1909, alleging that plaintiff owns said land; that defendant claims an interest therein the nature of which is unknown to plaintiff and praying the court to ascertain, determine and quiet the title thereto. The answer admits the corporate existence of the defendant and that it claims title to the lands aforesaid and denies that the plaintiff is the owner thereof in fee simple as pleaded in the petition or otherwise and denies all allegations in the petition not admitted, and further pleads that the cause of action pleaded by the plaintiff accrued more than ten years before the filing of the suit and pleads the ten-year Statute of Limitations as a bar to the right of the plaintiff to recover.

There was ho reply filed, and the case was tried as though a reply had been filed.

The plaintiff put in evidence a clear chain of title down to himself. The defendant put in evidence certain sheriff’s deeds for taxes dated in 1884 and mesne conveyances thereunder to the defendant. It is claimed by the plaintiff and admitted by the defendant that the sheriff’s deeds are void ab initio.

There yas no evidence offered as to the possession of the land.

The court rendered judgment in favor of the plaintiff, adjudging that he is the owner of the land in fee simple.

I. The trial of the cause without any reply being-filed, and without any motion on the part of the defendant for a default against plaintiff for want of reply, was the same, in effect, as if a general denial had been filed to the answer. [Stevens v. Fitzpatrick, 218 Mo. l. c. 720; Atterbury v. Hendricks, 127 Mo. App. l. c. 51.]

II. In Haarstick v. Gabriel, 200 Mo. 244, it was said: “The Act of 1897, now section 650, R. S. 1899, does not prescribe any period within which suit must be brought, but as the suit is one to determine and quiet title to land it falls under the head of real actions, the limitations for which are prescribed in article 1, ch. 48, R. S. 1899, and not under article 2 of that chapter, which relates to personal actions.”

In the light of the statutes and that decision, we are justified in saying that the statute with reference to quieting title to real estate has not added anything to our law as to limitations of actions.

When one brings a suit to quiet title to land if he is barred by any of the provisions of the-article in reference to the limitations of real actions, then he must fail, otherwise he cannot be barred by any law of limitations. It will be noticed that the cause of action stated in the petition is that the plaintiff owns the land and that the defendant “claims an interest therein the nature of which is unknown to the plaintiff.” The evidence showed nothing as to the possession. The law presumes possession in harmony with the title. Hence we find that the plaintiff and those under whom he claims have been in possession all the time since the title emanated from the government. Then how can he be barred by any Statute of Limitations? The mere claim of some interest in the land by the defendant, however long continued, will not bar the plaintiff of his title, or of his right to quiet the title against the defendant by this proceeding; and that simply because there is no statute creating such a bar.

The judgment is affirmed. Blair, C., concurs.

PER CURIAM.

The foregoing opinion of Roy, 0., is adopted as the opinion of the court. All the judges concur.


author: BLAIR, C. PER CURIAM.

text:
    JOSEPH W. MOON v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    December 31, 1912.
    1. NEGLIGENCE: Instructions: Loss of Time. Plaintiff testified that he was, when injured, president of a buggy company at a salary of $3000 a year; that, as a result of his injuriesi, he was unfit for business for a year and a half hut during that time would go to the company’s office once or twice a week and a few directors’ meetings were held at his home; that the time thus employed during the year and a half amounted to sixty days. He testified further that he received his salary for the entire time and it was charged to the salary account, hut that he rendered no services for a year and four months, a' term arrived at by deducting the sixty’ days from the period of a year and a half. It does not appear that he had any duties as president other than those he performed. Held, that there was no evidence to justify an instruction authorizing recovery for loss of time.
    2. <-: -: Contributory Cause. In an action for damages for personal injuries suffered in a collision between plaintiff’s carriage and defendant’s street car there was evidence of excessive speed, failure to sound the hell, violation of the vigilant watch ordinance and of an ordinance limiting the speed of cars. The court instructed on each of these phases of the evidence. One of these instructions concluded, in substance, with a direction that if the act or omission “directly caused . . . or was one of the contributing causes of plaintiff’s injuries . . . and plaintiff’s driver was not negligent, the verdict should he for plaintiff.” The three others were to the effect that if the act or omission predicated “was the proximate cause or one of the contributing causes,” etc., then the verdict should be for plaintiff. Held, that these instructions were erroneous, since the evidence tended to show no cause of injury save the negligence of defendant and that of the plaintiff.
    -: -: -: Obstructed View Near Accident. The fact that a building stood near the corner where a collision occurred and obstructed the view of motorman and carriage driver was but one of the circumstances to be considered in determining what was ordinary care on the part of both driver and motorman, and was not such “outside cause” as would justify the use in an instruction of the formula “contributed to cause” or the like in submitting the question of defendant’s negligence.
    -: -: -: Other Acts by Defendant. Other acts of negligence on the part.of defendant in an action for personal injuries, separately submitted as distinct and complete grounds of recovery, are not such “outside causes” as would justify fhe use in instructions of the formula “contributed to cause” or the like in submitting the question of defendant’s negligence,
    -: -: -: Contributory Negligence. In an action for personal injuries an instruction on contributory negligence will not cure the error of using the formula “contributed to cause” or the like in submitting the question of defendant’s negligence, where the evidence tended to show no cause of injury save the negligence of defendant and that of the plaintiff.
    -: -: -: Proximate Cause. In an action for personal injuries, where the evidence tended to show no cause of injury save the negligence of defendant and -that of plaintiff, instructions authorizing the jury to find for plaintiff if they found defendant’s specified act or omission “was the proximate cause or one of the contributing causes of plaintiff’s injuries” were erroneous because they seem to direct a finding against the defendant for some reason other than that his. negligence was the proximate cause of plaintiff’s injuries.
    -: -: Assuming Facts. Facts should not be assumed in instructions.

      Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    REVERSED AND REMANDED.

      Boyle & Priest, G. T. Priest and T. E. Francis for appellant.
    (1) Plaintiff’s instructions 1, 2, 3 and 4 are erroneous for the . reason they assume plaintiff sustained injuries and damages, when these matters were dis-, puted issues of fact and should, therefore, have been hypothetically submitted to the jury. Davidson v. Transit Co., 211 Mo. 359; Plummer v. Milan, 70 Mo. App. 598; Evans v. Joplin, 76 Mo. App. 20; Fullerton v. Fordyce, 121 Mo. 13 ; Freeman y. Railroad, 95 Mo. App. 104; York v. Everton, 121 Mo. App. 640. (2) Plaintiff’s instructions 3 and 4 are erroneous for the reason that each of them permitted a verdict for plaintiff even though the jury believed the negligent acts therein hypothesized only contributed to cause his injuries. Krehmeyer v. Transit Co., 220 Mo. 639; Hof v. Railroad, 213 Mo. 445'; Smith v. Hardesty, 31 Mo. 411. (3) Plaintiff’s instructions 1 and 2 are erroneous for the reason that each of them permitted a verdict for plaintiff even though the jury believed the negligent act therein hypothesized was merely one of the contributing causes of plaintiff’s alleged injuries, without pointing out what other cause or causes must have contributed therewith. Krehmeyer v. Transit Co., 220 Mo. 639; Hof v. Railroad, 213 Mo. 445; Smith v. Hardesty, 31 Mo. 411. (4) The court erred in admitting evidence concerning plaintiff’s claim for loss of time from his business, and erred in allowing the jury, by instruction 9, to award him damages for loss of time, for the reason he had been paid his full salary by the corporation' of which he was president during the time he claims he was partially incapacitated from work. Morris v. Railroad, 144 Mo. 500; Eph-land v. Railroad, 57 Mo. App. 147; Lee v. Tel. Co., 51 Mo. App. 375. The dictum in Williams v. Railroad, 123 Mo. 585, is not sound law and was overruled by the Morris case, supra, and moreover it is not applicable to the facts of this case for two reasons: (a) Because plaintiff in that case was a mere employee of a corporation, while plaintiff in the case at bar was the president of a corporation: the duties of the one were of a purely clerical character, and he rendered no services when he was not actually engaged; the duties of the other were of an administrative character, and he rendered services by merely retaining his office of president, (b) Because plaintiff in the Williams case actually performed no service during the period of his incapacity, so that the payment of salary to him was a mere gratuity, while plaintiff in the case at bar rendered services for his corporation from time to time, so that it cannot be said that the payment of Ms salary was a mere gratuity.

      John A. Gilliam for respondent.
   BLAIR, C.

This is an appeal from a judgment of the circuit court of the city of St. Louis in an action for damages inflicted Avhen a carriage in which respondent and his wife were riding was struck by one of appellant’s cars. The facts .are stated in the opinion in Moon v. Transit Company, 237 Mo. 425. The nature of appellant’s assignments of error renders unnecessary a detailed statement in this case. Additional facts necessary to an understanding of the rulings complained of are stated in the course of the opinion. The errors assigned relate to rulings on instructions and the admission of evidence. It is also asserted the verdict is excessive.

I. Respondent testified he was, when injured, president of the J. W. Moon Buggy Company and his salary was $250 per month, or $3000 per year. The amount was feed by-the board of directors and had been the same for several years. Respondent was -elected annually but the salaries of the officers were paid under a resolution or agreement of long previous date. Respondent said he “was unfit for business” for a year and a half as a result of his injuries but during that time would go to the company’s office for a short time once or twice a week and a few directors ’ meetings were held at his home; that the time thus -employed during the year and a half amounted to about sixty days. He testified he received during the -entire time his full salary from the Joseph W. Moon Buggy Company and it was charged up in the salary account, but during one year and four months rendered no service. The year and four months mentioned was arrived at by deducting from the period of one and a half years the time actually employed in the company’s service at intervals during that period. Respondent as the president of the buggy company drew his salary regularly and it was charged in the salary account. He performed certain duties at intervals throughout the year and a half he testifies he was disabled. It does not appear he had any duties as president other than those he performed. His acceptance of salary unless entitled to it by virtue of services rendered would, in view of the relation he bore the company, constitute a legal wrong which there can be no presumption he committed. The question whether he would be heard to say he, as president, took from the company’s till, under the guise of salary, money to which he was not entitled, is not necessarily in this ease. What he did say was that he performed certain duties at periods distributed over the-year and a half he suffered from his injuries and drew the regular salary he had drawn for years before and seems to have been drawing since; that he drew the .salary and the company charged him with it as salary. His agreement with the company as to services, to be rendered is not in evidence. "Whether he was to devote his whole time to the company’s business does-not appear. If he did all that his arrangement with the company required of him he earned his salary and was entitled to it. The fact he took, for the performance of certain duties, an amount equal to his salary is not evidence he owed the company other duties, which he did not perform nor is it evidence he was not entitled as of right to all he received. Courts cannot take judicial notice of the duties respondent was to-perform or of the hours, if any, he agreed to devote to the buggy company’s business.

It is quite true appellant can have no greater right to a reduction of damages on account of a gratuity or gift to respondent from the J. "W. Moon Buggy Company than from a stranger and no more right to-, such reduction on account of a gift after injury than one before injury. It may also be conceded that in-case one is employed for wages or in a subordinate capacity on a salary and his right to the agreed compensation depends upon his rendition of specific services and his failure to render such services ends his-right to compensation, then in case of his injury and' consequent inability and failure to work he has no-legal claim to compensation and if money is paid him it is, on its face, a mere gratuity and falls within the-rule. Before the rule as to gratuities can apply in a particular case, however, the evidence must show the payment was a gratuity. The burden is on respondent to show, loss of time and its value. If the buggy company was not entitled to his whole time the value, if any, of the excess might be recovered, but there is-no evidence in this record justifying a recovery on such theory. The only evidence in connection with loss of time relates to time lost from respondent’s duties as president of the buggy company and there having been no evidence he owed any duty he did not perform and the respondent’s own testimony showing he received during the whole time the amount agreed to he paid him as salary and that he drew it and the company paid it and charged it to him as salary, the rule as to gratuities, on the record before us, has nothing to do with the ease. There was no evidence justifying the instruction authorizing recovery for loss of time. The authorities cited in the briefs of counsel, while in ■conflict in other respects, in so far as they are pertinent accord with the conclusion reached. It was error, on this evidence, to permit the jury to consider loss ■of time as ground of recovery.

II. There was evidence of excessive speed, failure to sound the bell or gong, violation of the vigilant watch ordinance and violation of an ordinance limiting the speed of cars. The court instructed on each ■of these phases of the evidence. One of these instructions concluded, in substance, with a direction that if the act or omission dealt with “directly caused . . . ■or was one of the contributing causes of plaintiff’s injuries and damages and that plaintiff’s driver was ■exercising ordinary care . . . and was not negligent, the verdict should be for plaintiff.” The three others were to the effect that if the act or omission predi■cated “was the proximate cause or one of the contributing causes of plaintiff’s damages and injuries, and that plaintiff’s driver . . . was not negligent, then the verdict should be for plaintiff. ’ ’

These instructions violate the rule announced in Hof v. Railroad, 213 Mo. 445, and Krehmeyer v. Transit Co., 220 Mo. 639. In those cases it was held error to use in an instruction the formula “contributed to •cause” or the like in submitting the question of a defendant’s negligence if the evidence, as in this case, tends to show no cause of injury save the negligence ■of defendant and the negligence of plaintiff. The decision recognizes the rule that a defendant is liable in case bis negligence concurs with “some outside canse”' which alone would not have produced the injury, but. the conclusion reached was that such “outside cause” must be one other than plaintiff’s negligence. This, .much, at least, these cases decide. The rule thus announced is not assailed, as we understand counsel, but it is insisted this case does not fall within it. In support of this contention it is argued that there appeared in this case “outside causes” sufficient to satisfy .the rule.

(a) It is urged the fact a building stood near the comer of the intersection of Washington and Taylor avenues and obstructed the view of motorman and carriage driver, respectively, until they drew near the crossing, is conclusive of the existence of the requisite “outside cause.” This cannot be true. The building' there and the resultant obstruction' of view was but. one of the circumstances to be considered in determining the question as to what was ordinary care on the-part-of both driver and motorman. Its presence was-not due to the negligence of any one. It affected in .no wise the control of either motorman or driver over his vehicle. It merely took its place with all other' circumstances and surroundings at the time and was-to be considered with them in determining whether, for instance, the speed of the car, the failure to sound ■the bell or driving the carriage upon the track in the-circumstances constituted negligence on the part of him who was responsible for such act or omission. , In-the cases cited the situation with respect to buildings on the street line was not unlike that here. ■

.(b) It is next suggested there were several’ .grounds -of negligence separately submitted and in-considering the negligence ■ submitted in any one instruction each other act of negligence- of which there-was evidence would constitute a cause of such character, as to satisfy the rule and justify the instruction given. In the cases mentioned the same situation existed. Several different grounds of recovery were submitted to the jury. The rule was announced in connection with the very situation now relied upon to take this case out of its influence, and, even in the limited scope given it in the above statement of it, excludes the idea at the root of the argument now being considered. Further, one instruction in this ease submits the question of common law negligence in failing to sound a warning in approaching the crossing. In determining whether appellant was negligent in this respect it was the duty of the jury to take into consideration every surrounding circumstance of every kind and as to that instruction, at least, there could have been no other act of negligence irrelevant to the question of liability and which could with any reason be called an “outside cause.” So far as this instruction is concerned, therefore, the insistence now being considered could not aid respondent. The same considerations apply to the instruction concerning the speed of the car. But we think the broad general ground should be taken that other acts of negligence on the part of appellant, separately submitted as distinct and complete grounds of recovery, cannot be considered as meeting the requirements of the rule announced in the cases cited, in which the same situation existed which is present here. No precedent to the contrary has been discovered and no sound reason is suggested for so modifying the former decisions.

(c) It is also urged the instructions given as to contributory negligence cure the defect in that they precluded the jury’s being misled into finding for respondent on the ground his driver’s negligence “contributed to cause” the injury. It is unnecessary to say more in this connection than that in the instruction condemned in the Hof and Krehmeyer cases, as in those in this case, the jury were required to find plaintiff exerecised ordinary care, i. e., was not guilty of contributory negligence. Repeating this rule, as to contributory negligence, in a separate instruction and in different language did not change its effect so as to require a different conclusion as to tbe use of tbe formula “contributing to cause tbe injury” or “one of tbe contributing causes of plaintiff’s damages and injuries.”

(d) There is another thing in tbe instructions ■which ought to be noted. The jury was authorized by each to find for respondent if (having found the facts according to the preceding portion of the instruction), they found the specified act “was the proximate cause or one of the contributing causes of plaintiff’s injuries,” etc. This is misleading in that it seems to direct the jury to find against appellant for some reason other than that his negligence was the proximate cause of respondent’s injuries.

“The general rule is that damages, to be recoverable, must be the natural and also the proximate consequence of the wrongful act. Keeping in view that proximate, as here used, means closeness of cansal connection, and not nearness in time or distance, and that its office is to qualify the generality of the idea expressed by natural, this definition, as a general rule, is the best that can be adopted.” [Delaware, etc., Railroad Co. v. Salmon, 39 N. J. L. l. c. 308; Atkinson v. Transportation Co., 60 Wis. l. c. 156, et seq.; Stepp v. Railroad, 85 Mo. l. c. 233; Bishop on Non Contract Law, section 456; 1 Thompson’s Com. on Neg., section 44; 1 Shearman & Redfield on Neg., sections 4, 5, 25.]

The rule that the contributing or concurring negligence of third persons is no defense if defendant’s negligence was nevertheless an efficient or proximate cause of the injury (Benjamin v. Street Railway, 133 Mo. l. c. 291) is not applicable to this case, and the cases cited announcing that rule are not in point since there is no evidence of any cause of injury save appellant’s or respondent’s negligence. The phrase was consequently erroneous for this additional reason, in that it authorized the jury to find for respondent though they might find appellant’s negligence was not the proximate or efficient cause of injury.

III. It is suggested some of the instructions are erroneous in that they assume respondent was injured. The general rule is that facts should not be assumed in instructing the jury. Whether on a retrial the fact of injury may he assumed without reversible error must depend upon the record then made and since there is no dispute as to the rule itself or the exceptions to it and the cause must he remanded-on other grounds the assignment need not be further discussed. Likewise the assignment relating to the sufficiency of the evidence to support recovery for loss of plaintiff’s wife’s services is based upon objections easily obviated, if a right to recover exists, and therefore we refrain from' a discussion of them, there being no real dispute as to the law. applicable to this phase of the case. Also, in view of the result reached and a probable retrial, the question as to the exces-siveness of the verdict need not be further considered.

The judgment is reversed and the cause remanded. Boy, G., concurs.

PER CURIAM.

The foregoing opinion, of Blaie, C., is adopted as the opinion of the court. All the judges concur.