author: PER CURIAM. WOODSON, J.

text:
    J. H. SPARKS v. JASPER COUNTY, Appellant; and J. H. SPARKS, Appellant, v. JASPER COUNTY.
    In Banc,
    June 26, 1908.
    1. BRIDGE: Contract: Recovery. If the contract for the building of a county bridge was not properly let, the contractor cannot recover thereon.
    2. -: -: Letting at Another Place. The letting of a contract to build a bridge to the highest bidder at a place a half mile from the bridge, the advertised place, and at a place where it could not be determined whether or not other bidders were at the bridge site, is not a valid letting, and a contract made in pursuance thereto is not a valid contract. And hence when the contractor sues on the contract for the balance of the money he was to receive for constructing the bridge, he cannot recover, although the bridge has been built and accepted, and the county court has in part paid him for the work.
    S. PAYMENT: Wrongful Application. Where the county court appropriates money for the payment of a specific valid indebtedness, the payee has no right to apply it as a payment on another valid indebtedness. So that where the county court issued a warrant for $1,100 for the “Tuckahoe bridge,” the contractor had no right to apply $65 of the sum to the payment for concrete pillars on the “Jones Creek bridge” and only the balance on the Tuckahoe bridge, but the entire $1,100 is to be considered as a payment on the cost of the Tuckahoe bridge.
    4. -: Order to Subcontractor: Assignment Before Due. The contractor for bridges issued' a written order to the county court to pay his subcontractor $3,500 for building the bridges “payable when work is completed and accepted by the county surveyor.” The subcontractor assigned the order to a bank, which gave him credit for the entire amount. Thereafter the subcontractor abandoned his contract, and did not finish the bridges, but before the order was countermanded the county paid the bank $600, and thereafter, over, the contractor’s protest, paid the bank the balance. The contractor finished the bridges, and sues the county for said balance. Held, That no agreement between the bank and the subcontractor by which it was to furnish him money to buy material and employ laborers to carry on the work and be paid by an assignment to it of the contractor’s orders on the court to the subcontractor, was binding on the contractor, even though he knew of the agreement, in the absence of any agreement on bis part to reimburse the bank or any direction on bis part to tbe bank to furnish tbe subcontractor money on account of said orders; and tbe contractor is entitled to recover from tbe county tbe said balance by it paid to tbe bank.
    5. ILLEGAL CONTRACT: Performed: Recovery of Money Paid. Where there has been a complete performance of tbe bridge contract on both sides and it was fair and reasonable in fact, tbe county cánnot recover from tbe bridge contractor tbe money paid him for building tbe bridge under tbe illegal contract, so long as it retains and enjoys tbe use of tbe bridge and will not or cannot restore tbe bridge to tbe contractor.
    Appeal from Jasper Circuit Court. — Hon. Hugh Babbs, Judge.
    Reversed and remanded (with directions).

      Thomas £ Hachney for Sparks, appellant and respondent.
    (1) Plaintiff was entitled to the $65 for concrete pillars put in the Jones Creek bridge in order that the bridge might be set out of and above the water. It was shown by the evidence that at the time of making the contract for the removal of the bridge to Jones Creek, it was thought that the legs of the bridge were sufficiently long to put it above the water, but on getting the bridge to Jones Creek it was found that to rebuild the bridge as contemplated would set it under water. Hence, the bridge commissioner under the direction of the county court ordered the construction of concrete pillars, which were shown to be of the reasonable value of $65, and the plaintiff was entitled to this sum, and having received it and given credit on this account out of the $1,100, is entitled to recover the balance due on the bridge contract. Bryson v. Johnson County, 100 Mo. 76; Beach on Corporations, sec. 10791. The building of these concrete pillars became necessary to meet an unforeseen exigency, the same as in Bryson v. Johnson County, supra. (2) The payment by the county court of the $2,900' to the Central National Bank as assignee of the Miller order was without authority of law. It was admitted that Miller never built the bridges but abandoned the work as soon as the order was obtained. Sparks was compelled by the county court to complete the work, which he did at an expense of $4,100; whereas, Miller should have done this work for $3,500 under his contract with Sparks. The county court had no power to accept this order and there was no acceptance. But even had it had the power to accept and even had the order been accepted in fact, yet the failure of Miller to perform the contract prevented the county court from paying the order. Crowell v. Plant, 53 Mo. 145. Sparks had the right to revoke the order at any time before Miller should complete the bridges and the order should be paid 'in full by the county court; and. the written and oral notice served by Sparks on the county court notifying them not to pay this order effectually nullified the order. Dickson v. Coates, 79 Mo. 250; Albers v. Bank, 85 Mo. 173; 1 Morse on Banking (3 Ed.), sec. 398; Banschaack on Bank Checks, p. 83; Boon on Banking, 198; Bank v. Millard, 10 "Wall. 152. (3) Defendant was not entitled to recover back from the plaintiff any moneys theretofore paid him on any bridges built. The contracts for the building of these bridges had been fully performed on both sides long prior to the institution of this suit. These contracts were shown to be fair, the bridges substantially built and well worth the money, and kept and used by the county and the public. There was no tender of the bridges to the plaintiff nor offer to restore them to him; and the amended answer did not plead any offer to restore or return the bridges. In such a case, regardless of the question of irregularity of the contract, there can be no recovery by the county of the money thus paid for the bridges. Prick v. Town of Brinkley, 61 Ark- 397; 20 Am. and Eng. Enev. Law ( 2 Ed.), 1180; Eiverside County v. Yaw-man & Erke Mfg. Co., 86 Pac. 900; Long v. Boone County, 36 Iowa 60; Inhabitants of Schell City v. Eumsey Mfg. Co., 39 Mo. App. 364. The obligation to do justice rests upon all persons, natural and artificial, and if the county obtains money or property of others without authority, the law, independent of any statute, will compel restitution or compensation. Chapman v. 'County of Douglas, 107 LI S. 355'; Marsh v. Pulton Co., 10 Wall. 684; Louisiana v. Wood, 102 L. S. 294; Hitchcock v. Galveston, 96 L. S. 350. (4) The judgment rendered in the Bradley ease was without effect on the rights of plaintiff. The action was not instituted by Bradley and the other citizens until two of the bridges were practically completed and the other two were in process of construction. No injunction was asked or obtained suspending operations under the contracts. The defendants entered their appearance without service or process and urged a speedy trial of the case, but the plaintiffs delayed the trial almost a year after the institution of the suit. In the meantime the county court required the contractor, Sparks, to go ahead with the construction of the bridges. This he did and the bridges were completed and paid for long before the trial of the case. The mere institution of this suit would have been no justification to Sparks for delay in the performance of his contracts. The citizens had ample opportunity to suspend the work by. suing out an injunction but they saw fit not to sue out this injunction and with the knowledge that the bridges were being constructed, allowed the work to go on to completion. They, as well as other tax-payers, and the •county itself, thus waived their right to question these contracts; and the decree of the trial court, which showed that the contracts had been performed prior to its rendition, was evidence of its own inability to affect the contracts. (5) The only object of the advertisement of the commissioner for bids was to notify prospective bidders of the proposed letting and of the time and place thereof so that competition might be had. When the commissioner and all the prospective bidders assembled at a point within half a mile of the site of the bridge and in plain view thereof, and saw that there were no other persons at the site of the bridge, and that there would be no other bidders in attendance at the letting, and the contract was then let in good faith by public outcry, this was a substantial compliance with the notice. Under these circumstances the parties were “at the site” of the proposed bridge. The words “at the site” contained in the notice should be construed to mean “near the site” and should not be construed to mean “in” or “on” the site. Century Dictionary, “At;” Webster’s Dictionary, “At;” Standard Dictionary, “At;” Purifoy v. Railroad, 108 N. C. 100; Winter v. State, 104 Ga. 753; O’Conner v. Nodel, 117 Ala. 595; Parke’s Appeal, 64 Pa. St. 137; Williams v. Railroad, 82 Tex. 559:; Howard v. Pulton, 79 Tex. 236; Railroad v. Manning, 70 111. App. 242; Railroad v. Railroad, 31 N. J. Eq. 486; State v. Camden, 38 N. J. L. 299; Railroad v. Beeler, 90 Tenn. 548.

      MoReynolds <& Halliburton for Jasper county, appellant and respondent.
    (1) Plaintiff is not entitled to recover $65 for the concrete pillars on Jones Creek bridge. This has not been paid. The record shows' the $1,100 was paid on contract and the suit is on the contract. There was no contract for the concrete pillars. It is a well-settled rule that in a suit on contract plaintiff cannot recover on quantum meruit. Heidelberg v. St. Francois Co., 100 Mo. 69; Anderson v. Ripley County, 181 Mo. 46; Reed v. Mexico, 101 Mo. App. 161; King v. Ins. Co-, 101 Mo. App. 171; City of Unionville v. Martin, 95 Mo. App. 38; Miller v. Douglas, 102 S. W. 996. (2) . Plaintiff is not entitled to recover the $1,495 on Blackberry bridge, for tbe reason tbat tbe contract was fraudulent, in tbat it was not let as advertised and as required by law, and this with tbe active participation of plaintiff, (a) On tbe question, of sale under a deed of trust it is beld tbat to pass a perfect title, tbe sale must be at tbe place required by tbe deed of trust. Stewart v. Brown, 112 Mo. 171; Scbanewerk v. Hoberecbt, 117 Mo. 22. (b) It is beld tbat a sale under execution must be made at tbe time and place advertised or it is void- Bank v. Evans, 51 Mo. 35; Ladd v. Shippie, 57 Mo. -523. (c) A sale made at sitting of county court instead of circuit court is void. Roberts v. Nelson, 86 Mo. 21. (d) Tbis contract for construction of Blackberry bridge was illegal and void, being made in violation of the statute. And the courts, will not aid plaintiff to enforce it. Conner v. Black, 119 Mo. 126. (e) And it is immaterial whether tbe illegality is shown by tbe contract or established by evidence aliunde. Sumner v. Summers, 54 Mo. 340; Biek v. Seal, 45 Mo. App. 475. (f) A conveyance (same rule will apply to contract), to be fraudulent, need not originate in a premeditated design to commit a positive fraud or to injure others. Many acts, from their tendency to deceive others or from their injurious consequences to tbe public, are prohibited by tbe law as being within tbe same reason as actual fraud. Reed v. Pelleiter, 28 Mo. 175; Wait on Fraudulent Conveyances, sec. 91, note 2; Bank v. Harrison, 57 Mo.' 508; Bishop on Contracts, 456-7-8; Karnes v. Ins. Co., 144 Mo. 413. (3) Plaintiff is not entitled to recover tbe $2,900 paid tbe Central National Bank on order to Miller. A proper construction of tbat order does not require tbat Miller should build all tbe bridges. Tbis order was for' value assigned to the bank, filed with county court, $600 paid thereon by ■defendant, and such payment approved by Sparks. The order, if it will bear two constructions, defendant having acted thereon, the construction most favorable to defendant and should be given it. Nordyke- & Norman Co. v. Keillor, 155 Mo. 643; Clo. Co. v. Sharpe, 83 Mo. App. 385. This order can be held valid and binding on Sparks without doing violence to its terms or to any settled principle of law. Glass Co. v. O ’Malley, 67 Mo. App. 639; Rdijeceit v. Andrews, 63 Central Law Journal 285. (4) Defendant’s claim to recover $1,400 paid on the Blackberry bridge is based on the same proposition that prevents plaintiff’s recovering the balance of $1,495- on that contract, to-wit: The contract was obtained by the commission of a fraud on the county court and the county by the plaintiff and the bridge commissioner. While it is a settled rule of law applicable to individuals, and by some courts applied to cities and counties, that where money is voluntarily paid on a void contract or without contract with a full knowledge of the facts, it can not be recovered back, even though paid under a mistake of law (though some courts hold that money paid by officers of countiés or ■cities on illegal contracts can be recovered), but all of them hold that if paid in fraud it can be recovered. Parks v. Tolman, 113 Mo. App. 19; 2 Kent’s Com., 482. This is especially applicable to contracts on Blackberry bridge, for we must believe the county would not have made this contract if it had known the letting was not at the place advertised. Tandy v. Live Stock Cbm. Co., 113 Mo. App. 409; Knox Co. v. Hunolt, 1101 Mo. 67; Morrow v. Thurber, 97 Mo. 155. The only case we find in this State of a city or county trying to recover money paid on a void contract, where there was no ■question of trust fund or fraud, is Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264, and in that case the law is stated that to prevent recovery the money must be paid with full knowledge of facts, and without fraud. The fraud in the Blackberry bridge letting, the fraud in the Terry’s Ford, etc., bridges takes the action to recover the money paid on them out of the rule in regard to voluntary payments. In fact, in the Terry’s Ford bridges, $6,578 was paid by a fraudulent action of the then judges and the plaintiff to defeat the suit in the circuit court, which fraudulent action should not be tolerated by this court, and no ear should be lent to plaintiff’s plea of hardship in having to return this money as he voluntarily entered into a fraudulent action with the then judges to defraud the county out of any benefit from the suit of the taxpayers. And so the payments are not voluntary on the part of the county. (5) As to recovering money wrongfully paid plaintiff by county court: Ada Co. v. Cess, 43 Pac. 71;'39 Cyc. 422 D; Inhabitants v. Yan Bussum, 7 N. J. L. 42; King v. Mahaska county, 75 Iowa 329. Money paid under a contract declared by a statute to be void, being paid as if paid under no contract, and without consideration, may be recovered back. Grist v. Smith, 78 Ky. 367; Ripley v. Case (Mich.), 18 Am. St. 428; Donohue v. New York, 10 Hun 37; Holms v. Johnson, 59 Tenn. 155; Eslin v. Dist. of Columbia, 29 Ct. Claims 370.
   PER CURIAM.

The foregoing causes having been reconsidered and argued in the Court in Banc, the opinion of Woodson, J., in Division No. One; reversing the judgment and remanding the cause, is adopted as opinion of the Court in Banc. Gantt, G. J., and Burgess and Valliant, JJ., concur; Fox, J., expresses no opinion; Lmvm and Graves, JJ., dissent.

WOODSON, J.

These appeals result from an action brought by J. H. Sparks against Jasper county to recover judgment for balances claimed to be due on three separate contracts for the construction of bridges in said county, and the finding and judgment of the court on the pleadings and evidence. Appeals were taken by both plaintiff and defendant, and should have been brought to this court on one bill of exceptions and as one case, but were brought up on separate bills of exceptions and as separate cases; they should, be heard together.

The lower court found against plaintiff on the first count of his petition and for him on the second and third counts of his petition; found against defendant as to its various defenses, except on the first count of the petition; found against defendant on all its counterclaims except twenty-two dollars over-payment, and rendered a judgment in favor of plaintiff for the balance of--dollars.

A concise showing of the issues made by the pleadings is as follows:

The amended petition is in three counts:

Is* Count on contract for Blackberry Bridge............................$2,895.00

With credit for $1,400.00; balance claimed ...........................1,495.00'

2nd. Count on contract for Tuckahoe or Turkey Creek Bridge and moving and rebuilding bridge on Jones Creek........ 2,990.00

For extra, concrete pillars at Jones Creek............................. 65.00

Credits $1,100 paid, and claims balance ■of ................................ 1,955.00

3rd. Count on contract for three steel bridges, 1 Turkey Creek range line bridge, secs. 32 and 33; span south end of Terry’s Ford bridge; 1 bridge across Center Creek at Reeds Station........ 9,650.00

Credits $5,400, and claims balance of.. 4,250.00

AMENDED ANSWER.

1st. Denies right to recover $1,495 on Blackberry bridge or part for reason contract was not let as provided by law. Advertised to be let at bridge site and! if let at all was let one-half mile or more from site, and?, contract sued on was obtained by fraud committed by' plaintiff and G-rieb, Bridge Commissioner, on county' and county court.

2nd. Denies right to recover $65 for concrete pillars at Jones Creek bridge. No contract for same and! no- order of county court for same. The payment of $1,100 by county court was on contract for Tuckahoe and Jones Creek bridge and not on extra. Plaintiff has no right to apply any part on this extra concrete pillar work.

3rd. Defense as to $2,900 by virtue of order of Sparks to David Miller for $3,500 upon which county has paid $600 to Central National Bank, assignee of order with plaintiff’s approval, and after completion of bridge contracts paid said bank $2,600, for which defendant is entitled to credit.

COUNTERCLAIMS AND OFFSETS BY DEFENDANT.

1st. Claim for $1,400 paid on Blackberry.Bridge for the same reasons for defending against first count for balance claimed on said bridge.

2nd. Claim for $2,471 — $22 being amount overpaid as shown by contracts and payments on Carl Junction, Belleville and Rucker’s Ford bridges. The-contract being $13,678, and the payment being $13,-700. $2,449 of claim being for amount paid for extra, span on Carl Junction bridge. Said span being built without any contract upon an order-of the county court without any compensation being fixed.

3rd. Claim for $15,935 — $4,850 for Terry’s Ford bridge; $2,645 for Duenweg bridge; $4,745 for Hille’s Ford bridge; $2,545 for Center Creek Bridge; $1,250 additional fifty feet on Terry’s Ford bridge.

There is little or no dispute about the facts when you get into the evidence. So the questions before the court are mainly questions óf law.

OPINION.

I. The plaintiff insists that the finding of the court against him on the first count of the petition was error, and that the judgment rendered thereon should be reversed.

The plaintiff’s evidence upon this count of the petition tended to prove that the contract for building the bridge was advertised to be let by public outcry at the site of the proposed bridge, and that on the day designated for letting the contract, the road and bridge commissioner of the county, accompanied by plaintiff and three other prospective bidders for said bridge, went by rail to Carl Junction, and from there drove in a hack to a point about one-half mile from the site of said proposed bridge, and in plain view thereof; that they looked at the site from that distance, but saw no one there; that said bridge commissioner announced then that he would then and there let the bridge contract by public outcry to the lowest bidder; that in good faith he proceeded to let the contract by outcry, and received several bids from the various parties who accompanied him, among whom was the plaintiff, who bid $2,895, which was the lowest bid made; and that the contract was then and there awarded to the plaintiff for said sum, which was afterwards approved by the county court, and, in pursuance thereof, the contract sued on was executed.

The defendant’s evidence tended to prove that when the parties got to within about one-half mile of the site of the proposed bridge, they realized that they could not drive on to the site and return in time to catch their train, home-bound, at Carl Junction; that they turned round and drove back to the Junction without letting the contract or attempting to so do.

The court gave an instruction for the plaintiff and defendant, presenting their respective theories of the case. Under the evidence and the instructions the court found the facts for the defendant and rendered judgment accordingly. This action of the court is assigned as error.

The law requires public notice to be given of the proposed letting of contracts for building bridges, stating the time and place the contract will be let. The object of the notice is to inform prospective bidders of the proposed letting so that they may meet there and make competitive bids for their construction.

The court found, and justly so, we believe, that, the bridge commissioner and the bidders who accompanied him did not know nor could they testify positively that there were no prospective bidders at the site of the proposed bridge on the day the contract was advertised to be let. These parties may have been in full view of the site, and they may not have seen any one at or near there, yet that does not signify that there was no one there in fact, for they may have been there and still not observable from the point where plaintiff claims the contract was let, which was a half mile or more from the site. Prospective bidders might have been there, down in the creek, the banks of which might have obstructed the view. At any rate, this was a matter the trial court had a perfect right to take into consideration in passing upon the weight to be given to their testimony.

In addition to what has just been said, the positive testimony of one of the party who drove out to the point where the contract was said to have been let, is to the effect that the country between that point and the bridge site was rough and uneven, and for that reason it was a physical impossibility for them to see the site from the place where they stopped and turned back to Carl Junction.

To view this evidence in the most favorable light possible to plaintiff, • still it cannot be sincerely contended that there is no evidence to support the finding of the court upon that issue. In fact, there was a direct and sharp conflict between the testimony introduced by plaintiff and defendant which presented a proper question of fact to be determined by the court.

The law is that where the evidence introduced by the respective parties is conflicting and of a substantial nature, the findings of the trial court or jury will not be disturbed by this court. [Everman v. Eggers, 106 Mo. App. 732; Culbertson v. Hill, 87 Mo. 553; Blanton v. Dold, 109 Mo. l. c. 69; Weller v. Wagner, 181 Mo. 151.] The reason for that rule is obvious. The triers of the facts have before them the witnesses who testify in the case; and they have the opportunity of observing their demeanor while upon the witness stand and their manner in testifying*. They are in a much better position to judge as to the credibility of the witnesses and the weight to be given to their testimony. This rule is usually followed even in equity cases where this court has the unquestioned right to review and weigh anew the evidence of the ease, and if the findings of the chancellor are based upon substantial evidence, this court will refuse to reverse a decree of the lower court on the ground that the findings were against the weight of the evidence. [Johnson v. Realty Co., 177 Mo. 595-597.]

Counsel have cited no authority sustaining the proposition that a letting of the contract a half mile from the site of the proposed' bridge was a compliance with the requirements of the statute; while, upon the ether hand, this court has many times held that a sale under a deed of trust if held at a place different from that designated in the notice will not pass a valid title. [Stewart v. Brown, 112 Mo. 171; Schanewerk v. Hoberecht, 117 Mo. 22.] So must a sale under execution he made at the time and place stated in the advertisement, or it will he void. [Merchants’ Bank v. Evans, 51 Mo. 335; Ladd v. Shippie, 57 Mo. 523.]

The principle underlying the cases just cited is applicable to the facts of this ease; and by a parity of reasoning there is no escape from the conclusion that the contract sued on in the first count of the petition was not properly let, and for that reason the court properly held the plaintiff was not entitled to recover thereon. [Boeder v. Robertson, 202 Mo. 1. e. 537.]

II. The second count of the petition is based upon a contract to construct a bridge across Tuckahoe or Turkey Creek, and for moving and rebuilding a bridge across Jones Creek. The contract price for both was $2,990.

By a subsequent and separate oral agreement, the defendant employed plaintiff to construct some concrete pillars for the Jones Creek bridge, and agreed to pay him $65.00 therefor.

During the progress of this work the county court issued to plaintiff a county warrant for the sum of $1,100 as part payment on several bridges he was building for the county, designating the bridges and the sum to be applied to each, and one of the items stated therein, and among them, is the following:

“Tuckahoe Bridge $1,100.00”

Had plaintiff credited that sum upon the amount ■due him on the Tuckahoe Bridge, there would have been a balance due him of $1,890; but instead of doing that he applied $65 of it in payment of the concrete pillars built for the Jones Creek bridge, which left $1,035 to be credited on the Tuckahoe account. He then credited the latter account with said sum, which left a balance of $1,955 due him on that account.

The defendant raises two objections to the action of the plaintiff in applying the $65 of the $1,100 payment in satisfaction of the $65 item dne him for building pillars for the Jones Creek bridge; first, because the warrant upon its face made the application of the payment of the $1,100 on the “Tuckahoe Bridge,” and that it having done so, the plaintiff had no power or authority to change that application of payment from the Tuckahoe bridge account and apply it in payment of the concrete pillars account; and, second, because the contract for building the concrete pillars was not in writing as required by the statute, and is for that reason void.

If the first objection is valid, the second is immaterial in so far as this suit is concerned, for the reason he has not sued for the $65, but claims it has been paid.

As to the first objection presented, concede for the sake of agreement, without deciding it, that both of said contracts are valid — that is, the contract for constructing-the Tuckahoe bridge and the contract for building the concrete pillars, yet that would not have authorized the plaintiff to make the application of payment as he attempted to do, crediting $65’ of the $1,100 on the concrete pillars account, and the balance on the Tuckahoe Bridge account, for the reason that the defendant made the application of payment at the time the $1,100 was paid by it, which is shown by the warrant before mentioned.

The law of this State is well and firmly settled, that when a debtor owes two accounts and both are due he has the right to designate the one upon which payments made by him shall be applied, and if he make the application, then the creditor has no power to make the application, or to change the application so made by the debtor; but if the debtor fails or refuses to make the application of payment, then the creditor may make it; and if neither of them makes it, then the law will make it for them according to the equity and justice of the case. [Gantner v. Kemper, 58 Mo. 570; Waterman v. Younger, 49 Mo. 415; McCune v. Belt, 45 Mo. l. c. 181; Beck v. Haas, 111 Mo. 264.]

It follows from what has been said that the trial court erred in permitting the plaintiff to make the application of payment after the county had previously done so. There are no other objections urged against the judgment rendered in favor of the plaintiff on the second count of the petition.

III. The third count of the petition is based upon the contract to construct three steel bridges — one across Turkey Creek, on range line, sections 32 and 33; one at Terry’s Ford; and the third across Center Creek at Reeds Station. The contract price was $9,650. The county court has paid on this account the sum of $5,400, leaving a balance of $4,250, claimed by plaintiff to he due him, less the sum of $600 paid by the' defendant to David Miller, or for his use and benefit, under the following circumstances:

The record discloses the fact that plaintiff had been constructing bridges in Jasper county for several years prior to the beginning of this litigation, and that said Miller was a subcontractor in constructing those bridges, including the three last mentioned. That on September 29th, 1903, the plaintiff gave to said Miller the following order upon the countv court of said county, to-wit:

“St. Joseph, Mo., Sept. 29, 1903.
“Hon. County Court Jasper County, Carthage, Mo.
“Gentlemen: Please pay to David Miller the sum of thirty-five hundred dollars for building all bridges for which I now have contracts for in Jasper Co. excepting Jones Creek Bridge, payable when work is completed and accepted by T. Y. G-reib, Co. Surveyor, and charge same to account of me on my contracts.
“Respectfully,
“J. H. Sparks.”

Indorsed on the back thereof is the following:

“For value received I assign the within order to the Central National Bank of Carthage, Mo.
“David Miller.”

The record discloses the facts that Miller was a subcontractor under plaintiff, and furnished much of the labor and materials used in the construction of those bridges; that he borrowed money from the Central National Bank of Carthage, with which he carried put his subcontracts, and turned over to the bank orders issued by plaintiff to him on the county court of Jasper county similar to the one before mentioned, in payment of the money so borrowed by him. At the time plaintiff issued the order before set out, Miller was indebted to said bank in a sum in excess of $3,500 therein mentioned. At the time Miller indorsed the order over to the bank, it gave him $400 in cash, and credited his account with $3,100, the balance thereof. Sometime thereafter the county court of said county paid to the bank on the order $600. Plaintiff does not object to the action of the court in so paying that $600, because it was paid before he countermanded the order.

About this time.Miller abandoned his contracts with plaintiff to build the bridges, and left them in an unfinished condition. When Miller threw up his contracts and refused to complete the bridges, the plaintiff served written notice on the county court not to pay the order issued by him to Miller for $3,500, dated September 29, 1903. The plaintiff was then required under his contracts with the county court to complete the bridges, which he did at a cost of something over the sum of $4,000. After plaintiff had completed the bridges according to his contracts, he demanded of the county the balance due him under his contracts, which the court offered to pay, less the $2,900, balance claimed by the hank on the order issued by plaintiff to Miller on the county, and by Miller indorsed to the bank. The plaintiff objected to the deduction of this $2,900, because it was not payable until Miller completed the bridges and they were accepted by the county surveyor. The hank gave to the county an indemnifying bond, and in spite of plaintiff’s protest, the county paid said $2,900 to said hank, and offered to pay plaintiff the balance, which he refused to accept.

It is thus seen that the only controversy between the plaintiff and defendant on the third count of the petition is over this $2,900 paid by the connty court to the Central National Bank.

The defendant’s position regarding that matter is this. It contends that the course of dealing between the plaintiff and said Miller created some kind of an agreement or understanding between plaintiff and the bank by which it was to furnish the necessary money to Miller with which to purchase material and employ labor used in the construction of the bridges by him under his subcontract, and that plaintiff was to issue orders to Miller on the county for money due or to become due him for work and materials done and furnished on said bridges, which the hank was to receive in payment of the money só furnished by it to Miller.

While the record shows that was the course of dealing between the parties, yet the record is perfectly silent as to any agreement or understanding on the part of plaintiff by which he bound himself to pay to the hank or to any one else any sum of money except as stated in the orders issued; and that he in no manner authorized the bank or any one else to furnish Miller money on account of said orders. The mere fact that the hank took said orders and furnished Miller money thereon, with the additional fact that plaintiff may have known of that arrangement between Miller and the bank, did in no manner authorize the county to pay to Miller or the bank the money called for in the order, except as stated in the order itself. I| the county or the bank saw fit to pay the orders before Miller earned the money called for by them and before they were due or payable, as expressed upon their face, then that was their fault and misfortune, which should not be visited upon the plaintiff who was no party to the transactions, and out of which he received no benefit or profit. The order was merely a direction to the county court to pay the sum stated therein to Miller when the bridges were completed by him and accepted' by the county surveyor, and not before. The meaning of the order is plain and unambiguous, and if the bank or the county court saw proper to advance money to Mr. Miller on the order before he had earned it, that is their misfortune, as before stated. The fact is undisputed that Miller never completed the bridges mentioned in the order; and the record discloses the fact that plaintiff was required to expend $4,100 in order to complete them after Miller threw up his contracts; and to now make him pay the $2,900 in addition would be not only against the letter and spirit of the order, but it would be grossly unjust and inequitable.

We are, therefore, of the opinion that the action of the court in holding the county liable to him for that .sum was proper.

IV. The defendant sets up in its answer divers counterclaims and setoffs, aggregating about $15,000, for money paid by the county to plaintiff for bridges constructed by him in years gone by, under various contracts, which defendant alleges were illegally let to plaintiff.

It is not alleged that the bridges were not constructed according to the terms of the contract, or that they were not worth the sums of money paid therefor; nor is it alleged' that the county refused to receive the bridges, while, upon the other hand, the evidence shows that the contracts for constructing these bridges had been fully performed on both sides long prior to the institution of this suit. The record also discloses the fact that the contracts for their construction were fair and reasonable; that the bridges were substantially built and were reasonably worth the money paid by the county for them; and that they were accepted by the „ county and that they have been retained and constantly used by the public ever since, wi,th no offer to return them to the plaintiff.

Under those circumstances, conceding for argument’s sake the contracts were illegal in their inception, yet it would be unjust and inequitable to permit the county to retain the bridges and at the same time recover back the money paid therefor. That principle of equity should apply here which requires persons who seek equity to do equity before their prayer will be heard.

This is no novel question to the jurisprudence of this country. The law is that where there has been a¡' complete performance of the contract on both sides and it is fair and reasonable in fact, there can be no recovery of the consideration by the municipal corporation where it retains and enjoys the benefits of the contract, and where it cannot or will not restore the property acquired by the contract, eve'n though the contract be one which the law denounces as illegal and which could not be enforced on that account. [Frick v. Town of Brinkley, 61 Ark. 397, 33 S. W. 527; 20 Am. and Eng. Ency. Law (2 Ed.), 1180; Riverside Co. v. Yawman & Erbe Mfg. Co. (Cal.), 86 Pac. 900; Long v. Boone County, 36 Iowa 60; Inhabitants of Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264.

In Frick v. Town of Brinkley, supra, a member of the city council (prohibited by law from making contracts with the city) sold the city a lot of tiling and received payment therefor. Subsequently an action was brought to recover the purchase price without returning the tiling. The court say: “We think it [the town] cannot, in good conscience, be allowed to receive the value back, while at the same time it is enjoying the benefits of its purchase — at all events when it does not even offer to restore that which it claims could not have been its property, and, consequently, is not now its own. This is not the assertion of any right which the appellant has, nor any obligation resting upon the appellee, under the contract of purchase, but it is a rule of justice and right growing out of an implied contract and obligation of every one, whether a natural or artificial person, to restore to another that which belongs to him, and that is in the possession of the former or in his power to restore; and when the power to restore does not exist, or when a restoration in the nature of things becomes impracticable, then to be precluded from recovering back the fair price paid. In such cases as this, the sole duty of the courts seems to be to see that the public corporation suffers no material loss or injustice, but further than this they could but inflict burdens upon others more or less disastrous, where no resulting good can follow — a thing courts of justice ought not to'indulge in.”

In Riverside County v. Yawman & Erbe Mfg. Co., supra, the court says: “It affirmatively appears from the complaint that the board of supervisors has purchased, paid for, and retained the use of certain personal property, and a court is asked to compel restitution with penalty in favor of such purchasers. The Legislature never contemplated conferring such power upon a public corporation when it enacted section 8 of the County Government Act. The right there sought to be conferred was to recover money paid without authority at law. To say that one who receives property under a contract that the owner retains and uses it is not authorized by law to pay for it would be to say that a public corporation may take and use property for public-purposes without compensating the owner, provided they can once get possession of it under the guise of a contract; and to say that they may recover the purchase price actually paid without tendering back that which they have received would be to say that our Legislature intended to discourage common honesty as applied to public corporations, and that the courts were to be made ‘handmaidens of iniquity.’ ”

In Long v. Boone County, 36 Iowa 60, quoted with approval in King v. Mahaska County, 75 Iowa 336, it was held: “When the legally constituted agent of the county contracts for work in respect to which he has no power unless authorized by a special vote of the people, and executes a warrant for the amount thereof to the treasurer of the county, which is voluntarily paid by the latter officer, the county cannot recover back the amount so voluntarily paid.”

While some of the expressions in the ease of King v. Mahaska County, 75 Iowa 329, seem at first blush to support defendant’s contention, when critically considered it will be seen that it distinguishes that case from the case of Long v. Boone County, 36 Iowa 60, by using the following language, on page 336: “When all the pleadings are considered the defendant was not in the attitude of seeking to recover back money paid to the plaintiff on these illegal contracts.”

The Supreme Court of the United States and courts of last resort of -many of the States go much further in the adjustment of the rights of parties growing out of illegal contracts than this court has. In other words, they grant not only the relief this court grants but they go much further and relieve where this court will not do so, as will appear from the following cases:

The Supreme Court of the United States, in the case of Chapman v. County of Douglas, 107 U. S. l. c. 357, in discussing this question, used this language: “This doctrine was fully recognized by the Supreme Court of Nebraska as the law of that State in the case of Clark v. Saline County, 9 Neb. 516, in which it adopts from the decision of the Supreme Court of California the following language: ‘The city is not exempted from the common obligation to do' justice which binds individuals. ' Such obligations rest upon all persons, whether natural or artificial.' If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor, from the like obligation. [Argenti v. San Francisco, 16 Cal. 282.] The legal liability springs from the moral duty to make restitution.’ ”

The same rule is announced in the following cases: Louisiana v. Wood, 102 U. S. 294; Marsh v. Fulton Co., 77 U. S. l. c. 684; Hitchcock v. Galveston, 96 U. S. l. c. 351; McBrian v. Grand Rapids, 56 Mich. 103; 1 Beach on Pub. Corp., sec. 227.

These cases are but samples of the overwhelming authorities which hold that where a moral duty exists to make satisfaction, a legal liability springs therefrom. And as said by the Supreme Court of the United States in the case of Hitchcock v. Galveston, supra: “There may be a difference between the case of an engagement made by a corporation to do an act expressly prohibited by its charter, or some other law, and a case of where legislative power to do the act has not been granted. Such a distinction is asserted in some decisions. But the present is not a case in which the issue of the bonds was prohibited by any statute. At most, the issue was unauthorized. At most, there was a defect of power. The promise to give bonds to the plaintiffs in payment of what they undertook to do was, therefore, at farthest, only ultra vires; and, in such a case, though specific performance of an engagemént to do a thing transgressive of its corporate power may not be enforced, the corporation can be held liable on its contract. Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to perform-what it promised in return, in the mode in which it promised to perform. This was directly ruled in State Board of Agriculture v. Railroad, 47 Ind. 407. There it was held, that ‘although there may be a defect of power in a corporation to make a contract, yet if a contract made by it is not in violation of its charter, or of any statute prohibiting it, and the corporation has by its promise induced a party relying on the promise and in execution of the contract to expend money and perform his part thereof, the corporation is'liable on the contract.’ See, also, substantially to the same effect, Allegheny City v. McClurkan & Co., 14 Pa. St. 81; and, more or less in point, Maher v. Chicago, 38 Ill. 266; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Argenti v. City of San Francisco, 16 Cal. 256; Silver Lake Bank v. North, 4 Johns. (N. Y.) Ch. 370.”

The same is true .of the case at bar. Jasper county was not prohibited by statute from building bridges; but, upon the other hand, the statute expressly grants to the county that power.

Conceding the contracts for building the bridges were illegal, yet the execution of those contracts was, at most, a defective exercise of the power granted; and when the bridges were constructed in pursuance thereof and accepted by the county, then she was, to say the least, morally bound, in the absence of fraud, to pay for them, if not legally bound to do so, which she is not under the decisions of this court. [Wolcott v. Lawrence County, 26 Mo, 272; Anderson v. Ripley Co., 181 Mo. 46; Woolfolk v. Randolph Co., 83 Mo. 501; Crutchfield v. Warrensburg, 30 Mo. App. 456.]

The conclusions reached in these cases are correct and rest upon sound reason. They were suits based upon contracts not in writing, etc., which were prohibited by statute, and the court in those cases simply enforced the statute as it found it, and, to have done otherwise would have given force and effect to contracts which were prohibited by statute from being made. [Roeder v. Robertson, 202 Mo. l. c. 537.]

But that is not the question involved in this case. Here the plaintiff is not asking this court to enforce these alleged illegal contracts. They were years ago fully performed on both sides; and the defendant is now here by way of counterclaim, in the nature of a cross-bill, seeking to recover back the money she paid for those bridges without an. offer to return them to the plaintiff. This she cannot do without she first returns or offers to return them to him; and the reason therefor is this. If the contracts were void, then the title to the bridges never passed thereby from plaintiff to the defendant and became her property; but they remained his property the same as though the contracts had never been entered into. That being true, then when the county acquired the possession of the bridges under those,void, yet colorable, contracts, she was morally bound to pay for them, as she did; and conceding, as before stated, without deciding it, that after accepting the bridges and paying for them, she had the right to repudiate the contracts and sue for the recovery of the money paid by her for them, she would be morally bound, and from that springs tbe legal liability, to return the bridges to plaintiff before she would be permitted to recover back tbe contract price so paid.

Tbis same principle underlies tbe case of Roeder v. Robertson, 202 Mo. 522, and on page 535, tbis language is used: ‘ ‘ The act is .prohibitive in its operation. It seeks to prevent foreign corporations from doing business in tbis State until they have complied with tbe provisions of tbe act by filing a copy of their charter or articles of incorporation with tbe Secretary of State and by appointing an agent in tbis State to represent them. If such corporations, in violation of tbe act, do business in tbis State, all such transactions are, by tbe courts, declared null and void, and' all contracts made by them with citizens of tbis State for tbe sale of goods, wares and merchandise are nullities, and tbe title to tbe property sought to be transferred thereby does not pass to and vest in tbe vendee, but remains in tbe vendor, tbe same as if the pretended contract, had not been executed.....For under tbe facts of this ease a citizen of this State would not be permitted to recover tbe possession of tbe property sold to tbe respondents, nor its value, in case of its conversion, without first refunding or paying back to tbe respondents tbe consideration paid by them under tbe void contract, and received by A. W. Stevens & Son. He would' be estopped from claiming tbe property until tbe purchase price bad been returned.” [Simpson v. Stoddard Co., 173 Mo. 421.]

And there is another reason equally valid why tbe defendant should not be permitted to recover upon her counterclaims, which is well expressed by Judge Fox, in tbe case of Simpson v. Stoddard Co., 173 Mo. l. c. 466, in the following language: ‘ ‘ Tbe principle is that, where a county court is charged by law with tbe performance of certain duties in reference to a particular subject-matter, and that court undertakes, in good faitb, to execute its powers, but fails to observe certain requirements of tbe law, so that its acts in that regard are irregular, such acts, if acquiesced in, will become binding upon the counties as completely as if they had been regular in the first instance.”

We are, therefore, of the opinion that the ruling of the trial court in disallowing all of the counterclaims was proper.

Because of the error of the trial court, pointed out in the second paragraph of this opinion, regarding the application of payments, the judgment is reversed, and the cause remanded with directions to disallow plaintiff’s claim of $65' for the concrete pillars constructed for the Jones Creek bridge, without prejudice, and to affirm the judgment in all other particulars.

Valliant, P. J., concurs; Lamm and Graves, JJ., dissent.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    ROSE CHLANDA, Appellant, v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY.
    Division One,
    July 3, 1908.
    1. NEGLIGENCE: Two Defendants. Where plaintiff charges two corporate defendants with operating a street railway and the car thereon, on which while a passenger she was injured, and charges that her injuries were due to the negligence of the servants of both, and one of them denies the allegation, the burden is on her to prove it.
    2. -: -: Lease. Where the corporate owner by lease to another company has empowered it to operate the lines and cars of the street railway, and the lessee is the actual operating company at the time of plaintiffs injuries while a passenger on one of the cars, the lessor is not liable for personal injuries due to the negligence of the lessee’s employees.
    3. -: -: -: Validity: Franchise: Assent. Where plaintiff introduced in evidence a lease-from one defendant to another of its street railways, the defendants are not required to show the city’s assent to the lease, of either the properties or the franchises. By introducing it, plaintiff vouched for its validity.
    4. -: --: -: -: Presumption. Acts'. done by a corporation which presuppose the existence of other-acts to make them legal and operative are presumptive proof of the latter. Where a defendant corporation had a right to -. make a lease of its street railway properties and did so, it will' be presumed, unless the contrary is shown, that it obtained the,necessary municipal assent to the lease.
    b. -: -: -: Demurrer. Where one of the defend”-ants had leased its railway properties to the other, which was operating them at the time the injuries sued for were inflicted through the negligence of its servants in charge of the car, and that fact is shown, the court should give a peremptory instruction in favor of the lessor.
    6. --: New Trial: Grounds on Appeal. Where the court ordered a new trial on one ground, but refused to give it on another good ground assigned, its action will be upheld on appeal, whether the ground assigned was good or not.
    7. NEGLIGENCE: Excessive Verdict: $18,000. Plaintiff was injured by a collision of street cars. She was .thrown out of her seat, then backwards against the seat, the injury being to the small of the back. There were no broken bones, no lesions, no existing abnormal organs traced to the injury. There was once a slight and temporary discoloration, but no visible scar.' The evidence clearly established resulting nervous trouble. Her symptoms are subjective instead of objective — that is, they are largely got at through her own statements, except such conclusions as may be drawn from her expression of eyes, her loss of weight and her use of crutches and chairs in walking. Her physicians testified that at one time she had concussion of the spine and locomotor ataxia, but they had not examined her for a year prior to the trial, and the disinterested physicians who. were appointed by the- court to examine her testified that there-were no such troubles, and that after the excitement of the litigation. had subsided she would likely recover. Held, that a verdict of $18,000 was excessive.
    8. -: Passenger: General Allegation: Res Ipsa Loquitur., Where plaintiff was a passenger on a street car and was injured by a rear-end collision of another car with hers, and her-petition counts on general negligence, she may invoke the doctrine of res ipsa loquitur. She is not required to show in what particulars defendant was negligent — such as, insufficient lights, defective brakes, inattention of the motorman, etc.

      9. -: Physician: Evidence. A physician still in plaintiff’s employ, who went to her house to collect a hill for his services rendered in connection with the injuries sued for,'may testify that while at her house for that purpose he saw her w'alk up the stairs without crutches — the bone of contention being her injuries. He was not seeking information to enable him to prescribe for her or while attending her in a professional capacity.
    10. -: Evidence: Cumulative. Where the trend of plaintiff’s case was that, as a result of the injury, she could not walk without artificial aid, the testimony of a witness that he saw her shortly before the trial go up the stairs without crutches, cannot he excluded or its exclusion excused on the ground that it is cumulative since another witness had already testified to the like effect.
    Appeal from Boone Circuit Court. — Boto. A. B. Waller, Judge.
    Affirmed.

      C. B. Sebastian, Thomas T. Fauntleróy and Shepard Barclay for appellant.
    (1) The trial court was right in excluding an answer by. Dr. Hixon (an attending physician) to the question as to plaintiff’s condition when he was first called to treat her. What comes within a physician’s observation of his patient’s “condition,” when called to treat her, is within the professional secrecy imposed by the statute on that subject, which declares “incompetent to testify,” a “physician or surgeon, concerning any information which he may have acquired” while attending “in a professional character,” etc. R. S. 1899, sec. 4659; Gartside v. Insurance Co., 76 Mo. 446; Smoot v. K. 0., 194 Mo. 530; Edington v. Insurance Co., 67 N. Y. 194; State v. Kennedy, 177 Mo. 130 (quoting and approving the Edington case). (2) The offer of proof, in connection with Dr. Hixon’s first testimony, contains in itself a call for some facts to which he was incompetent (as physician) to testify, as shown by tbe above authorities. The rest of the offer of proof defendants were allowed to supply at a later stage of the case, when the objection to his testimony was withdrawn. Moreover, as part of the offer called for facts which were incompetent, the entire offer was properly rejected by the court. Smith v. Bank, 104 Pa. St. 518; Clark v. Eyan, 95 Ala. 406; Jones, Evid., sec. 897; Over v. Shifting, 102 Ind. 191; Farleigh v. Kelley, 28 Mont. 421; Bank v. North, 2 S. Dak. 480; Doe v. Beviss, 7 C. B. 456; Leicher v. Keeney, 98 Mo. App. 394; Eeynolds v. Franklin, 47 Minn. 145; McGrew v. Eailroad, 109 Mo. 582; Lyon v. Batz, 42 Mo. App. 606. (3) The court excluded answer by Dr. Henry to a question asking him to “describe the plaintiff’s condition at the time you first examined her.” The objection thereto was sustained. The examination at once proceeded, without any offer of proof of any facts which defendants may have expected to prove in answer to the question excluded. The ruling is, therefore, not available as reversible error, because: (a) Where no offer is made of the facts sought to be elicited by a question, the mere exclusion of an unspoken answer thereto constitutes no error. Eailroad v. Cheek, 152 Ind. 663; St. Louis v. Babcock, 156 Mo. 152-; Parker v. Holland, 115 Mo. App. 681; Buschenberg v. Eailroad, 161 Mo. 81; Caskey v. City, 101 Mo. App. 590; State v. Goddard, 162'Mo. 228. (b) The ruling was correct, irrespective of any matter of form, because the question called for the witness’s observation of his patient when he had been engaged: to attend her as a physician. It was therefore within the ban of professional secrecy imposed by the statute. Sec. 4659, E. S. 1899; Obérmeyer v. Chair C’o., 120 Mo. App. 59; See, also, cases already cited above to point 1. (4) Defendants sought to' ask this witness, Dr. Henry, her physician, whether he “saw her” (plaintiff) “walking about there” (meaning at her house, where he had called) “at that time.” The learned judge overruled the objection of plaintiff, to that question, and plaintiff excepted. Thereupon defendants’ counsel volunteered the information that “This doctor has not been discharged as the plaintiff’s physician, but has continued to treat her and was at that time going to see her with reference to his bill.” The court then said: “I sustain the objection in that view of the case.” If in this there was any error, it was obviously invited, for the first ruling of the court in favor of defendants was changed because of the suggestions of their counsel, (a) A party cannot complain of an error which he has thus invited. The acceptance of the invitation should shield the error with the protection of such hospitality, and transform the status of the error into that of a welcome friend. Dice v. Hamilton, 178 Mo. 90; Daggs v. Smith, 193 Mo. 501; Hogan v. Hinchey, 195 Mo. 527; Smart v. Kansas City, 105 S. W. 720; Bailey v. Kansas City, 189 Mo-. 513;' McGinniss v. Printing Co., 122 Mo. App'. 227. (b) However, the ruling was itself correct, in view of the admission as to the physician’s continuous employment. His observation of plaintiff “walking about” bore directly upon her physical and nervous condition. That condition was what he had been engaged to treat; and the testimony falls within the Gartside and other decisions in regard to the range of immunity from disclosure in the relation of the physician and patient. Obermeyer v. Chair Co., 120 Mo. App. 59. (5) The offer of proof from the same witness was inadmissible. The court rightly sustained the objection thereto under the admission by defendant’s learned counsel that “this doctor has not been discharged,” but “has continued to treat her.” (a) What “this doctor” observed in regard to her “walking without the use of crutches”' and going “up one flight of stairs” “without the use of crutches” were all matters within proper range of his observation as an attending physician in view of the nature of her case and symptoms described by defendants’ physician experts. Edington v. Ins. Co., 67 N. Y. 194; Smoot v. Kansas City, 194 Mo. 530; In re Preston’s Will, 99 N. Y. Supp. 312; Railroad v. Thomas, 152 Fed. 365. (b) Moreover, what was sought to be shown by this witness, Dr. Henry, was immediately proven by another; Mr. Slough (whose testimony was not contradicted in rebuttal) who said that he was at the same place, the residence of plaintiff, “about a week before Dr. Henry went there,” that he saw plaintiff and “she walked away and went down stairs without crutches, ” “ apparently with not a thing the matter with her.” So that the evidence sought of Dr. Henry, on this particular point, was merely cumulative. Its exclusion, therefore, was not reversible error under the rule established in many decisions. Brill v. Eddy, 115 Mo. 606; Roe v. Kansas City, 100 Mo. 190; Gridionsen v. Railroad, 129 Mo. 399; Caskey v. City, 101 Mo. App..597; Robinson v. St. Joseph, 97 Mo. App. 510; Hicks v. Railroad, 68 Mo. 335; Leavitt v. Miller, 64 Mo. App. 147; Bank v. Longfellow,' 96 Mo. App. 394. (6) The collison of the cars was primafacie evidence of negligence in their operation, so far as plaintiff is concerned. She was a passenger for hire, and entitled to have exercised towards her the highest practicable care of faithful and experienced railroad men in the same line and service. The instructions on the right of recovery were plainly good. Magoffin v. Railroad, 102 Mo. 540; Railroad v. Arms, 91 TJ. S. 492; Sweeney v. Railroad, 150 Mo. 385. (7) The damages awarded to plaintiff were not excessive in view of her expectation of life (26 years); her average yearly earnings of $1,000, a total loss; her medical expenses, about $1,000; permanent disability from manual labor and the pain and suffering which had reduced her to-the condition of a “physical wreck.” The evidence of permanency of her helpless and hopeless condition. warranted the finding, which was approved by the trial judge. Smiley v. Railroad, 160 Mo. 629; Smith v. Whittier, 95 Cal. 279; Tuthill v. Railroad, 30 N. Y. Supp. 959; Stewart v. Railroad, 66 N. Y. Supp. 436; Railroad v. Hynes, 501 S. W. 624.

      Boyle & Priest and T. E. Francis for respondents.
    (1) The court erred in refusing to permit Dr. Hixon to testify on behalf of defendants concerning the manner of his treatment of plaintiff and the extent of her injuries, because plaintiff had waived her right to object to said testimony on the ground of its being a privileged communication, by having stated on cross-examination “that she had no objection to Dr. Hixon testifying as a witness.” 10 Enc. of Evid., p. 142; Elliott v. Kansas City, 198 Mo. 593. (2) Dr. Hixon’s testimony was admissible on the additional ground that plaintiff had voluntarily opened the door of the consultation room by having stated how many times said doctor had visited her professionally and by having introduced her daughter as a witness to testify to the manner in which said doctor had treated her. Webb v. Railroad, 89 Mo. App. 604; Highfill v. Railroad, 93 Mo. App. 219; Holloway v. Kansas City, 184 Mo. 19; Ellis v. Baird, 31 Ind. App. 295; 10 Enc. of Evid., p. 144. (3) The court erred in refusing to permit Dr. Henry to testify for defendants that a few days prior to the trial (while at plaintiff’s house for the purpose of collecting a bill and not for the purpose of treating her), he saw her walk around the house and go up one flight of stairs without using crutches. This testimony was not a “privileged communication.” It was not information obtained by the physician while attending* the patient in a “professional character,” nor was it “information necessary to enable the physician to prescribe for the patient or do any act for her as a surgeon.” R. S. 1899, sec. 4659; Holloway v. Kansas City, 184 Mo. 19; James v. Kansas City, 85 Mo, App. 20; Green v. Eailroad, 109 S. W. 715. (4) The ruling of' the court excluding Dr. Henry’s testimony was not, as appellant says, a self-invited error. The statement made by defendants’ counsel to the effect that at the time Dr. Henry observed plaintiff walking without crutches the relationship of physician and patient existed between them is binding on defendants as an admission of fact, but the court’s erroneous ruling on that admission of fact is open to objection on the part of defendants. Daggs v. Smith, 193 Mo. 494; Land Co. v. Bretz, 125 Mo. 418.
   LAMM, J.

This is a suit for $35,000 damages for personal injuries alleged to have been received by plaintiff through the negligence of two domestic street railway corporations, viz., the St. Louis Transit Company and. the United Eailways Company of St. Louis.

Begun in the circuit court of the city of St. Louis, such changes of venue were had that the cause went to the Boone Circuit Court and was tried at Columbia before Judge Waller and a jury, resulting in a verdict against both defendants for $18,000. Defendants, not content, filed their separate motions for a new trial. The court sustained both, after taking time to consider. There was an array of grounds in each motion but, singling out one, the court made it the basis of its order, viz.: Error in excluding legal and competent. evidence offered by defendants. Prom the order granting a new trial, plaintiff appeals after an unsuccessful motion to vacate it.

The cause was tried on a. second amended petition setting forth that defendants were doing business in the city of St. Louis as common carriers of passengers for hire, owning and operating a line of street railway and cars run by electricity upon Washington avenue, a public street in said city, and connecting with a systern of street railways similarly owned and operated; that on the 6th day of December, 1901, she was a passenger for pay on one of defendants’ cars. That while seated therein, and when between Thirteenth and Fifteenth streets, another of defendants’ cars ran into hers, “because of the negligence and careless operation of said cars of defendants, whereby they were so permitted to collide as aforesaid, when by the exercise of due and reasonable care, such as it was the duty of defendants to observe towards plaintiff as a passenger as aforesaid, in the said circumstances, said collision would have been avoided by defendants and their agents in charge of said cars and each of them.”

By the collision, plaintiff alleges she was violently thrown out of her seat with much force, “so- that she fell backward upon the same seat;” that she received severe injuries to her back and spinal column; was severely jolted and shocked and bruised and received hurts to. her spine and inwardly which crippled her for life, destroyed her health and happiness, subjected her to heavy expenses for medical care, attention and nursing and will continue in the future to cause such expenses, that she has endured and will endure great physical and mental pain and suffering, has lost her ability to earn a livelihood, has lost time and earnings to a large amount and will continue to lose them in the future — all as the direct result of said collision and injuries.

The defendants filed general denials as separate answers.

It stands conceded plaintiff was a passenger for pay, that defendant Transit Company was operating the car on which she was riding and the one ramming it as a common carrier of passengers for hire and that a rear-end collision occurred. So much is without conflict.

Plaintiff introduced testimony tending to show that the force of the collision was severe; that her car had stopped to let passengers off and on; and that a following car struck hers with great force, throwing her out of her seat and then backward, injuring her in the small of the back; that therefrom she had lost weight (twenty to thirty pounds) and power of locomotion, had become nervous, enemic and pale, suffering constant pain by day and by night, which pain was increasing instead of diminishing; and that she was generally obliged to use crutches in walking but sometimes could walk at home without, aided by a chair or cane. Her medical experts gave it as their opinion that she suffered a concussion of the spine; that loco-motor ataxia or paralysis resulted; that she would never completely recover the use of her limbs and that her helplessness is permanent. These experts had not examined her later than March, 1902 (the trial was in June, 1904).

A few days before her injury she had been examined by a physician for insurance and was found in perfect nervous condition — “a picture of health” and “sound in all particulars.” The same physician had seen plaintiff at intervals since that examination, the last time about July 26, 1903. At that time (from observation) he characterized her condition as that of a “physical wreck,” and as showing a lack of locomotion.

Plaintiff is a widow and was engaged in the occupation of a seamstress in all its various branches— custom shirt-making, dress-making, embroidery — all kinds of fancy work, to make á living for her family. She was earning thereat from $1,000 to $1,100' per year. Since her injury she had not earned a dollar, was not able to perform duties as seamstress. Her hearing had become defective. When trying to walk without assistance she had a sense of being ready to fall. As the result of her injuries, she had incurred liability for medical services to-the amount of $1,000, and for drugs and medicines about $500’.

Defendants’ testimony tended to show that some ■part of tbe machinery (the turnbuckle) of the car on which plaintiff was tiding broke, that the motorman, hearing a rattling noise from the broken part dragging on the pavement, stopped his car between cross streets to examine, and, while so stopped, the following car collided with it very slightly. It was about 7:30 p. m. on December 6, 1901 — a dark, rainy, drizzling evening. The grade was down about one foot to the block. The following car was going about four and one-half miles an hour and was not over fifteen feet behind. That the jar was not hard enough “to notice.” Defendants also put in evidence admissions by plaintiff to' two ladies to the effect that she was not thrown out of her seat; that the collision did not produce much of a jar; that she did not feel the effects of it for two’ days after-wards and did not know she wa.s hurt until then. One of-the claim-agents in the employ of the transit company (Slough) testified that once during the year of the trial and twice the year before he had seen plaintiff. Once he saw her walking down stairs without crutches “apparently with not a thing the matter with her. ’ ’

The court appointed a commission of disinterested medical experts (Drs. McAlester, Moss and Gordon) to examine plaintiff. Defendants, used them as witnesses. From their testimony, it appeared they examined her a day or so before testifying, at the Parker Hospital on the University grounds.

Doctor McAlester gave it as his opinion that she was suffering from traumatic neurasthenia, i. e., an over-sensitive condition of the nervous system from some injury. His judgment was that she was not suffering from paralysis or locomotor ataxia. He said she located her injury at the juncture of the sacrum with the last lumbar vertebra, that is, low down in the back. That probably she would get well. That was bis opinion, though it was a bard matter for a man to say. The history of the bulk of such injuries is that most of them get well. On cross-examination, be testified that injuries producing results to the nervous system such as seen in plaintiff’s case were not necessarily of a serious character. That an over-sensitive condition may follow slight injuries — more than probable they do. That traumatic neurasthenia and traumatic hysteria were not quite, perhaps, but almost synonymous. That a person by centering bis mind on a given point can modify the functions of an organ. That be could see or feel nothing in plaintiff’s person by which be could judge of the nature of the injury, and be bad to take her statement for the latter. That be noticed the expression of her face and it indicated she was suffering from traumatic neurasthenia; that the day be examined her she bad some hysteria. On redirect examination be testified that be wouldn’t state positively but be thought she would get over it; that the existence of litigation, in bis opinion, aggravated her condition.

Doctor Gordon testified that plaintiff complained of a sensitive area at the lower part of the spine; that her pulse beats (when examined) were a little fast; that be found no evidence of paralysis or loco-motor ataxia; that be found her arms and limbs well nourished and firm; that she used her arms very well and wrote her name very well; and that she could stand on her feet, but complained she bad to use a crutch to walk or support herself by a chair or something of that kind; that she was suffering from a sensitive condition of the nervous system and be thought she would likely recover; that neurasthenia and hysteria were pretty nearly synonymous terms.

Dr. Moss’s testimony agreed in substance with that of Drs. McAlester and Cordon.

In this court, defendants file separate briefs in support of the order granting a new trial. The United Railways Company puts its argument on a -ground peculiar to itself.

I. It will be seen from the abridgment of the petition that plaintiff charges that both of the corporate defendants were operating the street railway line and the cars thereon, including the two in question. The gist of the charge is that plaintiff suffered damages through the negligence- of the servants of both. Now, the United Railways Company denies that allegation. Hence, under the issues made, the burden was on plaintiff to prove that charge. How did she carry that burden — well or ill?

There is not a scintilla of testimony directly or indirectly even squinting that way unless a certain lease, put in evidence by plaintiff, from the United Railways Company to the Transit Company proves it. That lease is set out in Moorshead v. United Railways Company of St. Louis (certified here from the St. Louis Court of Appeals), 203 Mo. 121. It is very long and we shall reproduce none of its terms. Inquirers may find them in that case.

In connection with the offer of the lease, the record shows the following:

“It is admitted by the parties to the suit that the cars mentioned in the petition in this case were operated by the St. Louis Transit Company.
“Also that the place on Washington avenue in St. Louis, where the alleged accident is said to have occurred, and where plaintiff claims to have been injured, was then a part of the property leased by the United Railways of St. Louis to the St. Louis Transit Company by lease between those companies made in September, 1899.
“The defendant admits the fact as stated in the above stipulation, that that is a part of the line that is covered by lease between the two companies mentioned, but the defendant objects to the competency of that fact tending to prove any issue in the case, and more especially for the reason that although the United Railways Company may have leased its cars and lines to the St. Louis Transit Company, that fact does not tend to prove that the two companies were jointly operating this line of the St. Louis Transit Company. This admission here is that at the time said line was being operated by the Transit Company, and if that be true, then the United Railways Company cannot be liable in this case.
“The plaintiff offered in evidence a copy of the lease entered into between the said two companies, which is offered as tending to sho'w the property in question was leased while belonging to the United Railways Company, and it is leased for operating purposes to the St. Louis Transit Company.
“To the introduction of this lease in evidence the defendant at the time objected, for the reason that if the facts stated in the petition in this case be true the United Railways Company cannot possibly be liable in this action. It is immaterial as a matter of law that the obligation of the parties may have been as stated or set out in the lease, still the United Railways Company would, notwithstanding that, not be liable in this action for any negligence on the part of the St. Louis Transit Company whose employees were operating the particular car of the St. Louis Transit Company, that being the operating company and the United Railways Company not having anything to do with it; the relations existing between the two companies by reason of this lease that is proposed to be offered in evidence here conld rot make the United Railways Company liable.
“There is no objection made to this lease on the ground that it is not a correct copy of the original, or that it is not a copy of the lease. On the contrary it is admitted to be a copy of said lease and the objection is on the general ground that it doesn’t tend to prove any issue whatever in the case.
“Which objection the court overruled, and to the action of the court in overruling their objection the defendants at the time saved their exception.
“Plaintiff offers this lease in evidence for the purpose of showing that the United Railways Company is the owner of the property and that it is operated by the St. Louis Transit Company for the benefit of both companies.
“The Court: I will overrule the objection and admit this lease in evidence for the present, subject to exclusion hereafter if in the course of the evidence in the case, I find the lease is inadmissible.
“To which ruling of the court defendants, by counsel, excepted at the time.”
On this record, these observations may be made: In the Moorshead case it was contended, as follows (mark the first ground as it is urged in the case at bar):
“That the United Railways Company is liable in damages to plaintiff notwithstanding the contract between it and the Transit Company, and the operation of the line and car on which she was hurt by the Transit Company, pursuant to the contract, is maintained on .three grounds: first, that if the contract is a lease, it is inoperative for lack of consent to the leasing by the city of St. Louis; second, that the contract is not a lease, but in legal effect is an agreement by the Transit Company to operate the railway lines it was put in possession of for the United Railways Company as the latter’s agent, or else is a partnership agreement between the two companies; third, that if a valid lease, the United Railways Company as lessor remained liable for all torts of the Transit Company as lessee, because the statute allowing such lease by street railway companies contains no clause expressly exempting a leasing company from liability for the acts of the lessee. ”

Those contentions were examined with fine patience and acumen by Judge Goode in the St. Louis Court of Appeals and were disallowed seriatim. What he said in that behalf was adopted by this court In Banc and spread of record as meeting our unanimous views.

In the case at bar, we are asked to reopen the ques- ■ tion or send the matter into Banc to have it rethreshed. But we shall do neither. Because, the Moorshead case was well considered. The conclusion of Brother Graves that the opinion of Goode, J., was sound was deliberately arrived at. We were all of mind that the document in question was a lease to all intents and purposes, and, as such lease, was a good defense against liability of the lessor for torts of the lessee.

Accordingly, absent allegation and evidence (as here) showing the lease was a contrivance for a fraudulent or wrongful purpose in fact or law, so that “the covin doth suffocate the right,” it must be held that the United Railways Company did not remain liable to those suffering personal injuries from the negligence of the employees of the Transit Company.

Hence, the lease, ex vi termini, did not tend to fasten liability on the United Railways Company, unless a phase of the case now to pass in review had that effect. That is this:

It is insisted by learned counsel that, even if we stand by the doctrine of the Moorshead case, still the United Railways Company is liable because there is no municipal assent shown to the lease. They put a finger on article 12, section 20, of the Constitution, which provides for municipal assent for the operation of a street railway in a city and provides, further, that “the franchises so granted shall not be transferred without similar assent first obtained.” They argue that, absent such assent shown, the United Railways Company is liable. . They do not say there was no such assent in fact. They argue that their.introduction of the paper put the defendant in such piclde that it had to prove the assent.

Is there soundness in this view? "We think not. Because:

(a) It will not escape attention that in legal effect that very point was in the Moorshead case and disallowed (see, aforesaid contentions).

(b) Again, if plaintiff had fastened liability on the United Railways Company, aliunde, and if it had introduced the lease to avoid that liability, then, on such hypothesis and in a proper case, plaintiff might possibly be heard on an objection that the lease was bad as not receiving municipal assent. But we reserve the point; for there is no such case here. Here, plaintiff introduced the lease. After offering it, getting it in evidence and using it as proof, counsel ought no more to be heard to impugn its validity than to impeach a witness they had put on the stand. By that act they vouched for its legitimacy and may not place a bar-sinister on its shield. They may argue the legal effect of the lease is this or that, or so and so, but-may not argue it is not what it purports to> be, to-wit, a valid lease. This is within the reasoning of the holding in the Moorshead case, supra (q. v., l. c. pp. 157-8).

(c) Moreover, defendants’ learned counsel maintain the proposition that acts done by a corporation which presuppose the existence of other acts to make them legal and operative are presumptive proof of-the latter. They invoke such proposition and presumption in this case. We think the proposition sound, and that they are entitled to the presumption. [State ex rel. v. Kupferle, 44 Mo. l. c. 158; American Ins. Co. v. Smith, 73 Mo. l. c. 371; Chouteau v. Railroad, 122 Mo. l. c. 384-5.]

The maxim that all things are presumed to be legitimately done, until it is proved to the contrary (Omnia praesumuntwr legitime, etc.), is applicable to corporate acts. Says Mr. Justice Stout [Bank of United States v. Dandridge, 12 Wheat. l. c. 69] : “By the general rule of evidence, presumptions are continually made in cases of private persons of acts even of the most solemn nature, when those acts are the natural result or necessary accompaniment of other circumstances. In aid of this salutary principle, the law itself, for the purpose of strengthening the infirmity of evidence, and upholding transactions intimately connected with the public peace, and the security of private property, indulges its own presumptions. It presumes that every man, in his private and official character, does his duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donee probetur in contrarium. . . . The same presumptions are, we think, applicable to corporations.”

In American Insurance Co. v. Smith, supra, a defense was interposed to a premium note given to' a foreign insurance company that there was no proof of its authority to do business in this State. Of that defense this court said: “As the plaintiff might, by complying with our laws, rightfully issue a policy of fire insurance in this State, and as nothing appears on the face of the note or the application to indicate that the policy recited to have been issued was issued in violation of law, or was for- any other reason illegal or void, it must be presumed that the plaintiff had taken those steps which would, under our law, authorize it to issue such policy.”

In other words, those artificial persons, yclept corporations, are entitled to a presumption of -duty well done until the contrary appears, the same as a natural person. A presumption therefore arises that the United Railways Company had the right to do what it did do, to-wit, make that lease, and this presumption fairly includes a municipal assent first obtained. It is rebuttable, but here there is no' effort to rebut it.

The premises considered, we conclude not only that the Moorshead case settles the proposition in hand as an authority in point, but that under the peculiar facts of this record there is no substance in the point on the reason of the thing.

II. The United Railways Company asked a peremptory instruction at the close of the case. It was refused. In its motion for a new trial it assigned error of that refusal. That assignment was good, hence the motion, under our holding in the preceding paragraph, might well have been sustained on that ground. The order granting a new trial was not put on any such ground. But that is not vital. It is a common-place rule of steady application in appellate procedure that though a court, nisi, may give one reason for granting a new trial, and that a bad one, if there were other good reasons, then its action, producing a right result in the administration .of justice, can stand. The reason assigned for a decision below is of no value on appeal, so long as the end reached is right. The reasons have served their purpose, the thing done is the live matter.

There was, therefore, no error in granting defendant, the United Railways Company, a new trial.

m. We come now to consider the case from the viewpoint of the Transit Company.

(a) The verdict is a heavy one. While it must be viewed with serene judicial judgment^ yet its very size bespeaks anxious judicial scrutiny. It stands conceded there were no broken bones. There was once a slight and very temporary discoloration, but never a visible scar. There were and are no discoverable lesions or known existing abnormal organs traced to the injury. That Mrs. Chlanda has resulting nervous trouble seems put beyond all question. Her main symptoms are classified, by men of science, as subjective instead of objective — that is, they are got at through her own statements except as to those visible indices such as the expression of her countenance, her loss of weight and her use of artificial aids in moving about. The testimony of her experts was based on examinations antedating the trial by a year or more. Their conclusion as to the permanency of the injuries to her nervous system must be tempered by that fact. The disinterested commission of doctors appointed by the court gave it as their opinion that the probabilities of recovery were in her favor. We find no testimony from physicians who examined her condition at or close to the time of the trial tending to show that she was not in a class suffering from nervous trouble colored and somewhat affected by psychological phenomena prone to disappear when her mind was set at rest. We say this without the slightest intent to indicate our belief in the lack of sincerity and honesty of the worthy lady whose cause is held in judgment.

There being no elements of malice in the case, she was entitled (not to punitive damages, but) to just compensation — no more.

We are of opinion the order granting a new trial may be sustained on the theory of an excessive verdict somewhat attributable to such overwrought sympathy on the part of the jury as amounts (in legal effect) to prejudice and passion. There was an assignment of error to that effect in the motion for a new trial and the-order granting one may stand on that assignment.

(b) -Counsel contend that the order may be sustained because of error in giving instructions for plaintiff and in modifying one asked by defendant. We shall not develop the' contention. Our consideration of it leads us to the conclusion it is without merit. Among-other views pressed here under that head, they insist the doctrine of res ipsa loquitur cannot'be invoked by plaintiff. We do not agree to that. The petition is-broad enough to permit the application of that doctrine. The relation of carrier and passenger existing and the petition counting on general negligence, plaintiff’s case falls within the line of cases holding that under such circumstances the thing speaks for itself. Therefore, whether the following car was moving too swiftly or whether it was running too closely to plaintiff’s car or whether there was negligence in stopping' the first car, without notice to the following car and so close to it that a collision inevitably resulted, makes no difference. The collision happened, plaintiff was hurt thereby, and the burden rested upon defendant to show it used the highest practicable degree of care to preserve its passenger from injury.

(c) There was error in the exclusion of testimony. Under this head we will notice but one assignment— this for the reason that other incidents may not arise on a retrial. Defendant put Doctor Henry on, the stand and the record shows the following:

“Dr. Robert Y. Henry (a practicing physician),, being duly sworn on behalf of defendants, testified as follows:
“Q. I will ask you whether or not you saw the-plaintiff during the month of June at any time? A. Yes, sir.
■ “Q. Where at? A. At her residence on Blow street.
“Q. Jnne of this year? A. Yes, sir.
“Q. What day of June was it? A. I could not give the date exactly.
“Q. Was it about the middle of the present month? A. Yes, sir, about the middle of this month.
“Q. Where was she at that time? A. At her residence.
“Q. State whether or not you saw her walking about there anywhere at that time?
“To this question the plaintiff at the time objected, for the reason—
“By the Court: What was the purpose of your visit at that time? A. I went to see her relative to a bill she owed me.
“By Judge Barclay: Was it a bill for your services in her behalf ? A. Yes, sir.
“The plaintiff here objected to this witness stating anything he saw at that time, for the same reasons as heretofore.
“Which objection the court overruled, as to what he saw. And to the action of the court in overruling her objection the plaintiff at the time saved her exception.
“Mr. Jamison (counsel for defendant): This doctor has not been discharged as the plaintiff’s physician, but has continued to treat her and was at that time going to see her with reference to his bill.
“The Court: I sustain the objection in that view of the case.
“And to the action of the court in sustaining the objection the defendant at the time saved its exception.
“The defendant offered to prove by this witness: That he saw the plaintiff at her residence about the 15th day of the present month; that she was walking without the use of crutches, and went, up one flight of stairs, in the presence of this witness, without the use of crutches.
“To this offer of proof the plaintiff at the time objected for the same reasons as heretofore.
“Which objection the court sustained, and to the action of the court in sustaining the objection of the plaintiff the defendant at the time saved its exception.”

Conceding Doctor Henry was plaintiff’s physician at the time in question, yet we think the offered evidence was competent.

The statutory interdiction on the testimony of a physician or surgeon is salutary but must be kept well within the banks of the prescribed statutory channel. He is incompetent to testify “concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon. ’ ’ The - offered testimony did not come within the letter or the spirit of the statute. Doctor Henry was making no professional call on the plaintiff. He was not seeking information to enable him to prescribe for her or do any act for her as a surgeon. Admitting that facts gathered for that purpose while acting in a professional capacity are a sealed book, yet in this instance he was neither acting in a professional capacity nor was the fact inquired about in any wise necessary to treat his patient. In the law, as to that fact, Doctor Henry was the same as any other bill collector possessed with eyes. According to the common sense of the thing the matter was plainly without the province of a physician, and he was, therefore, competent to testify. [Green v. Railroad, 211 Mo. l. c. 31, et seq., and authorities cited.]

But it is said that if the exclusion of that testimony was error, it is not reversible error because the ruling was invited. It is argued that at first the court overruled the objection, but defendants’ counsel not content to let well enough alone then injected the following remark: ‘ ‘ This doctor has not been discharged as the plaintiff’s physician, but has continued to treat her and was at that time going to see her with reference to his bill.”

The shrewd construction put upon this interpolation by counsel is that it was an invitation to change the ruling, hence was an invitation to commit error, which (they say) the court proceeded to do “most obligingly.” But was not counsel-entitled to lay the facts before the court so that it might rule understandingly and well advised? Is a court, nisi, to be likened to a gun loaded only with error, ready to fire it off if counsel state a fact? The remark of counsel undoubtedly led up to the ruling, but did not invité an erroneous one.

The chief bone of contention as to the Transit Company was over the extent of the injuries to plaintiff, their permanency and the quantum of damages. True, defendant put in proof from Slough that at another time he had seen plaintiff going down stairs without crutches. But the whole trend- of .plaintiff’s case was to the effect that she could not walk without artificial aid. The point was sharply controverted and was a deadly one. Courts have sometimes said that where offered evidence was merely cumulative, as that term is technically understood, it might not be error to exclude it. Counsel cite cases to that effect, a sample of which is Brill v. Eddy, 115 Mo. l. c. 606. In that case the offer was to show that the father of the injured boy told him to stay away from the cars. It was held its exclusion was not error. That such fact might be germane if the father was suing. That the boy himself testified in plain and distinct terms that he knew it was wrong to ride on the cars and had been driven away from the yards on a number of occasions. The court said: “With this evidence of the boy before the jury, the defendants could not have been prejudiced by the exclusion of that of the father on the same point.”

If, in this case, plaintiff had testified that she could go up and down stairs without artificial aid, then the Brill case would be in point. But on the facts here it is not in point. So, the other cases cited may be distinguished from the case at bar on principle.

Where the crucial issue in a case turns on a question of fact upon which the evidence is in direct conflict, the exclusion of competent evidence is a matter of much more consequence than it would be in a case where the testimony on the point was substantially all one way. [Levels v. Railroad, 196 Mo. l. c. 618.]

By way of illustration let us indulge an hypothesis, viz.: Counsel insist that, with Slough’s testimony before the jury, the offered proof was merely cumulative and hence it was not error to refuse it. Now, suppose the court had ruled that, although plaintiff had introduced several witnesses who testified to her helplessness in walking — that she could not walk without a crutch, a cane or some other object to lean on — yet defendant was restricted to one witness (to-wit, Slough) to prove the contrary? Would learned counsel contend that such a ruling would be right? Hardly, but, if so, such is not the law. [Railroad v. Aubuchon, 199 Mo. l. c. 360, et seq., and cases cited.]

The premises all considered, we hold the order granting a new trial subserved the ends of justice. Accordingly, it is affirmed.

All concur except Vallimt, P. J., absent.