author: LAMM, P. J.

text:
    ORA T. SHOHONEY v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant.
    Division One,
    November 30, 1910.
    1. EXCESSIVE VERDICT: No Evidence. Where there is no-hill of exceptions, and hence no evidence and no motion for a new trial raising the point of excessiveness which can be considered on appeal, it will not be held that a verdict for $15,000, in a personal injury case, for the loss of a foot by a switch-man, was excessive, although on a former trial another jury-fixed the damages at $5,000. A mere difference -of verdicts is not evidence, on the record proper, that the last one was excessive; and a verdict regular on its face and within the lines of the-petition will not on appeal be assumed to he excessive, absent all evidence of the time lost and the extent of plaintiff’s pain and anguish.
    2. MOTION TO STRIKE OUT REPLY: Appeal: No Bill of Exceptions: Illegal Contract. To the petition of plaintiff, suing for damages for personal injuries sustained while working as a switchman, defendant filed answer, alleging that defendant had executed a contract releasing it, in consideration of his employment, from all liability for any injury received by him while in its employ and due to the negligence of any other employee. To that answer plaintiff replied, denying all new matter, and alleging the contract was void because in express violation of a statute, and thereupon defendant filed a motion to strike out this part of the reply, which was overruled, and defendant appeals on' the record proper only, filing no bill of exceptions, and assigning this ruling on its motion as error. Held, first, that the legal effect of the court’s ruling on the motion was to leave the petition, answer and reply intact, and the issues to be thrashed out at the trial, and hence defendant was left free to offer the contract in evidence, plaintiff to- raise its illegality, by objecting to its introduction or later by a motion to exclude, or by an instruction, and defendant to challenge by an instruction the constitutionality of' the statute interdicting such contracts; and there being no bill of exceptions, it will be assumed on appeal that at the trial such steps were taken, and it will be presumed that the court proceeded without error, and since defendant was left an open road to maintain in an orderly way its position on the issues framed, that presumption continues until it establishes the contrary; and, second, the motion to strike out not being aimed at the general denial of the reply, the question of the illegality of the contract remained in the case for determination, and the merits of the case were not affected by the court’s refusal to sustain the motion to strike out.
    3. -: -:-: -: Abandonment: Constitutional Question. Even though it be conceded that a motion to strike out that part of the reply alleging the contract of release pleaded in the answer was in express violation of a statute and therefore void, is a part of the record proper, yet if defendant raised the constitutionality of the statute only by such motion, and did not offer the contract in evidence, or, if that was done, did not in some proper way challenge the court’s ruling thereon and the constitutionality of the statute, and failed to file a bill of exceptions, it will be held on appeal to have waived its constitutional point by abandonment.
    4. -: -: -: -: Not Preserved for Review. A motion to strike out that part of plaintiff’s reply which raised the issue oi the constitutionality of a statute, cannot be preserved for review on appeal except by saving an exception to the overruling of it, and by calling the court’s attention to its own error in a motion for a new trial, and by preserving both motions in a bill of exceptions, unless the motion to strike out the pleading was essentially a demurrer and the ruling thereon disposed of the case.
    5. FELLOW-SERVANT ACT: Liberty to Contract: Releasing Company from Liability for Negligence. Liberty to contract is not without reasonable limitations. The welfare of the community may require that bounds be set to the liberty of one sui juris to contract. A railroad company cannot in advance, in consideration of employment, contract with its employees for the waiver and release of the liability imposed by statute upon every railroad company doing business in this State to respond in damages for personal injuries due to the negligence of a fellow-servant; and a contract in contravention of the statute is void, and is no defense to an action brought by an employee of a railroad company for damages done to him in consequence of the negligence of a fellow-servant. The Fellow-Servant Act of 1897 (now Sec. 5437, R. S. 1909), making void a contract absolving a railroad company from liability to an employee for personal injuries due to the negligence of a co-employee, is constitutional.
    Appeal from Grundy Circuit Court. — lion. Jno. P. Butler, Judge.
    Affirmed.

      J. G. Trimble, Hall & Hall and Willard P. Hall for appellant.
    (1) The motion to strike out portions of reply was in effect a demurrer thereto, and should he s.o treated, and therefore a hill of exceptions was not necessary to preserve said motion or the court’s action thereon. Those things are all matters of record, are reviewable without any hill of exceptions, and an excep-, tion to such judgment is out of place in the record proper or in the hill of exceptions. Meissner v. Equipment Co., 211 Mo. 112; Mallinckrodt v. Nemnich, 169 Mo. 388; Dysart v. Crow, 170' Mo. 275. Under the provisions of our code, motions to strike out may be used against “irrelevant or redundant matter” in a pleading (R. S. 1899, sec. 612), or against a pleading guilty of duplicity (R. S. 1899, sec. 613). Such motions can also be used against pleadings improperly filed, for any reason. But in Missouri such motions have also been used, in practice, from time immemorial, for the purposes and in the place of demurrers, to test the sufficiency in law of matters pleaded in petition, answer or reply. Sapington v. Jeffries, 15 Mo. 628; Niedlet v. Wales, 16 Mo. 214; Barley v. Cannon, 1? Mo. '595; Ming v. Suggett, 34 Mo. 364; Phillips v. Evans, 38 Mo. 305; Howell v. Stewart, 54 Mo. 400; Paddock v. Somes, 102 Mo. 226; Mumford v. Keet, 71 Mo. App. 535. The consequence is that in Missouri a motion .to strike out a pleading, in legal effect, often is the same as a demurrer. Austin v. 'Loring, 63 Mo. 19; Paxson v. Talmage, 87 Mo. 13; Jones v. Manly, 58 Mo. 559; Mumford v. Keet, 71 Mo. App. 535; Asphalt Co. v. Benz, 81 Mo. App. 246; Bick v. Dry, 134 Mo. App. 589’. This is true in other jurisdictions where a motion to strike out is used for purposes of a demurrer. Camp- v.' Allen, 12 N. J. L. 1; 31 Cyc. 619; 6 Ency. PI. and Pr. 331. Wherever a motion to strike out is permitted to be, and in fact is used, to test the sufficiency in law of the allegations of a pleading, then the motion in legal effect is a demurrer, and is to be treated as such and ‘ ‘ governed by the law applicable to demurrer. ’ ’ Mumford v. Keet, 71 Mo. App. 536. In such case the motion to strike out and the ruling of the court on it are a part of the record, and may be reviewed on appeal without a bill of exceptions. Bick v. Drv. 134 Mo. App. 589; Asphalt Co. v. Benz, 81 Mo. App-. 246. (2) The contract of release pleaded by defendant was neither opposed to public policy nor prohibited by any valid statute. In other words the statute prohibiting said release was unconstitutional and void. Griffiths v. Dudley, 9 Q. B. D. 357; O’Maley v.' Gas Co., 158 Mass. 135 ; Railroad v. Eubanks, 48 Ark. 466; Quinn’v. Railroad, 175 Mass. 150; Peterson v. Traction Co., 23 Wasli. 637; Railroad v. Voigt, 176 IT. S. 498; State v. Loomis, 115 Mo, 307; State v. Julow, 129 Mo. 163; State v. Tie Co., 181 Mo. 536; State ex rel. v. Standard Oil Co., 218 Mo. 378; Matthews v. People, 202 111. 389'; Loehner v. New York, 198 IT. S. 45; Adair v. United States, 208 U. S. 161.

      E. M. Harber and A. G. Knight for respondent.
    (1) (a) Reversible error cannot be predicated on the court’s action in overruling defendant’s motion to strike out the paragraphs of plaintiff’s replication, for the reason that défendant’s answer had set out and pleaded in haec verba the alleged contract of plaintiff releasing defendant from liability. The replication thereto contained a general denial, and under this general denial the plaintiff was entitled to show the invalidity of the contract as fully and completely as he could have done with the added paragraphs. Hence, to have struck them out would in no way have .changed the issue. The sustaining or overruling of said motion, therefore, was immaterial, because it did not affect defendant’s defense in the least and they were mere surplusage. It cannot be therefore said to “materially,” or even at all, affect the “merits of the action,” and under the statutes and decisions was harmless. R. S. 1899, sec. 865; Crawford v. Spencer, 36 Mo. App. 78; Conrades v. Spink, 38 Mo. App. 309; Tyrrel v. Milliken, 135 Mo. App. 301; McDearmott v. Claas, 104 Mo. 14; Berkson v. Railroad, 144 Mo. 211; Hernán v. Wade, 140 Mo. 340; Holenbeck v. Railroad, 141 Mo. 97; Lamar Light Co. v. Lamar, 140 Mo. 145; Mulherin v. Simpson, 124 Mo. 610; Gordon v. Eans, 97 Mo. 587; Griggs v. Edwards, 78 Mo. 473; Ozark Land Co. v. Hays, 105 Mo. 343; Ivy v. Yancey, 129 Mo. 501; Daggs v. Smith, 198 Mo. 494. We are aware of the rule that where there is nothing on the face of the contract or the petition (in this case the answer) which indicates any other than a valid contract, then the rule is that if the contract is to be invalidated by some extrinsic matter, such matter must be pleaded in order that it may be made issuable at the trial, and that the same, so far as pleading is concerned, is not unlike that of champerty, gaming, usury and the like. Association v. Delano, 108 Mo. 220; McDearmott v. Sedgwick, 140 Mo. 172; Kelerher v. Henderson, 203 Mo. 498; Bell v. Warehouse Co., 203 Mo. 475. But it is equally true that a denial does put in issue the validity of the contract -sued upon, and where the illegality of the contract appears from plaintiff’s own showing, or upon the face of the contract itself, without the aid of extrinsic evidence, or is in violation of a positive law, that then a general denial is all that is necessary to dethrone such contract, refuse its admission in evidence, or defeat a recovery or defense founded thereon. McDearmott v. Sedgwick, 140 Mo. 172 ;• Association v. Delano, 108 Mo. 220; Kelerher v. Henderson, 203 Mo. 498; Gibson v. Jenkins, 97 Mo. App. 27; McClure v. Ullman, 102 Mo. App. 697; Musser v. Adler, 86 Mo. 445'. (b) Ordinarily motions to strike out parts of 'a pleading are no part of .the record proper, are matters of exception, and can only he made a part of the record by a bill of exceptions. Tarkio v. Clark, 186 Mo. 293. ' (2) The act of 1897 is not in violation of any of the provisions. of the Constitution of the United States. Powell v. Sherwood, 162 Mo. 620. Since the decision in the Powell ease, supra, the constitutionality of the act of. Í897 has twice come before the Supreme Court of this state, In Banc, and each time has been held constitutional. Cambrón v. Railroad, 165 Mo. 555; Callahan v. Railroad, 170’ Mo. 473; Tullís v. Railroad, 175 U. S. 351. The constitutionality of this statute has been so thoroughly established by the decisions of this court, that such question is no longer a “live one,” but is expressly foreclosed by those prior decisions. State v. Campbell, 214 Mo. 362; Railroad v. Mackey, 127 TJ. S. 205; Railroad v. Pontius, 157 TJ. S. 209; Railroad v. Mathews, 165 TJ. S. 1; Frisbie v. United States, 157 U. S. 160; Tullis v. Railroad, 175 U. S. 353; Patterson v. The Eudora, 190' U. S. 169; Insurance Co. v. Needles, 113 U. S. 574; Sinking Fund Cases, 99 U. S. 700; Railroad v. Bristol, 151 U. S. 556; Railroad v. Paul, 173 U. S. 404; Railroad v. Matliews, 174 U. S. 96; Hooper v. California, 155 U. S. 648; Insurance Co. v. Daggs, 172 IT. S. 557; Dayton v.. Iron Co., 183 U. S. 23; Railroad v. Humes, 115 U. S. 512; Railroad v. Beckwith, 129 U. S. 26; Hissong v. Railroad, 91 Ala.. 514; Railroad v. Paul, 64 Ark. 83; Railroad v. Lassiter, 50 So. (Fla.) 428; Coal Co. v. Polland, 158 Ind. 607; Himrod Coal Co. v. Clark, 197 HI. 514; McGuire v. Railroad, 131 la. 340; Railroad v. Peavy, 29 Kan. 169; Newport News Co. v. Eifert, 15 Ky. L. Rep: 575; Willis v. Railroad, 62 Me. 488; Wagner v. Railroad, 188 Mass. 437; Doyle v. Railroad, 162 Mass. 66; Doyle v. Railroad, 166 Mass. 492; Cl‘Niel y. Iron Co., 63 Mich. 690; Johnson v. Fargo, 184 N. Y. 379; Coley v. Railroad, 128 N. C. 534; Railroad v. Spangler, 44 Oh. St. 471; Johnson v. Railroad, 163 Pa. St. 127; Johnson v. Railroad, 55 S. C. 152; Railroad v. Jones, 2 Head (Tenn.) 517; Waters Pierce (hi Co. v. Texas, 19 Tex. Civ. App. 11; Johnson v. Railroad, 86 Ya. 975.
   LAMM, P. J.

Plaintiff lost his right foot and ankle while in the line of duty as a switchman in defendant’s yards and employ in Milan in June, 1904. He sued, laying his damages at twenty thousand dollars, grounding his action on, first, negligence in furnishing defective machinery (couplers, drawheads and coupling apparatus); and, second, on the negligence of a fellow-servant, to-wit, the engineer of the switch engine, in that, without any proper order or direction so to do, he ran his engine against a ear and plaintiff’s leg, plaintiff being at the time engaged in manipulating and adjusting the coupling apparatus of the car to the end of presently effecting a coupling with the engine for switching purposes.

Commenced in Sullivan, removed to the Federal court, there dismissed, brought anew in Grundy, appealed once before from a judgment for five thousand dollars, reversed and remanded (223 Mo. 649, q. v.), then taken on a change of venue to Linn, the case now comes here again on defendant’s appeal, this time from a judgment of fifteen thousand dollars.

"When the case went down, defendant moved'to strike out all allegations pertaining to defective appliances. This motion was sustained and plaintiff went to trial upon a petition bottomed alone on the duty of defendant to handle its switch engine with care, having regard to the safety of employees required to work about the same, and a negligent violation of that duty, in that the engineer, as said, without order or direction, negligently ran his engine with force and violence against a car, while plaintiff was adjusting the coupling appliance, catching plaintiff’s right foot between the drawheads, and so mashing it that amputation followed four inches above the ankle.

The amended answer, after a formal admission or two, and a denial, as a further defense, set up a written contract whereby plaintiff, in consideration of his employment and receipt of one dollar in hand paid, released defendant from liability for any and all injuries received while in its employ, by or through the negligence or want of care and caution on the part of any other employee or employees of defendant, and acknowledged full satisfaction and payment of all claims for damages against defendant which may accrue to him, or to any other person on account of such injury to him while in-such employ.

By replication plaintiff denied all and singular the allegations of hew matter, next alleging affirmatively that the contract pleaded as a defense in the answer was against public policy, in violation of the policy and laws of the state, and, therefore, void. To further break and avoid its effect, the reply pleaded waiver and estoppel in that, with knowledge of the injury of plaintiff and the negligence and wrongful acts of its own causing the same, defendant had not only fully investigated the same but litigated with plaintiff for years in different courts of this state its liability, and now, for the first time, undertook to set up, plead and seek advantage of said instrument. (Nota bene: Defendant filed answer to plaintiff’s petition as amended on the 23d day of February, 1910, for the first time pleading a release by virtue of the contract of employment, and on the same day plaintiff replied as above). On the same day defendant filed a motion to strike out those parts of the reply setting up waiver, estoppel, that the contract was void, against public policy and in violation of the statutes of the state. The grounds of this motion will appear presently in the opinion.

The court entries show that on the same day the motion to strike out was taken up and overruled, “defendant excepted.” The court’s order overruling the motion for a new trial also shows defendant excepted.

After filing an affidavit for appeal, depositing its docket fee, having its appeal allowed and taking record leave to file its bill of exceptions on or before July 1, 1910, defendant filed' none — its statement of the case in its brief closing with the following: “Defendant appealed and has brought up the record proper for review by this court.”

A summary of contentions made follows: For defendant it is argued that, first, the motion to strike out parts of the reply filled the office of a demurrer, therefore, a bill of exceptions was not necessary to preserve the motion or the court’s action thereon, those things being part of the record proper; that, second, the effect of the court’s ruling on that motion was to sustain those parts of the reply struck at, as pleas good at law, therefore, whether such pleas were good at law is here to be determined; that, third, the contract of release was not opposed to public policy or prohibited by any valid statute — meaning thereby that the statute interdicting such a release was unconstitutional and void; fourth, defendant was not estopped to set up the release ; and, fifth, the verdict was grossly excessive.

For plaintiff it is argued contra. Further, that if there was error nisi in ruling on the motion to strike out, it did not materially affect the merits; that the motion is not part of the record proper, therefore is not here, absent a bill of exceptions; that, at any rate, some of the grounds of the motion were not in the nature of a demurrer, and (if any ground'be in the nature of a general demurrer, then) plaintiff, under his general denial in the reply, was entitled to show the contract was void; and that, at all events, the motion was well ruled for that the statute interdicting such contract in abrogation of liability under the fellow-servant law is a valid and constitutional exercise of legislative power.

Attending to the questions raised, we rule as fol - lows:

I. At first glance (on the surface of things, as an abstract proposition) fifteen thousand dollars for the loss of one foot is a full, round sum and might well be held excessive (if we were at liberty to deal with it) absent elements of malice, as here, and where plaintiff is entitled to just compensation and no more. The conservatism of this court on damages in such cases is evidenced by a line of decisions, early and late, assembling a cloud of witnesses in that behalf. In dealing with remittiturs in personal injury cases we have eschewed sentimental conceits, elements of punishment, and mere views to catch the crowd (ad, captanclum vulgus) — for example, that the jury or court should place themselves in the position of plaintiff and, on that hypothesis, put a financial estimate on what one or the other would take and swap places with him. "We have sought to put such damages on the solid basis of a fair, reasonable estimate of a recompense, keeping in mind the injury, the detriment probably ensuing to plaintiff in the future therefrom, and have refused to allow an unhappy accident to be capitalized at such sum as would make a fair mind instinctively cry out against it as a mill-stone about the neck of business, or as filling plaintiff’s pockets so full that he is left in a better fix than lie would likely be in had the accident not happened. But in delivering pronouncements on remittiturs we have always kept the facts of the concrete case in eye as a guide-board; and our rulings in that behalf, from the very necessity of things, took color and direction from the facts established by the evidence, not otherwise. Here, absent a bill of exceptions, we have no facts and no evidence. Therefore, we are put to a leap in the dark. The time this plaintiff lost by his injuries and its value, the surgical, medical and nurse attentipn and resulting outlay, the details of his hurts from which would follow greater or less pain and anguish, whether the amputation was successful and the wound healed blandly by first impression, or he long languished sick in body and mind, are hid out in a sealed book.

Nor does the fact that a Grundy county jury put his damages at five thousand dollars, while a Linn county jury, years later, multiplying them by three, put them at fifteen thousand dollars, alter the case. One jury may have made a sounder estimate than the other —but which one? So, the last jury may have had the advantage of better evidence than the first. If (absent the evidence) we are put to an assumption or guess, we would be bound to assume it so, to support the verdict and maintain the wisdom of trial by jury. If the verdicts had been the same, that would be some evidence-both were fair. But the contrary does not follow.. Peradventure verdicts may be allowed to wax and wane, like the moon, without provoking astonishment or incredulity from bench or fireside. "We cannot well write the law to be that a mere difference in verdicts is evidence, on the record proper, that the last one is excessive. The only judicial use (if, indeed, it is put to us to assign it an office and use) to which the difference in the verdicts may be put is to take the case, earmarked with vicissitudes, as it is, as serving the possible future purpose of some moralizing law-writer in pointing some humble moral in some unwritten chapter on some new phase of the doctrine of Assumed Risks; for, verily, is hot an increased verdict one of the "usual risks” a litigant assumes on a second trial?

' Assuming the verdict is part of the record proper, yet, absent the evidence and a motion for a new trial raising the point of excessiveness, and present a verdict, regular on its face and within the lines of the petition, the point is without substance and must be disallowed to defendant.

II. Of the motion to strike out parts of the replication.

All other assignments of error may be considered under the above head; for they cover a cluster of questiops grouped about the motion. In leading up to some of them, the subject-matter may be profitably developed by some preliminary observations, for instance:

Courts take judicial notice of matters of public history; for such history is a lamp of judicial interpretation hung out by reason. Many statutes are but exponents of crystallized and dominant public sentiment, gathered from the history of the times and finally bodied forth in legislative enactments. Such is the Fellow-Servant Act.

At one time there was judicially grafted upon the main stock of our state jurisprudence the doctrine that a railroad corporation was liable to employees and personal representatives for damages from the negligence of a fellow-servant resulting in death or injury. In 1865, in Schultz v. Railroad, 36 Mo. 13, the old Damage Act was construed that way. In Connor v. Railroad, 59 Mo. 285, the doctrine of the Schultz case was reaffirmed. But eleven years after-wards it was exploded in Proctor v. Railroad, 64 Mo. 112, and the common law rule, re-established, was thereafter continued in force for twenty-one years.

In 1897, the Fellow-Servant Act was passed (Laws 1897, p. 96). That act not only turned a new; leaf in the Book of the Law of the Land, but, as with a consuming torch, burned to ashes a wealth of case-learning with its refinements in definitions of “fellow-servant,” and in the philosophy and application of the old rule, whereby the courts were put to mighty labor and pother to administer old rules in the light of changed conditions and to put new wine of interpretation in the old bottles of the law — all with a semblance of preserving it from chaos or radical change.

After full consideration in Strottman v. Railroad, 211 Mo. 227, it was held by the majority of the judges that the original Fellow-Servant Act gave no right of action for the death of an employee by the negligence of his fellow, but only covered damages for injuries so received, to be recovered in an action by the party injured. Three of us were of opinion that the statute covered damages for death as well as injuries, that is, that damages for death, under then existing law, could be recovered by those persons named in the old damage act. While that case was pending, the General Assembly amended and perfected the Fellow-Servant Act in that particular so that it now brings within its purview damages for death (Laws 1907, p. 252), and its force is no longer spent in creating a new liability for injuries and none whatever for the capital event of resulting death itself.

Looking backward to the history of the times, we take judicial notice of the fact that the passage of the Fellow-Servant Act was preceded (and followed) by the enactment of similar statutes in many states of the union — all of them striking down the doctrine of the common law in that behalf and establishing a new rule of liability. We know, too, that its passage in this state, as elsewhere, was preceded by much pulp lie agitation in lay and legal-periodicals, on the rostrum by publicists, in labor, legal and business circles, maintaining the justice of the proposed change and calling out for it. Per-contra, the old doctrine and the old rule was stoutly defended by its theoretical admirers and interested supporters. The matter being well hammered out on the anvil of public discussion, things happened in that behalf indicating a dominant public sentiment in favor of adopting the proposed new right and remedy, While, at the same stroke, clearing away common law obstacles in order that the new right and remedy might occupy the field. In obedience to that sentiment, the Fellow-Servant Act sprang into being. As part of it, recognizing that the old doctrine might be given up with a pang and not without a struggle to maintain it in some roundabout way, the Fellow-Servant Act made the new right and new remedy invulnerable to evasion or overthrow by section 4 (Laws 1897, p. 97; Sec. 5437, Revised Statutes 1909), reading: “Sec. 5437. No contract made between any railroad corporation and any of its agents or servants, based upon the contingency of the injury or death of any agent or servant, limiting the liability of such railroad cornoration for anv damages under the provisions of sections 5434 to 5437, inclusive, shall be valid or binding, but all such contracts or agreements shall be null and void.”

Sis years after the enactment of that law, Shohoney entered the employ of the defendant corporation, signed a contract releasing defendant from liability for any and all injuries received by him through the negligence or want of care or caution of any other-employee of defendant, and acknowledged full satisfaction and payment of all claims for damages accruing to him or any other person on account of such injury. Shohoney sued February, 1905. In February, 1910, the defendant by answer set up the contrae as a defense to an amended petition. The reply to that answer, as said, was (1) a general denial, (2) waiver and estoppel, because of certain facts pleaded, and (3) that the contract was void because in contravention of express statute and as against public policy and the policy of our laws. Defendant attacked all the reply, except the general denial, by a motion to strike out. Its grounds (quoting) were:

“For the reason that said parts of the reply are not properly matters of reply, but are arguments and statements improper to be submitted to a jury and for the further reason that the statute of the State of Missouri, to-wit, section 2876 of the Revised Statutes of the State of Missouri, 1890, under which plaintiff claims the contract pleaded in defendant’s amended answer is void, is itself unconstitutional and void for the reason that said section is in violation of section 15 of article 2 of the Constitution of the State of Missouri and of section 10 of article 1 of the Constitution of Missouri, and section 1 of article 14 of the amendments to the Constitution of the United States, and of other sections and articles, both of the Constitution of the State of Missouri and the United States, in that said section is special legislation, limits the rights of citizens to enter into contracts, impairs the obligation of contracts, grants special rights and immunities and denies to railroad companies and to the defendant in this case the equal protection of the laws.”

On such record, we rule there is no reversible error in overruling the motion to strike out. This, because:

(a). The case went to trial on an unemasculated petition, answer and replication. The answer set up Shohoney’s contract "by way of release. The reply pleaded matter avoiding the contract. The legal effect of the ruling on the motion to strike out was to leave those issues in the case to be threshe'd out at the trial. Thus defendant was left with the right to offer Shohoney’s contract in evidence — plaintiff with the right to raise its illegality, either by way of objection to its introduction as evidence, or by a motion to exclude it afterwards, or by an instruction. So, defendant by instruction could have challenged the constitutionality of the law interdicting such contracts.

In aid of the judgment on appeal we must assume (in the absence of a motion for a new trial, preserved in a bill of exceptions, and of an exception saved in such bill to the overruling of the motion for a new trial) not only that defendant acted within its rights but that the ruling of the trial court, while defendant was so acting, was correct. In other words, counsel are presumed to have used diligence in going to the fair limit of their leave under the pleadings and to have tried their case for all that was left in it. So, the court is presumed to have proceeded without error, and that presumption abides until an appellant shows us to the contrary. It will-not do to overturn a judgment merely because the court at one step, by some ruling on a motion, indicated a questioning or hostile attitude to defendant’s position, so long as the ruling left to defendant an open road to maintain in an orderly way its position on the issues as framed. In this view of it, what injury could result to defendant from overruling the motion?

(b). Moreover, the motion was not aimed at the general denial in the replication, so that, if it had been sustained, the general denial stood. In such condition of things, the better rule is that where the matter showing the illegality of a contract appears on the very face of the pleading counting on it, its illegality is left a live question to be dealt with by the trial court without a formal plea of facts showing its illegality. Courts take judicial notice of public statutes, hence, where a contract counted on is stained on its very face with the vice of being in contravention of such statute, the law does not require the adventitious aid of a plea of illegality in order to deal with it. The law forces no one to do vain and useless things (Lex neminem cogit ad vana, etc.). Not so where the alleged illegality arises from extrinsic or collateral matter not appearing on the face of the pleading. In such case a plea fills an office. [McDearmott v. Sedgwick, 140 Mo. l. c. 182, et seq. Cited and followed in Kelerher v. Henderson, 203 Mo. l. c. 512-3.] The rule is that where a party cannot open his case or sustain some particular defense without showing that he has broken the law the court will not assist him (Gibson v. Jenkins, 97 Mo. App. l. c. 42), and this without an affirmative defense pleaded to the contract. To the same effect is McClure v. Ullman, 102 Mo. App. l. c. 705-6. If a contract is illegal and the illegality appears from it or from the evidence necessary to make out a case on it, the illegality is effective to deny remedy, though not pleaded. [School District v. Sheidley, 138 Mo. l. c. 690.] It follows that had the court sustained the motion to strike out, still the question of the illegality of Shohoney’s contract of employment was left in the ease for determination. This is all defendant should ask. Therefore, such interlocutory ruling left defendant no better or worse off by it. Such ruling, then, did not materially affect the merits of the case and we are confronted by the statute forbidding us to reverse a judgment on error not fatal to the merits. In this view of it there is no substance in the assignment of error relating to the motion.

(c). Again, conceding arguendo that the motion to strike out is part of the record proper, yet if defendant raised its constitutional point only by such motion; if (when the road was left open to it) it neglected to pursue its constitutional point, offer its contract in evidence, challenging the ruling of the court on it and saving an exception, if adverse; if it neglected to ask instructions on the constitutionality of the law or file any motion for a new trial challenging the ruling in disallowing such instructions or evidence; and, what is equally bad or worse, if it failed to file a bill of exceptions, as here, it waived its constitutional point by abandonment. It died. below and remains dead above.

Courts may not shirk their duty to say a law is unconstitutional, if it be so, but they do not go out of their way to lug in a constitutional question or keep it alive when a litigant has allowed it to die. The comity that exists between the judicial and legislative branches of the government forbids us to approach the constitutionality of a statute lightly or to strain after grasping such point and holding it in judgment; for a strong presumption obtains in favor of the validity of a statute. In this view of it the constitutional point is out of the case.

(d). Not only so, but we do not think the motion to strike out could be preserved for appellate review except by saving an exception to overruling it and by calling the trial court’s attention to its own error anew in a motion for a new trial and preserving the motion to strike out and'the motion for a new trial in a bill of exceptions. The point is approached with diffidence because there is general language of some of our decisions seemingly leaving it debatable and in a twilight zone.

It was early held that matter in a pleading stating no cause of action or defense was open to a motion to strike out as well as to a demurrer. [Sapington v. Jeffries, 15 Mo. l. c. 631; Niedelet v. Wales, 16 Mo. l. c. 215; Barley v. Cannon, 17 Mo. l. c. 597; Robinson v. Lawson, 26 Mo. l. c. 71; Ming v. Suggett, 34 Mo. l. c. 365; Howell v. Stewart, 54 Mo. l. c. 407.] Now, the rule is that a demurrer not waived by pleading over, when stood on, preserves itself without the aid of a bill of exceptions or motion for a new trial. [State ex rel. v. Jones, 155 Mo. 570; Hannah v. Hannah, 109 Mo. l. c. 240; Houtz v. Hellman, 228 Mo. 655, and oases therein cited.] From the proposition that a motion to strike out may in some instances fill the office of a demurrer, the doctrine has been deduced that a motion which fills such office should be judged of by the rules pertaining to demurrers, i. e., when a motion is to all intents and purposes a demurrer dispositive of the whole case on a matter of law, the rules relating to a demurrer may be applied to such motions. [Austin v. Loring, 63 Mo. l. c. 21; O’Connor v. Koch, 56 Mo. 258.]

But care must be taken to follow the reason of the rule. There is a great body of exposition on the -question and the rules of practice must be guardedly deduced therefrom.

In Acock v. Acock, 57 Mo. l. c. 156, it was ruled that if the action of the court in striking out part of the petition was not embodied as one of the errors in the .motion for a new trial it would be disregarded on appeal.

In Collins v. Saunders, 46 Mo. l. c. 390, part of the petition was struck, out and plaintiff presented the point in his bill of exceptions. It was ruled that was the proper way to preserve it, but, as there was no motion for a new trial giving the trial court an opportunity to review its. own decision, the point was not reviewable on appeal.

In Childs v. Railroad, 117 Mo. l. c. 426, it was ruled, “that the refusal of the court to strike out a pleading is a matter of exception and nothing more, ’ ’ and that exceptions to such ruling must be taken at the time and “again brought forward in the motion for a new trial as grounds therefor and they must be made a matter of record by a bill of exceptions.”

In Williams v. Railroad, 112 Mo. l. c. 485, one of the assignments of error was the action of the court in striking out part of the plaintiff’s petition on the motion of defendant. The point was not brought forward in a motion for a new trial and this court disposed of it as follows: “We think the law is clearly against the contention of plaintiffs. It was their duty to give the trial court an opportunity to correct this error, if any, and, where this is not done, this court will not review the rulings of the lower court upon the point ’ ’ (Citing cases). “And this ruling disposes of the other assignment that the court erred in refusing to strike out certain portions of the answer. This also was not made a ground of the motion for a new trial. We think there is a marked distinction between the cases of O’Connor v. Koch, 56 Mo. 253, and Butler v. Lawson, 72 Mo. 227, and similar cases, where the objection amounted to a demurrer to the whole case, and resulted in a dismissal of the cause, and cases like the one at bar, but it is unnecessary for us to discuss the rulings in those cases at this time. ’ ’

In Asphalt v. Ullman, 137 Mo. l. c. 564, the matter came up in this way: A part of the answer had been stricken out on motion of plaintiff at a term prior to the trial. But no term bill of exceptions was allowed and filed. On such record it was held that the ruling was not here for review. Observe, the effect of that ruling was that a proper bill of exceptions to preserve the point was necessary.

In Ewing v. Vernon County, 216 Mo. l. c. 686, and Hubbard v. Slavens, 218 Mo. l. c. 617, it was pointed out that the office of a motion to strike out was, as a general thing, not that filled by a demurrer; that the one calls for an “order” while the other raises an issue of law and invokes a judgment on that issue. What was there said may have been too general, for it took no notice of the exceptions to the general rule that the office of a motion to strike out might, where it disposed of the whole case on a question of law, fill the office of a demurrer. In Sternberg v. Levy, 159 Mo. l. c. 624, it was ruled broadly that a motion for a new trial was not necessary in order that we might review the ruling on a motion’ to strike out. This ruling was put on the authority of O’Connor v. Koch, 56 Mo. and Butler v. Lawson, 72 Mo. supra, but the case does not notice the contrary ruling in Williams v. Railroad, 112 Mo., supra. But in the Sternberg case it was further ruled that a motion for a judgment on the pleadings was not a demurrer, and hence, was no part of the record proper (p. 629). It should be noted that in the Sternberg case only a part of the intérplea was struck at and that the motion itself was preserved in a bill of. exceptions. The ease merely holds that a motion for a new trial was not necessary to preserve the right to review.

In Boatmen’s Saving Bank v. McMenamy, 35 Mo. App. l. c. 202, et seq., part of the answer setting up. an affirmative defense was stricken out. Defendant took the pains of saving his exception in a bill but omitted to call the attention of the court to the error complained of in his motion for a new trial. In that condition of things, Rombauer,, P. J., with concurrence of his learned brethren, ruled that the point was matter of exception and the exception was lost because not preserved in the motion for a new trial.

Sitting in judgment on the case-learning on the point, Smith, P. J., in Barber Asphalt Paving Co. v. Benz, 81 Mo. App. l. c. 248, had before him a case where several of the defenses in the answer had been stricken out, leaving remaining others to which the motion did not extend. In that fix, it was pointed out that as the whole answer was not attacked no final judgment could go on the disposition of the motion. What that sound jurist had to say anent the record before him, is of value in the case at bar, viz: “The rule announced and applied in Jones v. Manly, 58 Mo. 563, and the other cases to the same effect cited by the defendant, is wholly without application to a case like this, for in them it will be seen the motion and the order thereon extended to and covered the entire defense. Where the motion challenges the sufficiency of the entire legal or equitable defense pleaded, it is in legal effect a demurrer thereto and it need not be mentioned in the motion for a new trial. The correctness of the ruling on the former in such case is properly subject to a revision by the appellate tribunal without any reference thereto in the latter. But where, as here, the motion and order thereon only go to a part of the allegations of the answer and those remaining untouched tender one or more issues, then the ruling of the court is a matter of exception only and is not the subject of review unless the defendant’s bill of exceptions ■ shows that he not only duly excepted thereto but that he subsequently, in his motion for a new trial, assigned such ruling as one of the grounds therefor and duly excepted to the action of the court in overruling the same. ’ ’

All will agree that the general rule in Missouri, subject to exceptions, is that motions must be preserved in a bill of exceptions and called to tlie court’s attention by a motion for a new trial, else an assignment of error, based on a ruling on the motion, is lost for appellate purposes; and that the trend of the judicial mind is to refuse to carve out new exceptions to the general rule. To that end it has been ruled that a motion for judgment on the pleadings is not . preserved except by a ground lodged in the motion for a new trial and by a bill (Sternberg v. Levy, supra; Godfrey v. Godfrey, 228 Mo. 507; Bank v. Klein, 33 Mo. 559); that a motion to quash the proceedings is in the same category (Tarkio v. Clark, 186 Mo. 285); that a motion to strike out an amended petition because of a departure stands on the same foot (Bick v. Dry, 134 Mo. App. 589); that a motion to quash an indictment stands on the same foot (State v. Fraker, 137 Mo. 258); so to review a judgment (Daggs v. Smith, 193 Mo. 494) and motions to set aside a non-suit, to quash executions, to dismiss are treated similarly.

But we have pursued the matter far. It is obvious from the views promulgated in the eases reviewed that if a motion to strike out is not essentially a demurrer, if it could not be dispositive of the case, it, with the exception to the ruling thereon and with the motion for a new trial bringing forward the alleged error for the final consideration of the trial court, must be preserved in a* bill of exceptions or it cannot be considered on appeal. The motion in hand does not measure up to the standard of a demurrer; it did not go to the whole plea, the ease could not have been disposed of on a ruling on that motion, some of the matter in the motion was not matter of demurrer but purely and simply matter of motion. Our .conclusion is that if we were to rule on the point as learned counsel for defendant wish, we would carve out a new exception.

By multiplying exceptions we would unsettle the practice and confuse it. We rule, then, that the motion to strike out part of the replication is not here, because not appearing in any bill of exceptions, and because the motion for a new trial is in like fix. Not to exist and not to appear are the same thing (Idem est non esse et non apparere).

(e). But if we were to admit unsound or unsafe exposition in paragraphs (a), (b), (c), and (d), and were to hold that the motion to strike out part of the replication was part and parcel of the record proper and came here without any motion for a new trial or bill of exceptions, yet, we would still hold the motion soundly ruled below.

Counsel admit it settled and good doctrine that no person may contract against liis own negligence.; but, they argue, the Fellow-Servant Law makes the master responsible to one servant for tbe negligence .(not of the master, but) of bis fellow. Therefore, they say, tbe doctrine does not apply to tbe case at bar. Tbe gist of tbe contention is that tbe statute, heretofore quoted, interdicting contracts absolving the master from such liability, is unconstitutional, for that it impinges tbe general constitutional right of freedom of contract, ergo, is void.

Attending to that view of it, it may be said that liberty to contract, like any other form of'liberty, may be abused. It is a legal precept that, “We are all slaves of tbe law, in order that we may be free.” Liberty to contract is not without tbe pale of reasonable limitation by tbe exercise of tbe police power in legislation; for the welfare of the community, tbe well-being of tbe State, is at stake.

In a case involving the violation of tbe pensión law by contracting for and receiving a fee greater them allowed thereby, tbe Supreme Court of the United States, speaking through Mr. Justice Brewer, in Frisbie v. United States, 157 U. S. l. c. 165, et seq., held language pertinent here, viz.: “A second objection, insisted upon now as it was by demurrer to tbe indictment, is that tbe act under which tbe indictpient was found is unconstitutional, because interfering with tbe price of labor and tbe freedom of contract. This objection also is untenable. While it may be conceded that, generally speaking, among tbe inalienable rights of tbe citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all eoutracts, as well as all individuals from some contracts. It may deny to all tbe right to contract for tbe purchase or sale of lottery tickets; to tbe minor the right to assume any obligations, except for tbe necessaries of existence; to tbe common carrier the power to make any contract releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property. ’ ’

On the postulate that a contract in violation of usury laws is void as against public policy (an accepted doctrine of the law), Culeen, J., in Simpson v. N. Y. Rubber Co., 80 Hun 415, speaking to the point whether an employee could by contract waive the benefits of a statute requiring dangerous machinery to be fenced, said: “But the state has great interest in the protection of its members, and this even of the most utilitarian character. In the case of a maimed employee, he and his family are likely to become a public charge; the same is true of the family of an employee killed. The community would s'eem to have as much interest in the protection of the life and limbs of a member of it as in the question whether he should pay eight per cent or six per cent interest. Yet by no means which human wit can devise can he make a valid contract to pay more than six per cent in this state.”

The case of Kansas Pac. Ry. Co. v. Peavey, 29 Kan. 169, is directly in point. It was there ruled that a railroad company cannot contract in advance with its employees for the waiver and release of the statutory liability imposed upon every railroad company organized or doing business in that state by chapter 98, laws 1874, and a contract in contravention of this statute is void, and is no defense to an action brought by an employee of a railroad company for damages done to him in consequence of the negligence or mismanagement of a co-employee.

To the same effect is Pittsburg, Cincinnati, Chicago and St. Louis Railroad v. Montgomery, 152 Ind. 1; Hissong v. Railroad, 91 Ala. 514; and Railroad v. Spangler, 44 Ohio St. 471. See, also, a very learned and full note to Johnston v. Fargo, 6 Am. & Eng. Ann. Cas., from pages 3 to 7, inclusive, where many authorities are collated expounding the whole body of. the law on the question.

The constitutionality of the Fellow-Servant Law has been sustained in its general provisions by this court and by the Supreme Court of the United States against assaults of the same character now under review. In this court its constitutionality was determined in Powell v. Sherwood, 162 Mo. 605. That case has been repeatedly followed. In writing the opinion therein our brother Valliant came up to the question of the constitutionality-of the fourth section of the act of 1897, supra, and, though he did not discuss it for the reason it was not in his case, he does point out that the United States Supreme Court, in Minneapolis and St. Louis Ry. v. Herrick, 127 U. S. 210, held an Iowa statute with the same provision in it did not impinge on the Federal Constitution.

The Fellow-Servant Act being constitutional in its general provisions, it follows that the well-being of the state and public policy imperiously demand that its provisions be held immune from the right of private contract. What nobler public policy could obtain than that the laws of a self-governing people should be obeyed by all? If the benefits of the new law could be contracted away in a given instance by a stroke of the pen, it would presently not be worth the paper it is written on as a rule of civil action.

The words of the statute would be without life, mere sound and fury signifying nothing — the mischiefs would abide, the remedy be lost — if we should hold that railroad companies were at liberty to play upon the necessities or ignorance of their employees by exacting releases from liability as an incident to employment. The cry of the French woman when she faced a dreadful crisis ill her life, “Oh, Liberty, Liberty, how many crimes are committed in thy name,” would likely serve a purpose in such event, as fairly descriptive of the result.

It is a golden rule of judicial exposition to discern what the common law was, what was the mischief and defect for which the common law did not provide, what remedy the statute appointed to cure the disease of the commonwealth and what was the reason of the remedy so provided. When these things are discerned by the judge, it is but trite and venerable doctrine that his office is to so construe the new statute as to suppress the mischief, advance the remedy and “to suppress subtle inventions and evasions for continuance of the mischief, .. and to add force and life to the cure and remedy according to the true intent of the makers of the act, pro bono 'publico.” [Heydon’s Case, 3 Coke, 7b.]

We hold section 4 of the Fellow-Servant Act (now section 5437, Revised Statutes 1909) is constitutional. Hence the contract set up in defendant’s answer is void.

It follows that the judgment must be and is affirmed.

All concur; Graves, J., in result; Valliant, J., not sitting.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    BAERVELDT CONSTRUCTION COMPANY, Appellant, v. NOBLE R. BAGLEY et al.
    Division One,
    November 30, 1910.
    1. APPELLATE JURISDICTION: Amount in Dispute: Sum Sued for With Interest. Where the petition is on a contract, express or implied, and the allegation is that the defendant is indebted to plaintiff in a certain sum, with interest from a certain date, and prays judgment for both, the Supreme Court has jurisdiction oyer the appeal, if the judgment is for defendant, and if the amount of the debt (principal and interest), at the date of the judgment, would be, according to plaintiff’s allegation, in excess of $7,500. In such case the interest demanded is a part of “the amount in dispute.”
    2. BUILDER'S CONTRACT: Breach: Delay in Work. The owner of the property does not commit a breach of the contract by making a demand, for delay in finishing the building, of twenty dollars a day, the amount named in the contract as liquidated damages for such delay, although the court, at the trial, does not, on a showing of justifiable cause for delay, allow that counterclaim.
    3. -: -: Withholding Deed to Other Property. And where the contractor agreed to furnish all the materials and labor and preserve the building from mechanics’ liens, but permitted same to be run, the owner did not commit a breach of the contract by withholding from defendant, till those liens were paid by the contractor, a deed to other property which the contractor had agreed to accept as part payment for the work.

      i. -:-:-: Promise to Pay Taxes. And where • the escrow deed to the other property, to be taken by the contractor in part payment for the building, relieved the owner of the obligation to pay the taxes, general and special, for the current year, was accepted by the contractor, and afterwards, before he signed the agreement to accept the property as part payment, he read it, objected to it, and the owner agreed to pay the taxes, the owner did not commit a breach of the contract by withholding the deed until the contractor paid the mechanics’ liens he had agreed to pay, where there is no evidence of any breach of the agreement to pay the taxes.
    5. -: -: -: Sold Under Mortgage. The contractor cannot complain that the property he agreed -to accept as part payment has been sold to a stranger under a mortgage which he assumed to pay.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Affirmed.

      Bernard Greensf elder for appellart.

      Jas. S. Sutherland, Richard A. Jones and David W. Voyles for respondent N. R. Bagley.
   VALLIANT, J.

Plaintiff, a corporation, sued in two counts to recover a balance claimed to be due it for labor and materials which entered into the construction of a certain building, under a contract with the defendant Bagley, and to establish a mechanic’s lien on the building: the first count was a declaration on quantum meruit, the second on the contract. The balance claimed in the petition is $7038.52 with interest from September 15, 1904, when it became due and demand was made. The suit was begun January 17, 1905; the judgment was rendered June 8, 1906. The cause was tried by the court, jury waived; the finding and judgment were for the defendants and the plaintiff appealed. It is unnecessary to set out the pleadings, as no point on that phase of the case is made, and the points in controversy will sufficiently appear from a statement of the facts. No instructions were ashed or given. The plaintiff filed its claim for a mechanic’s lien in due time and due form. There is but little, if any, dispute as to the principal facts in the ease.

The land on which the building was to be erected was owned by defendant Bagley. The contract price of the building, when completed according to specifications, was $28,913.75. The building was completed and delivered to Bagley, in all respects according to the contract, except that it was not completed within the time specified. It was specified that for every day of delay in the completion beyond the date named the contractor should pay twenty dollars as liquidated damages. At that rate there was delay enough to make the sum to be so paid amount to eighteen hundred dollars and the defendant Bagley in his answer claimed that amount as a counterclaim or off-set, but the evidence showed justifiable cause for the delay, therefore the court found against him on that item; the judgment to that extent was for the plaintiff, and no appeal was taken by defendant.

During.the progress of construction there was paid to the plaintiff sums aggregating $21,875.23, leaving a balance of $7038.32 to be settled. The contract required the plaintiff to pay for all the labor and materials employed and used by Mm in the building so as to protect it against mechanics’ liens, but he allowed bills.of that kind to accumulate to the amount of $3515.30 and liens for such bills to be filed. These bills defendant Bagley paid and was therefore entitled to recover that sum of plaintiff or deduct it from the balance due plaintiff, if there was such balance. Bagley set up a counterclaim for that sum.

At the time of entering into the building contract the parties made another agreement in writing whereby defendant Bagley was to convey to plaintiff, or to whom plaintiff might designate, certain real estate on Page Avenue in. the city which the plaintiff was to receive, at the agreed valuation of $6,800, in payment to that extent on the price of the building contract. A deed in due form was made by Bagley and wife to Johanna Baerveldt, the person for that purpose designated by the plaintiff, and was, by agreement of the parties, placed in the hands of the Maguire Real Estate Company to be delivered to the grantee when the plaintiff completed its contract.

By the terms of the second agreement it was specified: “that the consideration in said deed being $11,800, less an existmg deed of trust, for $5000 on said property, leaving an equity of $6800, which $6800 is accepted as a cash payment on contract,” etc. — the building contract above mentioned.

There is this difference between the recitals in the deed and those in the agreement, namely: in the deed it is specified that the property is conveyed with covenants of warranty of title “except as against taxes, special and general, for the year 1904, and a certain deed of trust on lots 19 to 23 inclusive to secure payment of five thousand dollars wMch the said party of the second part [Johanna Baerveldt] covenants and assumes to pay as a part of the consideration of this deed,” whereas in the agreement there is no mention of taxes. The deed had been drawn, signed and acknowledged before the execution of the agreement and Mr. Baerveldt testified that he objected to the mention of taxes therein, and that the written agreement, specifying only the five thousand dollar deed of trust to be assumed by the grantee, was so worded to comply with. his objection. Plaintiff offered in evidence a certificate of title from a title examiner which showed that certain taxes for the year 1904 were delinquent, but on objection by the defendants the offer was withdrawn, and the certificate was not afterwards introduced in-evidence, otherwise than it was attached as an exhibit to the plaintiff’s motion for a new trial.

After the building was completed the plaintiff demanded of the Maguire Real Estate Company the deed held by it in escrow, but that company refused to deliver it then because of the unpaid bills for labor and materials above mentioned, which bills Bagley after-wards paid. After that, how long after is not shown, the ■ Page avenue land described in the deed- held by the Maguire Real Estate Company, or that, part of it which was covered by the five thousand dollar deed of trust, was sold under foreclosure of the trust and the title passed to a stranger.

The court found that the contract price -of the building was $28,913.75, on which plaintiff ha,d been paid $21,875.23, leaving unpaid in cash $7038.52, against which plaintiff was chargeable with the agreed price of the land covered by the deed in escrow, $6800, leaving due him $238.52. That there was due the defendant Bagley $3515.30 for the bills for labor and material above mentioned less the $238.52, balance due plaintiff, leaving $3276,78.

The judgment was that plaintiff was not entitled to a mechanic’s lien, that he should recover nothing on the first count of his petition, that Bagley recover nothing on his counterclaim for delay, but that he recover of plaintiff on his counterclaim for labor and materials paid by him the sum of $3276.78 and have execution therefor and a lien for the same on the Page Avenue property described in the escrow, which lien should be prior to any title created by that deed; that the Maguire Real Estate Company deliver' to plaintiff or into court for plaintiff the deed so held in escrow and then stand discharged; that the other defendants be discharged, and plaintiff pay the costs of the suit. Prom that judgment the plaintiff brings this appeal.

I. Perhaps before entering upon a consideration of the merits it is well to notice the facts bearing on the question of the jurisdiction of this court of the cause.

It is an action at law, ex contractu. Plaintiff in its petition states that there is a balance due it on the account of $7038.52, that it demanded payment September 15., 1904, and the prayer is for judgment for $7038.52 and interest from that date. The petition was filed January 17, 1905; the amount of the balance claimed, with interest to that date, would be less than $7500, but on the day the judgment was rendered, June 8, 1906, if the-plaintiff had recovered what he was then claiming, it would, counting interest to that date, have been $7770:42. But the judgment was that the plaintiff recover nothing on that claim, and the plaintiff is here by appeal from that judgment, claiming now that it-should have had judgment then for $7038.52 plus interest from September 14, 1904, to June 8, 1906, that is, $7770.42. That is, therefore, “the amount in dispute,” and therefore this court has jurisdiction of the cause.

In considering this subject of jurisdiction, as depending on'the amount in controversy, we observe a distinction between an action in tort, where the amount of damages claimed in the petition does not bear interest before judgment, and an action of this kind, where the amount claimed arises out of a contract, express or implied, and where the petition states facts constituting a- right to recover not only the amount specified as principal but also interest.

Schwyhart v. Barrett, 223 Mo. 497, was a suit to recover damages for personal injuries, and it was there said, l. c. 501: “If a plaintiff brings suit for damages and states in his petition the amount for which he sues, if he is cast in his suit and! appeals, we go back to the petition and say that the amount there claimed is the amount in dispute. If the plaintiff should in such case recover judgment for a certain amount and the defendant appeals, the amount then in dispute is the amount of the judgment. The date of the dispute in the one case is that of the filing of the petition, in the other it is that of the rendition of the judgment, and in either case the amount in dispute is the amount for which the dispute could at that date have been settled. If not settled then and interest is added, it is added by operation of law, not as a part of the amount in dispute, but as a consequence of withholding it. Interest in such case is a mere incident', a mere sequence.”

We call attention to the distinction to be observed in this particular between a case where interest does not run on the amount demanded in the petition and a case where it does run, lest what is said in Schwyhart v. Barrett might be construed as applying to a case of the kind at bar.

2. Appellant contends that defendant Bagley committed a breach of the contract by claiming damages for the delay, which claim was found by the court to be unsound, and that he, having attempted to impose on the plaintiff a deed to the Page Avenue property excepting from the warranty of title the taxes general and special for the year 1904, thereby again committed a breach of the contract, and therefore had no right to insist on the plaintiff’s accepting the deed in part payment of the contract, and that because of those breaches plaintiff had the right to refuse to accept the deed and to demand payment in money of the balance due on the contract, and was justified in allowing those who had filed liens to prosecute their liens to judgments, and then when those claims were paid by Bagley, the latter could deduct the amount of thfe same from the amount due plaintiff and pay it the balance.

Defendant Bagley cannot be adjudged to have committed a breach of the contract by making a claim for damages for the delay in finishing the building, although his claim was not allowed by the court. If he thought he was’ entitled to the liquidated damages called for by the contract he had a right to assert the claim, and even if he did' not think he was so entitled he committed no act in relation thereto that was detrimental to the plaintiff; he did not withhold the deed to the Page avenue property from plaintiff because of this claim for damages, but it was ‘withheld because of the plaintiff’s refusal to pay off the liens that were filed. The plaintiff was in duty bound to pay off those liens and was not entitled' to the deed then held in escrow while those liens were standing against the building.

Nor did the plaintiff suffer any wrong because of the language of the deed requiring him to pay the taxes, general and special, for the year 1904. Mr. Baerveldt read the deed before he signed the agreement to accept it in payment of $6800 on his contract, and he knew its contents. He testified that he objected to that clause in the deed, and' would not agree to accept it "until Mr. Bagley assured him that he would pay the taxes, and on that assurance he agreed to accept the deed in that form; therefore, he cannot claim to have been deceived as to its contents; if he was injured it was by the failure of the defendant Bagley to do what it is alleged he agreed to do in the way of paying taxes, and, as to that, there was no evidence of any breach of that promise,’ because there was no proof that there were any taxes then delinquent. Plaintiff offered in evidence a certificate of a professional title examiner indicating that there were taxes delinquent on the property for the year 1904, but the evidence was so clearly incompetent that when objection was made it was withdrawn, and there was no other evidence on that point offered. It does not appear in the record that the plaintiff, before the parties assumed hostile attitudes towards each other or before this suit was brought, ever brought the subject of the alleged promise to pay the taxes to the notice of defendant Bagley or insisted that the taxes be paid. Besides, according to the plaintiff’s own showing, it demanded the deed of the Maguire Real Estate Company when the building was finished, well knowing then its contents, and was willing then to take it at the agreed price without making any point in regard to taxes. But at that time • the plaintiff was not entitled to the deed, because, although there was a balance of $7038.52 unpaid on the building contract, yet against that balance there was the aggregate sum of $3515.30 of the mechanics’ liens filed, which the plaintiff was leaving for defendant Bagley to pay, and which when paid would leave the balance due plaintiff only $3523.22, instead of $6800, the agreed price of the Page Avenue property. He was therefore at that time not entitled to the deed to the property. If since then the title to the property has passed to a stranger, it is because the plaintiff did not take care of the five thousand dollar deed of trust. which it was agreed the grantee in the deed should assume. If the grantee had paid the five thousand dollar mortgage, she would now, under the terms of the judgment appealed from, be entitled to the Page Avenue property, agreed to be worth $11,800, against which would stand the amount the plaintiff owes defendant Bagley, $3276.78.

The trial judge had the right conception of the right and justice of the cause. The judgment is affirmed.

All concur.


author: GRAVES, J.

text:
    BROWN & POUNDS, Appellant, v. SOUTH JOPLIN LEAD & ZINC MINING COMPANY.
    Division One,
    November 30, 1910.
    1. FINDING OF FACTS: Appellate Practice. In an action at law, a finding of facts by the court sitting as a jury, is, on appeal, binding on the appellate court. And that rule applies in an action for fraud and deceit, to a finding that, after plaintiff had knowledge of the falsity of defendant’s representation concerning the amount of pay ore and drifts in a mine, he entered into a new agreement, for a valid consideration, reducing the royalties and making other chan'ges in the lease.
    2. FRAUD AND DECEIT: Waiver: New Contract. So long as the party adheres to the original contract, things done under that contract and required by its terms, will not work a waiver of an action for fraud and deceit inducing the contract, even though they be done after a discovery of the fraud. But a party entitled to recover for fraud and deceit and having knowledge of the fraud and deceit in the original contract, who thereafter makes a new agreement respecting the subject-matter, thereby waives his right to recover damages for the fraud and deceit which induced the original contract
    Appeal from Jasper Circuit Court. — Hon. Howard Gray, Judge.
    Abbirmed.'

      J. W. McAntire for appellant.
    (1) The points surrounding this case hinge upon the declaration of law as given by the court, which is as follows: ‘ ‘ The court declares the law to be that if prior to entering into the new contract dated February 18,1901, changing the terms of said lease and reducing the royalty, the plaintiffs, or their superintendent, Strickler, had knowledge of the falsity of the alleged misrepresentations made by Pain, then plaintiffs waived the fraud and cannot recover.” The contract of February 18, 1901, was a proposition made b'y the defendant to the plaintiffs after plaintiffs’ mill had burned down and before they had sunk the shaft to the full depth, that until February 18,1901, plaintiffs made no ore whatever, and also shows that after February 18, 1901, they sunk the shaft to a depth of one hundred and eiglity-three feet and in running the drift northward, then it was that they ascertained the total falsity of Pain’s statements. There was in fact no reduction of royalty, but simply a change of the application of the royalty. So the honorable court was in error when he gave the declaration of law above referred to.
    (2) Batification prevents subsequent rescission, but on principle it should not waive the right of action for damages; and some authorities so hold on the ground that the action for deceit necessarily presumes that the contract is affirmed. Pag’e on Contracts, section 139; Wilson v. Nichols, 72 Conn. 173; Andrew v. Jackson, 168 Mass. 266; Jarrett v. Morton, 44 Mo. 275 -, Parker v. Marquis, 64 Mo. 38; Finley v. Bryson, 84 Mo. 669; Nauman v. Oberle, 90 Mo. 666; Campbell v. Huff, 129 Mo. 324; Lomax v. Eailroad, 106 Mo. App. 554; Shumabarger v. Shelton, 41 Mo. App. 155; Norman v. Harrington, 118 Mich. 623; Lennox v. Fuller, 39 Mich. 269; Mclntire v. Beuell, 132 N. T. 192; McLain v. Parker, 229 Mo. 68. We recognize the doctrine laid down in the case of Schmidt v. Mesmer, 116 Cal. 267, but claim that it is not applicable to the facts in this case. (3) The plaintiffs when they accepted the proposition made by defendant, must have done so with the intention of abandoning and relinquishing their right to sue for damages, in order to constitute a waiver of that right. Fulkerson v. Lynn, 64 Mo. App. 649 ; Saving (& Loan Assn. v. Trust Co., 73 Mo. App. 161; West v. Clapp, 127 Mass. 372. To make out a case of a waiver of a legal right there must be a fair, unequivocal and decisive act of the party showing such a purpose or acts amounting to an estoppel onJiis part. How can it be said that the mere fact that plaintiff agreed to build a new mill on the ground and purchase defendant’s tools and machinery and spend money to obtain enough ore to pay $1000 out of royalty, was either an intentional relinquishment of their right or an estoppel, when all expenses were paid by plaintiffs and nothing by defendant. Bank v. Maxwell, 126 Cal. 360'. (4) The plaintiffs, not having fully executed the contract, even though they subsequently performed the same with knowledge of the fraud, acquired subsequent to the- making and previous to the performance, will not be barred from their remedy for the recovery of damages. Parker v. Marquise, 64 Mo. 38; Nauman v. Oberle, 90 Mo. 666; Campbell v. Huff, 129' Mo. 324. The mere fact that plaintiffs accepted defendant’s proposition as shown on the records, that is, the contract referred to by the court as the new agreement of February 18, 1901, was not a waiver of plaintiffs right of action for damages for misrepresentation and fraud. Cottrill v. Krum, 100 Mo. 397. The statements offered in evidence and found by the court to exist, that is, the alleged false- and fraudulent representations made by Pain as to the ground north of the new shaft and the proximity of the old drift in said- new shaft, were found by the court to be false and. in such case we- are entitled to recover damages. Kendrick v. Ryus, 225' Mo. 150; Tooker v. Alston, 159 Fed. 599; Farquhar v. Farquhar, 80 N. E. 654. The plaintiffs by accepting the proposition of February 18, 1901, did not waive their right to recover damages as decided b-y the- court, and declaration of law given by him on behalf of defendant was error. McLain v. Parker, 229 Mo. 68; Parker v. Marquise, 64 Mo. 38; Nauman v. Oberle, 90 Mo. 666; Gilchrist -v. Mannering, 54 Mich. 210; Hayman v. Neal, 43 Minn. 315-; Pryor v. Foster, 1 N. Y. Supp. 774; New York Land Imp. Oo. v. Chapman, 118 N. Y. 288; Mallory v. Leach, 35 Vt. 156; Sell v. Logging Oo., 88 Wis. 581; Brown v. Morrill, 105 N. Y. Supp. 191; Whitney v. Allaire-, 1 N. Y. 305; Shagun v. Mfg. Co., 162 Fed. 225.

      Spencer, Grayston & Spencer and Meredith & Harwood for respondent.
    (1) The plaintiffs, after a full knowledge of the alleged misrepresentations on which this action is based, having entered into a new contract with the defendant by which they were given further time for building the mill and a reduction of the royalty, and otherwise changing in their favor the terms of the lease, thereby confirmed and ratified the then existing lease, and such act on the part of the plaintiffs was in law a waiver of their right of action on account of the alleged fraud. 14 Am. and Eng. Ency. Law, (2 Ed.), 171; Harms v. Woolf, 114 Mo. App. 387; Simon v. Shoe Co., 105 Fed. 580; Negly v. Lindsay, 67 Pa. St. 217; Peoples v. Stephens, 71 N. Y. 527; Bigelow on Fraud, 184; Love v. Oldham, 22 Ind. 51; Nounnan v. Land Co., 81 Cal. 1; Schmidt v. Messer, 116 Cal. 267; St. John v. Hendrickson, 81 Ind. 350; Cooley on Torts, 505; Doherty v. Bell, 55 Ind. 205; Hatcher v. Hatcher, 139 Mo. 626; Taylor v. Short, 107 Mo. 394; Louis v. Land Go., 124 Mo. 687; Burnham v. Smith, 82 Mo. App. 49; Roark-v. Trust Co., 130 Mo. App. 401; Kingman v. Stoddard, 85 Fed. 740; Hayward v. Bank, 96 U. S. 618; Richardson v. Lowe, 149 Fed. 625; Shagun v. Mfg. Co., 162 Fed. 209; Pomeroy’s Equity Jurisprudence; sec. 897. (2) In the former trial of this case by the Supreme Court, reported in Brown v. South Joplin Lead & Zinc Mining Co., 194 Mo. 68-1, the court reviewed the evidence and decided as a matter of law that if the facts disclosed upon the retrial of the case were the same as indicated in the record before the court on the first appeal, the plaintiffs could not recover and the trial court should so direct the jury. The burden is upon the plaintiffs on the second appeal by them, to show affirmatively that the evidence on the second trial of the case was substantially different from that before the Supreme Court on the first appeal, otherwise the matter is res adjudicata- on the second appeal, and the Supreme Court on the second appeal by the plaintiffs, where judgment has been rendered against the plaintiffs and in favor of the defendant by the trial court, will affirm the judgment of the trial court on the ground that the judgment is for the right party, regardless of any possible error on the part of the trial court in giving an instruction. Stern v. Foltz, 152 Mo. '559; Lower v. Coal Co., 126 S. W. 987; State v.. Buck, 130 Mo. 480; O’Donnell v. Patton, 117 Mo. 13.
   GRAVES, J.

This is the second appearance of this cause in this court. "When first here it appears that the plaintiffs had obtained a verdict for something over fourteen thousand dollars, which verdict the trial court set aside for reasons assigned, and the plaintiffs appealed. [Brown v. Lead & Zinc Mining Co., 194 Mo. 681.] Upon that appeal, Fox, J., by opinion eliminated much of plaintiff’s case. The action is one for fraud and deceit in the execution of a certain mining lease,' the pleadings' being fully analyzed in the former opinion. When the case was remanded by this court the defendant amended its answer, and pleaded that after the execution of the lease pleaded and after plaintiff knew of the facts, they entered into a new and subsequent contract, by which the original lease was ratified and modified, and that by so entering into the new agreement plaintiffs waived and lost all the rights to sue for and recover any damages by reason of the alleged fraud and deceit. The trial court found that such subsequent contract had been made and that by reason thereof plaintiffs were precluded from recovering. In this regard the case is different from that of the former appeal, otherwise it remains very largely the same. For a fuller statement the former opiniop, 194 Mo. 681, should be read with this. We shall take the question of this subsequent contract and its effect first, and then if necessary discuss other questions.

I. The case was tried before the court, and upon motion of the defendant certain finding of facts were made. This was done by the defendant presenting a number of findings of fact and asking the court to give or refuse the same as is done with instructions. Instructions were also presented for the action of the court. The court among other findings of fact gave and made the following two, which are important upon the issue now under.discussion:

“The court sitting as a jury finds the following facts: That the only ground of recovery on which plaintiffs offered any evidence was the alleged false and fraudulent representations made by Henry B. Pain as to the new shaft on lot 9 being on solid ground and as to the proximity and direction of the old drifts in reference to said new shaft.
“The court sitting as a jury finds the following facts: That on February 18, 1901, plaintiffs entered into a new contract in writing with defendant company for a valid consideration, reducing its amount of the royalty and making other changes in the lease, and at that time plaintiffs had knowledge of the falsity of the alleged misrepresentations made by Pain on which this action is based.
“The court sitting as a jury finds the following facts: That in sinking the new shaft the plaintiff struck at a depth of about one hundred and forty-six feet a small prospect drift leading into a large drift, referred to in the plaintiffs ’ petition, and the plaintiffs had the prospect drift cleaned out, and had knowledge of facts showing the falsity of Pain’s misrepresentation's, upon which this action is based, and up to that time the plaintiffs had expended the sum of $3476.”

These findings become important because the evidenee upon which they were made is not before us, although the plaintiff seems to have excepted to the findings. The abstract simply says what the evidence tends to show upon both sides. This is an action at law.and we are bound by these findings. [Snuffer v. Karr, 197 Mo. l. c. 188, and oases therein cited.]

The finding of facts, to which we must bow, is to the effect that there was a new agreement made after the plaintiffs were fully possessed of the facts. This new agreement was to the advantage of tho plaintiffs as the record runs. Under such circumstances the trial court did not err in holding that plaintiffs had waived their action for fraud and deceit under the original contract. In cases of fraud and deceit the party has two remedies. First, he may rescind the contract, or, secondly, he may fully perform the contract, and sue for damages resulting from the fraud and deceit. Nor does it appear that there can be' a waiver of damages for the fraud and deceit, so long as the party adheres to the original contract. He is not compelled to abandon his original contract upon the discovery of fraud, but may go on in the fulfillment thereof and rely upon his action for fraud and deceit. Such would seem to be the doctrine of the cases relied upon by the plaintiffs of which the following are samples: [Norman v. Harrington, 118 Mich. 623; Haven v. Neal, 43 Minn. 315; Sell v. Logging Co., 88 Wis. 581; Wilson v. Nichols, 72 Conn. 173.]

But whilst this is true, yet where a party entitled to recover for fraud and deceit has knowledge of the fraud and deceit in the original contract and thereafter makes a new agreement, the case law seems to preclude a recovery for the fraud and deceit tincturing the original contract. The making of a new agreement touching the subject of contract has been denominated as an exception to the rule that the. affirmance’ and further prosecution of a contract tinctured with fraud and deceit do not bar a recovery.

In 14 Am. and Eng. Ency. Law (2 Ed.), p. 171, this idea of an exception is thus expressed: ‘ ‘ The rule that affirmance of a contract with knowledge of fraud does not bar an action for damages is subject to the limitations that the party defrauded must stand towards the other party at arm’s length, must comply with • the terms of the contract on his part, must not ask favors of the other party or offer to perform the contract on conditions which he has no right to exact, and must not make any new agreement or engagement respecting it. If he does so he waives the fraud. ’ ’

In 1 Page on Contracts, sec. 139, it is said: ‘ ‘ Since fraud in the inducement makes a contract voidable, . . . the party defrauded may make the contract valid by electing, with full knowledge of the facts, to treat it as valid. Thus, a promise to pay the purchase-money, making a partial payment thereon, the payment of interest thereon, an assignment of a mortgage, the obtaining of an extension of time, renewing a note, or making payments thereon, making a new contract, or receiving money under the contract, or leasing the property bought through fraud, or remaining in possession and making improvements, or taking security for performance, or treating as his own property received under the contract, or other performance of an executory contract, or bringing suit on the contract, are all acts which amount to a ratification if done after-discovery of the fraud and with full knowledge thereof.” The italics in the foregoing are ours.

The California court has very concisely thus stated the doctrine in the case of Schmidt v. Mesmer, 116 Cal. l. c. 270: “It is no doubt the law, that while where a party seeks to rescind a contract into which he was induced to go by the fraudulent representations of' another party, he must rescind at once upon the discovery of the fraud, and restore the other party,, as near as may be, to his former condition, yet he may elect to go on with the contract and sue to recover-damages for the deceit, -without giving any warning to the other party that he intends at some future time to charge him with fraud. This rule, when applied to a continuous contract which runs through a series of years, sometimes, no doubt, works an injustice to the party charged with fraud. It is true that one actually guilty of fraud is not entitled to much consideration. But the real difficulty usually is to determine whether or not the alleged fraud actually existed, and the issue has generally to be determined upon conflicting testimony, and in accordance with the preponderance of evidence. In such a case it is evident that the party who keeps his intended charge of fraud secret for years has a great advantage in preparing for a future intended action, which he alone anticipates, over his adversary, who has had no intimation of such action or such charge of fraud, and has had no reason to preserve or discover evidence concerning it. But this rule, which relieves a. party when he chooses to sue for damages from any of the acts required of him when he elects to rescind, is subject to some just limitations. If, after his knoivledge of what he claims to have been the fraud, he elects not to rescind, but to adopt the contract and sue for damages, he must stand toward the other party at arm’s length; he must on his part comply with the terms of the contract; he must not ask favors of the other party, or offer to perform the contract on conditions which he has no right to exact, and mu^t not make any new agreement or engagement respecting it; otherwise he waives the alleged fraud.’’ Again the italics are ours.

In this Schmidt case is a resume of the case law upon the subject. We do not find it questioned except in the dissenting opinion of Sanborn, J., in the case of Schagun v. Scott Mfg. Co., 162 Fed. l. c. 224-5. The principal opinion in that case by Philips, J., accords with the California court. In Taylor v. Short, 107 Mo. 384, is found in effect a recognition of the doctrine. That case was to rescind a contract rather than for damages for fraud and deceit, yet many expressions used by Sherwood, J., accord with the views above expressed.

In fact, plaintiffs ’ counsel do not in their brief dispute the well founded doctrine of the California case, supra, but urge that this case does not fall within the rule. We are of the opinion that it does, and if so there is no error in the trial of this cause. As to whether it does so fall within this rule we discuss in the next paragraph.

II. As indicated above the case law is to the effect that so long as the party adheres to the original contract, things done under that contract and required by its terms will not work a waiver of an action for fraud and deceit, even though such things be done after a discovery of the fraud. To illustrate, if by the original contract partial payments are to be made, such payments, being under the contract, do not waive an action for damages for fraud and deceit, although such payments are made after the discovery of the fraud. It must be borne in mind that the party defrauded has two remedies, i. e., (1) an action to rescind, which should be brought upon discovery of the fraud, and (2) action for fraud and deceit, which action is on the theory that the injured party will comply with the contract induced by the fraud, but will ask damages occasioned by the fraud. In the latter ease he does not have to act upon the first discovery of the fraud. He has a right to go on with his contract and fulfill it to the letter, and hold whatever property he got under the contract, and then thereafter bring his action for the damages occasioned by the fraud and deceit of his adversary. [Cottrill v. Krum, 100 Mo. l. c. 405 and 406.] Many eases might be cited. An action for fraud and deceit contemplates that the party adheres to his original contract with its burden and benefits, and that he can hold the property acquired and yet have damages for the injury done him by the fraud and deceit practiced upon him in the procurement of the contract. He can even recover in such action for the benefits of the bargain. [Kendrick v. Ryus, 225 Mo. 150.] All, however, upon the theory that he adheres to the contract.

The rule, however, is different, as we have seen, when he, after knowledge of the fraud, enters into new contract.

Plaintiffs urge, however, that the court found that they had expended $3476 before they discovered the fraud, and this they claim takes the case out of the rule as to waiver.

We are not impressed with this contention. This doctrine of waiving the right to sue for fraud and deceit .by. entering into a new agreement concerning the same subject-matter, may well be sustained on the theory that all such questions were considered by the parties in making the new agreement. If at the time the parties entered into the: new agreement the facts as to the fraud and deceit were known, it is to be presumed that both parties acted with that question In view, and the new agreement was the wiping out of all old scores. Such seems to be the case law, and it is reasonable. Considering the facts found, there was no error upon the part of the trial court,and its judgment is affirmed.

All concur.