author: BOND, C. J.

text:
    THE STATE ex rel. NATHANIEL G. CRUZEN v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    May 16, 1919.
    1. BREACH OF CONTRACT: Foreclosure of Deed of Trust: Equitable Suit: Writ of Error. A suit to establish and enforce a parol trust in real estate, growing out of a fraudulent breach of an oral agreement by the holder of a second mortgage to buy in the land at a foreclosure sale of the first deed of trust and to sell a part of it and use the surplus to reimburse himself and to convey the balance to the mortgagors, is not an action at law for damages, but a suit in equity, to be tried by the chancellor; and a holding by the Court of Appeals that it was an action at law, triable by a jury, over which it obtained jurisdiction by a /writ of error, was in conflict with prior decisions of ¡the Supreme Court.
    2. -: Statute of Frauds: Resulting Trust. The Statute of Frauds has no application to constructive or resulting trusts. For the violation of an oral agreement whereby title to real estate has been fraudulently obtained, a court of equity will impose a constructive trust upon the wrongdoer in favor of the person who would otherwise be defrauded.

      Certiorm i.

    Writ quashed.

      J. W. Peery for relator.
    (1) The holding and decision of the Kansas City Court of Appeals that said action was a suit at law, and not in equity, and that it was properly tried in the circuit court by a jury as a suit at law, is in conflict with the controlling decisions of this court. Reilly v. Cullen, 150 Mo. 326, 328; Leeper v. Taylor, 111 Mo. 321; Northrip v. Burge, 255 Mo. 650, 667; Bray v. Thatcher, 28 Mo. 129, 132. (2) The further holding of said Court of Appeals in their opinion that the action was, and could be maintained as a suit at law for damages for the breach of the contract or agreement alleged in the petition, notwithstanding the said alleged agreement was by parol and not in writing, is in conflict with the controlling decisions of this court. Hammond v. Cadwallader, 29 Mo. 169; Ferguson v. Robinson, 258 Mo. 130; Rose v. Bates, 12 Mo. 51; Leahey v. Witte, 123 Mo. 207; Richardson v. Champion, 143 Mo. 545. (3) This action cannot be upheld as a suit at law. The facts alleged in the petition clearly show that it is a suit to establish and enforce a parol trust in real estate. It also shows that the trust is open, has not been settled or any accounting made. A suit at law cannot be maintained by a cestui que trust against the trustee where the trust alleged is by parol and is denied, and the trust is still open and there has been no accounting or settlement made or agreed upon. In such case the only and exclusive remedy is in equity to establish and enforce the trust, and a court of law has no jurisdiction. 1 Perry on Trusts (4 Ed.), sec. 17; 2 Perry on Trusts (4 Ed.), sec. 843; Ziedeman, v. Molasky, 118 Mo. App. 119; Ewing v. Parish, 148 Mo. App. 501.; Johnson v. Johnson, 120 Mass. 465; Nestor v. Ross’ Estate, 98 Mich. 200; Norton v. Ray, Exrx., 139 Mass. 230.

      Dudley, Selby & Brandon for respondent.
   BOND, C. J.

Certiorari to quash the record of the Kansas City Court of Appeals, because of conflict with certain decisions of this court. The opinion of the Kansas City Court of Appeals recites that plaintiffs, who are husband and wife, sued defendant for failure to perform an oral agreement made with them to buy in tbeir lands under a first deed of trust and then (if forty-two acres could not be sold for enough to pay off a second and third deed of trust) to lend plaintiffs enough money on the remaining forty-five acres to pay off and discharge the remaining incumbrances. Defendant was the owner of the second deed of trust and advertised the land for sale thereunder; that the plaintiff husband* discovered this and immediately before the sale had a conversation with the defendant who then again agreed to buy in said land at said sale for the plaintiffs and to hold the same for the plaintiffs’ use and benefit, and repeated the agreement in reference to the disposition of the land as already set forth; that defendant at the sale was the only bidder and bought the land, by reason whereof he became a trustee for plaintiffs; “that said land was worth eight thousand dollars and had a value in excess of the incumbrances of four thousand dollars; that thereafter defendant sold and conveyed the land to another person, thus putting it out of his power to reconvey the land to plaintiffs, or for the plaintiffs to obtain title thereto; that by reason of all these facts the plaintiffs have been wrongfully deprived of the value of their land; that notwithstanding the defendant’s promise and agreement to buy said land and hold the same for the plaintiffs as trustee for the use and benefit of the plaintiffs, the lands and all thereof were so eonveyéd by the defendant to a stranger without the knowledge or consent of the plaintiffs, with the purpose entertained by the defendant at the time and in such manner as to deprive the plaintiffs of the opportunity to recover the title to said land or any part thereof, or to recover said land in any way, and that the defendant received for such conveyance to a stranger a large sum of money and has thereby converted to his own use all of the value of said land in excess of the first and second mortgages thereon and has thereby had and received and taken and had and used the property of the plaintiffs to the value of eight thousand dollars for hia the defendant’s, own use and benefit and lias failed and refused to account for tbe same to these plaintiffs.” That the answer denied the oral agreement and averred a foreclosure by defendant of his deed of trust for non-payment of the interest on the note secured; -that there was a judgment below for three hundred dollars in favor of plaintiffs which defendant, by writ of error, took to the Kansas City Court of Appeals.

In dealing with the contention that the action was one.in equity and should not have been submitted to a jury, the Kansas City Court of Appeals said: “While the petition alleged that when the defendant bought the property there was a resulting trust in favor of the plaintiffs, yet it further alleged that the property w.as conveyed by defendant to a stranger, putting it beyond the power of plaintiffs to get back the land. The petition is not. for money had and received by defendant from the stranger or the proceeds of the 'sale of the land by Cruzen to the stranger. -These are not asked for. Nor does the petition ask that á resulting trust be declared in favor of plaintiff in the property or its proceeds. While plaintiffs alleged a fiduciary and trust relation between themselves and the defendant, and on the trial proved the same and submitted the cause to the jury upon the assumption that they were required to prove such relation, we think that plaintiffs assumed an unnecessary burden and that it was not necessary to plead and prove any trust or fiduciary relation in this case. Taking the petition as a whole it is apparent that it is a cause of action for damages for breach of contract and as such is a suit at law. And this is true even if the damages asked were for the destruction of an equitable right. A man may have a legal remedy for the destruction of an equitable right.”

By failing to distinguish the facts and issues in the present record from those in the cases cited to support its ruling that this was a legal action, the Kansas City Court of Appeals fell into error and conflicted the decisions of this court cited by relator, as well as others, as will be shown presently. In Sherwood v. Saxton, 63 Mo. l. c. 81, the suit was by the maker of the deed of trust against the trustee named therein for negligence in failing to collect the bid of two solvent purchasers at a foreclosure sale and for releasing them therefrom upon their agreement to pay the cost of a resale, which was had at a loss, for which judgment was prayed. It was held that for such negligence the trustee was personally liable in an action at law, and that since no relief peculiar to equity was asked, the liability arising for breach by the trustee of his legal duties was enforceable in a legal action. This, obviously, was a correct ruling, but wholly inapplicable to the present case, where the defendant is sought to be held for fraudulent failure to comply with an oral agreement void at law under the Statute of Frauds and only enforceable against him as a trustee ex maléfico upon sufficient proof in courts of equity. [Phillips v. Jackson, 240 Mo. l. c. 335 and cases cited.] This oral agreement was denied in defendant’s answer and unless the issue presented by this traverse was sustained by the quantum of evidence prescribed in such cases, plaintiffs could not recover. That issue, relating solely to the sustention of a purely equitable cause of action, was necessarily one which could only be tried by the court sitting as a chancellor, either by a direct finding on his part or by the adoption of an advisory finding of a jury on issues sub-mitted to it. [Northrip v. Burge, 255 Mo. l. c. 667; Bray v. Thatcher, 28 Mo. l. c. 132; Hammond’s Admr. v. Cadwallader, 29 Mo. l. c. 169.]

In Mo. Real Estate Syn. v. Sims, 179 Mo. 679, 1. c. 684, the point in judgment was the liability of the defendant mortgagee for breach of an agreement Jo extend the time of foreclosure. This court held that for such breach the plaintiff was entitled to his action at law. That ruling in nowise contravenes the contention of relator in the present proceeding. The contract in that case was valid both at law and in equity and hence there was, on the facts disclosed, a concurrent remedy in both tribunals. /

In both the foregoing eases (relied on in the Kansas City Court of Appeals) the trusteeship of the party sued was shown by deeds and. admitted by him. In the present case the defendant denied the facts alleged by plaintiffs as the ground for subjecting him to a trust in equity — hence the indispensable necessity of establishing these facts by a suit in equity. In the two cases cited by the Court of Appeals, the only issue was the liability of a conceded trustee for damages for neglect or breach of his contract. Those cases, therefore, afford no aid in the solution of the present. ,

The oral contract in the present case was saved from the bar of the Statute of Frauds only for the reason that a court of equity does not permit that defense when to do so would make it the instrument of perpetrating a fraud. [Archer on Eq. & Trust,'p. 248, sec. 176.] In order to prevent the undoing of the object of the Statute of Frauds by the interposition of the statute itself in behalf of a defendant who has violated an oral agreement whereunder he obtained title to plaintiff’s land, courts of equity impose a constructive trust upon the wrongdoer in favor of the person who would otherwise be defrauded. This at once takes the transaction out of the terms of the statute which have application only to the creation of express trusts in real estate (R. S. 1909, see. 2868) and have no application to constructive or resulting trusts. [R. S. 1909, sec. 2869.]

In the case under review it was indispensable to a recovery by plaintiffs that they should first' establish by proof the facts necessary to saddle a trust upon defendant in invitum under the equitable principle called into play by his fraudulent breach of his oral agreement. It was also essential that they should thereafter show the amount for which he thereby became accountable to them. If both these issues were found by the chancellor in favor of the plaintiffs, they would have been entitled to a decree against defendant. The first presents matters of exclfisive equitable cognizance, •wherefore the whole case became one in equity and not at law. It is therefore demonstrable that the present action is one of the class falling within the exclusive jurisdiction of courts of equity and should have been so conducted in the trial court, and our learned brothers of the Kansas City Court of Appeals by holding otherwise contravened the last previous rulings of this court as expressed in the cases cited by relator and others cited in this opinion. Under the rule now established in. this court (although opposed to my personal view, State ex rel. Gilman v. Robertson, 264 Mo. 661) which must be conformed to while it subsists, it necessarily follows that the opinion and decision of the Kansas City Court of Appeals to the effect that the ease pending before that court on a writ of error was a suit at law, must be quashed and for naught held. It is so ordered.

All concur, except Woodson, J., absent.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    CITY OF ST. LOUIS v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    May 19, 1919.
    1. APPEAL: Assignments of Error. In the absence of formal assignments of error, appellant’s “points and authorities” will he construed as such assignments, and the review of the case will he limited as hy them indicated.
    2. CONDEMNATION: Notice of Boundaries of Benefit District: Ordinance. Where a city charter requires the passage of an ordinance, as preliminary to the condemnation of private property for a public use, the very nature of the. proceeding renders it necessary to the effective operation of the ordinance that the property sought to he affected be described therein, and as a consequence of such description the boundaries of' the taxing district are necessarily defined; and although the charter does not specifically require that the ordinance shall define the limits of the district, the ordinance itself, containing a description of the property affected, is x such a notice of the boundaries of the taxing district as will enable the owner to be heard on the question whether bis property should be included therein? and constitutes due process of law.
    3. -: —.-: Filing of Petition With Recorder: ' Lis Pendens. The filing with the Recorder of Deeds of a notice of the filing of a petition in the circuit court for the condemnation of land, in obedience to the charter, is of itself sufficient to apprise the owner of the land to be appropriated of every fact set forth in the notice, since the charter requirement was intended to be„an application of the doctrine of lis pendens.

      4. -: --: Due Process of Law: Meaning. All that is meant, in the abstract, by “due process of law,” is that every citizen shall hold his life, liberty, property and immunities Under the protection of the general law which governs society, and, in the. concrete, that iii a contest in regard to these rights, he will be accorded the opportunity to contest the propriety of each step in the action taken against him. If he. is granted such an opportunity he is accorded such a hearing as the law contemplates.
    5. -: Unjust Benefits: Assessment of Commissioners. In the absence of any intimation to the contrary, the assessment of benefits by the commissioners must be held to have been impartial and founded- upon facts sufficient to sustain their conclusion, and if subsequently reviewed and affirmed by the trial court will not on appeal be held to be unjust.
    Appeal from St. Louis City Circuit Court. — Hon. Leo. S. Rassieur, Judge.
    Affirmed,

      Jas. F. Green and E. E. Larimore for appellant.
    (1) Section 1, 2, 3, 4, 5, 6, 7 and 8, inclusive, of Article 21,- Charter of the City of St. Louis, under which sections these proceedings were had, are unconstitutional and a violation of Section 1, Article 14, of the Amendments to the Constitution of the United States, and proceedings under such sections take the property of the Missouri Pacific Railway Company without due process of law in this, that the fixing of the benefit or taxing district is delegated to the arbitrary finding and judgment of the commissioners without an opportunity on the part of any property owner to be heard as to whether his property should or should not be included in such district, and without any provision for a review of the action by the commissioners in fixing such benefit or taxing district. Houck v. Little River District, 239 U. S. 262; Walston v. Nevin, 128 IT. S. 578; Stuart v. Palmer, 74 N. Y. 1,83; St. Louis Land Co. v. Kansas City, 241 IT. S. 430; Spencer v. Merchant, 125 IT.' S. 345; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112. (2) If the commissioners, in assessing the benefits, acted within their, jurisdiction, their finding in the premises was so arbitrary and constituted such a discrimination against the Missouri Pacific Railway Company as to take its property without due process of law, in violation of Section 1, Article 14, of the Amendments to the Constitution of the United, States, and this is a matter that can be reviewed by this court. San Francisco Gas & Elec. Co. v. City, 189 Fed. 943; Barney v. City of New York, 193 U. S. 430'.

      Chas. H. Danes, H. A. Hamilton and G. Wm. Senn for respondent.
    (1) The notice as published by the commissioners designating the benefit district and the time and place of meeting is “due process of law” and is notice to the appellant upon the proceeds and determinations of the commissioners. Buddecke v. Ziegenheim, 122 Mo. 243; St. Louis v. Realty Company,' 259 Mo. 140. (2) The proceedings before these commissioners involved, and the parties invited or notified to appear are entitled to be heard upon matters, among others, relative to the benefit district as advertised by the commissioners. St. Louis v. Brown, 155 Mo. 559. (3) The findings and assessments of these commissioners are presumptively correct and the burden is upon the exceptor to overcome the same by a preponderance of proof. St. Louis v. Brown, 155 Mo. 567; St. Louis v. Calhoun, 222 Mo. 55. (4) The trial court should hesitate to disturb the findings and conclusions contained in the report of commissioners, excepting upon definite and persuasive proof shown by the exceptor,- while the attitude of the appellate court, as in law cases, is to defer very largely in matters of conflict in facts to the trial court and its better opportunity to scrutinize the testimony and study the witnesses in delivering their testimony. St. Louis v. Wetzel, 110 Mo. 265; St. Louis v. Brown, 155 Mo. 545; St. Louis v. Calhoun, 222 Mo. 44; St. Louis v. Lawton, 189 Mo. 485.
   WALKER, J.

The nature of the action here sought to be reviewed was the condemnation of certain private property for public use, in the City of St. Louis, including a lot or parcel of land owned by defendant. From a -judgment of condemnation and the assessment of benefits against the defendant, the latter appeals.

The Board of Aldermen of the City of St. Louis, in conformity with Section 1, of Article 21, of the Charter of that city, provided by ordinance for the appropriation for public use of the property in question. In furtherance of this ordinance, and as required by the section of the charter cited, a petition was filed by the City Counselor in the circuit court of said city, containing the essential allegations of a pleading of this character.

No question is involved as to the formal sufficiency of the petition, or that the requirements of the charter were not complied with. While many matters were urged by the defendant in its exceptions to the report of the commissioners authorized to be appointed in a proceeding of this nature, and its motion for a new trial, defendant’s contentions in its brief and in the oral argument are limited to a narrow compass. First, as to the invalidity of Sections 1 to 8, inclusive, of Article 21, of the Charter of the City of St. Louis, as in violation of Section 1, Article 14, of the Amendments to the Constitution of the United States, concerning due process of law; and second, that the commissioners, in assessing the benefits, unjustly discriminated' against the defendant, and thus further violated the section of the Constitution cited.

I. There is no formal assignment of errors. Construing defendant’s ‘(Points and Authorities” as such, as we are authorized to do, our review is limited as therein indicated. [Crecelius v. Railroad, 274 671. Glasse v. King, 195 S. W. 521; Vahldick v. Vahldick, 264 Mo. l. c. 532; Brown v. Chaney, 256 Mo. l. c. 225; Ranck v. Wickwire, 255 Mo. l. c. 56; Buttron v. Bridell, 228 Mo. l. c. 635; Redmond v. Railroad, 225 Mo. l. c. 741; Collier v. Lead Co., 208 Mo. l. c. 258.]

II. Defendant contends that the law, organic and statutory, of the City of St. Louis prescribes no notice of the fixing of the boundaries of the taxing district which would enable defendant to be heard as to whether its property should be included therein. The City Charter (Sec. 1, Art. 21, provides as preliminary to the condemnation of private property for public use, that an ordinance shall be passed. While it does not specifically prescribe as an essential to the regularity of the proceeding, that such an ordinance shall define the limits of. the taxing district, the very nature of the proceeding renders it necessary to the effective operation of such an ordinance that the property sought to be affected be described therein. As a consequence of a description of the property, the boundaries of the district are necessarily defined. An ordinance lacking this requisite would be a mere nullity, and furnish no basis for further .action; containing as it does, a description of the property and of the boundaries of the district, it renders the owners of same as fully cognizant of the proceedings as if a requirement as to notice had been in set terms incorporated in the municipal law. Of the tenor of all ordinances, the citizens of the municipality must take cognizance. [Moore Mfg. Co. v. Railroad, 256 Mo. l. c. 179.] In the absence, therefore, of a specified form of notice, that given the defendant met all the requirements of the law. This conclusion is given added force by the course subsequently required by the charter to be pursued by the city. Upon the passage of the ordinance fixing the taxing district, the city counselor was required, and did, file a petition in the circuit court in the name of the city and against defendant and the other owners of the property to be affected, setting forth the nature and public use for which it was to be appropriated, a description of the same which, as stated, necessarily defined the boundaries of the taxing district, and the interest or estate of the respective owners, and asking the appointment of commissioners to assess benefits and damages. Upon the fil-' ing of this petition, a summons was issued and served upon the defendant and others therein named, and in addition, a notice of this filing in -the circuit court was recorded in the office of the Recorder of Deeds, in conformity with a requirement of the charter. Thus in addition to the notice afforded by the passage of the ordinance and personal service of summons upon the institution of the suit by the city counselor, the defendant had the added constructive- notice afforded by the filing and recording in the Recorder’s office of the notice of the petition, which contained, as wds required, a description of the property to be affected. The charter requirement as to the recording of the notice was evidently intended as an application of the doctrine of Us pendens. If so, while it is not necessary to thus decide in this case, it would of itself be sufficient to apprise the defendant of every fact set forth in the notice. [25 Cyc. 1476, Subd. IS. and cases.] A declaratory statement in the .municipal law, therefore, prescribing notice, ds contended for by defendant, would have given no additional validity to the proceeding. Had a notice been prescribed, and a failure to comply with same been shown, then some question might arise as- to the legal effectiveness of the action. [City of St. Louis v. Bell Place, 259 Mo. 126.] But, under the facts at bar, where, from ' the very necessities of the case the defendant must have been, and was in fact, notified, not only by operation of law, but actually and constructively, and every- opportunity afforded to enable it to contest the regularity of the matter in controversy, there cannot in reason be said to have been a taking of its property without due process of law. All that is' meant, in the abstract, by due process of law, despite the numerous definitions of same, is that every citizen shall hold his life, liberty, property and immunities under the protection of the general law which governs society; and in the concrete, that in a contest in regard to these rights, he,will be accorded the opportunity to contest the propriety of each step in the action sought to be taken against him. The doctrine thus clearly enunciated, found its most unequivocal utterance in the Dartmouth College Case, 4 Wheat. 518, which has been frequently affirmed.

The burden of the decisions cited by defendant in support of its contention, is to the effect that the complainants, in those cases, were not accorded such a hearing as the law contemplates and, as a consequence, that they were thereby denied a constitutional right.

To illustrate: In St. Louis Land Co. v. Kansas City, 241 U. S. 430, it is held that the owner of the property involved was entitled to be heard as to the amount of his assessment and upon all questions entering into that determination.

In Houck v. Little River District, 239 U. S. 262, it was held that where the fixing of the district is delegated to commissioners, or to a board of supervisors, a citizen is entitled to notice and hearing upon the proposition as to whether or not his property should be included in the district.

In Fallbrook Dist. v. Bradley, 164 U. S. 112, it was held that the Legislature not having described the district, it would be necessary to give a hearing to those interested upon the question as to whether or not the land of any owner intended to be included would be benefited by the project. Furthermore, that unless the Legislature had decided the question of benefits itself, the landowner had the right to be heard on that question, before his property could be taken.

In Spencer v. Merchant, 125 U. S. 345, it was held that when the determination of the lands to be benefited was entrusted to commissioners, the owners were entitled to notice and a hearing as to whether their lands were benefited and how much.

In Stuart v. Palmer, 74 N. Y. 188, it is held that the constitutionality of a law is to be decided not by what has been done under it, but what may by its authority be done.

These eases, therefore, are inapplicable here, because the facts disclose that the defendant was accorded every right to which the complainants in the cases cited were held to be entitled. [Branson v. Glee, 25 Ore. 462, 24 L. R. A. 355; Lewis, Em. Dom. sec. 366; 10 R. C. L. p. 186.] It had notice, an opportunity to be heard, and the proceedings throughout, which we have not set out in detail subsequent to the filing of the petition in the circuit court, show a strict conformity with the requirements of the law. The defendant, therefore, has in this regard' no just ground of complaint.

III. Relative to the assignment as to the injustice in the assessment of benefits, it will suffice to say that this matter was heard and considered adversely to the defendant’s contention before the commissioners, and their action was subsequently reviewed and affirmed by the circuit court. The action of the commissioners, in the absence of any intimation to the contrary, must be held to have been impartial, and founded upon facts sufficient to sustain their conclusion. They had before them the character and importance of the highways to be affected by their proceedings; and the value, use and development of the properties adjacent thereto. Armed with these facts, they were enabled to weigh and determine the relative damages or benefits to the owners of the property within the district; the existence or amount of either damages or benefits is in any case a matter of knowledge, experience and judgment, for which qualities eomraissiofi'ers are usually selected; and which we are justified in concluding they possessed. Aided by this preliminary conclusion, after having carefully read the testimony, we agree with the finding of the trial court, that no facts have been presented tending to show unfairness or incorrectness in the action of the commissioners, which would authorize our interference. This action, in' the absence of a preponderance of proof to the contrary, should be taken as a fair and correct solution of the question. We thus accept it. [St. Louis, v. Calhoun, 222 Mo. l. c. 55; St. Louis v. Lawton, 189 Mo. l. c. 485; St. Louis v. Brown, 155 Mo. l. c. 567; St. Louis v. Wetzel, 110 Mo. l. c. 265.]

From all of which it follows, that the judgment of the trial court should be affirmed. It is so ordered.

All concur.


author: FARIS, J.

text:
    WALTER L. HUNT, Appellant, v. CITY OF ST. LOUIS, AQUA CONTRACTING COMPANY and G. A. HEMAN, Appellant.
    Division Two,
    May 19, 1919.
    1 NOTICE OF SUIT: Filing of Petition and Service of Summons. The filing of a petition for damages against the city and the service of summons upon the mayor within ninety days after plaintiff’s injury, due to an obstruction in a public street, is a compliance with the statute which requires that notice in writing of the time, place, circumstance and character of the injury be given the mayor within ninety days after the injury — especially where the contents of the petition are such as to comply substantially with the notice required by the statute.
    2. EVIDENCE: Photographs. Photographs, taken at night after the casualty, which happened at night, by the identical street lamps which lighted the situation when plaintiff was hurt, are admissible evidence to show the lights and shadows and the general appearance of the place at night, although they do not show the whole situation as it existed at the time of the injury. [Distinguishing Riggs v. Railroad, 216 Mo. 1. c. 335.]
    3. NEGLIGENCE: Street: Reasonably Safe Condition: Ordinary Mode of Travel. It is the duty of a city to keep its streets in a reasonably safe condition for travelers passing over them in any and all modes, provided only (1) such modes are lawful and (2) do not of themselves constitute contributory negligence in the traveler to a degree forbidding his recovery for injuries received.
    4. -: -: -: -: Runaway Horse: Instruction. Where the street was obstructed by long piles of rock and sand, which narrowed the passageway to from five to eight feet, and the horse which plaintiff was driving at night ran his delivery wagon against the obstruction, turned the wagon over, threw plaintiff out and, becoming frightened, dragged him some distance, badly injuring him, ■ the true test of the city’s duty to keep its streets in a reasonably safe condition for public travel is not whether the horse was running away, but whether, if he was running away, that fact (which might itself constitute a ' phase of contributory negligence) or the fact of the city’s negligence was the proximate cause of plaintiff’s injury. In such circumstances the well' known doctrine of concurrent negligence applies. Consequently an instruction which states the duty of the city to be complete if it maintains its streets “in a reasonably safe condition for travelers passing in the ordinary mode” and relieves it of damages for the injury if it so maintained them, is too narrow.
    5. -: -: Obstruction: Red Lights: Ordinance. Where the . ordinance required the placing of two red lights on a pile of building material fifty feet long, one at each end, and an additional light for every additional fifty feet in length, or part therof, and the pile was seventy-five feet long, reached in width almost half way across the street aid was three or four feet high, an instruction telling the jury that even if no warning lights were placed yet if the pile of macadam was so well lighted that it could easily have been seen by one exercising ordinary care while such distance away as to enable him easily to avoid it, was not error.
    6. -: Repairing Street: Duty of City. If the contractor, engaged in repairing a public street, does things that render the street or adjacent streets dangerous or hazardous to public travelers, it becomes the duty of the city, upon notice of the condition, to either remedy it, or to place barriers- upon the street taking it out of public use, or to give notice of its dangerous condition.

      7. -: Inevitable Accident: Runaway Horse. If the horse to the delivery wagon driven hy plaintiff got beyond his control, due to no contributory negligence on plaintiff’s part and to no negligence on defendant’s part, ran away and injured him, his injury was caused by inevitable accident; and where there is evidence that plaintiff’s injury was due alone to the horse running away, an instruction on the subject of inevitable accident should be given.
    8. -: Repair of Street: Reasonable Obstruction. Contractors engaged in repairing public streets have a right to temporarily obstruct them and adjoining streets by piling macadam and other material in so much of them as is reasonably necessary for carrying forward the repair work.
    9. INSTRUCTION: Refusal: Covered by Others. It is not necessary to decide whether an instruction asked and refused was a correct statement of the law or called for by the facts, if the identical propositions stated in it were embraced in other instructions given.
    t 10. -: -: Red Light on Obstruction: Removal. If a red light was placed on the street obstruction against which plaintiff drove a delivery wagon, it is not error to refuse to instruct that if the light was removed by some unauthorized person the city or contractor would not be liable for any injury due to its absence, for such instruction leaves out of consideration their duty to replace a' warning light after a reasonable opportunity to discover its absence.
    11. -:. -: -: -: No Evidence. If there was no evidence that a red light placed upon the street obstruction had ' been removed by some unauthorized person, no instruction relieving the city or contractor from liability for an injury to a traveler who drove his wagon against the obstruction, because of such removal, should be given. If the light had been placed and was not present when the accident occurred, the jury can draw the inference that it had been removed, but this was not a matter demanding an instruction. Besides, any instruction on the point would be an unwarranted comment on the evidence.
    12. NEGLIGENCE: Sub-Contractor’s Tort: Liability of Contractor. If at most a company was the agent of the man who actually did the work of repairing the street in obtaining in its own name an unassignable and unassigned contract, and neither shared nor was expected to share in' the profits or losses, and said company is not sued as agent and the pleadings do not reveal upon what legal basis its liability is founded, it is not error to refuse to hold it liable for the torts of the city or of the man who did the work.

      Appeal from. St. Louis City Circuit Court. — Hon. William L. Kinsey, Judge.
    Affirmed in part; reversed and, remanded in part.

      8. G. Rogers for appellant Walter L. Hunt.
    (1) The court erred in admitting in evidence over the objection of this appellant the photographs of the locality in question taken a year after the accident. Riggs v. Railroad, 216 Mo. 326. (2) The court erred in giving", instructions numbered five, six, seven, eight, nine, ten and twelve, and each of them, at the request of the respondent city over the objection of appellant, (a) Instruction five attempts to state an abstract proposition of law as to the duty of the city in keeping its streets reasonably, safe.for travel in the ordinary mode and instructs the jury to find for the city if an ordinary prudent man would have- anticipated danger therefrom, omitting the fact Hunt did not see it, or know it was dangerous. It is an incorrect statement of the law and should not have been given. Mehan v. City of St. Louis, 217 Mo. 35; Welsh v. City of St. Louis, 73 Mo. 74; Schlinski v. St. Joseph, 170 Mo. App. 387; Burton v. Kansas City, 181 Mo. App. 427; Yance v. Kansas City, 123 Mo. App. 644. (b) Instruction number six assumes, that the horse was running away, which was a controverted fact, and should not have been given. Quinn v. Van Raalte, 205 S. W. 68.; McNiell v. City of Cape Girardeau, 190 S. W. 327; Clark v. St. Joseph Railroad Co., 242 Mo. 570; Moon v. Transit Co., 247 Mo. 227; Townsend v. City of Joplin, 139 Mo. App. 399; Harrison v. Kansas City Electric Light Co., 195 Mo. 623; Brennan v. City of St. Louis, 92 Mo. 486; Knights v. Kan-erred in giving instruction number eight. It told the sas City, 138 Mo. App. 153. (e) Instruction number seven, to the effect the city was not liable for failure to enforce its ordinances, should not have been given. Robison v. Kansas City, 181 S. W. 1004. (d) The court jury one should not run into dangerous obstructions readily visible which ought to be seen; that one did not have to have actual knowledge, as it could be imputed to him; and that even if Hunt did not see the macadam, yet if he should have seen and should have avoided it, they must find for the city, omitting the knowledge that it was dangerous amongst its many other patent errors. Coffey v. City of Carthage, 186 Mo. 573; Heberling v. Warrensburg, 204 Mo. 604. (e) The court erred in giving instruction number nine. It told the jury that if the light, where the macadam was placed, was such that the macadam could easily be seen so it could easily be avoided and that ordinary prudence did not require a light, they should find for both defendants. Burton v. Kansas City, 181 Mo. App. 427. (f) The court erred in giving instruction number ten. This is the old and often condemned mishap or mischance accident instruction. Beauvais v. St. Louis, 169 Mo. 506. (g) The court erred in giving instruction number twelve. This instruction told the jury the contractors could obstruct the streets as may be reasonably necessary, and if they so piled material on Twenty-Second Street, leaving. a clear space for passage of vehicles, which was not permitted to remain longer than necessary, then it was not a wrongful nor unlawful obstruction. Amongst other vices, it omitted the question of dangerous piling. The question of wrongful or unlawful piling was not at issue; the question was of dangerous piling and efforts to protect and render less dangerous.

      Charles H. Danes and Everett Paul Griffin for respondent City of St. Louis.
    (1) It is proper, and usually very desirable for the information and instruction of the court and jury, to introduce in evidence photographs, even though taken a considerable time after the accident, showing the general appearance of the scene where the accident happened, and even though the conditions existing may be a little different from the conditions which existed at the very time of the accident. Davidson v. Frisco Railroad, 164 Mo. App. 701; Lauff v. Kennard & Sons Carpet Co., 186 Mo. App. 123. (2) Instruction five correctly states the law with regard to the duty of the city in the care of its streets. 4 Dillon on Municipal Corporations (5 Ed.), sec. 1711; 6 McQuillin on Municipal Corporations, sec. 2726; Ryan v. Kansas City, 232 Mo. 471; Wheat v. St. Louis, 179 Mo. 572; Wood-son v. Metropolitan Street Ry. Co., 224 Mo. 685. (3) Instruction six does not assume that the horse was running away. (4) Instruction seven is a correct statement of the law, as the city is not liable for the violation of its ordinances nor for failure to enforce said ordinances. Salmon v. Kansas City, 24 Mo. 14; Ryan v. Kansas City, 232 Mo. 483; Mehan v. St. Louis, 217 Mo. 35; Loth v. Columbia Theatre Co., 197 Mo. 358; Sallee v. St. Louis, 152 Mo. 621; Harmon v. St. Louis, 137 Mo. 499; Butz v. Kavanaugh, 137 Mo. 510. (5) Instruction nine was a correct statement of the law in this case, as it submitted to the jury as a question of fact whether there was sufficient light for the pile of macadam to be seen without the additional use of a red light. This was a question for the jury and properly submitted to the jury, because it there was sufficient light for the plaintiff to have easily seen the pile of macadam so as to have easily avoided the same had he used ordinary care, then the city and the other defendants were not liable. (6) This was a proper case for giving the instruction to the effect that if the accident occurred through mischance or accident, there could be no liability against the city. (7) Instruction twelve correctly stated the law, for if the city and its contractors were not permitted to pile material on the street for the purpose of reconstructing the same, then it. would be practically impossible to reconstruct any streets. (8) The court should have sustained the instruction in the nature of a demurrer to plaintiff’s evidence offered at the close of plaintiff’s case, for the reason that the evidence in the case shows that plaintiff failed to comply with Laws 1913, p. 545, requiring that in personal injury suits against the city for injuries occurring on the streets and highways a notice in writing shall be served upon the mayor within ninety days after the accident, stating .the time, place and circumstances of the injury. This the plaintiff failed to do. The statute in this regard is peremptory. Hackenyos v. St. Louis, 203 S. W. 986; Touhey v Decatur, 175 Ind. 98.

      J. P. McCammon for respondent-appellant G. A. Heman.
    (1) Instruction la asked by this appellant should have been given. McPheeters v. City, .92 N. T. Supp. 79; Jackson v. Kansas City, 106' Mo. App. 52; Parker v. Cohoes, 10 Hun, 531; Doherty v. Waltham, 4 Gray, 596; Walsh v. Lansing, 70 N. W. 129. Certainly, having placed lights where defendant was piling macadam on the street, he could not presume there was danger of their reproval or extinguishment, nor could he be held for the wrongs of others in removing or extinguishing them, and in view of the positive and uncontradicted evidence of their being in place before plaintiff’s injury, the question was one to be submitted to the jury. Since this was the only instruction referring to this phase of the case, its refusal was plainly error. (2) Defendant. Heman pleaded contributory negligence of plaintiff in driving his horse at a dangerous rate of speed, and in failing to check or control his horse, and stop his horse when the arc light showed that part .of the street where he drove his horse was occupied by the material which overturned his wagon. There was direct, positive evidence of contributory negligence, proper and material under the issues.
   FARIS, J.

This is an action brought by plaintiff against defendants for personal injuries accruing to him, as he avers, from the negligence of defendants. Upon the trial below, defendant Aqua Contracting Company was held not liable upon a directed verdict, and the City of St. Louis, pursuant to the jury’s verdict; while the verdict and judgment went against defendant Heman for the sum of $7500. From the above verdicts and the judgments rendered thereon, the plaintiff appeals as against defendants City of St. Louis and Aqua Contracting Company, while defendant He-man appeals from the judgment’ rendered against him and in favor of plaintiff. Pursuant to stipulation an order was made by us consolidating these cross appeals, and the case is before us for decision upon all three of the questions presented.

The facts of the casualty for which plaintiff sues are fairly simple, and so many of these facts as are necessary to an understanding of the questions presented upon the appeals run substantially thus: On a day prior to the 3rd day of January, 1914, defendant City of St. Louis had entered into a written contract with defendant Aqua Contracting Company for the repair of that portion of Biddle Street extending from Fourteenth Street to Jefferson Avenue, by taking up and removing the old pavement and curbing thereon and putting in place and completing a new pavement and curbing. After’ executing this contract with the City of St. Louis, defendant Aqua Contracting Company duly executed a bond to the City of St. Louis, conditioned upon the faithful and proper performance thereof. Thereafter, the Aqua Contracting Company (hereinafter for brevity called simply the Company) had nothing farther to do with the performance of the contract, or the making of the repairs upon this street, but permitted defendant Heman to do this work in his own way and for his own profit. When the tax bills were made out to the Company the latter delivered them to defendant Heman, who in turn assigned them to one Ruckert, who furnished Heman with money with which to finance and carry out this contract.

On the evening of January 3, 1914, about seven or eight o’clock, plaintiff, driving a single horse hitched to a delivery wagon of the Famous-Barr Company, for which he was a driver, was coming south along Twenty-Second Street, approaching Biddle Street at the point where defendant Heman was then engaged in rebuilding the street. On Twenty-Second Street at, a point near to or adjoining Biddle Street, defendant Heman had deposited for his convenience in the repair work a large quantity of rock for the making of macadam. This rock was so piled and of such dimensions that it extended from a point quite near the north side of Biddle Street to a point near the alley north of Biddle Street, a distance of some seventy-five feet or more. • Eastwardly, this pile of material extended from the west curbing of Twenty-Second Street to a point at or near the center thereof. On the east side of Twenty-Second Street a large pile of sand had been deposited. The effect of the piling, upon this street, at the point stated, of the sand and the rock, was to obstruct and narrow the passageway on the street; so that at the time plaintiff came south on this street the passageway for vehicles between the sand and the rock was only from five to eight feet wide. .Moreover, at the same time a brewer’s wagon, drawn by a team of two mules, was coming north in this narrowed and constricted passageway.

Plaintiff was driving in a fast trot, according to his own testimony and that adduced in his behalf. While so using this street and as he approached Biddle Street from the north, the horse which he was driving ran the delivery wagon against the pile of rock, turned the wagon, over, threw plaintiff out on the ground and, becoming frightened, dragged plaintiff a- distance of some seventy-five feet. The result was that the bones in plaintiff’s left foot and ankle were seriously crushed and broken, and he was otherwise hurt and bruised. His injuries were serious, and as á result thereof he was for a long time unable to walk, was put to much expense for medical service, and is without question lamed and permanently hurt. No question is made as to the extent of his injuries, however, nor is the amount of the verdict objected to on account of its alleged excessiveness.

Plaintiff’s cause .of action is, as to the City of St. Louis, bottomed upon the alleg'ed negligence of the latter in failing to keep and maintain its public streets and highways free from nuisances and dangerous obstructions and in a- reasonably -safe condition for persons and vehicles traveling thereon lawfully. The cause of actiQn against defendant Hernán and defendant Compány is bottomed upon the fact that they were, as plaintiff avers in his petition, together engaged in doing the work of repair on Biddle Street, and were negligent in piling in Twenty-Second Street large quantities of macadam, sand and other material used in and necessary to be used in .the reconstruction of Biddle Street, and having, so obstructed the street they failed and neglected to observe a certain ordinance of the City of St. Louis which requires the placing of warning red lights on building material when the latter is so placed as to constitute an obstruction in the public streets. The above ordinance, so relied on by plaintiff, requires that if the obstruction on which a red light is required to be placed is not more than ten feet in length, then a single light is sufficient, but if the same is over ten feet and less than fifty feet long, two red lights are required, one at each end, and an additional red light is required for every additional fifty feet, or part thereof, in length of the obstruction.

On the part of plaintiff the evidence tended to show that there were, at the time of the happening to him of the casualty complained of, no red light, or lights whatever, on either the macadam or on the sand. The evidence on the part of defendant tended to show that one red light had been placed by the watchman of defendant Heman on the north end of the pile of macadam, and that this red light (as a number of ■witnesses testified) was on this macadam at the instant plaintiff was hurt. It was contended furthermore by defendants that there was no necessity for a red light on the south end of the pile of macadam, or upon any other part thereof, since certain street lights on-Biddle Street so lighted up this building material as to make it easily and readily visible.

The testimony on the part of • defendants further tended to show that the horse which plaintiff was driving was, at and just prior to the instant of the casualty, beyond control and running away. This fact was denied by plaintiff, as well as by certain witnesses whom he offered. There was evidence pro and con, and the matter therefore became a question for the jury.

It is contended by plaintiff on his appeal (a) that the court erred in directing a verdict in favor of the Aqua Contracting Company, and (b) in admitting certain evidence, and in giving certain instructions which resulted in the verdict* in favor of defendant City of St. Louis. It is contended by defendant Heman that the court erred in refusing to give certain instructions which were offered by him, and that the verdict against him was induced by these errors. As stated, two appeals were originally taken in this case and were consolidated upon our order, pursuant to stipulation, and the whole case, with all the points above involved, is now before us for determination in a single opinion. Such other facts as may be necessary to make clear, the many points which the nature of the case requires to be discussed will be set forth in that discussion.

I. On the threshold we are met by the contention of defendant City of St. Louis that, regardless of any errors, if such there be, the verdict of the jury as to it should be upheld, since as to it the court erred in refusing to sustain .the demurrer to the evidence offered at the close of the case.

This contention is bottomed upon the alleged fact that no notice in writing was given by plaintiff to the mayor of defendant city within ninety days after his injury, of the time, place, circumstances and character of such injury to plaintiff, and of the fact that plaintiff would claim damages therefor, as the statute requires. [Laws 1913, p. 545.]

While no notice, as such, was given to the mayor, the original petition in this case was filed and summons therein, with a true copy of the petition attached, actually served on the mayor of defendant city in less than ninety days after the injury occurred. The allegations of the petition so filed and served upon the mayor were such as to comply substantially with the requirements of the statute invoked and above cited. The Kansas City Court of Appeals in a well-considered opinion held that where an action is commenced and summons, accompanied by a copy of the petition, is served on the mayor within ninety days after the injury complained of is received, no other or further notice is required. [Morrill v. Kansas City, 179 S. W. 759.] The correctness of this ruling impresses us; especially wherej as here, the contents of the petition are such as to comply substantially with the written notice which the statute requires to be given. [Cf. Jacobs v. St. Joseph, 127 Mo. App. 669.] On the authority of the above case, which seems to us to be consonant with the reason, of the thing, and to approve a method of notice in substantial compliance with the statute, we are of the opinion that this contention of defendant city is untenable.

II. Coming to the merits of plaintiff’s appeal so far as the latter affects the judgment against defendant city, we find numerous alleged errors urged. Upon the trial certain photographs, which were taken subsequent to the happening of the casualty, were offered by defendants and admitted in evidence by c0lIIq. To these photographs plaintiff objected and' excepted, and now complains that they were inadmissible for that they did not precisely represent the situation existing at the time plaintiff was hurt. The purpose for which these photographs was offered, as stated by counsel when he offered them, was to show the lights and shadows and the general appearance of the locus in quo at night. Plaintiff was hurt at night, and the photographs in question were taken at night by the light of the identical street lamps which lighted the situation when plaintiff received the hurt in controversy. After the casualty to plaintiff and before the photographs were taken one building had been torn down. This building in no wise affected the situation as to lights and shadows. Likewise, the piles of macadam and sand had been removed by building them into Biddle Street; otherwise the situation was precisely as’it'was on the date of plaintiff’s injury. We are of opinion that plaintiff’s contention touching the inadmissibility of these photographs is untenable. He relies upon the case of Riggs v. Railroad, 216 Mo. l. c. 335, which case, he contends, sustains the view that the photographs were inadmissible. We do not think the Riggs case sustains this contention. In the Riggs case the photographs, which were offered to show the position of plaintiff therein when he was struck by a car and injured, represented- his position by dummy figures. These figures, as the photographs which were offered showed them, were in positions wholly different from the positions shown by the other evidence in the case. Yery naturally it was held by this court that the photographs offered did not truly represent the situation existing, but that they were misleading and therefore inadmissible.

The mere fact that a photograph does not show all of the persons and objects which were present when a fact in issue transpired does not of itself render the photograph inadmissible. [Lauff v. Carpet Co., 186 Mo. App. 123; Davidson v. Railroad, 164 Mo. App. 701.] If the photograph tells the truth about the situation and surroundings so far as it purports to show these things, ought it to be excluded simply because it does not show some of the surroundings, the showing of which has by the time the photograph is taken become impossible? "We do not think so, any more than that a witness ought to be excluded because he is unable to tell all of the facts in the case, but only a part of them. [1 Wigmore on Ev. par. 792.]

III. On the part of the city, and at the latter’s request, the court nisi gave the following instruction, to-wit:

“The court instructs the jury that the liability of the city goes no further than to require it to use ordinary care to keep its streets in reasonably safe condition for travelers passing over them in the ordinary mode; that the city is not required to keep its streets in such a safe condition that persons in vehicles conveyed by runaway horses will not meet with injury. If, therefore, you find and believe from the evidence that Twenty-Second Street at the point referred to in the evidence was at the time when plaintiff was injured in a reasonably safe condition for ordinary travel, and that the injury was occasioned by plaintiff’s horse getting from under his control and running away, and would not have occurred had the horse not been running away, then your verdict should be in favor of defendant, the City of St. Louis. And in this connection the court further instructs the jury that the- law is as stated to you in this instruction, regardless of whether the runaway, was caused by the negligence of plaintiff or by, some accidental circumstances for which he is not. responsible. ’ ’

Plaintiff contends that the giving of this instruction is error, for that it assfimes as true a sharply contested issue' of fact; that is, it assumes that the horse driven by plaintiff was, when the latter was injure cl, beyond his control and running away. It is almost elementary that if the instruction does assume as true the fact that the horse was running away, touching which fact there was among the proof offered evidence pro and con, the giving of it was error. [Crow v. Railroad, 212 Mo. 589; Wilkerson v. Eilers, 114 Mo. 245.] We do not think the latter part of this instruction assumes as true the fact that the horse was running away, but that it may fairly be construed as leaving the determination of 'this disputed issue to the triers of fact. But plaintiff further urges that the limiting by this instruction of the duty of the city to so maintain its streets as that they shall be “in reasonably safe condition for travelers passing over them in the ordinary mode” is an assumption that the horse was running away, and that its further effect is; to narrow and restrict the duty of the city touching the maintenance of its streets in a way and to an extent whi&h the law does not warrant. Relegating the determination of the first part of this criticism to the plain and Avell-settled rule announced in Crow. v. Railway, supra, we are nevertheless of the opinion that the duty of the city, as this duty is defined by this instruction, is too narrow and restricted.

It is the duty of the city to keep its streets in reasonably safe condition for travelers passing over them in any and all modes: provided only, (1) such modes are lawful, and (2) do not of themselves constitute contributory negligence in the traveler to a degree forbidding his recovery. The true test, therefore, is not whether the horse was running away, but whether, if he was running away, that. fact (which might itself constitute a phase of contributory negligence) or of the fact of the city’s negligence was the proximate cause of plaintiff’s injury. This is the well known doctrine of concurrent negligence, which doctrine is the settled law of this State. [Graefe v. Transit Co., 224 Mo. 232; Buckner v. Horse & Mule Co., 221 Mo. l. c. 710; Scheurer v. Rubber Co., 227 homely baby-carriage. One may not use a street unMo. 347 ; Krehmeyer v. Transit Co., 220 Mo. l. c. 655; Harrison v. Kansas City Elec. Co., 195 Mo. l. c. 623; Straub v. St. Lonis, 175 Mo. 413; Brash v. St. Lonis, 161 Mo. 433; Lore v. Mfg. Co., 160 Mo. 618; Vogelsang v. St. Louis, 139 Mo. 127; Bassett v. St. Joseph, 53 Mo. 290.]

It is a fact known to all men that many horses shy and become frightened and sometimes run away. The fact that plaintiff may have been driving a horse which became frightened and ran away cannot upon the facts in this case be said to constitute contributory negligence as a matter of law. Such running away of the horse might, of course, constitute contributory negligence if the facts in evidence aliunde showed such negligence, but standing alone as the fact does here the question was one for the jury; especially is this true when the question whether or not the horse was running away is a sharply contested one. If the horse was running away, and this fact was the proximate cause of the hurt to plaintiff, the latter cannot recover. If, however, the hurt to plaintiff would not have happened but for the concurring negligence of the city, and if the running of the horse was not due to plaintiff’s negligence, that is, if the plaintiff was not negligent in driving a horse which was known by plaintiff to be addicted to running away, then the ■ fact that the horse ran away and plaintiff was hurt would not inevitably excuse the negligence of the city.

If the test of the use of the streets and sidewalks of cities by pedestrians and persons, riding thereon is to be that of the use thereof in the “ordinary mode,” serious questions would inevitably arise as to what constitutes the ordinary mode. This question will comprehend the rate of travel as well as the means, thereof, and such a rule might well put beyond the pale of protection the lowly banana peddler, who perforce his business must roll a handbarrow, and the man of family who, as a means of domestic peace, trundles the lawfully, that is, break, while using it, either the ordinance or the law, nor may he, béing himself guilty of contributory negligence in the use thereof, recover for the city’s negligence. Beyond this general rule it seems unsafe to go in restricting the use of a public highway in a city or town. Hence it follows that Instruction 6 was bad. Since Instruction 5, of which-plaintiff likewise complains, is subject to the identical vice's above discussed, it is in our opinion likewise bad.

ÍY. Plaintiff complains of instruction nine, given on the part of defendants. This instruction reads thus:

The court instructs the jury that even if you find and believe from the evidence, that no warning lights had been placed upon the pile of macadams in the street, nevertheless, if you, further find and believe from the evidence that the place at which the macadam was placed was so well lighted that the pile of macadam could have been easily seen by one exercising ordinary care while such distance away as to enable him easily to avoid it, and that ordinary prudence did not require a warning light to be placed thereon, then your verdict shall be in favor of both defendants.”

Under the facts of this case we do not think the giving of the instruction last above was error. The pile of macadam was some 75 feet long, reached in -width almost half way across the street, and was some three or four feet high. If the jury had found, as this instruction left to them to find, this this huge obstruction was readily visible or could have been easily seen by plaintiff by the light afforded from-the street lamp, obviously it followed that he should have avoided striking it, and obviously in that event, his hurt could not have been due to the failure of defendants to place the warning red lights as the ordinance requires. And in such event his hurt was due to his failure to avoid an obstruction plainly visible and which he saw or ought to have seen. We think this contention of plaintiff is not well taken.

Y. Objections are also urged against instruction eight, which was given for the defendants. Without burdening these views with a discussion of this contention, it is enough to say — since this case must for other errors be reversed and remanded as to the defendant city — -that upon a re-trial instruction eight can be re-written so as to conform to the proper standard.

YI. Instruction seven is in our opinion likewise bad. It is not a question of the defendant city’s liability for its failure to enforce its own ordinances. There is no doubt that no such liability exists, but here the duty violated by the city was that which required it to keep and maintain its streets in a reasonably safe condition for the use of persons exercising ordinary care for their own safety. The city had let a contract for the doing of this repair work upon one of its streets. If its contractor, or any sub-contractor, did things to this street or to- adjacent streets which rendered travel thereon dangerous or hazardous, it became the d4uty of the city, upon notice of such condition, perforce the rule above mentioned, to either remedy this condition, or to put barriers on this street taking it out of public use, or to give notice to all and sundry of its dangerous condition.

YII. Complaint is likewise made that instructions ten and twelve are bad. Instruction ten is the ordinary inevitable accident instruction. We think it was warranted here upon the defendants’ theory that the horse was running away, and that this fact alone and not any negligence of the defendants caused plaintiff’s injury. If the horse was in fact beyond control and this condition was not due to plaintiff’s contributory negligence, but nevertheless such condition and not defendants’ negligence caused plaintiff’s hurt, then that hurt was caused by inevitable accident, namely, the running away of the horse, for whose act nobody and nothing but the horse was at fault, — and the horse is not a party to this action.

VIII. Instruction twelve reads thus:

“The court instructs the jury that contractors engaged in the construction and repair of public highways. have the right, temporarily to obstruct and use such part of such highways for the storage °i' material to be used in such work of construction or repair, as may be reasonably necessary under all the. circumstances.
“You are further instructed that if you find and believe from the evidence that the defendant Gr. A. Heman was engaged in the reconstruction of Biddle Street and that in connection with such work he piled macadam upon Twenty-Second Street and immediately adjoining Biddle Street, but that in so doing he used only such part of said street as was reasonably neces-, sary for that purpose, leaving a clear space for passage of vehicles, and that said macadam was not permitted to remain there for a longer period than was under all the facts and circumstances reasonably necessary, then said pile of macadam was in itself neither wrongful nor an unlawful obstruction of said Twenty-Second Street. ’ ’

If this instruction does not state the law, then there must be an' end to street improvement, as well as to the construction of houses and structures of whatever'sort in the large cities. No such work of construction could be carried on practicably and feasibly unless some obstruction of a street is to be permitted. If such obstruction by necessary building material be no more than is reasonably necessary in the doing of the work in hand, no actionable negligence can be bottomed upon the bare fact of obstruction. This contention is therefore, in our view, untenable; but for the divers errors in other instructions given -on behalf of defendant city the case must be, as to the city, reversed and remanded for a new trial.

IX. Coming now to the appeal of defendant Heman, onr attention is directed to alleged error in refusing three instructions which Heman offered upon the trial. Instruction la, the refusal of which is urged as error, in substance told- the juiry that even though they should find that there were no warning red lights on the street material, and that the latter was so placed and piled as to be unsafe and dangerous, yet if the jury should further find that plaintiff had lost control of his horse and had thereby become unable to direct the course of the latter, and that this fact and not defendant’s negligence in the behalves mentioned, caused plaintiff’s injury, then the finding of the jury should be for defendants. Whether this . instruction was proper or called for by the facts, we need not take up space to say, for the court gave for both defendants instruction thirteen, which covered the identical propositions of law embraced in the refused instruction. This was all that was necessary, especially in a case wherein thirty-three instructions in all were offered, and twenty actually given to the jury.

X. Instruction-2a, which was offered by defendant Heman and refused by the court, submitted to the jury the issue whether the red light which the watchman of defendant Heman swore he put on'the. pile of macadam and which some of the witnesses in the case swore was thereon when plaintiff was hurt, had not been removed by some predatory or other unauthorized person. If, continued this proffered instruction, such light was removed or extinguished by some person other than the servant of Heman, the latter would not be liable for any negligence flowing from the absence of this red light. Obviously this instruction is bad, because it leaves out of consideration the duty of defendants to replace the warning light after a reasonable opportunity, under the circumstances existing, to discover its absence, even though such light had been removed by some unauthorized person. [Doherty v. Waltham, 4 Gray, 596.] But granting, for the sake of argument, the correctness in the abstract of defendants contention, the concrete difficulty presented and which confronts us lies in the fact that there is not a scintilla of evidence on which to base this instruction. There is testimony from the watchman that he put one red light on the north end of the pile of macadam about an hour before the casualty occurred. There is also much testimony that there was a red light on this pile of rock at this point at the very instant of. time that the injury happened, and on the other hand there is much testimony on plaintiff’s side contradicting the presence of any light at all at this time; but there is neither affirmative hint nor testimony in the' record that any unauthorized or predatory person removed the red light in the interval between the alleged placing . of the light upon the rock and the happening of the casualty. Clearly, somebody was in error on the point whether a red light was on this pile of material or not. This contradiction was for the jury. An inference would naturally arise that the light had been removed, if the jury had found from the evidence that this light had been placed on the macadam, and if it had. further found that the same was not there when the casualty occurred, but this was not a matter demanding an instruction. In fact, an instruction upon the point would have been in the last analysis a most subtle and vicious comment upon the evidence of defendant; because the inference conveyed by the refused instruction and therefore its effect, would have been to say to the jury that the witness who swore he had put a red light on the material was telling the truth, and therefore that if the light was not there when the accident occurred, it must have been removed by some thief or meddler. For these reasons we think no error was committed in refusing to give this instruction.

XI. Defendant Heman also offered instruction 4a, which, as forecast, the court refused to give.' The latter instruction submits to the jury the duty which was upon plaintiff to use ordinary care for his own safety and to that end emphasizes the fact that in observing such duty it is incumbent upon plaintiff - to use the faculties and senses which a reasonably prudent person would have exercised under similar circumstances. If plaintiff failed and neglected to use such care, then the court was requested to advise the jury that plaintiff could not recover, notwithstanding the negligence of the defendants. The court had already given, at the request of defendant city, an instruction which we are of the opinion and have already ruled, more than covered the ground of the refused instruction. -Notwithstanding this fact, the verdict went against defendant Heman. For this reason it results that this point should be ruled against defendant Heman, and it follows that as to him the case should be affirmed.

XII. Coming to plaintiff’s insistence that the directed verdict in favor of the Aqua Contracting Company (called for brevity, as stated above, simply the Company) was erroneous, we meet the necessity of referring to some more of the facts. Defendant Heman, having a number of other contracts with the City of St. Louis for work on its streets of similar sort, was apprehensive that he could not get another contract awarded to him in his own name; therefore, though Heman was neither a stockholder nor ah officer of defendant company, and although the company was not engaged in the business of making or performing contracts of the sort here under consideration, Heman'without any authority from' the Company made a bid. for this work in the Company’s name. This bid was accepted and the contract was awarded to the Company pursuant thereto, and the latter, in order to assist Heman, ratified Heman’s action by signing a written contract with the city to do the work and by executing a bond to save the city harmless in certain contingencies, and for faithful and proper performance of the work in all respects. Thereafter the Company, having proceeded thus far wholly as an accommodation to Heman, turned the entire work over to the latter, without any sub-letting thereof and without any affirmative act of assignment to him of the contract. In fact, the contract contained a stipulation forbidding any assignment thereof. Heman did the work for himself under this arrangement, the Company thereafter neither exercising any dominion or control over it, nor receiving nor expecting to receive any share or part of the profits, nor agreeing or expecting to recoup any losses arising from the fulfillment thereof. When tax-bills were issued in payment for the work, these were made out in the name of the Company, which upon receiving them (if it did receive them, for the matter rests upon inference only) transferred them to one Ruckert, who furnished Heman with the money to carry on the work. The Company, it seems, was engaged solely in executing sprinkling contracts. Under an agreement with Heman the latter was to have certain profits over a given amount which the Company might earn upon such sprinkling contracts, but it seems that there never were any such profits, and that Heman obtained nothing whatever from the sprinkling contracts. Under this state of facts, the trial court held that the Company was not liable for Heman’s torts while doing the work of replacing the pavement and curbing on- Biddle Street.

Clearly, if Heman was not the agent of the Company and doing the work for it the Company is not liable, because there was never any assignment or subletting to Heman of the work. As stated, such assignment and sub-letting were forbidden by the contract with, the city under which the work was done. The explanations of the officers of the Company and of Hernán (and no other evidence, except the contract and bond was offered upon .this question) make the Company the agent of Heman to get the contract for him. Since the Company took neither loss nor profits in the work, it would not be liable in this action upon the theory of its mere agendy in getting the contract for Heman. While the testimony might warrant the inference that in doing the work Heman was the agent of the Company, he was not sued in such capacity. No such theory is developed by. the petition. The court ■nisi ruled against the liability of the Company. The plaintiff alleges error, and the burden of proving that error is upon plaintiff. The cases cited by bim in. this behalf do not in the remotest way bear out his contention that the Company is liable. Neither are we told upon what, legal foundation the Company’s alleged liability is bottomed. So, since plaintiff neither sued on the theory of Heman’s agency of the Company, nor has cited us authorities showing that the facts proven make him such agent, we are constrained to rely upon the presumption, naught else appearing', that the ruling of the learned trial court was correct.

It results that the case should be • affirmed as to defendants Heman and the Aqua Contracting Company, and reversed and remanded as to the defendant City of St. Louis. Let this be done.

All concur.


text:
    MARGARET LANGDON v. SARAH F. KLEEMAN et al.; DIERKS & SONS LUMBER COMPANY et al., Appellants.
    Division Two,
    May 19, 1919.
    1. MECHANIC’S LIEN: Initial Date. A mechanic’s lien dates from the commencement of the work on the building or the furnishing of the'materials therefor.

      2. -: Deed of Trust: Priority. If the furnishing of materials and the commencement of work of the building antedated a deed of trust, the mechanic’s liens are entitled to priority over the lien of the payee of the note secured by a recorded deed of trust, if made a party to the suit within ninety days after the filing of the mechanic’s liens.
    3. WAIVER: Proof: Implication. Waiver is essentially a matter of intention. It may be shown by the acts and conduct of the parties, and under some circumstances by their non-action; but their acts or omissions, to be construed as waivers,- must be so manifestly consistent with and indicative of an intention to relinquish the particular right or benefit, that no other reasonable ' explanation of their conduct is possible. Waiver by implication must be determined by the facts and circumstances of • each particular case, and will not be presumed in the absence of evidence clearly tending to show it.
    4. MECHANIC’S LIEN: Deed of Trust: Priority: Waiver. After the commencement of work on the building and the furnishing o£ materials the owner of the property executed' a deed of trust thereon, which was duly recorded, and the note thus secured was later transferred to another and thereafter the mechanics and materialmen, without knowledge that the mortgage note had been transferred, began their ■ suits to enforce mechanics’ liens, making the trustee and payee of the note parties, but the transferee was not made a party within ninety days after filing the liens. Held, that the failure of the lienors to make the transferee a party did not amount to a waiver of the priority of their liens, but arose out of ignorance of the assignment of the note; and having timely brought in the transferee after a discovery of the assignment, their liens should be given priority over the deed of trust.
    5. -: Parties 'to Suit. In a suit to enforce a mechanic’s lien the statute (Laws 1911, p. 314) requires that only those persons who are parties to the record or whose existence or interest is known or ascertainable are to be made defendants.
    Appeal from Jackson Circuit Court. — Hon William O. Thomas, Judge.
    Reversed and remanded.

      Cooper, Neel S Wright, Thomson, Dew & Brasher, W. A. Earnsherger, Davis & Woodruff, Alfred Gregory, and J. Stanley Bassett for appellants.
    (1) When a mechanic’s lien claimant makes the trustee and beneficiary in the deed of trust as shown hy the records in the recorder’s office, parties to his ¡suit within ninety days after the filing of his lien statement, if it would be prior and superior to the mortgage ■otherwise, is prior and superior to the mortgage even though the record owner of the note has transferred same to someone not disclosed by the records, and there is no evidence that the lien claimant knew of the transfer of the note, and has no means of knowing and said undisclosed owner of the note and deed of trust is not made a party to the suit. Redlon v. Badger Lbr. Co., 194 Mo. App. 650; Hilton v. Smith, 134 Mo. 499; State •ex rel. Hunt v. Sack, 79 Mo. 661; Payne v. Lott, 90 Mo. 676; Vance v. Corrigan, 78 Mo. .94; Nolan v. Taylor, 131 Mo. 224. (2) . The assignee of the note, Sarah Klee-man, had actual knowledge and notice, through the personal inspection of her agent, L. F. Kleeman, that the building had been in process of erection during the six months immediately preceding her purchase of .the note and that.the building was not completed at the time she purchased the note and the deed of trust; and therefore she would be held to know that there might be rights of lien in existence against the same. Redlon v. Badger Lbr. Co., 194 Mo. App. 650. (3) Under the Act. of 1911, under which this suit was brought, it was only necessary to make such parties defendants as may be disclosed by the proper public records. Laws 1911, p. 314, sec. 8235b.

      Rees Turpin and Thomas H. Reynolds for respondent.
    (1) Full compliance with the statute is necessary to create and preserve a mechanic’s lien. Rude v. Mitchell, 97 Mo. 365; Grace v. Nesbitt, 109 Mo. 9; Badger Lumber Company v. Staley, 141 Mo. App. 295; Hiller v. Schulte, 184 Mo. App. 42. (2) The interest of one not made a party to a suit to enforce a mechanic’s lien within ninety days after the lien in filed is not bound by the lien. Secs. 8221, 8228, R. S. 1909; Sec. 8235h, p. 409, Laws 1913; Bombeck v. Devorss, 19 Mo. App. 38; Fury v. Boeckler, 6 Mo. App. 24; Eumsey v. Pieffer, 108 Mo. App. 486; Lumber Co. v. Staley, 141 Mo. App. 295; Hiller v. Schulte, 184 Mo. App. 42; Weis Cornice Co. v. Neevel, 187 Mo. App. 496; Lumber Co. v. Schafer, 251 Mo. 539; Utah Implement-Vehicle Co. v. Bowman, 209 Fed. 942. (3) Bespondent was not made a party to any action to enforce any mechanic’s lien within ninety days after it was filed and her interest in the property is not bound by any lien. Hokanson v. Gunderson, 54 Minn. 499; Crandall v. Cooper and Clark, 62 'Mo. 478; Hicks v. Scofield, 121 Mo. 381; Eussell v. Grant, 122 Mo. 161; Crawford v. Aultman & Co., 139 Mo. 262; Biverside Lumber Có. v. Schafer, 251 Mo. 539; Badger Lumber Company v. Staley, 141 Mo. App. 295. (4) Making the original payee and the trustee named in the deed of trust parties did not make respondent a party to the lien suits and did not affect her interest. Boatman’s Savings Bank v. Grewe, 84 Mo. 477; Eogers.v. Tucker, 94 Mo. 346; Crawford v. Aultman & Co., 139 Mo. 262; Landau v. Cottrill, 159 Mo. 308;-McCauley v. Brady, 123 Mo. App. 558; McLaren v. International Eeal Estate & Improv. ■Co., 126 Mo. App. 254; Sec. 1776, E. S. 1909; Peniston v. Hydraulic Press Brick Company, 234 Mo. 698-; Borgess Inv. Co. v. Vette, 142 Mo. 560; Eogers v. Tucker, 94 Mo. 346; Hower v. Erwin, 221 Mo. 93; Henry v. Woods, 77 Mo. 277; Coe v. Armour Fertilizer Works 237 U. S. 413; State ex rel. Kane v. Johnson, 123 Mo. 43. (5) No mechanic’s lien can be established in this suit because it was. commenced more than ninety days after the last íien was filed and no judgment in the various law suits can be forced against respondent because she was not a party to any of them. Matthews^v. Stephenson, 172 Mo. App. 220; Wycoff • v. Hotel Co., 146 Mo. App. 554; Falconer v. Cochran, 68 Minn. 405; Utah Implement-Vehicle Co. v. Bowman, 209 Fed. 942; Bussell v. Grant, 122 Mo. 161; Hiller v. Schulte, 184 Mo. App. 42; Nold v. Ozenberger, 152 Mo. App. 439; McLundie & Co. v. ■Mount, 145 Mo. App. 669. (6) Even in an equity suit commenced in time and complying with the Law of 1911 a purchaser of a note secured by deed of trust is not bound by making the original payee a party after such purchase. Lipscomb v. Talbott, 243 Mo. 1; Hagerman v. Sutton, 91 Mo. 519; Hower v. Erwin, 221 Mo. 93; Smith v: Boyd, 162 Mo. 146; Jackson v. Johnson, 248 Mo. 680; Bell v. Ham, 188 Mo. App. 71; Blevins v. Smith, 104 Mo. 583; McCreary v. Lewis, 114 Mo. 582; Wilcox v. Phillips, 260 Mo. 664; Conn. Mutual Life Ins. Co. v. Snjith, 117 Mo. 261; Sec. 1776, R. S. 1909.
   WALKER, J.

This is an appeal from an action brought in the Circuit Court of Jackson County, at Kansas City, under the statute in relation to Liens of Mechanics & Materialmen, Article 3, Chapter 74, Revised Statutes 1909, as amended, Laws 1911, p. 314, providing for the institution of suits for the adjudication of the rights, interests and liens of mechánics, and of other claimants therein specified. Margaret Langdon, plaintiff in the action below, was the owner of the property involved herein, located in Kansas City. The contracts made by the lien claimants were entered into by them with her, through Thomas Kelly, her brother, as her ágent. The work was commenced in the erection of a building on the property in July or August, 1912. On January 2, 1913, Margaret Langdon executed a deed of trust, recorded January 4, 1913, to one Thompson, as trustee, to secure a note for $12,500, made to the Pratt-Thompson Investment Company. On April 21, 1913, the Investment Company sold the note to Sarah E. Kleeman, the respondent. There was no record of this transfer. Prior to the 'purchase of the note, Sarah Kleeman’s husband, acting as hen* agent in the matter of the purchase, went out and examined the property, and saw the building was then in process of erection.

Thereafter, various claimants filed mechanics’ liens against the property as contractors for some portion of the improvement, and brought separate suits to enforce their respective liens, making the owner of the property, Thompson the trustee and the Investment Company defendants. Later, the suit at bar was brought by Margaret Langdon, the owner of the property, and it having been discovered before the trial that Sarah Kleeman was the assignee and holder of the note, she was made one of the defendants. The circuit court held the mechanics’ lien valid against the property, but that the lien of the deed of trust was superior thereto. The effect of this •finding was that the liens of claimants were held to' attach to the equity of redemption, but did not bind the interest of the respondent in the property, because she, as the holder of the note and deed of trust, was not made a party to the proceedings to enforce the mechanics’ liens within ninety days after the filing of same. Seven of the lien claimants appealed from this judgment.

The facts summarized, therefore, are that the lien claimants, in suits' to enforce their liens, made the owner of the property and the trustee, and the beneficiary in the deed of trust to whom the note was made payable, parties defendants, but did not thus make the assignee of the note, because of a lack of knowledge or any means of knowing of the assignment to her of the note and deed of trust securing same. The question seeking review, therefore, is. whether the liens of the lien claimants are entitled to priority over that of the assignee of the note and holder of the deed of trust.

I. It is well settled law in this State that a mechanic’s lien dates from the commencement of the work on the building, or the furnishing of "the materials therefor. [Riverside Lbr. Co. v. Schafer, 251 Mo. l. c. 548 and cases.]

The furnishing of the materials and the commencement of the work in this case antedated the deed of trust. As between the mechanics’ liens and that of the original payee in the note, in whose behalf the deed of trust was made, the former were entitled to priority over the latter.

Respondent, as assignee of the note, contends that ‘ this does not affect her rights, because the statute (Sec. 8221, R. S. 1909) requires that in all suits to enforce liens of this character, the parties to the contract and all other persons interested in the matter in controversy, or in the property charged with the lien, may be made parties, and such as are not so made shall not be hound by the proceedings; and that, not having made the respondent a party defendant within the ninety days after the filing of the liens as required by Section 8228, Revised. Statutes 1909, they waived their original priority.

Waiver is essentially a matter of intention. It need not he proved by express declarations, hut may he shown by the acts and conduct of the parties, or even under some circumstances, by .their non-action. Whatever parties do or forbear to do, therefore, their acts or omissions, to he construed as waivers, must he so manifestly consistent with and indicative of an intention to relinquish the particular right or benefit, that no other reasonable explanation of their conduct is possible. [Mich. Sav. & L. Assn. v. Trust Co., 73 Mo. App. l. c. 165; Stiepel v. Life Assn., 55 Mo. App. 224; Hurley v. Farnsworth, 107 Mo. l. c. 309; Berman v. Fra. Health & Accdt. Assn., 107 Mo. 373; Parsons v. Lane, 97 Minn. l. c. 104; Kiernan v. Ins. Co., 150 N. Y. l. c. 194.]

Although it is evident from the general principles above announced that a waiver may he created by implication, the question as to whether or not it exists in a particular case, being one of intention, must he determined by the facti^ and circumstances of that case (Mims v. Macon Railroad Co., 3 Ga. 333; Pope v. Graham, 44 Tex. 196; Stribling v. Coal Co., 31 W. Va. 82; Avery v. Hackley, 20 Wall. [U. S.] 407); and in no case will a waiver he presumed in the absence of evidence clearly tending to show it (Muench v. Valley Nat. Bank, 11 Mo. App. 144).

The affirmative facts in the instant case disclose no intention indicative of a waiver. The lien claimants, in their suits to enforce their liens, made defendants of all parties who within their knowledge or in the exercise of reasonable diligence they were enabled to determine had any interest in the controversy or the property charged with the liens. To- have done less than this, in the face of a plain statutory requirement, and a knowledge of the existence of other necessary parties defendant, would have constituted a willful and deliberate abandonment of that priority in the enforcement of their claims accorded to them by the law.' The dominating influence of self-interest, based on average human experience, that a prior right will not be relinquished without reason, sustains the conclusion that such was not' their purpose. In the absence of any fact affirmative or implied, the only possible presumption of waiver must be based: on the fact alone of the failure to make the assignee of the note a party defendant. The reason for this failure could not have been, as we have shown, intentional: nor could it have been, under the facts, inadvertent. It simply arose, from the lienors ’ ignorance of “the assignment of the note, a fact of which' they could not have become cognizant, and of which they had no right to assume existed unless the original payee or the assignee chose to inform them.

The law in conferring a right or prescribing a duty, does not require the impossible. However strict a statute may be, it should not be so construed as to deny the rights it confers to those who, within the range of reasonable possibility, have complied with, all of its requirements.

In the absence, therefore, of any knowledge or a means of obtaining same, of the existence of the assignment, the lienors cannot be said to have manifested, any intention in not making the assignee a party defendant. Without such an intention, which, under any circumstances must be held to be a sentient act, there is no ground upon which to base the presumption of a waiver, The lienors, therefore, in the enforcement of their liens, not only as to the parties made defendants, but in the timeliness of their actions, sufficiently complied with the statutes (Secs. 8221, 8228) in instituting their suits within ninety days after the liens had been filed, and by making every party a defendant who, by the exercise of diligence, could have been ascertained to have an interest in the controversy, and in the property sought to be subjected to the liens.

This is. the evident meaning and purpose of the amendatory statute (Laws 1911, p. 314) in regard to the adjudication and determination of liens of this character, which provides that “all persons . . .having any rights in . said property to be affected . as may be disclosed by the proper public records, shall be made parties. Any person, lien claimant or other, having any rights in, to, against or upon said property and any of it whose rights are not disclosed at the time of bringing of said action by the proper records, shall be bound by the proceedings, orders and judgments in said action.” [See. 8235b, Laws 1911, p. 315.]

Except in the well considered case of Redlon v. Badger Lbr. Co., 194 Mo. App. 650, 189 S. W. 589, the question here involved has not, under a like state of facts, been determined here or elsewhere. In the Redlon case, Trimble, J., speaking for the court, said in effect, that in a suit to enforce a mechanic’s lien, where the owner of the property and all of the parties to a deed of trust on same, including the record owner of the note and the trustee were made defendants, a judgment in favor of the lienor was held not to be void as to an assignee of a note, secured by a deed of trust on the property, who had not been made a party defendant because his existence was unknown •at the time of the institution and prosecution of the suit. A claim of the lienor, under the mechanics’ lien law, having attached before that of the deed of trust, it was held under the amendment to that law (Laws 1911, p. 315) that it was only required of the lienor to make defendants of those who were parties to the record or whose existence was known or could have been ascertained.

The contention of the assignee of the note in that case was based on the failure of the lienor to make him a party. The court in discussing this question, page 659, says: “If plaintiffs are correct in their contention that the iien judgment is void as to them notwithstanding the circumstances of this ease, then such a rule puts it in the power of the assignee of a mortgage, that in its inception was subsequent to a mechanic’s lien right, to entirely defeat such right as to the mortgagee by remaining hidden or by transferring the note to other undisclosed assignees, so that the real note-holder’ cannot be sued until the ninety days are up. The assignee of a note secured by deed of trust on real estate is a person interested in the property. All persons interested in the property must be made parties and suit must be brought against them in ninety days. Therefore, according to plaintiff’s contention, regardless of whether the lien claimant has notice of an assignment of the mortgage or not, he must at his peril, ascertain whether it has been assigned or not, and must within the ninety days discover who the hidden assignee is and make him a party or he will lose his lien right as against such hidden assignee even though the assignee took a note the security for which was burdened with a lien right at the time the deed of trust or mortgage was given. "We do not think the lien law should be given any such construction, but that the same construction should be placed on it as was placed on other statutes in relation to the enforcement of other liens, and that the Legislature recognized this principle in the Act- of 1911. We are also of the opinion that there is nothing in the cases decided by the Supreme Court and hereinbefore cited which hold contrary to the view herein taken. ’ ’

While the conclusion in the Eedlon case is in terms based on the construction of a statute (Sec. 8235b, supra), it must in reason find its fundamental support, as is evident from the quotation therefrom, in the original and persistent priority of the mechanics’ liens over that of the deed of trust, which having attached, is not interfered with where the lienors have without dereliction conformed to all of the requirements of the statute in the perfection of their liens; and it is evident that the failure to make the assignee of the note a party defendant was due, so far as the lien claimants are concerned, to the fact that they had no means of ascertaining the existence of the assignee. Thus situated, and all reasonable diligence having been shown by them to enforce their liens in conformity with the statute, we decline to rule against their priority. To hold otherwise would be, in applying the canons of construction, sticking in the bark, and in' practically placing the assignee of a note secured by a deed of trust in a superior position, as regards the prior lienors, to that of the original payee. ' That the latter, if there had been no assignment of the note, could have successfully asserted a waiver of the prior lien if not made a party defendant to its enforcement, there is no question. This, upon the assumption that her existence was of record, and the lien claimants were required to take notice of same; but, if she had kept her deed off the record and- had otherwise concealed her existence, she would not be heard to assert the right to have been made a party to the enforcement of the mechanics’ liens. It cannot be reasonably contended, therefore, that the assignee who, it may be admitted, has equal rights in the premises with the original payee, has greater. To construe the statute as contended for by respondent, therefore, would be but to observe the letter but ignore the spirit and purpose of the law. Are we not told, possibly in one of the Pauline Epistles, that “the letter killeth, but the spirit giveth life”? Nowhere is this' aphorism more apt than in the interpretation of a law, the purpose of which is to accord and assure a right upon a reasonable compliance with the terms upon which it has been granted. This having been done, we will brush aside the insistence as to the necessity of making the assignee a party, where, as here, it will result in her securing a prior lien to which we hold she is not justly entitled.

II. A review of the testimony discloses no lack of material facts to sustain the establishment of the mechanics’ liens. The trial court so found.

The error in the ruling of the trial court, as to the priority of the lien of the deed of trust, necessitates a reversal and a remanding of this cause on behalf of the appealing lien claimants with whose claims we are alone concerned; and it is ordered that a judgment he entered up in conformity with our conclusions herein.

All concur.