author: MOZLEY, C.

text:
    CALLIE TAVIS v. BENJAMIN F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    January 6, 1920.

      1. NEGTiIG-ENCE: Humanitarian Rule: Degree of Care. The degree of care imposed under the humanitarian rule is always commensurate with the degree of danger. The engineer’s field of observation to avoid danger is as wide as the field which the danger he creates covers.
    2. -: -: Failure to Warn Traveler. Where the fireman, when his engine was 500 feet from the crossing, saw deceased approaching in a large motor truck at a speed of five or six miles an hour, and testifies that he knew deceased was oblivious of the fact that the train was coming, and failed to warn him with the blast of the whistle, but proceeded ahead until the engine struck the truck, the plaintiff is entitled to recover under the humanitarian doctrine.
    3- -: Instruction: Measure of Compensatory Damages: Negligent Acts. In an action brought by a widow under Section 3425, Revised Statutes 1909, in which she seeks to recover $10,000 for the negligent killing of her husband, and in which her petition charges simple negligence, an instruction which tells the jury that, in estimating her pecuniary loss, they “may take into consideration the facts constituting negligence on the part of defendant causing his death,” is erroneous, and not harmless. The circumstances of his killing, or the negligent acts of defendant, are not elements of damages, or of her pecuniary loss. [Following State ex rel. Dunham v. Ellison, 278 Mo. 649.]
    Appeal from Jáckson Circuit Court. — Hon. William O. Thomas, Judge.
    Reversed and remanded.

      Edward J. White and Thomas Hachney for appellant.
    (1) The court erred in overruling defendant’s demurrer to the evidence interposed at the close of plaintiff’s evidence and again renewed at .the close of all the evidence. The testimony was insufficient to authorize the submission of the case to the jury under the humanitarian rule. Keele v. Railroad, 258 Mo. 79; Tannehill v. Railroad, 213 S. W. 818; McMiens v. United Rys. Co., 274 Mo. 331; Burge v. Railroad, 244 Mo. 102; Begonia v. Railroad, 224 Mo. 596; Pope v. Railroad, 242 Mo. 232; England v. Railroad, 180 S. W. 36 ; Armstrong v. Railroad, 203 S. W. 249; Guyer v. Railroad, 1,74 Mo. 351; Schmidt v. Railroad, 1'91 Mo. 23'5; McGee v. Railroad, 214 Mo. 543; Porter v. Railroad, 199 Mo. 82. (2) It was the duty of the deceased in driving the truck on the public road as he approached' the railroad crossing to “use the highest degree of care that a very careful person would use' under like or similar circumstances” to prevent the collision with defendant’s train. Par. 9, Sec. 12, Laws 1911, p. 330. He owed this' duty to defendant as well as to others on the highway. Threadgill v. United Rys. Co., 279 Mo. 66, 214 S. W. 161. The engineer and fireman had the right to presume that the deceased in approaching the crossing at a confessedly slow speed variously estimated at from 2 to 8 miles per hour, with the train in plain view, had both seen and. heard the train. Keele v. Railroad, 258 Mo. 79; Ehgland v. Railroad, 180 S. W. 36, (3) The court erred in giving Instruction No. 5 at the plaintiff’s instance. By this instruction the jury were told that in determining plaintiff’s damages they could take into consideration the pecuniary loss occasioned to plaintiff by the death of her husband, if any; also “and you may also take into consideration the facts (if any) constituting negligence (if any) on the part of the defendant causing the death (if you so find).” This action was for compensatory damages only, being brought under Sec. 5425', R. S. 1909. *No punitive damages were asked. In such case it is error to instruct the jury that in - assessing the damages they may take into consideration the facts constituting negligence causing death. State ex rel. Dunham v. Ellison, 213 S. W. 459.

      Hoy sett $ Hoyle for respondent.
    (1) Deceased did not have ample warning of the approach of the train. Stotler v. Railroad, 200 Mo. 137; Murray v. Transit Go., 176 Mo. 188; Dutcher v. Railroad, 241 Mo. 141. See also Muller v. Harvey, 204 S. IV. 929; Advance Transfer Co. v. Railway Go., 195 S. W. 567; Doyle v. Railway Co., 185 S.*W. 1175; Buckrey-Ellis v. Railroad, 158 Mo. App. 499; Underwood v. Railway. 190 Mo.. App. 407. (2) This court has laid down the rule that even where the engine hell is ringing, hut where such warning by the bell is apparently ineffective, there is a duty on the part of the engineer to sound the whistle. Rollinson v. Railroad, 262 Mo. '538; Dutcher v. Railroad, 241 Mo. 137; Eppstein v. Railroad, 197 Mo. 735; Reyburn v. Railroad, 187 Mo. 573. (3) The claimed error in Instruction 5 on the measure of damage was harmless. The McGowan Case, 199 Mo. 518, is directly in point and in principle is exactly like the case at bar. Where a verdict is manifestly for the right party, and the amount thereof is manifestly and indisputably reasonable, it would be “intolerable” (as this court said in the Shinn Case, 248 Mo. 180-183) to reverse the judgment for an error in an instruction on the measure of damage's, which obviously has had no prejudicial effect whatever in increasing the amount of the verdict.
   MOZLEY, C.

This is ' an action for damages brought by plaintiff to the Jackson County Circuit Court, and was tried therein at the regular May term, 1917, of said court. The trial resulted in a verdict for plaintiff, upon which judgment was duly rendered by the court. Within the statutory.period appellant.duly filed its motions for new trial, and to arrest the judgment, and, on the 30th day of June, 1917, the same being one of the judicial days of said term, the court overruled each of said motions; exceptions to this action of the court were taken and, thereupon, the case was duly appealed to this court.

This is a crossing case and the facts material and necessary to an understanding of them and of the issues involved are substantially as follows:

Respondent is the widow (and during his lifetime the wife) of John W. .Tavis. Appellant owned and was operating a railroad which extends at the place in question a little north, of east and a little south of west.

The accident happened on a bright sunshiny day at an unincorporated village named Dodson at the crossing of the public road over the railroad. The public road was smooth-surfaced, with a slight elevation^ as the track was approached,, and crossed the same at grade and crossed the track substantially at right angles from east to west. There was an automatic-signal ball near the crossing' and a few feet east of the track. Barrett’s store and Hurley’s Lumber Company buildings are situated on opposite sides of the track. Barrett’s store building at its nearest point is 80' or 90 feet from said crossing. On the day of the accident deceased was driving a large motor truck and engaged in delivering-bread for a Kansas City concern, and had stopped at said store, where he transacted some business, and then got into his truck and started toward the crossing at an estimated speed of three miles an hour. At the same time appellant was operating a train which was approaching the same crossing at a speed of twenty miles an hour. When deceased had traveled approximately one-half the distance between Barrett’s store and the crossing, about 40 or 45 feet, he slowed his truck, without stopping, to allow a frightened team hitched to a wagon to pass and to which his .attention was apparently directed. On the opposite side of the crossing was a disabled motor truck at the edge of the road deceased was traveling, which parties were trying to extricate from its predicament and apparently deceased’s attention was directed to this after passing the wagon and team. All of the witnesses agree that when deceased was 80 or 90 feet from the crossing the on-coming train was from 400 to 600 feet distant from, said' crossing, and that there was nothing; that interfered with the vision of either party. The fireman, E. E. Hart, testified as follows:

“Q, Did you have your eye on the lookout on the left hand side of the engine from that time until you got up to the road crossing? A. Yes, sir.
“Q. 1 wish you would tell the jury what you saw up there at the road crossing and when you first saw the automobile and how it was moving up to the timei of the collision. Just tell them about it? A. When we got around the curve, there that store was in my line of vision, when we got around the curve there the store would be in my line of vision, and 1 seen am auto truck; it looked to me like it just started, moving very slowly, and it moved along slowly, I should say five or six miles an hour, about that, up until it got within fifteen feet or such, a matter of the side, track that crosses Prospect Avenue, and all of that time I supposed the auto-truck seen the train and was going to stop, but when he got within about fifteen feet of that track his speed increased, and I realised then that he had not seen us or was trying to beat us across, and I yelled to the engineer, ‘we are going to hit. that fellow/ and he applied the brakes in emergency and by that we hit him.”

On cross-examinatiou he testified as follows:

££Q. When did you first see this man*? A. When we commenced to swing around the curve; when the ev gine swung around so the boiler would throw him ir my line of vision on the curve.
££Q. Now, at that time how far was he from the track?' A. He was just leaving the store, he was about 79 feet from the crossing.
l£Q. You saw this man approaching the track 79 feet from the track? A. Yes, sir.
- “Q. At that time you were on the curve? A. Yes, sir.
“Q. He came forward slowly? A. Yes, sir.
“Q. You say the truck was going slowly? A. Yes, sir.
“Q. And that it reached á point about fifteen feet from the passing track and then practically stopped? A. Yes, sir.
“Q. How far is the passing track from the main track? A. Fourteen feet, I believe.
Q. How wide is the track? A. Four feet and eight inches.
“Q. That makes eighteen feet and eight inches. A. Yes, sir.
“Q. And the man was still fifteen feet beyond that? A. Yes, sir.
“Q. That makes about. twenty-nine and one-half feet that this man was' from the track when you saw him start forward? A. Yes, sir.
“Q. At that time you knew he did not hear— A. (interrupting) Fes, sir.
“Q. You ltnev> he. didn’t know your train was coming, isn’t that truef A. That is true.
“Q. Did you■ then sound the whistle to notify him, when you knew he didn’t know you, were coming¶ A. No, sir. ’ ’

This witness who testified, supra, that when the truck started up it did so at a speed of five or six miles an hour, also testified that the train was running twenty-five or thirty miles an hour.

The case was submitted to the jury on the humanitarian doctrine alone.

I. It is strongly insisted by appellant that the facts of the record fall far short of making out a prima-facie case under the humanitarian rule, and that the court erred in not giving its peremptory instruction in the nature of a demurrer directing the jury to return a verdict for defendant.

TJndor tills assignment, tlie question confronting us is, does the record contain substantial testimony tending to show that the operatives of the train were derelict in 2lot ushig that degree of care the circumstances imposed upo2i them? If so the assignment cannot he disposed of as a law question, hut should be submitted to the jury as a question of fact.

“The degree of care imposed under the humanitarian rule is always commensurate with the degree of danger. The engineer’s field of observation to avoid danger is as wide as the field which the danger he creates covers.” [Holmes v. Missouri Pacific Railway, 207 Mo. 149.]

This is not a case where the traveler stepped suddenly on the t2'Rcl*: in front of the train so closely that his injury could not be avoided in the exercise of ordinary care by the operatives of the train, or one where the injured party was negligently driving a vehiclé on the track and there was no evidence that he could have been seen in time to avoid the injury, nor is it one where there is nothing to indicate obliviousness to danger.

But it is one in which all of the physical facts as well as the testimony of appellant’s fireman who, when he was 500 feet distant from: the crossing, saw deceased approaching it at a speed of five fir six miles an hour and admittedly knew that he was oblivious of the fact that the train was coming and of his danger, and failed to warn him with a blast of the whistle and thereby save his life.

If the humanitariaji rule will not apply to the facts of this case then it is a rule without value and ought to be discarded.

We think the facts disclosed by the record, in the instant case, bring it fairly within the rulings of this court in the cases of Maginnis v. Railroad, 2.68 Mo. l. c. 678; Lyons v. Metropolitan St. Rv. Co., 253 Mo. 143-152; Murrell v. Kansas City, St. L. & C. R. Co., 213 S. W. 964; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, l. c. 735; Waddell v. Railroad, 213 Mo. l. c. 16. There are many other cases ruling likewise which we deem unnecessary to cite.

In the Bppsteiu case, supra, at page 735, it was said: “Appellant’s servants Avith plenty of space and plenty of time to see, Avith no obstructions in the way of seeing, warned by his preoccupied attitude and conduct of ■the fact that he Avas oblivious to their approach, owed him, we think, the simple and easy duty to tell him they at once purposed occupying the identical spot he was on with their ponderous engine. This is not requiring anything extraordinary at their hands— a twist of the wrist would have done it presumably.” In the Waddell case, at pages 16-17, the court laid doAvn this rule, viz.: “ ‘When a defendant sees, or by the exercise of ordinary care can see, the peril of the plaintiff caused by the latter’s contributory negligence, in time to avoid injuring him, them the plaintiff can recover, notwithstanding his contributory negligence. This is now the accepted and settled exception to the general rule that plaintiff’s contributory negligence bars a recovery.’” (Italics ours.)

The facts of the case in hand are as strong, if not stronger, than those of the cases just quoted from and point unerringly to the negligence of the train operative from Avhich the death of J ohn W. Tavis resulted.

We thinPc the court did not err in submitting the' case to the jury and rule the point against appellant.

II. Appellant makes the point that Instruction No. o given by the court on behalf of plaintiff is erroneous to the extent of affecting- its rights prejudicially and, for this reason, the case ought to be reversed and remanded. The instruction is on the measure of damages and reads as follows:

“The court instructs the jury that if you find the issues for the plaintiff you shall allow her a sum not less than two thousand dollars and not more than ten thousand dollars, in the discretion of the ÉWT; and in determining the amount you Avill alloAV her, you may take into consideration the pecuniary loss occasioned to the plaintiff by the death of her husband (if any) and you may also take into consideration the facts (if any) constituting negligence (if any) on the part of the defendant causing the death (if you so find), and in considering the subject of her pecuniary loss you may consider what would have been the value of her support from her husband from the time of his death during the time he probably would have lived and supported her, and you .may also consider the additional burden, if any falls upon her, for the support of her minor child by reason of his death.” (The italics are ours).

The action was brought under Section 5425, Eevised Statutes 1909, and the petition so far’ as necessary to quote charges the following acts of negligence against appellant: (a) in that appellant’s agents and servants negligently operated said train at a negligent rate of speed under circumstances then and there existing; (b) negligently failed to ring the bell placed upon the locomotive engine of such train at least eighty rods from said crossing and negligently failed to keep said bell ringing until the crossing was affected; (c) negligently failed to sound the steam whistle attached to said] engine 80 rods from said crossing and negligently failed to sound said whistle at intervals until said crossing was affected; (d) negligently failed to give said John "W. Tavis any warning of the approach of said train; (e) negligently permitted the automatic signal bell at said crossing to become out of repair so' that it would not ring and give warning of the approach of the train, and (f) although defendant’s employees in charge of and operating said train saw, or by the exercise of ordinary care upon their parti should have seen, said John Y. Tavis approaching a position of peril, and in a position of peril, in front of said train, and oblivious to his peril, in time by the exercise of ordinary care on their part to have sounded a warning, or stopped or slackened the speed thereof-and thereby have avoided the injury to and resultant death of said Tavis, yet they negligently did neither and on account thereof the collision, injury and death ensued. As above stated the case wás submitted to the jury upon the humanitarian doctrine alone.

In a very recent case, State ex rel. Dunham v. Ellison, et al., Judges of Kansas City Court of Appeals, 278 Mo. 649, our Court in Banc had before it for decision the precise question under consideration upon an instruction the exact counterpart of the one under consideration. The opinion of the Court- of Appeals was quashed on the ground that said instruction there given told the jury that the negligence of defendant might be considered for the purpose of enhancing the amount of damages the plaintiff was entitled to recover, and the court said: “By this instruction the jury was told that, in considering the amount of damages they would award plaintiff, the jury could consider two things: (1) The pecuniary loss occasioned to her by the death of her husband, and (2) the facts constituting negligence upo'n the part of defendants. The instruction clearly authorized the jury to consider both of these things in fixing the amount of the damages to plaintiff. . . . We do not think this is proper under this section [5425] of the statute, with the petition before us in this case, if indeed it would be proper in any case under such section of the statute. . . -. The statute (Section 5425); does not contemplate a consideration of the character of the negligent acts to either increase or diminish plaintiff’s compensatory damages. Any kind of negligence shown authorized the recovery of the penalty of $2000. We have no degrees of negligence in Missouri, so far as the right to recover for negligence is concerned. We are confining our remarks to tho case in hand, and to the statute under which it is brought., . . . The principle is common to cases under both statutes. That common principle is that, under a petition charging simple negligence, a consideration of the negligent acts themselves for the purpose of enhancing compensatory damages is improper. . . . The instruction is erroneous, in that it permits the jury to consider the eireumstances of the killing in aggravation of the widow’s compensatory damages.”

The instruction under discussion is unmistakably stamped with the same erroneous character as the instruction in the case just quoted from, since, as above stated, there is no difference in the wording of the two.

We cannot agree with the last-resort contention of learned counsel for respondent that if said instruction is erroneous, it is, nevertheless, harmless and appellant has no right to complain because not hurt by it.

What has been said above sufficiently shows it was prejudicial to appellant’s defense in the case.

On account of the error pointed out. the case will have to be reversed and remanded for a new trial. It is so ordered.

White, G., concurs; Bailey, G., not sitting.

PER CURIA,Mu — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    DAVENPORT VINEGAR & PICKLING WORKS v. M. B. SHELLEY, Trading as M. B. SHELLEY MANUFACTURING COMPANY, Appellant.
    Division Two,
    January 6, 1920.
    1. NOTICE OF APPEAL: Sufficiency. The purpose of a notice is to inform the person notified of a fact. No one needs notice of what he already knows. Actual knowledge hy respondent that an appeal has been taken from a judgment rendered in his favor by a justice of the peace, is not alone sufficient under Section 7582, Revised Statutes 1909, which requires the notice to be “in writing, stating the fact that an appeal has been taken from the judgment therein specified;” but if notice in writing is served upon respondent’s attorneys and they have actual knowledge that it refers to a particular judgment and can refer to no other, it is sufficient.
    2. —:-: Discrepancies Between Notice and Judgment. The date of the judgment for plaintiff was October 26th, and the notice recited that an appeal has been taken from a judgment rendered on .October 21st; the amount of the judgment was $203.90, and the notice said it was $203.62; the judgment included a finding for plaintiff on defendant’s counterclaim, and the counterclaim was not mentioned in the notice. But the notice was in writing, and plaintiff’s attorneys acknowledged service on it, and they filed a motion in the circuit court, asking that the appeal be dismissed for want of sufficient notice, in which they set out the notice in full, which included the names of the parties and of the justice by which the judgment had been rendered; there was no other case pending between the same parties; and the said attorneys did not appear for the plaintiff in any other case in any justice’s court. Held, that the notice was sufficient to inform, and in fact did inform, plaintiff’s attorneys that the appeal was taken in the case actually appealed, and was sufficient, notwithstanding the discrepancies between the notice and the judgment. [Distinguishing Tiffin v. Millington, 3 Mo. 419.]
    Appeal from St. Louis City Circuit Court — Hon. W. M. Kinsey, Judge.
    Reversed and remanded.

      Holland, RvMedge. é Lashly, R. h. Ailworth and Albert D. Nortoni for appellant.
    (1) Tlie notice of appeal in issue in this case is sufficient. Grocery Company v. Rust, 185 Mo. App. 279; Collier v. Langan & Taylor,, 128 Mo. App. 113; Thiel Co. v. Reynolds, 184 S. "Wi 1178; Holschen Coal Co. v. Mo. Pac. Ry. Co., 48 Mo. App. 578. (2) The only purpose of a notice of appeal is to notify the adverse party that an appeal lias been taken; and if, by a fair and reasonable interpretation of the notice, it informs the other party that an appeal has been taken, it is sufficient. See cases-, supra. (3) Any insufficiency in the notice of appeal, if any there is, was waived by-plaintiff when it accepted service on the bottom of the notice. Holschen v. Railroad, 48- Mo. App. 578; Celia v. Schnairs, 42 Mo. App-. 316; Igoe v. Bradford, 110 Mo. App. 675; Bigler v. Waller, 12 Wall, 79 U. S. 142; Goodwin v. Pox, 120-U. S. 778; Tripp v. Santa Rosa Railroad, 144 U. S. 129.; Horst v. Wagner, 43-Iowa, 373; 2 Ency. Plead. & Prac. 234. (4) The fact that a counterclaim was involved amounts to naught. It is the judgment and not the pleadings to which the notice is directed. Sehwayder v. Altenherg, 191 S. W. 1121; Igoe v. Bradford, 110 Mo. App/ 670, 674. (5) A motion to affirm, or any plea to the jurisdiction which sets up and relies upon recitals of outside facts, requires evidence to support it. A motion does not prove itself, especially as to extraneous facts alleged in it.

      Luke E. Hart and Richard O. Hart for respondent.
    (1) Appellant was required to serve the appellee “with a notice in writing, stating the fact that an appeal has been taken from the judgment therein specified.” Sec. 7582, R. S. 1909; Newberry v. Melton, 3 Mo. 1.21; Cooksey v. Railway Co., 17 Mo. App. 138; Conway v. Campbell, 38 Mo. App. 476; Crosby v. Clary, 43 Mo. App-. 226; Wolff v. Coffin, 46 Mo. Apip-. 192; ITammel v. Weis, 54 Mo. App. 16-; Dooley v. Railway Co., 83' Mo. App. 105.; Rowley v. Hinds, 50 Mo. 405; State v. Hammond, 92 Mo. App. 235; Hyatt v. Wheeler, 101 Mo. App. 359; Comstock v. Packing Co., 171 Mo. A.pp. 410. (2) The paper served upion appellee’s attorneys did not describe the judgment, and, in fact, misdescribed the judgment of the justice- in this case, and was not a notice of appeal as required by statute. Tiffin v. Millington, 3 Mo. 418; MeGiniss v. Taylor, 22 Mo. App. 513; Smith Drug Co. v. Hill, 61 Mo. App. 680; Hyde-v. Goldsby, 35 Mo. App. 29; Schulenberg v. Ba,scorn, 38 Mo. 192; Robinson v. Walker, 45- Mo. 117; Hyatt v. Wheeler, 101 Mo. Apip. 357; Green v. Costello, 35 Mo. App. 127; Devere v. Staecker, 49 Mo. App-. 547; Hammond v. Kroff, 36 Mo. App. 121; Cooper v. Acc. Co., 117 Mo. App. 423; Clay v. Turner, 135 Mo. Apip-. 596; Potts v. Nalnn, 147 Mo. App-. 562; Comstock v. Packing Co., 171 Mo. App, 410. (3) Appellant must prove that notice in proper form was served. Comstock v. Packing Co., 171 Mo. Ap-p. 410; Drake v. Gorrell, 127 Mo. App. 638. (4) Insufficiency of the notice was not waived by mere acknowledgment of service. Stnder v. Federle, 57 Mo. App. 534; Corn-stock v. Packing Co., 171 Mo. App. 421.
   WHITE, C.

The plaintiff in this case obtained judgment before a justice of the peace. An appeal was taken to the circuit court, where the judgment was affirmed for alleged want of notice of appeal. The defendant- appealed to the St. Louis Court of Appeals where-the judgment of the circuit court was affirmed; Aixen, J., dissenting, certified the case to this court, deeming the decision in conflict with other decisions of that court and of the Springfield Court of Appeals.

The only question for determination here is whether a sufficient notice of appeal from the justice’s court was served. Thé jridgment . was rendered before A. A. O’Halloran, Justice of the Peace, on October 26, 1909, for the sum of two hundred and three dollars and ninety cents. The notice of appeal was served November 24, 1909, as follows:

“Davenport Vinegar & Pickling Works (a corporation), Plaintiff, M. B. Shelley, Trading as M. B. Shelley Mfg. Co., Defendant. Before A. A. O’Halloran,, Esq., Justice of the Peace, Fifth District, St. Louis, Missouri.
“To the above named plaintiff, or its attorneys, Plart & Hart — . Take Notice:
“That an appeal has been taken from the judgment of the justice rendered on the 21st day of October, 1909, in favor of the Davenport Vinegar & Pickling Works, a corporation, and against M. B. Shelley, trading as M. B. Shelley Manufacturing Company, in the sum of 203.62 Dollars; said appeal is addressed to the Circuit Court of the City of St. Louis, Missouri.
“(Signed) J. M. Lashly,
For Defendant.
“We hereby acknowledge due and timely service of the within notice this 24th day of November, 1909.
“(Signed) Hart & Hart;
For Plaintiff.”

The justice’s transcript of the proceedings was duly filed in the circuit court December 9, 1909. This transcript showed the rendition of judgment as stated, and, among other things, that on the day of the trial the defendant filed a counterclaim, and the judgment on! the counterclaim was for the plaintiff.

On the 26th day of February the! plaintiff filed in the circuit court its motion to affirm the judgment of the justice of the peace. The motion recites that the plaintiff appears for the purpose of the motion only, and alleges, among the grounds for the affirmance of the judgment:

“Second: That the appellant has failed to, serve the appellee with notice of appeal, as required by Section 4074, R. S. 1899.
“Third: That the so-called notice which reads as follows:”-

Then follows an exact copy of the notice above set out except that under the name of the justice of the peace in the copv of the notice are added: “No. 64052 —No. 5.”

Afterwards, on the twentieth of October, 1910, the plaintiff filed another motion in words and figures exactly like the first motion except that the figures “No. 64052- — No. 5” were omitted. These numbers designated the number of the case and the division o.f the circuit court in which the suit was pending.

Subsequently, June 21, 1913, the plaintiff filed its third motion to affirm the judgment, setting out all the proceedings before the justice and designating the notice as “a paper.”

It is further alleged that after the said notice had been served upon the plaintiff’s attorneys, without their knowledge and consent the number and division of the circuit court to which the samie had been assigned had been added.

Thus the matter was pending in the circuit court several years. Three circuit judges attempted a settlement of it. The second motion mentioned above was overruled April 3, 1910. The third motion filed in 1913 was at first sustained, and the judgment afterwards set aside and the motion again sustained.

The judge who finally affirmed the judgment, in the memorandum which he filed in the case, stated: “There is no claim or pretense that there was any other judgment rendered between these parties in October,- 1909, by the justice who rendered the judgment in question.”

. It is claimed by respondent that the notice of appeal is fatally defective, because of three discrepancies between its description of the judgment and the judgment actually rendered. The date of the judgment rendered was October 26, 190-9-, the statement in the .g ^ ^ app,ea]ed from was rendered October 21, 1909; the amount of the judgment was $20-3.90, the notice gives it $203.62; the judgment included a finding for plaintiff on defendant’s counterclaim, the counterclaim is not mentioned in the notice.

The purpose of the notice required by Section 758-2, Revised Statutes 1909, it has been held, is to notify; that is, to inform the person notified of a fact. When a, person knows of a thing lie has notice of it, and no one needs notice of what he already knows. [20 R. C. L. p. 344; Igo v. Bradford, 110 Mo. App. 670, l. c. 674; Teasdale & Co, v. Fruit Product Co., 120 Mo. App. l. c. 586; Grocery Co. v. Rust, 185 Mo. App. 279.] True, actual knowledge that the case has been appealed is not sufficient. The notice required by Section 7582 must) be “in writing, stating the fact that an appeal has been taken from the judgment therein specified,

Many cases by the several courts of appeals hold that an erroneous date designating the judgment appealed from is fatally defective, since it would specify a judgment different from a judgment actually rendered. On the other hand, it is held that where no date is mentioned and the notice otherwise properly describes the judgment appealed from, it is sufficient. [Monroe v. Herrington, 99 Mo. App. 288.] It is also held where the notice erroneously recites the date, it is sufficient, provided the notice “is sufficiently descriptive of the judgment rendered in the case between these parties to identify it.” In a case where the amount of the judgment, the justice before whom it was rendered, together with the division and number of the ease where the ap* peal was pending in the circuit court, were stated correctly, the notice was sufficient, although the date stated in the notice was erroneous. [Collier v. Storage & Moving Co., 128 Mo. App. 113.] In the case of Grocery Co. v. Rust, 185 Mo. App. 279, the date of the judgment was March 8th, and the uotice stated it was on March 9th; otherwise it correctly specified the judgment; it was held by the St. Louis Court of Appeals that the notice was sufficient.

In the present case, in addition to the error in the date, there is a discrepancy in the amount of the judgment. The question for determination is whether the notice served would necessarily inform the plaintiff of the identity of the judgment appealed from, and whether in fact it did so inform the plaintiff.

There ivas no other case pending between the same parties; the notice was served upon Hart] & Hart, the attorneys who appeared for the plaintiff in the justice’s court. Service of the notice was acknowledged by these attorneys, who signed themselves, “Hart & Hart, For Plaintiff.” That is, the acknowledgment of service, in addition to the names of the parties, further designated the judgment as the one in which the attorneys acknowledging service appeared for plaintiff. These attorneys did not appear, so far as shown, for the plaintiff in any other case in any justice’s court. Those same attorneys filed the motion in the circuit court. In that motion they did not state that no notice of appeal had been served on them, and thereby ignore the notice. They asserted in the motion that the appellant had failed to serve the notice required b'y statute, and refer to “the so-called notice, which reads as follows” etc., and-copied the notice and, achnoudedfjment of service. Thus the motion alleges in effect that the notice served upon the attorneys was served in and referred to the case then pending in the circuit court, the case in which the motion •was filed.

While knowledge of the pendency of an appeal derived from any other source would be insufficient, if such knowledge came to the- attorneys by means of the notice, the notice is sufficient. And here is an allegation •in the motion that they were served with notice in that case. The notice it sufficient to inform, and in fact did inform the plaintiff’s attorneys that the appeal was taken in -the case actually appealed from. That is, the judgment was sufficiently “therein specified” to inform counsel which judgment it was.

The decision of the several courts of appeals so strictly construing the statute appear to claim support in the ancient case in this court of Tiffin v. Millington, 3 Mo. 419. In that case Millington, plaintiff, sued Lawless, defendant, by attachment, and summoned Tiffin, garnishee. Judgment was given against the defendant and also against the garnishee. The garnishee appealed and served his notice, in which he described himself as defendant. The name of the real defendant was not mentioned and the court very properly held that the notice described a different judgment'from the one actually rendered and appealed from. There is nothing in that case to justify the strict requirements which have appeared in later decisions.

The judgment is reversed and the cause remanded.

Railey and Mosley, GC., concur.

PER CURIAMThe foregoing opinion by White, 0., is adopted as the opinion of the court.

All of the judges concur.


author: WALKER, C. J.

text:
    JENNIE ERWIN v. WILLIAM NOLAN et al., Appellants.
    Division Two,
    January 6, 1920.
    1. CONSTITUTION: Manner of Amendment. A State Constitution can be amended only in the manner by it prescribed. Where the Constitution of 1820 declared that it could be amended only by the affirmative vote of two-thirds of the members of both houses of the General Assembly at two successive sessions, the Convention of 1865, called to consider amendments, had no power to make an ordinance a part of the Constitution by the mere adoption and promulgation of it.
    2. -: -: Manumission Ordinance of 1865. The ordinance declaring slavery abolished, adopted and promulgated on January 11, 1865, by the convention called to consider such amendments to the Constitution as may be deemed “necessary for the emancipation of slaves,” was void, because the convention had no power to make it valid. The convention was not invested with legislative powers, and if the ordinance be considered an amendment to the Constitution it was invalid because it was not added thereto by the method of amendment prescribed by the Constitution of 1820, or submitted to a vote of the people for their approval.
    3. -: -: —:-: Retrospective Operation. Nor can the emphatic declaration abolishing slavery contained in the Constitution of 1865, adopted by the people on June 6, 1865, and effective July 4, 1865, be given such retrospective operation as to make valid the Manumission Ordinance of January 11, 1865, framed by the same convention, since the constitutional provision coniamed no reference to the ordinance.
    4. -: --•: Convention Elected by People: Superiority to Legislature. The fact that the delegates to the Convention of 1865, called by the Legislature to “consider” such amendments to the Constitution “as may be by them deemed necessary for the emancipation of slaves” or “necessary to preserve the purity of the elective franchise to loyal citizens” or “essential to the promotion of the public good,” were elected by the people, .did not make the convention superior to the Legislature, or vest it with legislative power, or give to its promulgated ordinance the character of a law or of an amendment to the Constitution. The convention derived its power from the people, but the power conferred was limited by the people to the terms of the legislative enactment under which its members were elected.
    5. -: -: Legislative Recognition of Invalid Ordinance. Recognition in the preamble of the Act of February 20, 1865, to the Manumission Ordinance of January 11, 1865, which was an invalid attempt to amend the Constitution, gave no validity to the ordinance. [Overruling Thomas v. Mead; 36 Mo. l. c. 242, in so far as it upholds the validity of the Ousting Ordinance promulgated by the same convention.]
    6. SLAVERY: Abolition. Neither the Act of Congress of July 17, 1862, nor the presidential proclamations of September 22, 1862, and January 1, 1863, had any legal effect upon the legal status of slaves in Missouri. The legal emancipation of slaves in this State was effected by the adoption of the Constitution of 1865 on June 6, 1865, and prior thereto their legal status was not terminated.
    7. CHILDREN OF SLAVES: Born February 18, 1865: Inheritance of Property. Under Section 344, Revised Statutes 1909, providing that “the children of all parents who were slaves, and were living together in good faith as man and wife at the birth of such children, shall be deemed and taken to be tlie legitimate children of such parents,” a girl born of such parents on February 18, 1865, is entitled to inherit from such parents dying intestate, although, on January 11, 1865, the constitutional convention had by invalid ordinance undertaken to emancipate slaves.
    8. -: Failure to Solemnize Marriage Relations. The Act of February 20, 1865, requiring former slaves to solemnize their antecedent marriage relations and prescribing penalties for failure to do so, did not abrogate the relationship, or make illegitimate their children born in slavery.
    9. -: Marriage: Subsequent Acknowledgment: Legal Contract. If persons in bondage were married according to the usages established for the marriage of slaves and lived together as husband and wife, their acknowledgment of the relation after their emanci pation completed the act of matrimony so as to make them lawfully married from the time they began to live together as husband and wife. A legal contract of marriage may be inferred from evidence establishing such facts. a
    Appeal from Jackson Circuit Court.— Hon. KimbroughStone, .Judge.
    Affirmed.

      Roland Hughes for appellant.
    (1) During slavery there could be no such thing as a marriage between the plaintiff’s mother and Liouis Nolan. Reeves on Domestic Relation, 341; Howard v. Howard, 6 Jones (51 N. C.) 235 and 236; Malinda v. Gardner, 24 Ala. 719-724; Stewart v. Muchandler, 65 Ky. 278; Brown v. Becket, 6 D. C. 252; Johnson v. Jolmson, 45 Mo. 535; Keen v. Keen, 184 Mo. 373. (2) Since the relation of husband and wife cannot exist between slaves, the fact that they have continued to live together after emancipation cannot raise a presumption of marriage as in other cases. Williams v. State, 44 Ala. 24; Brown v. Beckett, 6 D. C. 253; Pain v. Pain, 3¡7 Mo. App. 110; Keen v. Keen, 184 Mo. 373' and 374. (3) This being true, the plaintiff could only inherit -by virtue of Sec. 344, R. S. 1909 (passed February 8,1865; see Gr. S. 1865, p. 519.) (4) To bring herself within the terms of this statute, it was necessary for her to prove that her mother and Louis Nolan were slaves living together in good faith as mían and wife, at the time of her birth. Gr. S. 1866, p. 519; sec. 13. (5) The uncontradicted testimony of unimpeached and unimpeachable witnesses of both plaintiff and defendant is that she was born after slavery was abolished in Missouri, and the court erred in refusing to instruct a, verdict for defendants.

      John (7. Paxton and William B. Bostiwi for respondent.
    (.1) The claim of respondent to be the child and heir of Louis Nolan primarily rests on Sec. 344, R. S. 1909. (2) Apart from this statute, a subsequent coll abita lion after emancipation by a man and woman who had been living together as husband and wife in a slave marriage would operate to create a common law marriage, and render legitimate the children of said marriage born after emancipation. Lee v. Lee, 161 Mo. 57; Daniel v. Sams, 17 Fla. 487; Johnson v. Johnson, 45 Mo. 595. (3) To aid in the construction of the law maintained by respondent, there is the presumption in favor of legitimacy. Mair v. Brock, 222 Mo. 100. (4) The statute (Gr. S. 1865, sec. 459) requiring registration after emancipation of negroes living as husband and wife in slavery, did not in express terms nullify marriages not registered. It has been held to be directory, and not to nullify the marriages of couples not registered. Renfrow v. Renfrow, 60 Kan. 277; Long v. Barnes, 87 N. C. 329'; 19 Am. So Eng. Ency. Law, 1.171, note 2. This collates all the authorities. State v. Bittick, 103 Mo. 183.
   WALKER, C. J.

This appeal arises out of an action brought in the Circuit Court of Jackson County under Section 2535, Revised Statutes 1909, to try and determine the title to certain land in said county described in the petition. Louis Nolan, who is the common source of title, died seized of this land in December, 1915, intestate. Respondent claims title as his daughter, and the appellants as his nephews and nieces.

The petition is at law and in, the usual form. The answer admits that the appellants are in possession of the land, and while admitting the paternity of the respondent, alleges that she is illegitimate and hence incapable of inheriting from her father and that they are his sole heirs.

Upon a trial before a jury there was a verdict for respondent and a finding that she was the legitimate child and heir of Louis Nolan and as such entitled to the land. Prom the judgment rendered thereon this appeal was prosecuted.

The parties litigant are negroes. The testimony of the witnesses for the respondent was to the effect that some time in the year 1864, more than nine months before the birth of respondent, Louis Nolan, then a slave and living with his owner in Jackson County, went to the residence of the owner of Mary, the mother of respondent, also, a slave, who lived in the same neighborhood, and asked if he could have her for his wife. The owner gave his consent, and, in the language of a negro woman then present, “He got a big book and with his wife and Louis went to the kitchen where M'ary was at work.” Thereafter Louis visited Mary twice a week, frequently bringing her meat, eggs and other things. During his visits he slept with her, and when the respondent was born, on the 18th day of February, 3865, and thereafter, he called her his daughter and in time she called him daddy.

He was frequently heard to declare during this time and subsequently that Mary was his wife and that the respondent was his daughter.

The testimony for the appellants, while not directly contravening the testimony for the respondent, is to the effect that they knew Louis Nolan during all of the time stated by the witnesses for the respondent and that his conduct and declarations were such as to indicate that he did not regard Mary as his wife or the respondent as his daughter.

So far, however, as the conduct and declarations of Louis and Mary are concerned, they are confirmatory of the conclusion that they regarded each other as husband and wife and that this relation subsisted between them during the remainder of their servitude and for some time after their emancipation, if not up to the date of the death of Mary, which occurred several years prior to the death of Louis.

There was no evidence of a ceremonial miarriage and it is contended by the appellants that (1) as the parties were incapable of contracting they could not enter into and consummate a common-law marriage; (2) that in the absence of this relation the usual presumption of marriage arising from conduct and cohabitation does not obtain; (3) that the salutary statute (now Sec. 344, R. S. 1909) legitimizing the issue of such persons can have no application because, by its terms, it is limited to issue born while such persons were in a state of slavery, which status, as alleged by appellants and tacitly admitted by respondent, was-abolished by this State on the 11th day of January, 3865, before the respondent was born, which was not until the 38th of the succeeding, month.

The material portions of the statute referred to are as follows:

“The children of all parents who Avere slaves, and Avere liA’ing together in good faith as man and wife at the time of the birth of such children, shall be deemed and taken to be the legitimate children of such parents, and all the children of any one mother, who was a slave at the time of their birth, shall be deemed lawful brothers and sisters, for the purposes of this article.” [Sec. 344, R. S. 190911

If it be conceded that this section, so far as concerns the legitimacy of respondent, is subject to the construction placed upon it by appellants, the facts, despite the concessioii of the parties hereto as to the time when slavery was abolished in this State, do not sustain this construction. It is true that on the 11th day of January, 1865, an ordinance abolishing slavery in Missouri-was adopted and promulgated by a convention, the defined province of which under the act of its creation (Sec. 5, Act approved February 13, 1864, Laws 1864, pt> 24) was “to consider, first, such amendments to the Constitution of the State as may be by them deemed necessary for the emancipation of slaves; second, such amendments to the Constitution of the State as ma}^ be by them deemed necessary to preserve in puritjr the elective franchise to loyal citizens and such other amendments as may be by them deemed essential to the promotion of the public good.” If the Constitution of the State then in force authorized the Legislature to provide for the election by popular vote of delegates to a convention which was, under the act of its creation, declared to possess the plenary power of the whole people, then the right of such a convention to adopt, not only an effective ordinance abolishing slavery, but any other which did not contravene the Constitution, is beyond question. The Constitution then in force and subsequent ones, differing only in phraseology, have given express recognition to the fact that the people are the source of all power, in this language: “The people of this State have the inherent, sole and exclusive right of regulating the internal government and police thereof aiid of altering or abolishing their Constitution- and form of Government whenever it may be necessary to their safety and happiness.” [Sec. 2, Bill of Rights, Constitution of Missouri of 1820'.]

The power thus conferred is, from the terms employed, unlimited; but the people, in their wisdom, have usually in their organic law, always of their own making, prescribed limitations upon and defined the course to be pursued in the exercise of this power. Conformity with these requirements is as obligatory upon the whole people as is the duty of the individual to obey the law. Otherwise, the peaceful changes in constitutions or statutes could not be insured, the administration of the law would be interfered with and the perpetuity of civil government endangered. Well aware, as every student of civics must be, of the dangers incident to irregularity of action in matters affecting government, the framers of the Constitution in fore? when the ordinance in question was promulgated, incorporated into that instrument a method to be pursued in amending same, which cannot be construed arj other than a modification of or limitation upon section 2, supra. It is as follows:

“The General Assembly may, at any time, propose such amendments to this Constitution as two-thirds of each house shall deem, expedient, which shall be published in all the newspapers published in this State, three several times, at least twelve months before the next general election; and if, at the first session of the General Assembly after such general election, two-thirds of each, house shall, by yeas and nays, ratify such proposed amendments, they shall be valid, to all intents and purposes, as parts of this Constitution: Provided, that such proposed amendments shall be read on three several days, in each house, as well when the same are proposed, as when they are finally ratified.” [Art. 12, Cons. Mo. 1820.]

This article prescribes the only method by which the then fundamental law could be changed and is therefore exclusive. There was no compliance with its terms, and the validity of the ordinance cannot be predicated upon the condition that it constituted an amendment to the Constitution which was framed by this convention subsequent to the adoption of the ordinance. The validity of the latter, however, was not asserted at the time of its adoption, nor in the subsequent declarations in' support of same, to be dependent upon the assumption that it was an amendment to the Constitution. Nor can it be claimed with any regard for the rules of construction that the Constitution framed by this convention and which contained an emphatic declaration abolishing slavery but nothing further in regard thereto, can be construed to have a retrospective effect and thus give operative force to the ordinance which was dated January 11, 1865, while the Constitution was not adopted by the people until June 6, 1865, and by its terms did not become effective until the fact of its approval had been promulgated by the Governor on the 4th day of July, 1865.

Nor was it contended at the time or thereafter that the ordinance derived its validity from the subsequent recognition of its purpose in the Constitution. The position assumed by its supporters was more sweeping and was based upon general principles rather than rules of construction. It was maintained that the power of the Legislature to provide for the election of delegates to a state convention of the character here under review, could have no further effect than to prescribe the-method of their election; that the Legislature, being wholly representative in its character, when it had provided for such election, became an inferior body to the convention, whose delegates when assembled represented the sovereignty of the whole people and hence were not limited in power by the act of the Legislature. The recognized' validity of the acts of the former state convention held under the authority of the statute approved January 21, 1861 (Laws 1860-1861, p. 20), is urged as a reason by analogy in support of the validity of the ordinance in question. Not only were the conditions dissimilar under which these two conventions were held, but the purposes and powers of each, as disclosed by the acts of their creation, were entirely different. The convention of 1861 was authorized, “to take such action as the interest a'nd welfare of the people may require” limited only by the provision that “no act, ordinance or resolution of said convention shall be deemed to be valid to change or dissolve the political relations of this State to the Government of the United States or any other State until a majority of the qualified voters of this State, voting upon the question, shall ratify the same.”

The reasons for the creation of this convention while not disclosed by its terms, are familiar to every student of history. A spirit of unrest and antagonism towards the national government had been manifested by the executive officials and many of the people of the State following the result of the preceding presidential election. This attitude became more pronounced as time advanced. If it continued, it required no prescience to determine that it would result in disturbing if not destroying the then otherwise peaceful condition of public affairs. To avert such a calamity the Legislature, with the consequent approval of the people, created the convention and panoplied it with power equal to any emergency. Succeeding events demonstrated the wisdom of this course. The convention met from time to time without any effort to invade the province of any department of government, discussed every phase of the conditions which seemed to menace the public peace, passed resolutions, if we may say not flippantly, “as plentiful as blackberries” and adjourned not finailv on the 22nd day of March, 1861, with the declaration solemnly expressed that it was the judgment of the people of the State “that there was no sufficient cause for disturbing the relations existing between the State and the national government.” Despite this declaration the attitude of the executive officers and many members of the General Assembly towards the Federal Government as then conducted continued, resulting in June, 1861, in the Governor anil other officers, including members of the Legislature, abandoning their offices and fl'eeing from the State capital. This left no magistracy to' exercise the powers conferred upon it by law to maintain the peace of tli • State and the security of the people. The • convention thereupon met and proceeded to organize a provisional government, which, after electing executive officers, began to exercise the functions and powers of a legislative body, the result of their action being designated as “ordinances.” The wisdom of this course is apparent and the actions of the convention justified if upon no other ground, than the necessity to restore and preserve the peace of the State and the security of the people.

However, the conditions existing at the time tlie ordinance in question was adopted by the convention of 1865 were entirely different. The provisional government had, upon the securing of an orderly condition of affairs, passed out of existence, and upon the election of all the authorized state ’officials at the general election in 1864 there remained no reason or necessity for the exercise of any other power than that expressly conferred by the Constitution and the laws of the State. The Governor and other state officials were in the exercise of their various duties and the General Assembly was in session. In the absence, therefore, of any necessity for extraordinary action and in the presence of a peaceful and orderly condition of affairs there was no ground for the creation of the convention of 1865 other than the purpose specified in the act. That purpose, and that alone, was to propose or, to employ the language of the act, “consider” amendments to the Constitution. In the orderly" condition of public affairs then existing, of which there can be no controversy, no other possible purpose could reasonably be said to have existed for conferring or attempting to confer greater power upon this convention than that expressed in the act. Moreover, the claim as to the superior power of this convention over that of the Legislature is a mere flourish of words and will not stand the test of analysis. The Legislature, within its.own province, as defined by law, is supreme. To no greater extent is a convention, which, like the Legislature, must derive its power from the law. That the convention derived its power from the people is true, but the power thus conferred was limited by the people themselves to the terms of the legislative enactment under which the members of the convention were elected. If this limitation, or some other which defined the purpose of the act, had not been embodied therein, no reason would have been presented for requiring the people to vote upon the selection of delegates to the convention. In the absence, therefore, of this or some other prescribed purpose, the act would not only have been futile, but absurd.

An act of the Legislature approved February 20, 1865 (Laws 1864-1865, p. 6'3), the purpose of which was to confer personal and property rights upon slaves, attempted in its preamble to give legislative recognition to the ordinance in question. The effect of the ordinance was, if valid, to amend the Constitution; we have shown that in its adoption by the convention the course prescribed to accomplish that- purpose was ignored. The legislative act therefore was nothing more than an effort to give recognition to an abortive attempt to amend the organic law — legislative conformity with the latter is a prerequisite to the validity of all statutes.

In Thomas v. Mead, 36 Mo. l. c. 242, judicial recognition by assumption is given to what is termed the “ousting ordinance” adopted by the same convention which promulgated that under review. The same rules which apply to the one are applicable to the other; and incidentally, but as necessary to the determination of the matter at issue, we may say that the ousting ordinance is subject to all the infirmities we have attributed to that in question. No reasons are given or conclusions attempted to be adduced by the court in its opinion "by Holmes, J., in the Mead case as to the validity of the ousting ordinance. It simply assumes that the. convention was clothed with supreme power and that the public was bound by its action. This falls short of defining a reason for. the court’s conclusion and establishes no principle upon which the ordinance can be construed to be valid. It is therefore no authority in favor of the power of the convention to enact the ordinance and does not rise to the dignity of a precedent.

The Act of Congress of July 17, 1862, did not undertake to free even all of the slaves of persons • then in rebellion against the Government; but it was limited to the slaves of such persons “escaping and taking refuge within the lines of the army, and all slaves captured from such persons or deserted by them .or found or being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, were to be deemed captives of war and thereafter free of their servitude.” [Weaver v. Lapsley, 42 Ala. 601, 94 Am. Dec. 671.]

The presidential proclamations of September 22, 1862, and January 1, 1863, did not have any effect upon the legal status of slaves in Missouri; by their terms these proclamations were restricted in their application to persons held as slaves in a state or part of a state then in rebellion. Missouri was not at the time of the proclamations or thereafter in that category; and if it had been the proclamations were, as their language indicates, war measures definitive of the attitude of the President on personal liberty, but worthless as affecting any legal status unless carried into effect, and even in a state in open rebellion of no potential force until it had been conquered and the people rendered subject to the national law. [Henderlite v. Thurman, 22 Grat. (Va.) 466, 12 Am. Rep. 526; McElvain v. Mudd, 44 Ala. 48, 4 Am. Rep-. 106.] In consonance with this conclusion the Supreme Court of the United States in the Slaughter-House Cases (1G Wall. 36, 21 U. S. Law Ed. 394) held that slavery was not legally abolished in the United States, whatever may have been the material status of the slaves in any particular state, until the adoption of the Thirteenth Amendment to the Federal

If, therefore, the binding- force and effect of state constitutions and statutes upon property rights be waived, no refuge from the charge of invalidity in the ordinance can be found in the acts of Congress or presi - dential proclamations.

From all of which the conclusion is authorized that whatever may have been the actual condition of slaves prior thereto, their legal status as such was not terminated in Missouri until the adoption of the Constitution of 1865. Under -the construction of appellants, therefore, the respondent was born while her parents were in a state of bondage and her rights of inheritance are clearly established by what is now Section 344, Revised Statutes 1909.

The character of this statute, however, and. the purpose of its enactment authorize a broader construction than that given to it by the appellants. As we said in effect in Wiley v. Harlow, 274 Mo. l. c. 176, “this statute must be construed so as to subserve its beneficient intention of remedying an unfortunate situation so far as is consonant with good morals and dignity.” The intention thus referred to is the legitimation of the children of those who had been slaves. The initial tests of its application are cohabitation, commenced in bondage, accompanied by the other material similitudes of the marital relation as sustained between free-persons and continued in good faith by the parents up to the birth of the child. Present these requisites, all others necessary to the existence of a marriage under different conditions need not, in the construction of Section 344, supra, be taken into consideration. The correctness of this conclusion is not disturbed by the statute approved February 20, 1865 (Laws 1864-1865, p. 67), which provided penalties for a non-compliance with its requirements ánd is applicable by its terms “to persons of color theretofore held as slaves who had cohabited as man and wife.” This statute, while requiring former slaves to solemnize their antecedent marriage relations as therein required and prescribing penalties for a failure so to do, does not attempt in implied or express terms to abrogate the relationship. If so construed .it would completely destroy the purpose of Section 344, supra, in that it would upon a conviction result in impliedly establishing a condition of concubinage, which all statutes affecting the marriage relation and the consequent legal standing of the child seek to avoid.

While we hold here as elsewhere that marriage, being in the nature of a contract, cannot be legally consummated by persons incapable of contracting, we likewise hold that if in attempting’ to enter into the marriage relation the slave, although his act lacked technical validity, violated no legal duty; and if after emancipation there was confirmation, by cohabitation or otherwise, substantial grounds would exist for declaring the marriage binding. If, therefore, persons in bondage lived together as husband and wife and during that status were married according to the usage established for the marriage of slaves, their subsequent mutual acknowledgment of the relation after their emancipation should be held to complete the act of matrimony so as to make them lawfully married from] the time when their living together as husband and wife commenced. [Johnson v. Johnson, 45 Mo. l. c. 601.] The Legislature doubtless in the enactment of Section 344, supra, recognized the rule as thus announced and hence embodied only the requisities prescribed therein.

In Lee v. Lee, 161 Mo. 52, in an illuminating opinion on this subject by Valliant, J., we held in effect that under this statute the children of all persons who were slaves and who were living together in good faith as man and wife at the time of the birth of such children are deemed to he legitimate and that the words “good faith” as employed in said statute do not mean that such slaves should have’had the power to make a marriage contract, but it should appear that they have agreed to enter upon the marriage relation. The existence of sxich an agreement may not he susceptible of direct proof, hut may he implied from the conduct and declarations of the parties, as in other cases. [Renfrow v. Renfrow, 60 Kan. l. c. 281; Francis v. Francis, 31 Grat. (Va.) 283; McReynolds v. State, 5 Coldw. (Tenn.) 18.]

In the instant case there was no positive proof of a direct agreement between the parties to occupy the relation of husband and wife but there was substantial .evidence of this fact from their conduct and declarations. The jury found this to he sufficient to. sustain a verdict in favor of the respondent and we are not authorized, so far as the testimony is concerned, to disturb it. [Koehler v. Rowland, 275 Mo. 573.]

Under these rulings the conclusion is authorized that the respondent may, under this statute, be declared legitimate although born before the emancipation of her parents. To hold otherwise would destroy the uniformity of the application of the statute and render possible a harsh or unfair discrimination between the children of the same parents, in that it would authorize the holding of those born while the parents were in a state of bondage to he legitimate, while those born after emancipation would be bastards. Neither ’ reason nor rule will sustaixi such an interpretation.

Ixx the Lee case, supra, we held where slaves had assumed the relation of husband and wife with the consent of the master that such consent supplied the technical power they lacked to contract and hence the relation thus begun would constitute a consensual or commoxi-law marriage; this, in our opinion would, although it is not necessary to so decide, authorizes a holding in favor of the legitimacy of respondent as an issue of such a marriage and her consequent right to inherit from her father.

Our construction of' the statute (Sec. 344) is determinative of the correctness of instruction numbered one given at the request of the respondent and the 'refusal of instruction numbered two asked by appellants.

Prom all of which it follows that the judgment of the circuit court should he affirmed and it is so ordered.

All concur.


author: RAILEY, C.

text:
    CLYDE M. CHRISTINE v. HERMAN C. G. LUYTIES, Appellant.
    Division Two,
    January 6, 1920.
    1. REFERENCE: Law Case: Appellate Practice. In an action at law, tried by the court without a jury and without instructions asked or given, in which the report of the referee was confirmed, to support which there was substantial evidence, the appellate court is concluded by the judgment rendered, except as to errors committed in receiving or rejecting evidence.
    2. -: -: -: Act of 1919: Retrospective Operation. The Act of 1919, Laws ,1919, page 213, requiring the appellate court, in all cases in which a referee has been appointed and made a report, upon exceptions properly preserved, to review the evidence and findings of fact and conclusions of law of the referee and the trial court, expresses no intention on its face that it shall have a retrospective operation,’and therefore it does not apply to appeals taken before it went into effect.
    3. -: Contract and Quantum Meruit: Measure of Recovery. Where plaintiff sued in his first count on an oral contract and in the second on quantum meruit, for services, rendered, and defendant’s answer set up a different contract,.and the evidence fails to show that either contract as alleged was made, the measure of defendant’s liability is not limited by the terms of either, but having proven that his services were rendered at the special instance and request of defendant plaintiff is entitled to recover on quantum meruit the amount of their reasonable value, as established by the evidence.
    4. EVIDENCE: Exhibit: Materiality of Error Must Be Pointed Out. If appellant considers that a statement in writing signed by a witness should have been admitted in evidence for the purpose’ of impeachment, it is his duty to point out from the record the testimony showing its materiality, the ruling thereon and the witness’s testimony in explanation of the same; otherwise, the assignment will not be ruled.
    5. -: Costs: Apportionment. Where plaintiff sued on two counts, on a contract in the first and on quantum meruit in the second, and defendant set up a different contract in his answer to the first and a general denial to -the second, and a counterclaim to both, and neither contract was established by the evidence and little evidence concerning either was adduced, and the main costs incurred were due to the defenses and counterclaims to both counts, and the trial resulted in a judgment against plaintiff on the first count and a substantial judgment for him on the second, and against defendant on both of his counterclaims, there is no basis for apportioning the costs, but they should all, including the referee’s and the stenographer’s allowances, be taxed against defendant.
    Appeal from St. Louis City Circuit Court. — Hon. Benjamin K. Klene, Judge.
    Affirmed.

      A. é H. N. Arnste/in for appellant.'
    (1) The filing of a counterclaim for damages for alleged breaches of contract does not abrogate the contract so far as the other party is concerned, and' his right of recovery, if any, is still limited by the terms of the contract, subject to a deduction for the amount of damages, if any, awarded on the counterclaim. Moore •v. Gaus & Sons Mfg. Co.,'113‘Mo. 98. (2) In an action upon quantum meruit, where there is a contract governing the amount of the plaintiff’s compensation, the amount of recovery is, in all cases, limited by the contract. 5 Corpus Juris, p. 1411, sec. 91-A; Johnston v. Star Bucket Pump Co., 274 Mo. 414; American Surety Co. v. Fruin-Bambrick Construction Co., 182 Mo. App. 667; Daniel v. McDaniels, 184 Mo. App. 354; Owen v. Hadley, 186 Mo. App. 1; Moore v. Gaus & Sons Mfg. Co.,' 113 Mo. 98; Williams v. Chicago, etc., Ry. Co., 112 Mo. 463 ; Yeats v. Ballentine, 56 Mo. 538; Evermaun v. Cemetery Assn., 61 Mo. 489; Mansur v. Botts, 80 Mo. 651. (3) Changes or additions do not operate to rescind or abrogate the builder’s contract. 9 Corpus Juris, p. 721, sec. 55-E; Hiaynes, Spencer & Co. v. Second Baptist Church, 88 Mo. 286; Phillippi v. McClain, 5 Mo. App. 586; Menne v. Neumeister, 26 Mo. App. S’OO; Boggs v. Shelton, 173 Mo. App. 127. (4) Where parties engage in a joint venture, all expenses should be computed in order to determine the profit on such venture. And where the transaction involves the acquisition or improvement of unoccupied real estate, interest, taxes and the cost of general improvements are. necessarily chargeable. Campbell v. Northwest Éckington Improvement Co., 2-29 U. S. 561, 57 L. Ed. 1331; Barry v. Bernays, 162 Mo. App. 2)7. (5) A written statement of a witness, if contradictory to his oral testimony, is always admissible in evidence to impeach him. ITence the statement of disbursements on the Kenwood venture, showing the cost of general improvements, as a charge against the profits, made by the witness Dowler, being Exhibit "182, should not have been excluded. Farrar v. Metropolitan Street’ Ry. Co., 249 Mo. 210; Prewitt v. Martin, 59' Mo. 326; Sullivan v. Jefferson Avenue Ry. Co., 133 Mo. 1; Spoonemore. v. Cables, 66 Mo. 579; Greenleaf, Evidence, sec. 466. (6) Where a builder agrees to construct houses for a specified sum, the cast to the owner, above such sum, m|ay ,be recovered from the builder, as for breach of contract. 9 Corpus Juris, 809, sec. 148; lb., 735, sec. 74. (7) Where there is more than one count in a petition, and plaintiff fails to recover on, all counts, the court should apportion the costs, especially where substantial .costs were incurred in connection with the counts upon which plaintiff failed to recover. Link v. Hathaway, .143 Mo. App. 502; R. S. 1909, secs. 1971, 2266.

      Johnson, IIouts, Marlatt S Hawes and Earl M. Pirkey for respondent.
    (1) In a case tried without a jury where the appellate court passes on the evidence, rulings on evidence are not reversible error. Home Telephone Co. v.. Carthage, 235’Mo. 658; Hanson v. Neal, 215 Mo. 271. (2) Where performance is hindered by the other party a suit on quantum meruit will lie and plaintiff is not in such case limited to the contract price.' Joern v. Bang, 200 S. W. 737; Johnston v. Star Bucket Pump Co., 274 Mo. 414. ‘
   RAILEY, C.

This action was commenced by plaintiff in the Circuit Court of the City of St. Louis, Missouri, on October 27, 1911, in two counts. The first is based upon an alleged' contract between plaintiff and defendant, in regard to the construction of thirty-two houses at Kenwood, St. Louis County, Missouri, upon-land owned by defendant, located a short distance northwest of the City of St. Louis. The second, is upon a quantum meruit, based upon substantially the same facts as are pleaded in the first count of pétition.

The first count alleges, in substance, that, about the first of April, 1907, plaintiff and defendant entered into an oral agreement by the terms of which plaintiff agreed to superintend the erection of thirty-two houses on defendant’s land at Kenwood, and was to receive, as compensation therefor, two per cent of the cost of labor and materials expended in and about the erection of said houses, and also twenty-five per cent of the profits which should accrue to defendant from time to time on the sale of said houses, and the lots on which they were to be located; that defendant guaranteed to plaintiff that the profits on each house, erected under said agreement, including the lot or lots, should not be less than two hundred and fifty dollars, and that in case any of the houses should not be sold at their completion, plaintiff should receive two hundred and fifty dollars on such unsold houses; ■ that plaintiff superintended the erection of said houses; that two per cent of the total cost of the labor and materials in said buildings and houses amounted to $1,719.46. Said count sets out the cost of labor and material in each of said houses, amounting in the aggregate to $85,974.02. It is then alleged that, after deducting the value of the lots, on which the buildings were to be located, the profits on ten of said houses, was 25 per cent of $12,516.46', or $3,129.11; that under said guaranty, plaintiff was entitled to receive, on the sale of the remaining 22 lots, $5,500; that' by virtue of said contract, plaintiff is entitled to $10',348.57, less the sum of $405-, paid hy dofendant, leaving the sum. of $9,943.57, for which he prays judgment, with 6 per cent interest from January ■2, 1909.

Appellant, in his amended answer to said first count, denies each and every allegation therein; and alleges that he was the owner of the Kenwood lots, on April 1, 1907; that on or about said date, he entered into a contract with, plaintiff, as a contractor and builder, to superintend the erection of thirty-two houses, upon lots owned by defendant; that plaintiff was to purchase the material and furnish the labor, all of which was to be paid for by defendant; that before the work was commenced, it was agreed between them as to what each of said houses should cost in their erection; that plaintiff was to receive for his services, in superintending said work, two per cent of the cost of material and labor, and twenty-five per cent of the net profits which should be realized by defendant from said houses; that the two per cent commission was to be included in computing the cost of said houses; that the juice of the lots from time to time was to be fixed by defendant ■ prior to the erection of the houses; that, as constituting a part of the cost of said houses, interest upon the money advanced was to be added until the houses were sold and paid for; that the cost of erecting a depot at Kenwood, a sewer system placed in said subdivision, septic tank, streets and sidewalks and all other general expenses, including advertising, printing, telephone service, salaries, commissions on sales, taxes, street lights and insurance, together with interest thereon, were to be apportioned against each lot, in proportion that the number of lots, upon which said houses were to be erected, should bear to the total number of lots then owned by defendant in said subdivision.

It is alleged, that in pursuance of - said contract, ■there were thirty-two houses erected upon forty lots in said sub-division, between April 1, 1907, and September 1, 1907; that the value of the lots built upon were, from time to time, agreed upon, before the construction of said houses was commenced; that the total amount expended by defendant, in the erection of said houses, is $93,828.82; that the price at which said houses were to lie erected by plaintiff, is $63,644.01; that the value agreed upon for the respective lots is $29,330; that the two per cent commission to plaintiff upon the cost of said houses is $1,875.5|7; that the total cost of said houses is $95,705.39'; that the cost of the depot was $206 : the sewer system, $8,126.86 ; septic tank, $637.14; general expenses, including advertising, printing, telephone service, salaries, commissions on sales, taxes up to January 1, 1908, street lights and insurance, $25,566.-93, and the making of streets and sidewalks, $14,030, making a total of $48,557.02; that one-fourth of said last named sum was to be added on account of the extra lots occupied by the buildings, amounting to $12,139.25; that the total cost of said buildings, without interest and without the lots, is $107,844.64; that the interest and taxes accrued to date, on said lots, is $10-,000i, making the total cost, $117,844164; that the excess cost of said houses, over the figures at which they were to be erected by plaintiff, is $30,184.81; that there remained on hand and unsold the buildings upon lot 9-, block 4; lot 13, block 4; lot 45, block 5; lot 25, block 6; lot 43, block 6; lot 37, block 6‘; lot 11, block 2; lots 40 and 41, block 6; that the reasonable value of said eight houses, exclusive of the lots, on which they are located, is $15,000; that the total amount realized from the twenty-four houses sold, is $79,635.10, which, added to the $Í5,0'00, makes $94,635.10-, exclusive of the value of the lots, resulting in a net loss to defendant of $23,209.-54. >

It is further alleged, that said houses were negligently constructed at ¡T cost largely in excess of- the price at which they were to be erected, to the damage of defendant in the sum of $30,184.81; that amongst the houses plaintiff contracted to erect for defendant, under the contract aforesaid, was a building on lots 40 and 41, of block 6, in Kenwood Springs; that on October 2, 1911, plaintiff sued in the justice’s court of Henry Pfeffle, to recover $369.77, alleg-ed to be due him as compensation for the erection of the building on said lots 40 and 41; that said case was tried by Justice Frank M. Kleiber and is now under submission before him; that while said action was pending, this suit .was brought covering the same cause of action; that by reason of foregoing, plaintiff has split his cause of action; that by reason thereof, this action should be abated.

The second- count of the petition is on qi^cmtum meruit, for services in superintending* the erection of said thirty-two buildings in 1907-8. Said services, consisted of making plans and sketches, employing and discharging men, passing on accounts and bids, overseeing the work, letting contracts for part, ordering materials, making estimates for the work, advising defendant concerning same, etc.; that the services aforesaid were reasonably worth $-9,943'.57, for which judgment was asked.

The amended answer to the second count contains a general denial, and pleads substantially the same facts as are set out heretofore by way of answer to first count of petition. The defenses pleaded in the amended answer were substantially as follows:

First. A general denial.

Second. It is claimed, by way of defense, that plaintiff agreed to erect the houses at a certain price, and that the cost of the houses exceeded the price $80-184.81, to defendant’s net loss of $2'3,209L54.

Third. A plea of abatement, based on the fact that plaintiff sued in a justice’s court upon a part of the same cause of action pleaded herein (This defense is eliminated by defendant).

Fourth. By way of defense, a plea that plaintiff negligently and carelessly erected said houses at a cost in excess of the price at which plaintiff agreed to erect the same to defendant’s loss in the sum of $30,184.81.

Fifth. A counterclaim was pleaded, based on the allegation that plaintiff carelessly and negligently erected said houses, and that the cost of same exceeded the price agreed upon in the sum of $30,184.81, to defendant’s damage, for which he asks judgment.

The reply to the new matter in the amended answer is a general denial.

The evidence taken before the referee, Judge Homer, covered a wide range, and comprises over 1100 pages of oral testimony, aside from the exhibits.

The referee, in his report, states his conclusions as to the facts, as follows:

“It appears from the conversation which plaintiff and defendant had in April, 19CÍ7, that they entered into the following agreement: The plaintiff promised and agreed to superintend the erection of certain buildings on certain lots owned by defendant, located in United States Survey 1913, at Kenwood, St. Louis County, Missouri, take general charge of the construction of the said houses, furnish the plans, O. K. the accounts, and the defendant agreed to pay him an amount equal to two.per cent of the total cost of the construction of the houses and buildings and twenty-five per cent of the profits accruing therefrom.
“I. conclude that- there was no agreement on the part of the defendant to guarantee the plaintiff any specific profit on any house, and that the defendant did not guarantee tó pay the plaintiff a profit of two hundred and fifty dollars on each house, if the same did not sell at a profit of one thousand dollars.
“I conclude that there was no agreement on the part of the plaintiff to build the houses for any specific amount, and further, that, after many of the houses were finished by the plaintiff, the defendant ordered him to make many changes therein, and that the said changes greatly enhanced the cost of the undertaking, and that these changes were not in the minds of the parties at the time they entered into the agreement.
“I find no evidence'to indicate that the defendant was dissatisfied with «the work of the plaintiff until after he had accepted the houses.
“I find that there was an agreement for superintending certain work done in making sidewalks, streets, septic tanks, and other general improvements, which work the plaintiff superintended for the defendant, hut I find the same was not a part of the agreement sued for and that the defendant was not indebted to the plaintiff for this work.
• “Defendant, by his counterclaim, proves there is no doubt, that the cost of the houses greatly exceeded the original plans of. the defénclant, but this is not proven to be due to any fault of the plaintiff, and so through lack of evidence to the contrary, I am obliged to assume that the failure of the plaintiff -to build the houses at a cost perhaps contemplated in. the beginning by the defendant, was not due in any way to plaintiff’s fault.
“Owing to the defendant’s failure to prove, through competent evidence, his allegations in said counterclaim, that the increased cost of the houses was due to the carelessness and negligence of the plaintiff in his work, and his further failure to prove any agreement, on the part of the plaintiff, to build the houses at the cost which he alleges, I am obliged to find for the plaintiff on both of the defendant’s counterclaims.” ■

In his report, the referee made'the following recommendation as to the judgment which should be entered, to-wit:

“I recommend that judgment be rendered for plaintiff upon the second count of said petition for seven per cent of $85',974.02, of $6,018.18', deducting" from this amount the sum of $405, which leaves $5,613.18, and interest at the rate of six per cent from the 27th day of October, 3911, which amounts to $1,835, or a total amount of $7,448.18. I recommend' that the first count of plaintiff’s petition be dismissed.
“I further recommend a judgment for plaintiff on both of the defendant’s counterclaims.”

Defendant, in due time, filed his exceptions to the report of the referee, and alleged twenty-five grounds in support of same.

The trial court overruled said exceptions, and entered the following judgment herein:

.“The exceptions heretofore filed by the defendant to the referee’s report in the above-entitled cause coming on for hearing, come the parties hereto, by their respective attorneys, and submit to the court the referee’s report, filed hereiu on the 9th day of April, 1917,- together with transcript of the testimony filed therewith, and the exhibits accompanying the said report; and also submit to the court the said exceptions to said report, and the court, having seen and examined and duly considered the same, and being now fully advised in the premises, doth order that all of said exceptions to said report be, and the same are hereby, overruled; and the court, being satisfied that the said report of the referee is just and correct, it is further ordered and adjudged that said report be and the sarnie is, in all things, hereby approved, confirmed, and held as firm and effectual forever; and, it appearing to the court from said report that the referee recommends that the first count of the plaintiffs petition be dismissed, and that judgment be entered in favor of plaintiff, and against the defendant, on both of the defendant’s counterclaims, and that judgment be ordered in favor of plaintiff, and against defendant, upon the second count of the plaintiff’s petition for seven per cent of $86,974.02, or $6',-018.18, deducting from this amount the sum of $405, which leaves $5,61o.l8, together with interest at the rate of six per cent from the 27th day of October, 1911; it is, therefore, considered and adjudged by the court that the first count of the plaintiff’s petition be dismissed, and that the defendant take nothing by his counterclaims herein, but that the plaintiff be discharged, and go hence without day as to both of the defendant’s said counterclaims; it is further ordered and adjudged by the court that the plaintiff have and recover of the defondant, upon the second count of his petition, the sum of $7,487.01 (being the. net amount recommended by the referee, to-wit, said sum of $6,613.18, with interest herein from October 27, 1911, to this date, added, said interest. amounting to the sum of $1,873.83), and also recover of the defendant the costs of this proceeding, and have therefor execution; the court doth further order and adjudge that William B. Horner, Esq., the referee in this proceeding, be allowed the sum of $1,000 in full for his services as such referee, and that said allowance be taxed as costs in this proceeding; and it is further ordered and adjudged that there be allowed and taxed as costs in favor of Oliver J. Taylor the sum of $581.85 for stenographic services rendered him in taking down and transcribing the proceedings had before said referee.”

Defendant, in due time, filed his motion for a new trial and a motion to apportion the costs. Both motions were overruled, and the cause appealed by defendant to this court.

I. This is an action at law, was tried in the court below without a jury, and without any instructions having been asked or given. The report of the referee, was confirmed and judgment entered accordingly. The trial court had before it substantial evidence .sustaining the judgment as rendered. If no error has been committed in receiving or rejecting testimony, we are concluded by the judgment of the trial court, unless the Act of 1919, approved May 29', 1919 (Laws 1919* p. 213), has become effective, so as to require us to reyiew the evidence, findings of fact,- and conclusions of law of the referee and trial court, and to give such judgment as shall be conformable to the law on the evidence. [Roloson v. Riggs, 274 Mo. l. c. 528, and cases cited.]

II. Section 1 of the Act of 1919, supra, reads as follows:

“On appeals in all cases, whether law or'equity, in which a referee has been appointed and made a report, the appellate court shall, on exceptions properly preserved, review the evidence and ,. „ ,. „ „ , -, , the findings of fact and conclusions of law of the referee and the trial court, and give such judgment as shall be conformable to the law- on the evidence.”

There is nothing on the face of this section to indicate that the law-making power intended that it should have other than a prospective operation. ■

Section 15 of Article II of the present Constitution, provides: “That no . . . law, . . . retrospective in its operation, . . , can be passed by the General Assembly.”

In State ex rel. v. Dirckx, 211 Mo. l. c. 577-8, Gantt, J., speaking for Court in Banc, said:

“The settled rule of construction in this State, applicable alike to the constitutional and statutory provisions, is that., unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only. [State ex rel. v. Greer, 78 Mo. l. c. 190: State ex rel. v. Frazier, 98 Mo. 426; Leete v. Bank, 141 Mo. 574; Shields v. Johnson County, 144 Mo. 76; Cooley on Constitutional Lim. (6 Ed.) p. 77; Shreveport, v. Cole, 129 U. S. 36.]”

In State ex rel. v. Wright, 251 Mo. l. c. 344, Farts, J., speaking for Court in Banc, said:

“This rule is also in consonance with the text-book law: ‘It is well-settled rule of construction that laws relate to the future, and are not to be construed retrospectively, or to have a retrospective effect, unless it shall clearly appear that it was so intended by the Legislature, and unless such construction is absolutely necessary to give meaning to the language used. [6 Am. & Eng. Encv. Law, p. 939.] In every case of doubt the doubt must be resolved against the retrospective effect. ’ [36 Cyc. 1208.] ”

To the same legal effect are the following cases: Taff v. Tallman, 209 S. W. l. c. 870; State v. Hackmann, 199 S. AV. 990; Mitchell v. Spaiiin, 255 Mo. l. c. 126-7-8; Bridge Co. v. Corrigan, 251 Mo. 667; Craig v. Railroad, 248 Mo, 270; Mayhew v. Todisman, 246 Mo. l. c. 292; Leete v. Bank of St. Louis, 141 Mo. 574; Bell v. McCoy, 136 Mo. l. c. 561; City of St. Louis to use v. Clemens, 52 Mo. 133, l. c. 144; Barton County v. Walser, 47 Mo. l. c. 200-1; Hope Mut. Ins. Co. v. Flynn, 38 Mr. 483-484; Secs. 806-2, 806-3, 8064, R. S. 1909.

In a nuniber of the above cases, we were construing acts of the General Assembly, to determine whether they should be given a retrospective or prospective operation. Many of these acts were much more favorable to defendant’s contention than the one now under consideration, and yet they were held to be prospective only in their operation. The judgment' of the trial court in this case, was rendered on May 21, 1917, and the transcript filed here on September 6-, 1917. .During the pendency of all this litigation, and up to the time of the passag’e of the act in question by the last General Assembly; the law in this jurisdiction was settled to the effect that in an action at law, where the referee’s report was confirmed, if sustained by substantial evidence, it was to be treated as a special verdict, and the facts could not be reviewed in this court. [Berthold v. O’Hara, 121 Mo. l. c. 97; St. Louis to use v. Parker-Washington Co., 271 Mo. l. c. 240-1; Roloson v. Riggs, 2741 Mo. l. c. 528, 203 S. W. l. c. 975.] So that, when the last Legislature convened, this court had jurisdiction ovei the case, and on a record which precluded us from reviewing the facts, as found by the referee and trial court. To give the act in controversy a retrospective operation under such circumstances, would not only be in plain contravention of Section 15 of Article II of our Constitution heretofore set out, but would likewise be in conflict -with the rulings of this court, as well as the policy of the law. declared in the enactment of Sections 8062, 806-S and 8064, Revised Statutes 19-09. “We, therefore, hold that this case must be disposed of as though the Act of 1919, supra, had never been en acted.

HE In order to obtain a clear idea of the issues and facts in the case, notwithstanding the law as declared in the preceding proposition, we have read all of the 1100 pages of oral testimony, and examined the various exhibits set out in the voluminous record before us. We have been very favorably imP . pressed with the patience, fairness and ability displayed bv the referee in all of the proceedings herein. He had before him! the large number of witnesses, who testified in the case and, hence, was in much better position than we, to weigh the conflicting and irreconcilable testimony given by them. We are of the opinion, however, that the report of the referee, as confirmed by the trial court, is sustained by the evidence, and should not be disturbed, unless we find that prejudicial error was committed during the progress of the trial before the referee, in respect to the admission or rejection of testimony.

IV. It is contended by appellant that, if plaintiff: is permitted to recover, the measure of defendant’s liability should be limited by the terms of the contract, subject to a deduction for the amount of damages, if any, awarded on the counterclaim.

It may be observed in passing, that we agree with the referee in holding that defendant failed- tot offer sufficient proof to sustain his counterclaim or any part of same.

It is clear from the finding of the referee, and. as shown by the record, that plaintiff failed to establish by the evidence all the provisions of the agreement which he claimed to have made with defendant. For instance, plaintiff did not prove by the greater weight of the evidence that defendant guaranteed to him a profit of $250 on each of said thirty-two houses when constructed. Nor did he prove by sufficient evidence that the work which he did in making sidewalks, streets, septic tanks and other general improvements, was to be considered a part of tlie contract alleged in the^ petition. On the other hand, the referee found,, and the weight of the evidence shows, that there was no agreement between plaintiff and defendant which required the former to build said houses for any specific amount. Again, after many of the houses were finished by plaintiff, • defendant ordered him to make changes therein, which greatly enhanced the cost of such buildings, and which said changes were not in the minds of the parties at the time they entered into the agreement.

In other words, the defendant denies that he made’ the contract as alleged by plaintiff in the first count of petition. On the other hand, plaintiff denies that he made the contract as alleged by defendant in his answer. We agree with the referee, that neither plaintiff nor defendant sustained their respective contracts as alleged. The court, therefore, on the recommendation of the referee, dismissed the first count of the petition, and found for plaintiff on the counterclaim. The plaintiff was accordingly relegated to his action of quantum meruit and proved to the satisfaction of the referee and trial court, that the reasonable value of the services rendered by him for defendant, at the special instance and request of the latter, was the amount for which judgment was rendered, being seven per cent- of the $85,974.02, or $6,018.18, less the $405 paid by defendant, with six- per cent interest from October 27, 1913,. amounting in the aggregate to $7,448.18.

It is evident from reading the record, that the minds of the parties never met upon the proposition as to the full compensation which plaintiff was to receive for doing said work. There was no contract shown by either party fixing definitely the compensation which plaintiff was to receive and, hence, the compensation which he was entitled to recover, under the second count in his action of quantum meruit, could not be regulated by the unsettled terms of the agreement set up ini the first count.

In vi„ew of the foregoing, we do not consider it necessary to review the authorities cited by appellant in relation to this subject, as they do not apply.

V. Appellant insists that his Exhibit 182, being a statement in writing signed by witness Dowler, should have been admitted in evidence to impeach said witness.

It is not the province of this court to wade through a 1300 page record and locate, if possible, what occurred when said exhibit was offered in evidence. If counsel thought the ruling on this exhibit was important, he should have pointed out to us from the record the testimony before the court, in reference to said exhibit, showing’ its materiality with reference to the second count, the ruling of the court thereon, and the explanation, if any, of the witness, in respect to the statement. Having failed to furnish the. court any information as to what occurred in respect to said exhibit, and where found, we overrule the above contention.

YI. Appellant finally contends that, as plaintiff failed to recover on the first count, the costs should be apportioned.

In our opinion, this contention is untenable. Defendant set up substantially, if not literally, all of his defenses and counterclaims as to each count of petition, as will more fully appear by reference to our preceding statement. The defendant did not see fit to ask for a separate trial as to each count (Sec. 1971, R. S. 1909), nor did the plaintiff. Both parties put in their entire evidence under both counts. The judgment went against defendant as to the merits on the second count, and as against defendant upon both counts, in respect to his counterclaims. The main contention in the' first count was over the question as to whether the plaintiff had proven his contract as alleged. There was but little evidence concerning this subject, and the costs would have amounted to very little. The main costs were largely clue to the defenses and counterclaims which were common to both counts.

We are of the opinion that the trial court was not guilty of an abuse of its discretion, in overruling said motion to apportion the costs.

VII. We have spent more than a week in reading the record and considering this case. The referee, in his rulings, was fair and impartial and, in our opinion, reached a correct solution of the questions Thn judgmlent of the trial court, confirming the report of the referee, is sustained by both the law and the evidence in the case, and is accordingly affirmed.

White and Mosley, GO., concur.

PER CURIAM: — The foregoing opinion of Railby, C., is hereby adopted as the opinion of the court.

All of the judges concur.