text:
    I. B. BAKER v. J. W. McMURRY CONTRACTING COMPANY, Plaintiff in Error.
    Division Two,
    June 4, 1920.
    1.CONTRACT: Time for Performance: Evidence. A contract is to be measured by its terms; and in the absence of ambiguity, evidence of preliminary conversations and negotitations is not admissible; and this rule makes inadmissible testimony that the work was to be completed within four months, a condition omitted from the contract.
    2. -: -: Acquiescence in Extension. Where the time in which the work was to be performed was subsequently extended by agreement between the contractor and sub-contractor, and was acquiesced in by the railroad company, it cannot be maintained that the contractor suffered injury by reason of the failure of the sub-contractor to complete the work within the time specified in the contract between the railroad company and the contractor.
    3. -: -: Independent Contractor: Insolvency of Railroad. Where a contractor has a contract with a railroad company for the construction of certain bridges, and sub-lets it to another, who has no contractual relation with the company, such other, though designated a sub-contractor, is in law an independent contractor, and his right to recover for the work performed is not dependent upon the performance by the railroad company of its contract with the contractor; nor is his right to recover impaired by the fact that the railroad company’s insolvency did not occur until after the time limited in its contract with the contractor for the performance of the work had expired, although at the end of the time mentioned the railroad was paying its debts.
    4. -: -: -: Construed According To Terms. The contract with the independent contractor, to whom the contractor sub-let the work of building railroad bridges, being unambiguous, should be construed according to its own terms, and the contractor cannot escape liability thereunder because of the failure of the railroad company to comply with its contract with him.
    5. EXCLUSION OF TESTIMONY: Subsequently Admitted. Appellant cannot complain of the action of the court in excluding certain evidence if the record discloses that it was subsequently admitted.
    6. INTEREST: Rule for Calculation: Partial Payments. Interest is first to be calculated on an open demand up to the first partial payment, then interest is to be added to the principal and the payment deducted, then interest is to be computed on the remainder to the second payment and added to said remainder, and then the second payment is to be deducted, and so on until the last partial payment, unless, in any case, the interest up to any partial payment exceeds the payment, in which case, the payment is to.be deducted from the interest, and the excess of the interest is to be carried forward, without casting interest thereon, to the next payment that will discharge the excess.
    7. —:-: Wrong Calculation. If by the method of calculating interest a less amount is awarded to plaintiff by the verdict than he was entitled to according to the rule of calculating interest, defendant cannot complain.
    8. CUSTOM: Instruction. An objection to plaintiff’s instruction referring to a general custom; framed to meet defendant’s contention in regard thereto and being the converse of defendant’s, is without merit.
    9. -: Necessary- Evidence. A custom to be binding must be shown to be certain, uniform, general and of long existence. It cannot be established by knowledge confined largely to transactions in which the witness’s company had been interested, who is contradicted by the other party. In such case an instruction basing a defense on the custom should not be given, because of insufficient evidence to support it.
    10. *-: -: Construction Contract: Payment by Railroad. Defendant had a contract with a railroad company for the construction of bridges, and sub-let a part of the work to plaintiff, and pleads as a defense that it was a well understood and established custom that the sub-contractor was not be paid for his work until the contractor was paid hy the railroad company, and that, though such custom was not made a part of the contract, it was well understood by him and plaintiff to be a part thereof. Held,, that the evidence wholly fails, to establish such custom, and defendant cannot escape payment on the ground that the railroad company soon became insolvent and he has been unable to collect from it the money it owes him for the work.
    11. DEBT: Insolvency of Railroad. Where the contract between the contractor and the independent contractor, to whom the work of building railroad bridges had been sub-let by a contract which in no wise referred to insolvency or receivership of the railroad, and the work was completed two months before the receiver was appointed, an instruction telling the jury that the independent contractor, in his suit against the contractor for the balance due him, cannot be charged with any loss which the defendant contractor suffered because of the insolvency or receivership of the railroad company, Is proper.

      12. BREACH OF CONTRACT: Recoverable Damages. Damages for breach of contract are only those which are incidental to and directly caused by its breach and may reasonably be supposed to have entered into the contemplation of the parties, and not speculative profits or accidental or consequential losses or the loss' of a fancied good bargain.
    13. -: -: Unreasonable Delay. Where the insolvency of the railroad company was not anticipated at the time the work' of building railroad bridges was sub-let by the defendant contractor to plaintiff, their contract did not mention the time in which the work was to be completed, and plaintiff did not know that pie contract between the company and defendant required the work to be completed within four months, defendant cannot defeat plaintiff’s demand ,by a showing that if the work had been completed sooner he could have collected the money due him for the work before the railroad company went into the hands of receivers; and especially should such be the ruling where there was no unreasonable delay in completing the work, and it was completed two months before the receiver was appointed. , . .
    14. INSTRUCTION: Or for As: Typographical Error. The use of the word “or” for “as” in an instruction, in such context as .to ;be readily seen to be a typographical error,' is not misleading. •' ¡
    15. -: Assumption of Fact. Where it was admitted throughout the trial.that a certain sum is.due plaintiff, unless because of a defense pleaded no amount at all is due, and said defense is .propeply disallowed, it is not error to instruct the jury when the amount became due.
    16. REBATES: Railroad Builders’ Contract. . A contract with a railroad company whereby the company1 agrees to refund to the contractor money paid by him for materials and machinery shipped for use in the construction and for the transportation of laboférs is not unenforceable, but such rebates are a part of-' the 1 contract price. ; ■' . >
    17. ACCOUNT: Demand of Payment. To make' a demand of payment it is not necessary to use the word “demand” or other formal words of like import. Any intimation to the 'debtor that payment is desired'satisfies the statute and entitles the creditor to interest on his account.
    Appeal from-'Jackson Circuit Courts — flow. O. '-A'. Lucas, Judge.;. ■ ".’V
    Affirmed,

      Cooper, Neel S Wright for plaintiff in error.
    (1) Plaintiff’s given Instruction 2 is erroneous, (a) It authorizes a finding for the plaintiff, and yet it does not cover the defendant’s defenses of waiver and estoppel, both of which were set up in defendant’s answer and borne out by the testimony. Hall v. Coal Co., 260 Mo. 367; Thornton v. Mersereau, 168 Mo. App. 9; Beggs v. Shelton, 173 Mo. App. 131. (b) It directs the jury that if they find for the plaintiff and that a certain amount is due, to-wit, $11,835.73, they will add thereto “interest to this date at the rate of 6 per cent pér annum from the 26th day of June, 1913, less a credit in the interest of $710.21,” etc. There was no testimony of any demand made by the plaintiff from the defendant for payment on June 26, 1913, or theretofore, (c) It directs the jury to credit the payment of $710.21 made on June 26, 1916, “in the interest.” This payment was not a payment on interest at all, but it was a payment of the sub-contractor’s portion on one of his estimates made by the railroad company and which was turned over to the plaintiff by the defendant as soon as received from the railroad company, which was applied on the principal sum, under the contract, and, of course, if so applied would make a difference on the amount claimed by the plaintiff, making the total amount claimed by him less than if the credit was made on the alleged interest, (d) This instruction is further erroneous in the last line thereof' where it refers to the custom pleaded by the defendant and testified to by the witnesses. The instruction tells the jury that its general custom would only be a defense- in case said custom was general “and that the parties contracted with the same in view.” If there was a general custom in this same kind of business between these parties (and the evidence shows that there was and that it had been generally observed over a period of seventeen years, in their doing business together), as to when the sub-contractor’s pay became due, there being nothing in the contract as to when the sub-contractor should receive pay on his estimates, then this general custom as to when he should receive' his pay ■would govern whether the parties had it in view at the time or not. (2) Plaintiff’s given Instruction 3 is erroneous. (a) It is erroneous because it is not based on the evidence. Defendant sought to prove the receivership of the railroad company and was denied the right to do so by objection of plaintiff’s counsel, (b) The instruction is erroneous because it is abstract, (c) It is erroneous because it is a comment on the evidence and evidence that was excluded, (d) It is erroneous because it is a positive direction to the jury that the question of receivership of a railroad and the delay of the ■plaintiff in doing the work “did not constitute a'matter in contemplation of the parties plaintiff and defendant.” The instruction does not leave it to the jury to fínd whether or not it was in the contemplation of the parties plaintiff or defendant, but was a positive direction to them as to what was in the contemplation of the parties at the time. (3) Error was committed in the giving of plaintiff’s Instruction 4. This instruction is erroneous because it is too broad. It takes in the whole world. It does not limit the custom in the locality in which the Avork was done or to any locality. Under this instruction the jury was told that the custom had to be found by them to be general without limitation as to any locality or country. This was error. 12 Cyc. 1040. (4) The court erred in refusing defendant’s Instruction 3 in the nature of a demurrer to the evidence, (a) It should have been given because on the face of it and under the testimony the alleged contract is unenforceable for. the reason that it provides that a rebate from the railroad company shall be procured both on freight charges and on railroad fares. Plaintiff admitted he received the refund. This Avas an unlawful act. Foster Lumber Co. v. Ry. Co., 270 Mo. 643. This being an unlawful act, the entire contract is tainted and is void, hence the demurrer to the evidence should have been sustained. (b) There was no testimony of ally demand of payment. (c) Because the plaintiff conceded in his evidence the custom pleaded by the defendant that his money was not due from the defendant until paid by the railroad eompany, and, therefore, the suit' was prematurely brought, (d) Furthermore, under the admissions of the plaintiff he waives any payment due him until his estimates had been paid by the railroad company, and under his admissions he was estopped from asserting his claim against defendant at the time of bringing this suit. (5) The court erred in refusing to give defendant’s Instruction 8. It presented the defense set up by the defendant that if the plaintiff had acquiesced, either specifically or by his course of dealing, acts and conduct, in looking to the railroad company for any monéy due him on the contract sued on and not to press a claim against the de - fendant until the defendant had collected from the railroad company, then their verdict would be for the defendant. This proposition was covered by the pleadings and the testimony and should have been given. (6) The court erred in not sustaining the motion for a new trial because the verdict of the jury was contrary to the evi • dence introduced in the case and is against the greater weight of the evidence : (a) The plaintiff admitted the custom pleaded in defense of this case, (b) The president of the defendant, testified as to this custom, (c) The course of dealing of the parties all along showed that they complied with this custom, (d) The plaintiff never made any effort to get his money from the defendant, knowing that it had not been paid by the railroad company, until after the railroad company went into the hands of a receiver' and until after legal prbceedings in an effort to get an equitable lien established against the railroad company prior to the bondholders had failed.

      Haff, Meservey, German é Michaels for defendant in error.
    (1) There was no error in plaintiff’s given Instruction 2. Rinev v. Hill, 14 Mo. 590'; Sutton v. Libby, 201 S. W. 618; Berclid Realty Co. v. Obear, 191 S. W. ..1070; Allen v. Forschler, 189 S. W. 636; Railroad v. -Second St. Imp. Co., 256 Mo. 406. (2) There was no error in plaintiff’s given Instruction 3. Implement Co. v. Machine Co., 268 Mo. 371; Friend v. Miller, 67 Cal. 464, 8 Pac. 40; Turner v.. Gibbs, 50 Mo. 556; Schaeffer Mfg. Co. v. Natl. F. E. Co., 148 Fed. 159; Lefkowitz v. Bank, 152 Ala. 521; Bridge Co. v. Stewart, 134 Mo. App. 618; Fisher v. Edgefield, 62 S. W. (Tenn.) 27. (3) There was no error in plaintiff’s given Instruction 4. Kearse v. Seyb, 209 S. W. 635; Staroske v. Publishing Co., 235 Mo. 67; Manzke v. Goldenberg, 149 Mo. App. 12. .(4) The court did not err in giving plaintiff’s Instruction 6. Breen v. United Rys. Co., 204 5. W. 523; Powell v. Railroad, 255 Mo. 453. (5) 'The court did not err in refusing to give defendant’s Instruction 3. Conference Rulings, Interstate Commerce Comm., Bulletin No. 7, issued August 17, 1917, p. 57; Howell v. Jacks, 262 Mo. 403; Ice Co. v. Kuhlman, 238 Mo. 705 ; Railroad v. Iron Works Co., 117 Mo. App. .167. (6) Under the evidence plaintiff was entitled to a directed verdict. Porterfield v. Am. Surety Co., 210 S. W. 119; Garrett v. Limes, 209 S. W. 295; Wolff v. Campbell, 110 Mo. Í14; Kimball v. Brawner, 47 Mo. 399; Kelley v. Meyer, 74 Mo. App.. 330; Planters Oil Co. v. Gresham, 202 S. W. 148; State ex rel. v. Pub. Serv. Com., 269 Mo. 75; Greenleaf on Evidence, sec. 277; Mfg. Co. v. Jaeger, 81 Mo. App. 242; Meeker v. Klemm, 11 La. Ann. 104; Godkin v. Monahan, 83 Fed. 116; 2 Elliott on Contracts, secs. 1679 and 1620; Trustees v. Hoffman, 95 Mo. App. 488; Montgomery v. Schwald, 177 Mo. App. 83; Williams v. Ry., 85 Mo. App. 108; Smith v. Kemp, 92 Mich. 357; Stein v. Fogarty, 4 Idaho, 702, 43 Pac. 681; Conner v. Clark, 12 Cal. 168; Gorrell v. Ins. Co., 63 Fed. 371; Burke v. Miller, 187 S. W. 141; Mumford v. Tolman, 157 111. 258; Stull v. Thompson, 154 Pa. St. 43; Beherel v. Myers, 240 Mo. 58; Sunderland. v. Mfg. Co., 192 Mo. App. 287; Cameron Coal Co. v. Block, 110 Pac. (Okla.) 720.
   WALKER, C. J.

This is a suit on a contract for construction work on, a railroad instituted in the Circuit Court of Jackson County by Baker against the McMurry Contracting Company. Upon a trial at the May term, 1917, of said court a judgment was rendered in favor of the plaintiff. Under a writ of error the defendant seeks a review of this judgment.

The contract upon which this action is based was in the form of a letter addressed by the defendant to the plaintiff and accepted by the latter.' The subject-matter of this contract is as follows:

“Agreeable with our conversation this morning, we herewith make you the following proposition on work to be done on the N. O. T. & M. R. R. east of Houston, Texas. Repairing pier No. 2 at the San Jacinto River bridge, building piers and abutments at Barnes Creek, Cowpen Creek, Hickory Creek and Anchorage, La., at the following unit prices:

(Omitted as not in issue.)

“It is understood that you are to furnish all material and all labor necessary to complete this work, and that the railroad company will refund freight charges and railroad fares.paid on laborers on the N. 0. T. & M. R. R. It is understood that they will also pay for extra labor performed at San Jacinto River; such as removing old cofferdam, and preparing the pier and footing' courses for new concrete, at cost plus 10 per cent. It is further understood that we are to furnish two hoisting engines, two derricks, complete with wire rigging,- one concrete mixer, one centrifugal pump, one force pump, pile driver hammer, and one stationary 30-horse-power boiler free of charge to you, except that you are to pay the freight on this plant from Van Burén, Ark., to Quincy or Beaumont, which are the connections with the N. O. T. & M. R. R. All of the above described work to be done under the direction and according to the plans furnished by the chief engineer of the N. 0. T. & M. R. R. Co.”

The material averments necessary to charge a liability on this contract are embodied in the petition, concerning the sufficiency of which there is no controversy. The material averments of the answer are as follows:

That the railroad company under which defendant was a general contractor, and plaintiff a sub-contractor under defendant, had become insolvent; that under the laws of Louisiana, where the work was being done, there could be no statutory lien for the. work done; that defendant had taken all possible steps to establish an equitable lien, but unsuccessfully; that the plaintiff had joined defendant-in these efforts; that a general custom existed and was in force in the railroad contracting business, in which both the parties were engaged, and of which both had notice and knowledge at the time of the making of any contracts, that if, by reason of insolvency or otherwise, the railroad company delayed or was unable, in whole or in part, to pay promptly for work and labor done and materials furnished by a sub-contractor, the claim of the sub-contractor would not be enforced against the original contractor and did not become due and payable unless and until the railroad company paid therefor, and that the sub-contractor must and does look to the railroad company for payment direct or through the original contractor; that the plaintiff, by his course of dealing, acts and conduct, waived payment of any amount coming to him until and unless same was collected from the railroad company, and that he is estopped from collecting any amount from defendant unless and until same is collected from said company; that the work in question was done under an original contract between the defendant in the case at bar and the railroad company, which provided that the work must be completed by December 3, 1912; that plaintiff had full notice and knowledge thereof and that the contract with him was entered into subject to such requirement; that the plaintiff delayed the work in violation of his contract for a long time, to-wit, five months, and that all work so paid for mentioned in the petition was done after the date said work should have been completed, and that if plaintiff had promptly performed his contract payment therefor would have been made by the railroad company, as it was then operating the property and supplied the funds to pay therefor, and that plaintiff’s delay and breach prevented the payment for the work, resulting in great damage to the defendant.”

Plaintiff’s reply was a general denial.

The testimony for the plaintiff was that he had performed the work required by the contract and that there ■y^as due him therefor $11,125.54.

McMurry, defendant’s president, testified that he went over the work with plaintiff and that the. latter reported to him that it could be completed in about four months; that McMurry on behalf of the defendant company then entered into a contract to perform the work with the railroad company within the time stated by plaintiff, and sub-let the same to the plaintiff as per the contract heretofore set forth.

The defendant then offered to prove, and the court excluded the testimony, that the railroad company went into the hands of a receiver and that up to that time it paid its estimates for the work promptly. Defendant’s president further testified that there was a custom in railroad construction work that when it was done by a sub-contractor he was not paid therefor until his estimates were received by the railroad company and payment had been made by it to the general contractor; that if for any reason a railroad company delays or does not pay the general contractor on the subcontractor’s estimates the money for the work performed is not due the latter until the railroad company has paid the general contractor; that this custom existed at the time the work was done and was acquiesced in by the parties; that the plaintiff had performed subcontractor work for the president of the defendant company for many years prior thereto and that this method of payment had prevailed during that time. Defendant further offered to show, and the testimony was excluded, that on each payment by the railroad company on the estimates of the sub-contractor the full amount, less the difference in the general and the sub-contractor’s price, was paid over to the plaintiff.

On cross-examination defendant’s president testified that the custom he had referred to applied where the railroad work was done under an agreement, and that this particular work was an isolated case, and that as the plaintiff was on the ground he assumed all the risk of the work.

Plaintiff in rebuttal' denied that there was any sucb custom as had been testified to by.the defendant’s president. As to the general course of dealing between these parties it was testified to by the plaintiff, as it had been by the defendant’s president, that the question as to the right to the sub-contractor’s payments being deferred until the railroad company had settled with, the general contractor had never come up between them; that for about seventeen years plaintiff had been contracting with the defendant and had been paid promptly at the time of the delivery of the monthly estimates with one exception, in which the payment had been made to him before the estimate came in. There was introduced in evidence a' letter written by the defendant to the plaintiff during the progress of this work, the substance of which is as follows: “We have not yet received voucher from the railroad company covering the February estimate, but i P you are in need of funds to pay local bills when you have finished work at Barnes Creek, please let us know and will mail you a check.”

There was no evidence tending to prove an estoppel or waiver on the part of the plaintiff. His having waited three years before bringing suit was explained by the fact that he was closely related to the president of the defendant company and that his delay was due to social and not business reasons. But there was no evidence of any agreement on the part of the plaintiff that he would wait at any time for Ms money; nor was it shown that the defendant was in any way induced to change its position or that it was injuriously affected by reáson of the delay. There was sufficient testimony to satisfy the conclusion that the delay occasioned in the performance of the work was not due to the plaintiff, nor was there any evidence of complaint on the part of the railroad company on this account. Upon this testimony the jury returned a verdict for plaintiff in the sum of $13,795.6 the amount of plaintiff’s claim and interest.

est ony. I. The ruling of the trial court was assigned as error in excluding the testimony offered by the defendant to show that before the written contract was entered into plaintiff went down and examined the work; †]^ affer pe examined it he reported to the president of the defendant company that it would take approximately four months to perform it; that relying upon this information the defendant specified in its contract with the railroad company the time suggested by the plaintiff, but omitted this limitation from its contract with the latter. The statement of the plaintiff prior to the execution of the contract as to the time required to complete the work can be considered as nothing more than an expression of opinion. It is elementary that the contract is to be measured by its terms. [Robinson v. Korns, 250 Mo. 663; Feren v. Epperson Inv. Co., 196 S. W. 435; Beheret v. Myers, 240 Mo. 58.] In the absence of ambiguity, evidence of preliminary conversations and negotiations are not admissible. [Griffin v. Miller, 188 Mo. 327; New York Life Insurance Co. v. Wolfson, 124 Mo. App. 286.] If plaintiff’s statement as to the time of performance had been other than an expression of opinion it would have been superseded by the written instru • ment, which is subject to the rule as to a reasonable time rather than a specified period. [McCall v. Atchley, 256 Mo. 39; Tuggles v. Callison, 143 Mo. l. c. 536; Chunn v. O’Neil Lumber Co., 175 Mo. App. 641.] The foregoing rules of construction apply to the contract entered into between tbe plaintiff and the defendant. If it be contended that the contract between the railroad company and the defendant limits the time within which the contract between the plaintiff and the defendant was to be performed, then it will be sufficient to say that the extended time of performance subsequently agreed to by plaintiff and defendant was acquiesced in by the railroad company. It cannot be maintained, therefore, that the defendant suffered any injury by reason of the failure of the plaintiff to complete the work within the ti unspecified with the railroad company and hence there exists no just ground of complaint on this account.

It does appear that the railroad company’s insolvency and consequent inability to pay the defendant the balance due for the work did not occur until after the expiration of the time limited in its contract with the defendant. The defendant interposes this fact as a reason why it should not be held liable to the plaintiff for the amount due by it to the latter. The plaintiff, however, while designated as a sub-contractor, was, within the meaning of the law, an independent contractor and his right was not dependent upon the performance by the railroad company of its contract with the defendant. Where a contractor sub-lets a contract and there is, as here, no contractual relation between the railroad company and the sub-contractor, the-latter cannot pass by'the contractor, his immediate employer, and sue the railroad company for an amount due him on the contract. [Lake Erie Ry. Co. v. Eckler, 13 Ind. 67; Richmond R. C. v. Harris, 32 S. W. 458; Marks v. Ry. Co., 38 Ind. 440; Ind. etc. Ry. Co. v. O’Reily, 38 Ind. 140; 33 Cyc. pp. 341, 349 and notes.] This is true despite the fact that the work was done under the direction and in accordance with plans furnished by the chief engineer of the railroad company. [Gayle v. Mo. Car & F. Co., 177 Mo. 427; Blumb v. City of Kansas, 84 Mo. 112; McKinley v. Railroad, 40 Mo. App. l. c. 457.]

In short, plaintiff’s contract, being independent arcl unambiguous, should be construed according to its own terms; and defendant cannot escape liability for any obligation therein made on account of the failure of the railroad company to comply with its contract. This being true, the court’s refusal to permit defendant’s counsel to question plaintiff as to the difference between what defendant received from the railroad company and the amount of defendant’s contract with the plaintiff was not error. Plaintiff testified that he never saw the contract between the defendant and the railroad company, nor the estimates furnished by the defendant to the company, and did not know whether the defendant had been paid by the railroad company. If it be conceded, however, that plaintiff knew all of these facts, which the jury found he did not know, the defendant’s liability to him would not be affected by such knowledge. The testimony excluded, therefore, was wholly immaterial. Whatever the estimates were, it was conceded that plaintiff had received from the defendant his money for labor done on all of same except those which represented the amount in controversy. It was to this amount, therefore, which the trial court restricted the testimony and its ruling was not improper.

A further and all-sufficient reason, as disclosed by a more careful reading of the transcript, why the exclusion of the testimony complained of should not affect the judgment is that the material portions of same were subsequently admitted in evidence.

A like reason disposes of'the objection to the court’s ruling in regard to the cross-examination of the plaintiff.

The immateriality of the evidence as to the railroad company’s insolvency is evident. A discussion of this phase of the testimony is therefore unnecessary.

II. Instruction numbered two, given at the request of the plaintiff, is complained of. It is as follows:

instructions-Waiver. ’ “The jury are instructed that the contract dated September 5,1912, read in evidence, is admitted. If therefore, you find and believe that plaintiff did work repairing and building certain bridge piers along New Orleans, Texas & Mexico Railroad Company, for defendant, under and in pursuance of said contract; that such work was done under the direction of defendant and the chief engineer of the New Orleans, Texas & Mexico Railroad Company; that thereafter as the work progressed from month to month, defendant furnished plaintiff with monthly estimates showing the amount due from defendant to plaintiff for the work of each preceding monh until after the end of May, 1913, when defendant furnished plaintiff with a final estimate, and that plaintiff and defendant agreed upon $11,835.73 as the amount due from defendant to plaintiff, and that on or before June 26, 1916, plaintiff demanded the amount due from defendant but tiiat no paymeiits have been made except the sum of $710.21 conceded by plaintiff to have been paid on June 26, 1916, then your verdict will be for plaintiff and you will fix plaintiff’s damages at the sum of $11,835.73, to which you will add interest to this date at the rate of six per cent per annum from the 26th day of June, 1913, less a credit in the interest of $710.21 paid June 26, 1916, unless you further find that in making the contract there existed a genera1 custom, that the sub-contractor was to wait for his money until the original contractor received his, and that such custom, if any, was general and that the parties contracted with the same in view.”

. Defendant’s'specific objections to this instruction are: (1) that it does not cover the defenses of waiver and estoppel; (2:) that it states, in the absence of evidence, that there was a demand made by plaintiff of defendant for the amount claimed to be due on June 26, 1913; (3) that the credit of $710.21 was not interest as stated in said instruction; (4) that the reference.in the instruction to the general custom contended by defendant to apply in this case, was erroneous.

interest Custom We will consider these assignments in the order in which we have enumerated them: (1) There was no evidence of either waiver or estoppel. [Langdon v. Kleeman, 278 Mo. l. c. 242.] (2)- Plaintiff testified that he made a demand of defendant for the payment of the amount due him “some time around June 26, 1913.” (3) The rule as to the manner in which interest should be calculáted has frequently been judicially declared to be as follows: “Interest is first to be calcu a plaintiff’s demand up to the first partial payment, then add the interest to the principal and deduct the payment therefrom, then east' interest on the remainder to the second payment, add the interest to the said remainder and deduct therefrom the second payment; and so on until the last partial payment, unless, in any ease, the interest up to any payment shall exceed the payment, in which case, such payment is to be deducted from the interest, and the excess of the interest is to be carried forward, without casting interest thereon, to the next payment that will discharge said excess.” [State ex rel. Christy v. Donegan, 94 Mo. 66, 6 S. W. 693; James v. Hiatt, 80 Mo. App. 43; Call v. Moll, 89 Mo. App. 386; Sutton v. Libby, 201 S. W. 615; Riney v. Hill, 14 Mo. 500, 55 Am. Dec. 119.] While the instruction did not follow the language of this rule, the method pursued in determining the amount due enabled a like result to be reached, the difference in amount being less, as shown by the verdict, than if the rule had been literally complied with. Under such circumstances it is not materia] that the payment of $710.21 was designated as interest. The amount due plaintiff upon a compliance with the rule would have been $13,796.33. The amount of the verdict was for $13,795.64. The difference is trivial, as is the objection made thereto. In harmony with our conclusion in this regard, the St. Louis Court of Appeals, in Sutton v. Libby, supra, holds that “where the court instructs erroneously as to the calculation of interest, but the result arrived at by the jury is the same as would have been attained had the jury computed interest under the proper rule, the error is harmless.” (4) That part of the instruction referring to a general custom was framed with references to the defendant’s pleading and contention in regard thereto and was the converse of defendant’s instruction numbered one’ wkich was given at its request. This complaint, therefore, should not be heeded. Although this part of the instruction was more favorable than otherwise to defendant and therefore not error, it should not have been given, as there was no sufficient testimony to sustain it. [Joseph v. Andrews Co., 72 Mo. App. l. c. 555.] A custom to be binding must, among other requisites, be shown to be certain, uniform, general and of long existence. [Staroske v. Pub. Co., 235 Mo. l. c. 75; Ehrlich v. Ætna Life, 103 Mo. 231; Freight & Cotton Press Co. v. Standard, 44 Mo. 71; Johnston v. Parrott, 92 Mo. App. 199.] The only testimony in regard thereto was that of the president of the defendant company, and while his statements are general, it is evident from his answers that his knowledge was confined largely to transactions in which his company had been interested. This will not suffice to establish the custom. [Am. Ins. Co. v. Nieberger, 74 Mo. 167.] In addition, he is contradicted by the plaintiff and there was no other testimony. The strict rule under such circumstances is that a general custom cannot be established by one witness where his testimony Is contradicted and the other party swears he has no knowledge of the custom — one should not be bound by a fact of which he was ignorant and which it was not his duty to ascertain. [Kirchner v. Venus, 12 Moore P. C. 399.] But if we apply the more liberal rule that if testimony which fairly and reasonably establishes a custom is contradicted then its existence becomes a question of fact for the jury. [Milroy v. Chicago Railway Co., 98 Iowa, 195.] Thus submitted the jury found against the defendant.

nsovency. There was no erroi\in the giving of plaintiff’s instruction numbered three. It told the jury that plaintiff could not be charged with any loss which defendant might have suffered because of the insolyenCy or receiyersb.ip of the railroad company. The correspondence between plaintiff and defendant introduced by the defendant, furnished the basis for this instruction. These letters repeatedly referred to the insolvency and receivership, and in a letter written by defendant’s president to plaintiff is the following:

“I want to also call your attention to this fact— that had you completed this work on time or anything near on time, which was December 31, 1912, this matter would have been closed several months prior to receivership,” etc. -

The record discloses that defendant’s counsel in the presence of the jury repeatedly made offers to show the receivership and asked an instruction which was the converse of that given at plaintiff’s request. The instruction was properly given and correctly stated the law. The receivership of the railroad company was not referred to in the contract and could not have been anticipated. In plaintiff’s offer of proof it appears that it did not occur until July, 1913, or two months after plaintiff’s work was completed. The damages for breach of contract are only those which are incidental to and directly caused by the breach and may reasonably be supposed to have entered into the contemplation of the parties, and not speculative profits or accidental or consequential losses or the loss of a fancied good bargain. [Implement Co. v. Harvesting Machine Co., 268 Mo. l. c. 371; Friend v. Miller, 67 Cal. 464, 8 Pac. 40; Turner v. Gibbs, 50 Mo. 5561; Schaeffer Mfg. Co. v. National Fire Extg. Co., 148 Fed. 159; Lefkovits v. First National Bank, 44 So. 613, 152 Ala. 521.]

In. the California case above cited the defendant sought to defeat an action on a contract for furnishing defendant with certain piles. It was. attempted to be shown that by . reason of plaintiff ’s delay in furnishing the piles, defendant was prevented from completing the contract, under which they were to be used, for so long a time that lie failed to realize the money on another contract of defendant with certain drainage commissioners. This defense was not allowed, the court in refusing it using the following language, at page 468:

“He' sought hut was prevented from proving the loss he sustained Tby failure to collect the money due him irony the State. The failure of plaintiff to deliver the piles in time was a remote not a proximate cause of defendant’s failure to receive compensation on his contract. It is said the drainage act, under which defendant was a contractor, was declared unconstitutional. "Whether defendant failed from this cause, or because the fund from which he was to be paid was exhausted, or from any other like cause, to receive payment from the State, seems to us unimportant. This is not a loss which, in the ordinary course of things, would be likely to result from a failure to deliver under the contract. It was damages which could not Well have been contemplated by the parties when they entered into the contract. The failure of defendant to secure compensation from the State was a résult brought about by the interposition of other agencies, dependent upon independent causes, over which plaintiff and defendant had no control, and could not have contemplated. ” [Friend v. Miller, supra.]

Furthermore there was no evidence of unreasonable delay. The contract did not require the work to be done on December 31,1912, or at any other specified time. The evidence was that plaintiff never saw defendant’s contract with the railroad company, did not know that any time limit was fixed in it until long after the work was commenced and that it was completed as soon as it could be done by the exercise of reasonable diligence. There was evidence in addition that plaintiff was delayed by rains and high water, and by failure of the railroad company to secure the permission of the War department to make excavation. Further than this, some of the plans were not furnished to plaintiff until February, 1913.

The evidence fails, therefore, to show any unreasonable or unnecessary delay on the part' of plaintiff. Had there been a time limit in the contract it was waived by the parties. [Bridge & Iron Co. v. Stewart, 134 Mo. App. 618; Fisher v. Edgefield Mfg. Co., 62 S. W. 27.]

The giving of plaintiff’s instruction numbered four is assigned as error. It is as follows:

custom “That in order to form a part of a contract, a custom must be shown to be general or universal, certain, settled and uniform, and both parties must have had knowledge thereof at the time of the making of the contract or such custom must have been so universally known and understood, or that both parties must have been presumed to have knowledge of it. And unless youi believe that such a universal custom existed at the time this contract was entered into it con-not be considered by you as a part of the contract.”

■ While, in our opinion, there was no sufficient evidence of a custom, there was testimony by defendant’s president of its existence and upon this testimony the instruction complained of was given, as well as defendant’s instruction numbered .one,, which submitted the converse of the same proposition. Plaintiff’s instruction, therefore, if it properly declared the- rule as to the existence of a custom, preventing as it did defendant’s theory of tbe case, was more favorable to the latter than otherwise and hence furnished no ground of complaint. The insertion of the word “or” in the latter part of the first sentence of the instruction between the words “understood” and “that” is, even' to the casual reader, an evident typographical error. Inserted, the word renders the phrase following it without meaning; omitted, it correctly declares the law. The conclusion, therefore, is reasonable that the jury, understanding the ordinarv meaning of English, were not misled. If not misled, the defendant suffered no injury and his objection is futile.

Plaintiff’s instruction numbered five, defining what constituted “a reasonable time” to perform the work, was not error. There was no evidence tending to prove that there was' any unreasonable delay, and while the instruction was probably unnecessary, in view of the fact that defendant had throughout the trial claimed that plaintiff’s delay had occasioned whatever loss had occurred, the instruction was not improper. The letters introduced by defendant alone constituted such evidence as to authorize the conclusion that the delay that had occurred in the completion of the work was not due to plaintiff.

mTtructionT Defendant complains that instruction numbered six was erroneous because “one of the principal points at issue was when the payment or payments became due from the defendant to the plaintiff; that the language of this instruction is a no stive direction to the inrv that the $11,835.7® is conceded to be due at the end of the work. ’ ’ In considering this instruction it must be borne in mind that the time when the payments became due was the point at issue in the case. Throughout the trial it was admitted that the $11,835.73 was the balance owing from defendant to plaintiff, xinless by the alleged custom it did not become due until after defendant collected its money from the railroad company,' so that the instruction telling the jury how to make up their verdict if they should find for plaintiff was not erroneous as assuming that the indebtedness was due at the end, of the w'ork. [Breen v. United Railways, 204 S. W. l. c. 523; Powell v. Railroad, 255 Mo. l. c. 453.] In the latter case, Lamm, J., in referring to a similar instruction, uses this language:

“It is argued that the first instruction assumes the injuries caused the death of Frederick. We may. be pardoned for not agreeing with counsel. It says, ‘If you find for plaintiff, then,’ etc., and makes no assumption at all. It is only an instruction on the measure of damages in the contingency and on the hypothesis the jury first find for plaintiff. The elements to be considered by the jury in making this finding for plaintiff, if they do, are not dealt with' at all by the instruction, and are not usually dealt with in one on the mere measure of damages, filling no office in instructing on the whole case.

“Furthermore, and’ most of all, defendant below stood mute and asked no instruction on the measure of damages. It pitched its battle at other points. It exhausted its solicitude elsewhere and on other questions. It may not now, with its corporate heart bowed down with the woe of defeat, and its corporate eyes washed and brightened by the tears of affliction, elicit appellate interest in a matter it cared nothing about below. ’ ’ To a like effect is Breen v. United Railways, supra.

Rebates The court did not err in refusing defendant’s instruction numbered three in the nature of a demurrer to the evidence. Defendant contends that the contract between plaintiff and defendant is unenforceable in that ^ provides-for _ a rebate from the railroad company on freight charges and railroad fares. It is true that in this contract the defendant agrees that the railroad'company shall refund to plaintiff freight charges and railroad fares' paid on laborers engaged in the work. This act is not unlawful; the amount paid for the freight charges for materials used in the construction work and for the farés of laborers, is regarded as a part of the contract price of the work. This proviso does hot come within either the letter or the- spirit of the statutes prohibiting unfair discrimination or rebates. As strongly persuasive of the correctness of this conclusion, the Interstate Commerce Commission has frequently ruled on this question as follows:

“Nor does the Commission construe the law as preventing a carrier from giving free or reduced-rate carriage over its line to contractors for material, supplies, and men for use in construction, improvement, or renewal work on the line of that carrier, provided such arrangements for free or reduced-rate carriage are made a .part of the specifications upon which the contract is based and of. the contract itself. ’ ’ [Rulings. 386 and 413; and Railroad-Telegraph Contracts, 12 I. C. C. 11. Also Conference Rulings, Bulletin No. 7, August 17, 1917, p. 57.]

Foster Lumber Co. v. Railroad, 270 Mo. l. c. 643, cited by defendant is not in point. It applies to a stipulation between a shipper and the railroad company by which the shipper received an advantage not received by others. In this particular case the amount rebated was money expended for the use and benefit of the railroad company itself.

Again, the plaintiff is not suing for any part of the amount alleged to have been rebated. That is not in controversy and is not involved in the issue. This point was not suggested in the trial below and it cannot be considered here. [Howell v. Jackson County, 262 Mo. 403; Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. l. c. 705.]

eman Defendant further contends that there was no testimony of any demand of payment. The evidence show's that when the work was completed defendant furnished plaintiff with a written credit memorandum of , am01irq due; that plaintiff, in the latter part of June or the first of July, demanded his money from the defendant after the final estimate was in;( that he had previously asked the defendant’s president for his money for the monthly estimates when they became due. Defendant testified that plaintiff asked him for his money about a year before the day that defendant testified, and as he was testifying on June 26, 1917, this would make the demand, according' to his testimony, about June 26, 1916. Throughout the correspondence between the parties appear repeated urgings on the part of plaintiff that defendant pay the money. To make .a demand of payment it is not necessary to use the word “demand” or other formal words of like import; any intimation to the debtor that payment is desired satisfies the statute and entitles -the creditor to interest on his account. [Babbitt v. Railroad, 149 Mo. App. 439; Railroad v. Iron Works Co., 117 Mo. App. l. c. 167; Vandolah v. McKee, 99 Mo. App. 342.]

custom, Defendant claims that plaintiff conceded the evidence of the custom, and refers to a question appearing in the record, where defendant’s counsel succeeded in getting a momentary admission of that character. The question was: “And that has been the habit and custom during these seventeen years that you have been in- this railroad business, that your claim did not become due from the original contractor until the railroad company paid, then your money was due, and you always got it, haven’t you? A. Yes, sir.’’

We are inclined, upon a review of all of the testimony, to adopt the construction placed upon this question and answer by counsel for plaintiff, that in answering this complicated inquiry, involving three separate questions in one, the plaintiff! answered only the last part of the same, and intended to say that he had always gotten his money. This is clear from reading' the previous examination; but immediately following, this question, when interrogated by his own counsel, plaintiff corrected his answer as follows:

“Q. Did you understand that your money was not due until he got his money from the railroad company? A. No, sir.

“Q. What you meant to say was, he has gotten the money and has paid you within a reasonable time? A. Yes, sir.

^ “Q. There has been no discussion of. the matter between you and him before this? A. No, sir.”

As repeatedly stated, there is no evidence of any waiver of the payment due him, except that plaintiff waited uuder protest for three years after his debt became due, on account, he says, of not desiring to disturb the close relationship by marriag’e between him and the president of the company. A reasonable construction of the testimony introduced on behalf of the defendant lends no' support to the theory that the plaintiff at any time assumed the' attitude of forgiving the debt or that , he did anything which precluded his right of recovery.

Defendant claims that the giving of its instruction numbered four, refused by the court, was essential to its complete defense of plaintiff’s claim. This instruction but reiterates the doctrine upon which defendant bases its defense, viz., that its contract with the plaintiff should be held to be dependent upon and construed according to the terms of the contract with the railroad company. We have discussed this question fully, as well as the propriety of the trial court’s action in refusing; defendant’s instructions, among others that numbered eight, in regard to waiver and estoppel, and having ruled adversely”to the defendant, words need not be wasted in repeating the reasons for our conclusion.

The defenses interposed herein are purely technical. While evidencing the industry and legal ingenuity of counsel, they are without substantial merit, and no hurtful error having occurred below, the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WILLIAMS, P. J.

license: Public Domain

text:
    THE STATE v. A. E. LINTON, Appellant.
    Division Two,
    June 4, 1920.
    1. FORMER JEOPARDY: Wrong Name. The fact that defendant A. E. Linton, was named William Linton in the former information, under which he was arrested and • to which he entered his plea, being the person intended in both informations, does not in any manner affect the question of former jeopardy.
    2. -: Different Name. The first count in an information charging William Sharpe with the unlawful sale of one pint of whiskey cannot be used as the basis of a plea of former jeopardy to a subsequent information charging A. E. Linton with said crime.
    3. -: Jury Sworn: Discharge. A person is in legal jeopardy when he is put upon trial, in a court of competent jurisdiction, upon an information sufficient in form and substance- to sustain a conviction, and a jury is sworn to his deliverance, even though before verdict the jury is discharged. So that,where defendant., A. E. Linton, was put upon his trial under an information, which in its first count charged William Sharpe with unlawfully selling one pint of whiskey, and in the second charged William Linton with unlawfully delivering one pint of whiskey, and a jury being selected and sworn to try the cause, and the mistake in the name in the first count being discovered, the prosecuting attorney entered a nolle prosequi in the cause and the jury was discharged, 'over the protest and exception of defendant, a plea of former jeopardy to a second information, charging that defendant unlawfully sold and delivered one pint of whiskey on said day, is good, and he is entitled to his discharge.
    4. -- — : -: -: Acquittal: Constitution: Common Law. The Constitution says that no person shall, “after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty,” and if this were the whole law on the subject the defense of former jeopardy would not be available until defendant has been acquitted by a jury. But the fact that a portion of the common law on the subject was written into the Constitution did not repeal the remaining part of the common law of former jeopardy, nor was that portion intended to supply all the law on the subject, but was only intended to save it from legislative change, leaving the Legislature free to retain such portion of the former common law on the subject as was not included in the constitutional provision; and the common law on the subject having been retained by statute (Sec. 8047, R. S. 1909), it must be held, that where defendant was put upon his trial, in a court of competent jurisdiction, upon an information or indictment sufficient in form and substance to sustain a conviction, before . a jury sworn to his deliverance, and a nolle prosequi was entered and the jury discharged before verdict, he cannot again be placed upon his trial upon an information charging the same offense; for such is the common law.
    Appeal from Dunklin Circuit Court. — Hon. W. S. G. Walker, Judge.
    Reversed.

      Hall & Billings for appellant.
    (1) The defendant was entitled to a trial by a jury of the issues of fact specially as made by the plea in bar. Pleas in bar in Missouri, which has no statute permitting pleas in bar to go to the jury along with the general issuse, must -be tried by a jury specially. The plea in bar was admitted by the State. State v. Moore, 66 Mo. 372; Kelly’s Crim. Law & Pr. (3 Ed.) sec. 224, 226, 237. (2) The defendant was entitled to his discharge upon- the issue submitted by the plea in bar when the State admitted same by filing no replication, and conceded that there was but the one alleged criminal transaction. Hence the court erred in overruling the plea in bar. The second count of the first information was valid and the jury sworn to try the cause and the defendant had been placed in jeopardy for the same offense. Const. Mo. art. 2, sec. 23; Secs. 4905, 4907, R. S. 1909; Kelly’s Crim. Law & Pr. (3 Ed.) secs. 229, 230, 226, 234; State v. Webster, 206 Mo. 558; State v. Headrick, 179 Mo. 300; State v. Rambo, 95 Mo. 465; State v. Stephens, 70 Mo. App. 562; State v. Needham, 194 Mo. App. 201; State v. Linton, 217 S. W. 874; State v. Buente, 256 Mo. 227. Where there is one act, transaction or offense, and the same is charged differently, yet sustained by the same evidence, and one of said charges is necessarily included in the offense charged in the other, such charge falls within the definition of “same offense,” and a conviction or acquittal on one of the same is a bar to further prosecution on the other. “Fundamental rule of law that out of the same facts a series of charges shall not be preferred.” Bishop’s New Cr. Law (8 Ed.), secs. 1049,1051. 1057, 1060, 1015, 1016, 1070a; "Secs. 4905, 4907, R. S. 1909; State v. Patterson, 116 Mo. 505; Kelly’s Crim. Law & Pr. (3 Ed.), sec. 220, State v.. Headrick, 179 Mo. 300; State v. Needham, 194 Mo. App. 201; State v. Linton, 217 S. W. 874; State v. Buente, 256 Mo. 227; State v. Snyder, 98 Mo. 555; State v. Brannon, 55 Mo. 63; State v. Pitts, 57 Mo. 85. A delivery is the principal element of a sale, as it is a transfer of the title to the property. The delivery herein was simultaneous with the sale- and was the principal ingredient of the same act, transaction or offense. And an acquittal of the delivering by a nolle prosequi after the jury is sworn to try the cause is equivalent to an acquittal on the merits, and is a bar to prosecution for the sale. State v. Needham, 194 Mo. App. 201; Secs. 4905, 4907, R. S. 1909; State v. Patterson, 116 Mo. 595; Kelly’s Crim. Law & Prac. (3 Ed.) secs. 220, 234.

      Franlc W. McAllister, Attorney-General, and C. P. LeMire, Assistant Attorney-General, for respondent.
    (1) The plea of autrefois acquit is a special plea in bar and should appear in the record proper. 1 McQuillin’s Missouri Practice, secs. 926, 974; Saddlery Co. v. Bullock, 86 Mo. App. 89; State p. Holloway, 57 Ore. 162; State x. Baker, 264 Mo. 339; State v. Collins, 266 Mo. 93; Watson v. Maryland, 105.Md. 650; U. S. v. Oson, 57 Fed. 582; State v. Lopez, 19 Mo. 254; L. R. A. 1917A, notes, p. '1233. (2) Where the plea in bar is insufficient or where the identity of the two offenses may be determined by the court by an inspection of the record, it is not error to refuse to submit same to a jury. State v. Schyhart, 199 S. W. 290; State v. Goddard, 162 Mo. 224; State v. Keating, 223 Mo. 93; State v. Williams, 152 Mo. 120; State v. Snyder, 182 Mo. 504. (3) Defendant was not placed in jeopardy on either count of the original information. State v. Wilson, 39 Mo. App. 187; State v. Linton, 217 S. W. 875; State v. McWilliams, 267 Mo. 450; State v. Schyhart, 199 S. W. 205. The offense charged in the second information is not the same offense charged in the second count of the original information, consequently the plea of autrefois acquit was without merit. State v. Laughlin, 180 Mo. 342; State v. Anderson, 186 Mo. 25; State v. Oaks. 202 Mo. 86; State v. Hess, 240 Mo. 147; State v. Zehnder, 182 Mo. App. 176.
   WILLIAMS, P. J.

Defendant was convicted and fined in the sum of three hundred dollars in the Circuit Court of Dunklin County, upon an amended information which charged him with a violation of the Local Option Law, in that he unlawfully sold one rtint of whiskey in Dunklin County, in which the Local Option Law was in full force and effect. The defendant- was charged and arrested under the name of William Linton.

Upon the trial defendant filed a plea of autrefois acavit. alleging in substance that he had before been placed in jeopardy for the identical crime.'

The facts upon which the former jeopardy arises are admitted and may be briefly summarized as follows:

. On December 14 1918, the Prosecuting Attorney of Dunklin County filed an information in the circuit court of that county against William Linton. The information was in two counts, but by some mishap, the reason for which does not appear in this record, the first count charged one "William Sharp with the unlawful sale of one pint of whiskey on December 13, 1918, in Dunklin County, in violation of the Local Option Law. The second count charged William Linton with having violated said Local Option Law on December 13,1918, by unlawfully keeping, storing for and delivering to another person, one pint of whiskey. It is admitted that defendant A. E. Linton was arrested under this first information and gave bond thereunder and when the case was called for trial under the first information on January 14, 1919, defendant A. E. Linton, appeared .and answered ready for trial. Thereupon a jury was selected and sworn to try the cause. Shortly thereafter the prosecuting attorney discovered the mistake in the first count of the information and entered a nolle prosequi in said cause and the jury was discharged over the protest, objection and exception of the defendant. Thereafter- and on the same day the said prosecuting attorney filed the amended information upon which the present trial was had.

It stands conceded by this record that both of these informations undertook to charge a crime based upon the identical transaction. In other words there is evidence tending to show that defendant did violate the Local Option Law by selling said pint of whiskey in said county and in so doing and as part of the transaction he delivered said pint of whiskey, also in violation of said Local Option Law.

The defendant was granted an appeal to the Springfield "Court of Appeals, but that court, in an opinion rendered, transferred the case here on the theory that a constitutional question was involved, in that the cause involved the construction of Article 2, Section 23, of our Constitution which, deals with the subject of former jeopardy.

I. The fact that defendant A. E. Linton was named as William Linton in the respective informations does not'in any manner affect the question of former jeopardy.

ifctmef

It is admitted that defendant A. E. Linton was the Person intended in both informations and that he was the person who in fact was arrested and entered his plea in both instances. Whenever a defendant is indicted by his wrong name and does not call the trial court’s attention tó his correct name before pleading he is to be proceeded against by the name in the indictment. [Section 5113, R.S. 1909.]

Jeopardy.

II. It stands conceded that the second count of the original information and the amended information each charge a crime growing out of one and the same criminal transaction. In other words, the unlawful delivery charged in the second count of .the original information is but a part of the transaction going to make up the unlawful sale charged in the amended information.

We have no hesitancy in saying that the first count of the original information cannot be used as the basis of a plea of former jeopardy because upon its face it charges no crime against the defendant.

But under the second count of the original information, defendant is charged with an unlawful delivery of this one pint of whiskey. The case was called, the parties announced ready for trial, and a jury was selected and sworn to try the cause and thereafter, over the objection and exception of defendant, the prosecutor entered a nolle prosequi and the jury was discharged.

Under a recent ruling of the Springfield Court of Appeals had the trial proceeded to an acquittal or conviction upon the second count of the original information, it would have been a complete bar to another prosecution for the unlawful sale based upon the same transaction, which forms the basis of the charge in the amended information. [State v. Needham, 194 Mo. App. 201.]

We think the above ruling of the Court of Appeals is sound and is in harmony with the greater weight of authority. [Kelley’s Criminal Law and Practice (3 Ed.), par. 237, p. 194; 8 R. C. L. 143; 16 C. J. 279.]

If it be true, as above stated, that a conviction or acquittal under the second count of the original information would be a complete bar to a prosecution under the amended information then there is no escape from the conclusion that defendant was placed in jeopardy under the second count of the original information when the jury was sworn. This is the well.established rule at common law. [State v. Webster, 206 Mo. 558, 1. e. 571; State v. Hays, 78 Mo. 600,1. c. 606; 8 R. C. L. 138-139 and cases cited; 16 C. J. 236 and cases cited.]

_ isc aige.

III. Although it be conceded that the defendant has been once before in jeopardy for the same offense, is he entitled to be discharged by reason thereof an(j gQ ky -flrkaj- authority of law? Section 23 of Article 2 of the Missouri Constitution is as follows:

“That no person shall be compelled to testify against himself in a criminal cause, nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty, but if the jury to which the question of his guilt or innocence is submitted fail to render a verdict, the court before which the trial is had may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or, if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law.” (Italics ours).

We are of the opinion that the above constitutional provision has no real application to the situation now held in judgmént. The Constitution says, “nor shall any person, after being once acquitted by a jury, be again, for tbe same offense, put in jeopardy of life and liberty,” etc. The defendant in tbe instant case was not acquitted by a jury and hence we are unable to see in what manner tbe constitutional provision can be held to apply. Tbe language of tbe Constitution is clear and unequivocal and we know of no reason why it should not be construed as it reads.

There seems to have arisen some confusion'on tbe question of former jeopardy and our own reports are not entirely free from criticism along this line. After carefully reviewing many of tbe cases upon tbe subject we are led to tbe belief that this confusion arises by reason of failing to call to mind that tbe law of former jeopardy first arose under tbe common law. (8 R. C. L. 134-135 )\ and that in some state constitutions and in tbe Federal Constitution tbe old common law rule that no person shall for the same offense be twice put in jeopardy of life or limb, was incorporated in its entirety, while in other state constitutions, notably that of Missouri, apparently only a portion of tbe common law on tbe subject was incorporated (and thereby removed from legislative interference),

But it goes without saying that tbe common law as to former jeopardy is in effect in this State, unless tbe same has been changed or modified by tbe Constitution or by statutory enactment. [Section 8047, R. S. 1909.] Tbe fact that a portion of tbe common law on this subject was written into our Constitution should certainly not be given the effect of having repealed tbe remaining portion of tbe common law on the subject unless tbe constitutional provision should be found to be in conflict therewith. [Sec. 8047, supra.]

Tbe common law general rule applicable to tbe situation now held in judgment was quoted with approval by this court from Cooley on Constitutional Limitations in tbe case of State v. Webster, 206 Mo. 558, l. c. 571, as follows:

“A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the pros editing officer against his will, or by a discharge of the jury and continuance of the cause.”

There are certain well known exceptions to this general rule and a large number of them will be found discussed in the learned opinion by Paris,-J., in State v. Buente, 256 Mo. 227, l. c. 241; but none of the exceptions are applicable to the case at bar. Some of these exceptions are exceptions recognized by the common law and others are exceptions created by statute, as was the situation held in judgment in -the case of State v. Buente, supra. The statutory exception in the Buente case was held not to conflict with the above mentioned provision of our State Constitution, which is further persuasive proof that our constitutional provision was not intended to supply all the law on the subject, but only to save from legislative change that portion which was permanently preserved by the' constitutional mandate, leaving the Legislature free to act upon such portion of the law of former jeopardy as was not included in the' constitutional provision.

We find no statute in this State which changes or conflicts with the above mentioned general rule of the common law applicable to the facts in the case at bar. That being true the rule should be considered as remaining in full force and effect. Applying said rule to the facts held in judgment in the case at bar it clearly appears that defendant was placed in jeopardy under the second count in the original information and that the same constitutes a bar' to a prosecution under the amended information. Such being the ease defendant’s plea of former jeopardy should have been sustained.

It therefore follows that the judgment must be reversed and the defendant discharged. It is so ordered.

AJ1 concur.


author: WILLIAMSON, J.

text:
    ESTELLA BUCHANAN v. COUNTY OF RALLS, Appellant.
    Division Two,
    June 4, 1920.
    1. COUNTY TREASURER: Office. It'is the duty of the county to furnish its treasurer with suitable office space, heat, light and janitor service.
    2. -:, -: Jury Room. The jury room in the courthouse, used by grand and petit juries when court is in session, even though offered by the county court to be fitted up for the county treasurer’s use, is not a suitable office.
    3. -: —--: Jointly With County Clerk. The court' cannot say as a matter of law that a room fourteen feet wide and eighteen feet long is not reasonably suitable for the joint use of the county able practicable depends on the number of records, a safe place in the nature of the duties of the two officers that imperatively demands privacy, and whether the joint use of the room is reason-' ' ably practicable depends on the number of records, a safe place in which to keep them, the number of clerks employed, the amount of furniture needed, and other conditions; and where none of these things is shown by the evidence, the court cannot give a peremptory instruction telling the jury that such room was not suitable for the joint usé of both officers.
    4. -: —■-: -: Suitability. Opinion evidence that a certain room was suitable for the use of the county treasurer is not competent.-
    5. -: -: Recovery for Rent. The jury should be instructed that, if the county failed to provide for the use of the county treasurer a reasonably suitable office room in the courthouse or elsewhere in the county seat in which to transact her official business, she had a right to provide said office herself, and to provide heat, light and janitor service therefor, and that the county is bound to pay the reasonable cost of the same.

      6. -: -: Demand: Estoppel. Where the county court and all parties concerned were familar with the situation and the expense incurred by the county treasurer in fitting up an' office for herself outside the courthouse was small, estoppel is not á defense to her suit to recover the reasonable cost; nor was it necessary that she should have made demand upon the county that it supply her with a suitable office, before she was justified in renting one elsewhere.
    Appeal from Ralls Circuit Court. — Hon. W. T. Ragland, Judge.
    Reversed and remanded.

      Thos. E. Allison, Charles E. Rendlen' and Harry Carstarphen for appellant.
    (1) The court erred in the exclusion of this evidence. (2) The court erred in giving plaintiff’s peremptory instruction to find a verdict for plaintiff. Every other officer of the county occupied a room in the court house, sharing same with another officer, to the convenience of the public and without prejudice to the rights of the public and the due discharge of the duties of such officers. Plaintiff alone must get a separate room, though even a separate room was offered her if she wanted to be apart from the other officers, differing from her predecessors and the custom in the county, together with light, heat and janitor service, and this room so offered only to be shared at long intervals for a few days with juries. All this is disregarded and notwithstanding it all is true, the plaintiff must recover a verdict under the above instruction. Beauchamp v. Pike Co., 251 Mo. 529; Cleary v. Eddy Co., 51 N. W. 586. (3) The refusal of defendant’s Instruction 2 was error. It tendered a correct proposition of law, and was pleaded as a defense in defendant’s answer. Sec. 2778, R. S. 1909. Nor can defendant be held liable upon an implied contract where this statute, See. 2778, R. S. 1909, is not complied with. Perkins v. School Dist., 99 Mo. App. 483; Inhabitants v. Rnmsey Mfg. Co., 39 Mo. App. 264; Motley-v. Pike Co., 233 Mo. 46.

      D. H. Eby and Ben E. Hulse for respondent.
    (1) There was no error committed in excluding testimony. The matters proffered and excluded were palpably opinions and conclusions, and not matters of fact. (2) Sec. 2778, R. S. 1909, relied upon by the appellant, has no application to the case at bar.- The suit is not bottomed upon any contract falling within the purview of that section, but rests upon the following statutes and upon public policy: Secs. 3664, 3692, 3755, R. S. 1909; Laws 1917, p. 223; Ewing v. Vernon County, 216 Mo. 693. (3) Appellant unsoundly contends that, conceding the failure and refusal of the county court to peform its duty in the premises and the improbability of the willingness of that court to enter into any written contract with respondent touching the matters now sued for, the only remedy available to her was to demand such contract and, failing to obtain it, to adopt the extraordinary remedy of mandamus. Of whom could she have demanded such contract? “Her only sensible course was to do what she did, viz., avoid an unseemly wrangle, pay it out of her own pocket and trust to the courts and the law to reimburse her.” Ewing v. Vernon County, 216 Mo. 691. (4) The grand jury room was inherently lacking in availability. Reasons of public policy dictate that the circuit court shall not lack for a jury room. The office rooms in the courthouse were described by the witnesses, and the several uses to which they were put were fully stated, and as so described they are the physical facts in the case about which there is no conflict. They point to but one conclusion, to-wit, that there was no suitable room in the courthouse for occupancy by respondent. (6) The county court may have seen no impropriety in compelling two or more officials to occupy jointly a single room. They may have thought it perfectly proper to crowd as many into one room as possible. Bnt neither their opinions nor the fact that some of the officials acquiesced in the disposition so made of them affect the question of public policy. It is the tendency of the act in question that is to be considered. Vital v. Girard, 2 How. (U. S.) 197; People v. Hawkins, 42 L. R. A. 490; Carroll v. Mo. Pac. Ry. Co., 88 Mo. 245. (7) .There was no legal defence pleaded or proved. Carroll v. Mo. Pac. Ry. Co., 88 Mo. 244; Ragan v. Railroad, 144 Mo. 623; Duvant v. Cooperage Co., 188 Mo. App. 93.
   WILLIAMSON, J.

This is a suit on the part of Estella Buchanan against Ralls County, for certain expenses paid by her while she was treasurer of the defendant county. Plaintiff had judgment below and the county duly appeals. Plaintiff alleged, in substance, that she was the duly elected, qualified and acting treasurer of Ralls County, from the first day of January, 1909, until .the first day of January,. 1917; that as such official she was by law required to keep an office at the county seat of said county and to attend the same during the usual business hours, there to receive' and disburse the funds of the county, and that it was also her statutory duty to keep the books, records and papers pertaining to her office; that during that time it was defendant’s duty to provide her with a suitable office-room properly equipped, lighted and maintained, but that it failed to do so; that as a result of such failure she was compelled to supply and did ‘supply the office and defray the expenses of lights and ’janitor service therefor, and pay therefor out of her own funds; that she had expended the sum of $720 in so doing; that that sum was the reasonable value thereof, and that payment of said sum had been demanded and refused.

By its answer defendant admitted plaintiff’s official position; followed this admission with a general denial, and then averred, in substance, that during the period aforesaid it maintained a county courthouse for .the use of the county officials at the county seat; wherein it supplied the things which plaintiff claimed to have supplied, but it appears from the answer that it was necessary, if plaintiff kept her office in the courthouse, that she should occupy one room jointly with the county clerk, unless she chose to occupy a room on the second floor, which, as the evidence showed, was used by the grand jury 'and petit jury when court was in session. Defendant further averred that plaintiff maintained a separate office elsewhere than in the courthouse for her own business convenience; that during her. term of office she made periodical settlements with the County Court of Ralls.County, and upon said settlements being made she was duly paid all that was due her, and all that she then demanded, and in consequence was estopped to claim more; that so much of her claim as accrued prior to fiv,e years next before the filing of her petition was barred by the Statute of Limitations, and that no contract in writing for said expenses was ever made by defendant. The reply was a general denial'.

The evidence for plaintiff tended to show that she maintained a separate office in the central portion of New London, the county seat of Ralls County; that rent, lights and janitor service cost $7.50 per month, which was a reasonable charge; that the county clerk’s office was too small for joint occupancy; that the only unoccupied room in the courthouse was the jury room; that a short time before her term expired she presented her demand to the county court and payment was refused. A demurrer to, the evidence was overruled. Defendant’s evidence tended to show that the county court offered to fit up the jury room for plaintiff’s use when court was not in session; that some former treasurers had occupied the county clerk’s office jointly with him, and that others, at their own request, had maintained offices elsewhere in New London by permission of the county court. Defendant also offered, but was not allowed, to prove that in the opinion of various witnesses plaintiff could have maintained her office in the county clerk’s office in joint occupancy with him. No further evidence of any importance was offered by either party. Defendant’s request for a peremptory instruction was refused. The court instructed the jury that plaintiff was entitled to recover the reasonable expenses paid by her for rent, light and janitor service, at not exceeding the rates shown in the evidence, separately assessing the amount of each, for a period not longer than five years before the date of the filing of the petition. Defendant asked an instruction numbered two, to the effect that unless there was a written contract plaintiff could not recover; another, number three, to the effect that if “there was sufficient room, space and conveniences in the courthouse for the plaintiff to have, keep- and maintain her office of county treasurer therein,” including light, heat and janitor service, and if such room was subject to plaintiff’s use, but that plaintiff for reasons of her own kept her office elsewhere, then she could not recover; another, number four, to the same effect; another number five, substantially to the effect that plaintiff could not recover without first showing a demand upon defendant to furnish appropriate accommodations; number six, on the burden of proof, and number seven, on the theory of estoppel, all of which were refused, and defendant excepted. A verdict was. rendered in favor of plaintiff for $390. The usual steps followed, with the usual result, and defendant duly appealed.

It was the duty of the appellant to furnish respondent with suitable office space, heat, lights and janitor service. [Ewing v. Vernon County, 216 Mo. 681, l. c. 689, and cases there cited. Respondent claims that appellant neglected to discharge this duty and appellant asserts the contrary. The evidence shows, we think, that the jury-room, which, it is said,- respondent might have occupied, ■'yas obviously unsuitable. Apparently the only practicable arrangement was for respondent and county clerk jointly to occupy the room in the courthouse designated as the county clerk’s office, or to have a separate office elsewhere in the county capital. There is nothing inherent in the nature of the duties of these two offices which so imperatively demands privacy as to enable the court to say as a matter of law that separate offices must be provided. • That being true, the question of- whether or not the joint use of the county clerk’s office by that official and respondent was or was not reasonably practicable, and whether or not such room was a reasonably suitable room for respondent’s use, under the circumstances, becomes a question of fact, unless, in the light of the evidence, the impracticability or unsuitableness of such an. arrangement is so obvious that the minds of reasonable men could not honestly differ about it. The county clerk’s office is shown by the evidence to be about fourteen 'feet wide by eighteen feet long. There is a vault in connection with it, the size of which is not shown. It appéars that respondent, in her official capacity, had charge of about one dozen large record books. It may be assumed that she would need, and the evidence in fact discloses that she used, a desk, a typewriter, a table of moderate size, and a few chairs. It does not appear that there was not sufficient space in the vault for the records of both of these officials. Some of respondent’s predecessors and her successor in office did, in fact, make use of these quarters in conjunction with the county clerk. Whether a room the size of this room was reasonably suitable for the - use of both would obviously depend upon the volume of business usually done there, the number of persons usually employed in the two offices, and the number of persons who had occasion to be in that room on business connected with one or the other of the two offices, and, perhaps, upon other considerations. On these matters the record is silent.

It is, perhaps, possible for a room either to be so large or so small as to justify the court in declaring as a matter of lawr that such room was or was not reasonably suitable for the joint use of two or more county officials, provided the volume of business, ■ the number of assistants, and the extent to which the public had occasion to resort to the offices in question, and other relevant circumstances, were also shown. But we cannot take judicial notice of these things, nor could the trial court do so. As stated, practically nothing except the size of the room in question is shown in this record. Under these circumstances a practically peremptory instruction in favor of the respondent was not justified. The interests here involved are not large, and it is regrettable that we cannot make final disposition of this case here and now, but, considering the functions of this court, our duty seems plain. Our ruling on this instruction makes it necessary to send this case back for a new trial. For that reason we indicate our opinion on some questions raised by appellant.

Opinion evidence as to the suitability of a given room for respondent’s use as an office is not competent. Section 2778, Revised Statutes 1909, is not applicable to the case at bar, and for that reason no error was committed in refusing appellant’s instruction number two. [Ewing v. Vernon County, supra, l. c. 693; Gammon v. Lafayette County, 79 Mo. 223.]

If this case is again tried, we think the jury should be instructed that if the appellant failed to provide for the use of respondent reasonably suitable space in the courthouse or elsewhere in the county seat in which to maintain her office and transact her official business, then respondent had the right to provide such office, and to provide heat, light and janitor service therefor, and that the county is bound to pay the reasonable cost of the same.

The evidence as shown by the record before us does not, in our opinioh, justify an instruction on the theory of estoppel, nor upon the necessity of a demand by respondent upon appellant that it should supply her with a suitable office, before she was justified in renting an office elsewhere. It seems that all parties were familiar with the situation. No one was misled. The expense actually incurred by respondent for rent, light and janitor service was only $7.50 per month. It could hardly have been less. The omission of a formal demand on respondent’s part lias harmed no one. Courts — including county courts — should not be mere “ snappers-up of unconsidered trifles.” The maxim, “Be minimis lex non curat,” is one graciously to be borne in mind at times — and this is one of those times.

For the reason stated, this cause is reversed and remanded for further proceedings consistent with this opinion.

All concur.