text:
    CAROLINE S. BIRCHER, Appellant, v. BOEMLER, Executor of Last Will of JACOB SCHEER.
    Division Two,
    June 11, 1907.
    1. SPLITTING DEMANDS: Different Issues. A single cause of action cannot be split up so as to make different causes of action where there is really but one. Different issues in a case cannot be regarded as different causes of action unless they are really so.
    2. --: Claim For Last Sickness: Prior Promise. Where plaintiff presented in the probate court and was allowed a claim of forty dollars against her father’s executor for care, maintenance and attendance upon her father during his last sickness, she cannot subsequently maintain a suit for those services based on a promise made her by her father that he would amply provide for her in his last will for her care of him.

      3. SERVICES OF CHILD TO PARENT. The law presumes that services rendered hy a daughter to her father, in caring for, nursing and waiting upon him in her own house, are gratuitous, and, in the absence of an express promise of compensation for such services, she cannot recover their value.
    4. -: Express Promise: By Last Will. Where the proof only shows a promise by plaintiff’s father to pay his daughter for caring for and maintaining him, by providing for her compensation in his last will, she cannot recover for such services in a suit against his executor for the value of the services.
    6. -: Acceptance of Payment During Lifetime. Where plaintiff applied to the probate court for a certain allowance for caring for her' demented father and was allowed what she asked for and accepted the same monthly and gave his guardian receipts therefor, she cannot, after his death, come into court and maintain a claim for addition'll compensation against his executor for identically the same services.
    6. -: Against Estate. Plaintiff claims that her father, prior to his becoming insane, expressly contracted with her to pay her for her care of him, which she alleges was worth fifty dollars per month before, and six dollars per day after, he became insane, and in this way she makes her single demand against his executor, upon which she credits thirty-five dollars per month paid her by her father’s guardian during the time he was under guardianship. Held, that she set up but one cause of action in her claim, and it is one and indivisible, based upon her father’s express promise, before he became insane, to .make some special provision for. her, and the record showing that, upon her own motion, she was allowed, and that she accepted, thirty-five dollars per month for her services during her father’s incompetency, and forty dollars for care and attention during his last sickness, her demand is barred.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      B. B. Brewer and Daniel Dillon for appellant.
    For the purpose of determining whether a case should have been submitted to the jury, the testimony on the part of the plaintiff should be taken as true, and every reasonable inference therefrom in plaintiff’s favor should be made. Dorsey v. Railroad, 83 Mo. App. 528; Staube v. Christopher & S. A. I. & P. Co., 85 Mo. App. 640': Pauck v. St. Louis Dressed Beef Co., 159 Mo. 467.

      Chas. F. Krone and Bassieur & Buder for respondent.
    (1) There is a fatal variance, between the allegations and the proof, amounting to entire failure of proof, as appellant’s claim against her father could not arise on implied promise, but necessarily was for his care and maintenance on his express promise to pay her during his lifetime, while the proof showed a promise to provide her compensation by his last will. Sisney v. Arnold, 28 Mo. App. 568; Priest v. Way, 87 Mo. 16; Carson v. Cummings, 69 Mo. 325; Link v. Vaughn, 17 Mo. 585; Faulkner v. Faulkner, 73 Mo. 327; Merle v. Hascall, 10 Mo. 406; Beck v. Ferrara, 19 Mo. 30; Feurth v. Anderson, 87 Mo. 354; Ensworth v. Barton, 60 Mo. 511; Waldhier v. Hannibal, 71 Mo. 514; Smith v. Shell, 82 Mo. 215; Haynes v. Trenton, 108 Mo. 123; York v. Bank, 105 Mo. App. 127; Schneider v. Patton, 175 Mo. 684; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137. (2) The claim of appellant for care and maintenance of her deceased father during the period of incompetency, is entirely precluded by the judgment of the probate court allowing her thirty-five dollars per month for this purpose, and the acceptance of such allowance by her during said period. Sec. 3671, R. S. 1899. (3) The entire claim of appellant was barred by the judgment for forty dollars entered in her favor against Henry Boemler, as executor of Jacob Scheer, deceased. The law does not permit a judgment upon a part of a claim, leaving a right of action as to the residue. Laine v. Francis, 15 Mo. App. 107; Wagner v. Jacoby, 26 Mo. 532; Piel v. Finck, 19 Mo. App. 338; Funk v. Funk, 35 Mo. App. 246; Oester v. Sitlington, 115 Mo. 247; Bank, v. Tracy, 141 Mo. 252; Edmonston v. Jones, 96 Mo. App. 83. (4) The law presumes that services rendered by a daughter to a father are gratuitous. If a party rendering services intends that they should be gratuitous when she renders them, she can not subsequently recover therefor. Louder v. Hart, 52 Mo. App. 377; Bittrick v. Gilmore, 53 Mo. App. 53;.Kinder v. Tschirpe, 5.4 Mo. App. 575; Erhart v. Dietrich, 118 Mo. 418; Lawrence v. Bailey, 84 Mo. App. 107; Castle v. Edwards, 63 Mo. App. 568. (5) The court should take a case from the jury by peremptory instruction where, if it was submitted to the jury - and a verdict rendered for plaintiff, such verdict could not stand as having no foundation in law or in fact to rest upon. Warner v. Railroad, 178 Mo. 125; Bank v. Railroad, 98 Mo. App. 330; Fuchs v. St. Louis, 167 Mo. 620; Epperson v. Tel. Co., 155 Mo. 346; Sehr v. Lindemann, 153 Mo. 276.
   BURGESS, J.

This is an action by plaintiff, one of the children of Jacob Scheer, deceased, against his estate, on an account amounting to fifty-nine hundred and eighty-two dollars, one item of which is for .board, lodging, washing and ironing from October 26, 1895, to September 5, 1899, at fifty dollars per month, amounting to twenty-three hundred and fifteen dollars; the second item is for board, lodging, washing and ironing, care, attention, keeping and nursing, from September 5, 1899, to October 2, 1901, at the rate of six dollars per day, amounting to forty-five hundred dollars; the two items charged in the account aggregating sixty-eight hundred and fifty-seven dollars. There is a credit of eight hundred and seventy-five dollars allowed on this account, paid by the Union Trust Company of St. Louis, as guardian of Jacob Scheer, insane, leaving a balance dne on the account of fifty-nine hundred and eighty-two dollars.

Jacob Scheer died on October 2, 1901, and on December 6,1901, letters testamentary were granted Henry Boemler, without bond, and on August 25, 1903, more than eighteen months after the granting of said letters, Caroline S. Bircher, the plaintiff, presented said claim against the estate in the probate court of the city of St. Louis.

The claim was disallowed by the probate court on December 7, 1903, whereupon the plaintiff appealed to the circuit court of said city. On April 18, 1904, the cause was heard in the- circuit court, whereupon plaintiff took an involuntary nonsuit, which nonsuit, on motion of plaintiff, was thereafter set aside and plaintiff granted a new trial. The cause was again tried in the circuit court on the 16th day of September, 1904, and, under a peremptory instruction of the court, a verdict was rendered for defendant.

Within four days after verdict plaintiff filed motion to set the same aside, which was overruled, and plaintiff appealed.

The facts are substantially as-follows:

Jacob Scheer, the father of plaintiff, was declared to be of unsound mind on September 5, 18991, and on September 8 of the same year the Union Trust Company of St. Louis was appointed guardian without bond. On September 18, 1899', the Union Trust Company of St. Louis, as guardian of the person and estate of Jacob Scheer, n. c. to., caused1 notice of its appointment to be published, in accordance with the statute in such case made and provided, the first insertion appearing on the 19th day of September, 1899, within thirty days of its appointment, and the last insertion made on the 10th day of October, 1899.

Under arrangement with the Union Trust Company of St. Louis, and by consent of all parties interested, it was agreed that Jacob Scheer was to remain at the home of Caroline S. Bircher, the plaintiff, and on September 25, 1899, she filed a petition in the probate court asking for an appropriation of thirty-seven dollars for clothing already bought, and an allowance of thirty-five dollars per month from September 5, 1899, for board, maintenance and ordinary attention, and twenty-five dollars per month appropriation for clothing and incidental expenses, all of which were allowed and ordered paid. On December 21,1899, the probate court, on its own motion, ordered an additional appropriation of twenty-five dollars per month for incidentals, making a total allowance of thirty-five dollars per month for board, and fifty dollars per month for clothing and incidental expenses. These payments were made monthly by the Union Trust Company of St. Louis, as guardian, to Caroline S. Bircher and her aged father, both calling in order to make the collections.

This condition of affairs continued to October 2, 1901, at which time, more than two years after he had been declared to be of unsound mind, Jacob Scheer died.

The evidence showed that up to the time of Jacob Scheer’s death plaintiff continued to draw an allowance of thirty-five dollars per month for the board and care bestowed upon her father, giving monthly receipts for the same, and at no time while the Union Trust Company of St. Louis was acting as his guardian, claimed, or pretended to make further claim against the estate of its ward. The guardianship of the Trust Company continued from September 8,1899, to October 2,1901, two years and twenty days, on which last-named date the death of its ward was suggested by the Trust Company.

On-October 21, 1901, the Union- Trust Company of St. Louis, as such guardian, filed its exhibits for final settlements, and on December 3 of the same year settlement to date of death of ward was passed and distribution ordered. Thereafter, on April 17, 1903, final receipts were filed and the guardian discharged.

The evidence showed that on July 8, 1902, more than a year prior to the date of her filing the claim against said estate, plaintiff presented to Henry Boemler, as executor of the last will of Jacob Scheer, deceased, claim against the estate of said deceased, founded on account of care, maintenance and attendance upon said deceased during his last illness; the same, in the sum of forty dollars, was allowed, placed in the second class and ordered paid, which said sum the evidence showed was paid to and received by plaintiff.

The evidence, introduced by plaintiff, showed that Jacob Scheer, the deceased, went to live with his daughter, Caroline S. Bircher, on October 26, 1895; that he remained there until his death, October 2, 1901; that during this entire period the plaintiff gave him proper care and maintenance; that he was duly adjudged non compos mentis in the probate court of the city of St. Louis on September 5, 1899-; that before he was so adjudged nothing had been paid to the claimant, and that Mr. Espenschied suggested to Scheer that this was an injustice and that he should remunerate his daughter for her services; that he replied that he had to distribute what money he had amongst his six children equally or they would make life miserable- for him, but that he would provide a compensation for his daughter for her attentions to him by his last will; that such a will was drawn but was not the last will admitted to probate; that she collected the allowance of thirty-five dollars per month from the Trust Company and gave her receipts for the same, and that her father collected the allowance of fifty dollars per month paid to him for incidental expenses.

There was also some evidence offered by plaintiff to the effect that before her father had been declared insane he had stated that he would provide for her; that the will admitted to probate made no special provision for her, but that all the children were treated alike.

On behalf of the defendant the testimony tended to show that after the death of the wife of Jacob Scheer a meeting of the members of the family took place, and it was arranged that the father was to remain with Caroline S. Bircher, the plaintiff; that the matter of compensation was discussed and that plaintiff stated that she was amply compensated by his presence, and that she wanted no board. The evidence of defendant also showed that the monthly payments to plaintiff and to her father, and the allowance of forty dollars to her for care, maintenance and attendance on deceased during his last illness, have been paid.

In rebuttal, there was evidence tending to contradict the statement that she had agreed to keep her father without board, and contradicting the nature of the allowance of the forty-dollar claim.

The court thereupon, on its own motion, gave the peremptory instruction complained of and ordered a verdict returned for defendant.

It is said for plaintiff that the account sued on in this case is not defeated because of plaintiff’s getting forty dollars under the order of the probate, court; that this order shows that said sum was allowed for the last illness of Jacob Scheer, and being the records of the probate court of the city of St. Louis, is not subject to impeachment by verbal testimony for the purpose of showing that plaintiff’s account had been split up and, therefore, defeated. The record shows that on July 8, 1902, the plaintiff was allowed a demand for forty dollars against the estate of Jacob Scheer by said probate court, founded upon an account for care, maintenance and attendance upon said deceased during his last illness, which said judgment, defendant insists, is a bar to her claim against Henry Boernler as executor of Jacob Scheer, deceased, because the law does not permit a judgment upon a part of a claim, leaving a right of action as to the residue.

No rule of law is better settled than that a single cause of action cannot be split up so as to make different causes of action, where there is really but one. [Savings Bank v. Tracey, 141 Mo. 252; Wagner v. Jacoby, 26 Mo. 532; Railroad v. Traube, 59 Mo. 355; Taylor v. Heitz, 87 Mo. 660; Donnell v. Wright, 147 Mo. 639.] Different issues in a case cannot be regarded as different causes of action unless they are really so.

The contention that there was but one claim is founded upon the fact that the evidence adduced by plaintiff shows that the services rendered by her were not with the view of any immediate reward or compensation, hut in reliance upon the express promise of her father to, at some future day, make some special provision for her in his will to compensate for her kindness, in taking care of him and providing for his wants. The record, however, is barren of any evidence of a promise upon the part of plaintiff’s father to pay her for the services rendered and hoard furnished. The claim filed should have been based upon a contract, either express or implied, but the proof fails to show a contract of any kind. On the other hand, there was testimony tending to show that after the death of the wife of Jacoh Scheer there was an arrangement among the members of his family, including plaintiff, that he should live with plaintiff and that she should board him, and that she then stated that “she would expect nothing for taking him; that they were amply repaid to have him with them.” But even if the evidence that she would expect nothing for taking him be disregarded, the law presumes that services rendered by a •daughter to her father are gratuitous, and, in the absence of an express promise of compensation for such services, plaintiff cannot recover. [Erhart v. Dietrich, 118 Mo. 418; Snyder v. Free, 114 Mo. 360; Morris v. Barnes, Admr., 35 Mo. 412; Hart v. Hart’s Admr., 41 Mo. 441; Aull Savings Bank v. Aull’s Admr., 80 Mo. 199.] As plaintiff’s claim was for the care and maintenance of her father, it must necessarily have been based upon his express promise and undertaking to pay her therefor during his lifetime, and as the proof only showed a promise by him to provide her compensation by his last will, plaintiff is not entitled, to recover. [Carson v. Cummings, 69 Mo. 325; Link v. Vaughn, 17 Mo. 585; Faulkner v. Faulkner, 73 Mo. 327; Feurth v. Anderson, 87 Mo. 354; Ensworth v. Barton, 60 Mo. 511; Schneider v. Patton, 175 Mo. 684; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137.]

With respect to the second item of plaintiff’s account, which is a charge for services rendered her father while he was the ward of the Union Trust Company, defendant contends that her acceptance of the thirty-five dollars per month allowed her by the probate court, on her own petition for this purpose, entirely precludes her from making any further claim for board, lodging, washing and ironing, and care and attention, keeping and nursing her father, after he was declared insane and during the time he was the ward of said Union Trust Company. The record discloses that plaintiff, during that time, applied for a certain allowance, which was made, and that she accepted the same monthly for the period of two years and gave monthly receipts to the guardian therefor. She got all she asked, and cannot now come into court and claim additional compensation for identically the same services. Moreover, in addition to these moneys paid her by the Union Trust Company, as guardian, she was allowed by the probate court against said estate the sum of forty dollars, on her presentation to Henry Boemler, as executor, a claim for. said sum on account of similar services rendered her father during his last illness, and it would seem that all claims of this character ought to he considered as paid.

There is hut one cause of action set up hy plaintiff in her claim, and it is single and indivisible, based, according to the testimony adduced by plaintiff, upon an express promise of the deceased before he became insane to make some special provision for her. This is the basis of her claim, and this is so' whether the services were rendered before or after Jacob Scheer was placed under the guardianship of the Union Trust Company, because the contract, according to plaintiff’s theory and the evidence adduced by her, was made, and its performance entered upon, before that event, and the services were to continue during the life of Jacob Scheer. It would seem from these considerations that there was but one cause of action, but plaintiff, by splitting her claim into two items, has endeavored to make of it two separate and distinct- causes of action. In order to accomplish this purpose, she claims first for the time preceding, and next for the period succeeding, the time her father was placed under guardianship. Upon this last item she credits the sums paid, to her by the guardian. It would, therefore, logically follow that if her claim for services prior to the incompetency of her father is bottomed upon the express contract with him, and the claim after, and while he was under guardianship, on a separate and distinct contract with the guardian, then the payment by the guardian, and its acceptance by her, of the monthly allowance made by the probate court, satisfies the last contract. Plaintiff, however, in effect claims that there was no such distinct contract with the guardian, but that Jacob Scheer, prior to his incompetency, expressly contracted with her to pay her for her care of him, which care was worth fifty dollars per month before, and six dollars per day after, her father wgs declared to be insane; and she in this way makes her single demand, upon which she credits the amount which the guardian paid her. She could not, of course, possibly claim six dollars per day during the time of the incompetency, by reason of a separate contract with the guardian.

The record shows- that, upon her own motion, plaintiff was allowed, and that she accepted, thirty-five dollars per month for this service, hence her claim for six dollars per day is neeessarily founded on the alleged prior promise of the deceased, and she simply credits the monthly allowances of thirty-five dollars as part payment of such claim. It must, therefore, conclusively follow that her demand is entire, and is barred by the monthly allowance of the probate court during the guardianship, and the payment of the judgment for forty dollars against the estate of Jacob Scheer, deceased. , -

Finding no reversible^ error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    ST. LOUIS BELT AND TERMINAL RAILWAY COMPANY v. CARTAN REAL ESTATE COMPANY, Appellant.
    Division Two,
    June 11, 1907.
    1. CONDEMNATION: Conflicting Evidence: Province of Court.. Where the substantial evidence was very conflicting as to the value of the land, plaintiff’s witnesses placing it at $10,500, and defendant’s at from $80,000 to $102,500, the verdict being for $15,189, the appellate court cannot, without encroaching upon the right of the jury, undertake- to weigh the testimony and disregard the verdict.
    2. -: Measure of Damages: Stone. A witness cannot testify as to the value of stone in quarry, in a eohdemnation case. The inquiry is as to the value of the land, and the stone is a component part of the land, and its separate value, as personal property, cannot be shown.
    3. -: Misconduct of Jurors. Where affidavits were filed that three of the jurors were seen, during the recess of the court, drinking beer in a saloon with the agent of plaintiff and one of them in serious conversation with him, and counter-affidavits that such person was not plaintiff’s agent hut simply an unused witness, and the jurors state that the case was not talked about, and there is nothing to indicate that the trial court abused its discretion in denying a new trial on the ground of misconduct of the jurors, the appellate court will not punish the unoffending respondent for such a breach of propriety on the juror’s part.
    4. -: Misconduct of Counsel. Where misconduct of respondent’s counsel is not made a ground for new trial in the motion, it cannot he considered on appeal.
    Appeal from Franklin- Circuit Court. — Hon. W. A. Davidson, Judge.
    Axeirmed.

      A. R. Taylor, James Booth and Howard Taylor for appellant. ■
    (1) The court committed prejudicial error in excluding the evidence of witness Rapp, a qualified expert, as to the value of building stone in a quarry, thus excluding from the consideration of the jury damages to the extent of many thousands of dollars sustained' by appellant. There was no other evidence produced, or, under the court’s ruling, could have been produced. (2) The court committed palpable error in excluding all the evidence of William Baggot as to value of the land of appellant, and the depreciation thereof by the proposed location of respondent’s road. We submit that no excuse or defense can be found for the action of the court in sustaining a motion to strike out all the evidence of this witness, as was done. At the conclusion of the evidence of this witness, counsel for respondent said: “Now, we move to strike ont his ¡evidence. The court: Sustained. Mr. Taylor: We except to the ruling.” Here all the evidence of this witness who qualified and was competent, was stricken out by the court without any apparent reason or right, unless it be found in a sharp answer made to counsel for respondent. This was no reason in law for denying appellant the evidence given by Mr. Baggot, as to the value of its land and the damages sustained thereto by the location of this road. This ruling ont of the evidence of Mr. Baggot deprived the appellant of valuable evidence upon a material issue, and was reversible error. (3) The court erred in overruling1 defendant’s motion for a new trial, because of undue influence by respondent to induce the verdict, also because the damages awarded were so grossly inadequate as to indicate that the verdict was the result of bias, prejudice or mistake. Also because the jurors were guilty of misconduct whilst acting as jurors during the trial of said cause. (4) There was gross misconduct by the jury, in associating and drinking with attorneys for plaintiff during the progress" of the trial, and especially in such association with and drinking with one Frederick Essen, the admitted friend of the plaintiff in this case, who throughout the trial was away from his home in St. Louis county. It is misconduct of a juror, for which a new trial will be awarded, to associate with, and drink with, an attorney of the prevailing party in the case, during the trial, and this without reference as to the effect of this association and drinking upon the mind of the juror. Railroad v. Davis, 130 111. 155. The law applies as well to such attempts from officious third persons and friends of the prevailing party as to the party himself. McDaniels v. McDaniels, 40 Vt. 363; Bradbury v. Coney, 62 Me. 223; Nesmith v. Insurance Co., 8 App. Prac. (N. V.) 141; Hamilton v. Pease, 38 Conn. 115; Bonnet v. Glattfeldt, 120 111. 155; Stafford v. City, 57 Iowa 748; Knight v. Freeport, 13 Mass. 218; Cottle v. Cottle, 6 Greenl. 140. (5) The verdict is grossly inadequate and shocks the sense of justice. Here is an overwhelming weight of evidence from credible, competent and disinterested witnesses that the damages were greatly in excess of the forty thousand dollars awarded by the commissioners. Boggess v. Railroad, 118 Mo. 3391; Burdict v. Railroad, 123 Mo. 243; Rodney v. Railroad, 127 Mo. 676 ; Hollenbeck v. Railroad, 141 Mo. 112; Chitty v. Railroad, 166 Mo. 443; Markey v. Railroad, 185 Mo. 365; Stolze v. Railroad,-188 Mo. 581; Reynolds v. Railroad, 189 Mo. 408; Devoy v. Railroad, 192 Mo. 228.

      J. E. McKeighcm and J. P. McBaine for respondent.
    (1) The- value of the rock separate and apart from, the land could not be considered, and the trial court was right in excluding evidence as to its value. 2 Lewis on Eminent Domain (2 Ed.), sec. 486; 10 Am. and Eng. Ency of Law (2 Ed.), 1158; Matter of Water Comm., 3 Edwards Ch. (N. Y.) 552; Railroad v. Mathews, 60 Tex. 215; Doud v. Railroad, 76 Iowa 438; Searle v. Railroad, 33 Pa. St. 57; Manning v. Lowell, 173 Mass. 100; Railroad v. Galgiani, 49 Cal. 137; Railroad v. Balthaser, 119 Pa. St. 472; Railroad v. Lumber1 Co., 160 Mo. 396; Railroad v. McGrew, 104 Mo. 282; Railroad v. Porter, 112 Mo. 361; Bennett v. Woody, 137 Mo. 377. But even if it had been proper to.show the value of the stone, as stone, separate and apart from the land, the retail value of the stone, in the retail market, could not be given in evidence. State to use v. Smith, 31 Mo. 566. (2) The court below committed no error in overruling appellant’s motion for new trial on the ground of alleged misconduct of the jurors. The evidence with respect to such alleged misconduct shows that there was never any talk by these jurors, or any other jurors, with respect to the case, outside of the deliberations of the jury room, or that Mr. Essen, or anybody else, ever talked with any of the jurors with respect to the case, or said a word to any of them about it. This whole matter of alleged misconduct of the jury is a matter largely, if not wholly, in the discretion of the trial court, which is better situated than the appellate court to determine whether or not any such alleged misconduct has occurred, and whether or not it is prejudicial to the moving party, and the action of the lower court in overruling such ground for new trial will not be disturbed unless it clearly appears that there has been an abuse of the discretion of the trial court, which must be clearly shown. Pendler v. DeWald, 14 Mo'. App. 60; State v. Floyd, 15 Mo. 3491; Price v. Evans, 49 Mo. 396; State v. Upton, 20 Mo. 397; State v. West, 69 Mo. 401; Kennedy v. Holliday, 105 Mo. 24; State v. Dusenberry, 112 Mo. 277; Hamburger v. Rinkle, 164 Mo. 398; Reed v. Mexico, 101 Mo. App. 155; Bank v. Fults, 90 S. W. 755.
   GANTT, J.

This is an appeal from the circuit' court of Franklin county in a condemnation proceeding wherein the plaintiff sought to condemn a right over and through a certain tract of land situate in the county of St. Louis and known locally as the Cartan tract, and containing about seventy-four acres. The proposed right of way runs from the northwest corner to the southeast corner. Previous to the commencement of this action defendant had laid off thirteen and forty-four one-hundredths acres as a subdivision, running across the northern end of the tract, into lots. Through this subdivision the St. Louis & Meramec River Railroad ran, bisecting the subdivision from east to west from the Big Bend road on the east to the west line of the tract. This subdivision, together with the land lying north of this proposed right of way, aggregated thirty-seven acres. The right of way of the Missouri Pacific Railway Company also runs through the tract from east to west and that portion of the land north of the Missouri Pacific right of way and west of the proposed right of way of plaintiff is about ten acres, and there is a fractional piece of three-fourths of an acre just southwest of the proposed right of way and along the Laclede Station road. South of the Missouri Pacific and of the proposed right of way of plaintiff is a tract o'f fifteen acres. Between the switch and Missouri Pacific is a triangular piece of two acres and east of the proposed right of way and south of the Missouri Pacific is another triangular piece of one and one-half acres. The whole will appear from an accompanying plat. The land sought to be taken for the plaintiff’s right of way and spur track amounts to about ten acres.

This action was commenced in St. Louis county, on proper petition in ordinary form, and was duly served, and commissioners appointed to assess damages to defendant, and said commissioners in their report assessed defendant’s damages at forty thousand dollars. Both sides filed exceptions and defendant demanded a jury, and. prayed for a change of venue, which 'was granted to Franldin county. On a trial before the circuit court and a jury, the defendant’s damages were assessed at $15,189. A number of witnesses for the plaintiff company testified that the land was worth from seven hundred and fifty dollars to one thousand dollars per aeré and that for the land taken and the damage to the remainder the total damage was $10,-250. Counsel for defendant concede that it cannot be said that there was no evidence to sustain the verdict, but submits it is shockingly in conflict with the weight of the evidence and ought not to stand unless the trial was fair and the proceedings untainted. We shall make no attempt to reconcile the hopelessly conflicting testimony. On the part of the defendant, its witnesses estimated its damages all the way from eighty thousand, dollars to $102,583, whereas the testimony for plaintiff tended to show that the ten acres actually appropriated was worth from seven hundred to eight hundred dollars an acre and the other tracts were damaged from twenty-five hundred to three thousand dollars, or a total of ten thousand five hundred dollars or eleven thousand dollars. Defendant’s witnesses, the major part of whom were real estate dealers in the city of St. Louis, estimated the whole tract at two thousand dollars per acre. The wide divergence between the witnesses can be explained to some extent by the fact that nearly all of defendant’s witnesses- lived in the city of St. Louis, and it may be their views as to values were unconsciously affected by their knowledge of values in the city. None of them, except Mr. John W. Gibson, bad any special knowledge of this tract or any particular experience in tbe sale of realty in that neighborhood. Mr. Gibson had sold one hundred and thirty-seven feet near Maplewood, which was considered a choice tract for that vicinity. This piece was within two blocks east and one block north of the Car-tan tract, and sold for twenty dollars per foot, or three thousand dollars per acre, but streets were already laid out and the grading done and it was within a block and a half of Maplewood. It would seem that Mr. Cartan and his. witnesses estimated the value largely upon a rock quarry on the land. On the other hand, plaintiff’s witnesses lived in St. Louis county and many of them near this tract and a number of them had had actual experience in the sale of suburban lands. There was much evidence that the large tract north and east of the proposed right of way had numerous sink holes in it, which would render it very expensive to grade and make desirable for building lots. The tract was already cut up by the Meramec Railroad and the Missouri Pacific and was rough and broken. It was the peculiar province of the jury to take this contradictory evidence into consideration and to weigh it, and as it must be conceded there was much evidence to sustain the verdict, this court cannot undertake, without encroaching upon the right of the jury, to weigh the testimony and disregard the verdict. This is too plain for discussion or further comment. Addressing ourselves then to the errors assigned for the reversal of the judgment, we find they can be reduced to three and we will consider them in the order of the brief.

I.' The exclusion of the testimony of Edward Rapp as to the value of the building stone in the quarry on the land is counted on as reversible error. This witness testified that he knew the quarry in the land lying west of the Lig Bend road and south of the Missouri Pacific. He was then asked if from his observations, seeing the stone, its outcroppings and where the quarry had been opened there, he was able to determine approximately the dimensions and extent of the stone in the quarry and he answered he could. He was asked how far north it extended and he said it ran within fifty feet of the Missouri Pacific track.

Counsel for defendant was permitted to inquire of the witness to test his knowledge, and he testified he had examined various quarries with a view of ascertaining for contractors who desired to purchase stone for building purposes. He was then asked by counsel for defendant what “was the value of that stone as it lay in the quarry?” To this plaintiff objected, and the court said: “The objection is sustained for the present. This witness has never testified that he knows the value of the land.”

The question and answer were not as to the value of the land with the stone in it, but simply as to the value of the stone. He then testified that he knew the value of building stone such as was in that quarry; that according to his estimate there were thirty thousand squares and that he knew the value of it “by getting at what the material sells for in quarry without any labor attached to it at all — what amount you would charge for the rock.” The question was then put in this form, “With your acquaintance with the value of building stone such as you found in that quarry what was or would be the market value of such building stone per square on the 6th of November, 1902, at the place of the quarry?” To this, plaintiff objected, “because the witness has shown he does not know how to estimate the value of the land or the value of the stone with the land.” The objection was sustained and this presents the question now before us. Counsel for defendant cites no authority for admitting this evidence, whereas the plaintiff relies upon the statement of the rule by Lewis in his work on Eminent Domain (2 Ed.), vol. 2, section 486, that ‘ ‘ the compensation should he estimated for the land as land, and not for materials which compose it. . . . It may he shown that the land is underlaid hy coal, as affecting its value, but it is not competent to go into the value of coal claimed to be under the surface, no mine having been opened and the existence and extent of the coal in the land being wholly a matter of opinion.” The rule is stated in this wise in 10 Am. and Eng. Ency. Law (2 Ed.), 1158: “Where land taken contains mineral the measure of compensation is the market value of the land with the mineral in it, and the profits or the price or value of the mineral, if the mineral itself had been taken, will not be considered.” In this State the law must be regarded as settled. This court has time and again held that when a part only of a man’s real estate is taken under condemnation proceedings the measure of damage is the difference between what was the fair market value of the whole tract or property before and its fair market value after the appropriation, in view of the uses to which the land condemned should thereafter be applied. [Railroad v. Knapp-Stout & Co., 160 Mo. 396; Railroad v. McGrew, 104 Mo. 282; Bennett v. Woody, 137 Mo. 377; Matter of Water Commr’s, 3 Edw. Ch. (N. Y.) 552.] This doctrine is abundantly supported by adjudications in other jurisdictions. [Railroad v. Balthaser, 119 Pa. St. 472; Manning v. Lowell, 173 Mass. 100.] We think there can he no doubt'that the court correctly refused to permit the defendant to establish the value of the rock separate from the land. It was a component part of the land. It may be well to remark in this connection that the defendant had the full benefit of the proof that the land contained a valuable rock quarry in the testimony of its witnesses, Messrs. Kean, Baggot and Cartan, but if it had not, it would have furnished no reason for admiting evidence of the value of the stone as personal property, when the issue was the amount of the damage to its real estate, for which the law has fixed a convenient rule of estimation.

II. Much stress was placed in the oral argument on the exclusion of Mr. Baggot’s evidence, and upon a superficial view of the record there is much plausibility in the claim that, because Mr. Baggot on cross-examination had admitted that his knowledge of the subdividing of the north part of this tract was obtained by hearsay, the whole of his competent and relevant evidence had been unjustifiably excluded. Upon a full consideration of the record on this point, we are satisfied the circuit, court excluded that portion only as tó the subdivision. Immediately following that ruling the learned counsel for defendant propounded to the witness these questions and received these answers:

. “ Q. When you estimate the damages at 75 per cent south of the Missouri Pacific, you are excluding the land taken, are you not? A. Yes, sir. Q. And also, with reference to B. and A.? A. Yes, sir.”

These questions and answers would have been so obviously in defiance of the court’s ruling, if he had excluded all of Mr. Baggot’s evidence, that it could hardly have escaped rebuke. We conclude that the stenographer mistook the scope of the question, but that court and counsel all understood the motion to exclude went simply to the hearsay. No other rational. conclusion can be drawn from the whole context of the record on this point and the conduct of both court and counsel.

III. Prom the large part it occupies in the motion for new trial and the argument both in brief and orally, it appears that counsel attach especial importance to the charge of misconduct on -the part of three of the jurors in drinking with and being treated by one Essen, an agent of the plaintiff, during the trial of the cause, whilst the court was adjourned or in recess.

On this point affidavits were filed both in support and in opposition to the new trial. The affidavits for the defendants are to the effect that Essen was seen sitting at a table drinking a glass of beer with one of the jurors on one occasion, and on another all three of the jurors and Essen and others were seen taking a glass of beer in a saloon in the town of Union during the recess of the court while > this cause was on trial, and one of the affidavits says that the juror and Essen were holding a serious private conversation. On the other hand, the affidavits for plaintiff tend to prove that Essen was not in the employ of the plaintiff; that at its request he had gone over the land in question and examined it with the view to testify his opinion as to the amount of damage; that owing to the fact that other witnesses had testified as he would have done and not to prolong the trial he was excused, but that he was in Union as a witness; that he was sworn with some twenty other witnesses and each of the jurors swears that he did not know or remember that Essen was sworn as a witness; but they each, as well as Essen, swear that while they took a glass or two of beer together the cause or trial was not mentioned between them; the jurors testifying that neither of them had violatéd the direction of the court as to conversing about the case. In addition to this the affidavits of other persons tend to show that the jurors are all men of good character and occupy responsible positions as business men. Essen admitted his friendliness to plaintiff, but denied that he had been or was to receive compensation for favoring the enterprise. The jurors testified they did not know Essen was an agent or in the employ of the plaintiff. This is a sufficient statement to indicate the issue.

It will be at once be seen that it was a matter for the trial court to settle. The judge of that court doubtless knew all of these parties, knew the custom of the country and it was his duty to weigh this evidence and grant or refuse a new trial accordingly as he found there had been any tampering with the jurors or not. He has found there was none and certainly the affidavits are sufficient to support that finding. We have been unable to find anything indicating an abuse of discretion in the finding of the circuit court. Of course we all agree that the courts cannot he too careful to see that juries are not only free from outside or improper influences hut even from a suspicion of such a thing, but when it appears that the conduct of the jurors when explained was wholly free of any reference to the cause and in no manner affected their verdict, it would be unjust to punish an offending litigant for such a breach of propriety, and this has been the course of decision in this court. [State v. Upton, 20 Mo. 397; Morgan v. Ross, 74 Mo. 318; Kennedy v. Holladay, 105 Mo. 24; Borland v. Barrett, 76 Va. 128; Hamburger v. Rinkel, 164 Mo. 398.]

As to that portion of the argument relating to one of the counsel for plaintiff being in and out of the saloon, based upon a remark of Essen in his testimony, it must he said that improper conduct on the part of tte counsel is not made a ground for a new trial and hence is not before us for review.

The exceptions must he overruled and the judgment affirmed, and it is so ordered.

Fiox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    WHITWORTH v. WEBB CITY, Appellant.
    Division Two,
    June 11, 1907.
    1. SEWER: General Ordinance: Details of Construction. An ordinance establishing a sewer, which sets out the general course of the sewer, size of pipe and approximate cost thereof, is sufficient to authorize the city to enter into contract for the construction of the sewer, and is not invalid as being insufficiently specific in details of construction; and if such an ordinance is followed by plans and specifications, full and complete in detail, prepared by the city engineer and approved by the city council before any contract is let, and treated and regarded by the council as if they had been authorized by ordinance, and used as the basis of the bids and contracts, they supply the necessary details of construction not specified in the ordinance, and the ordinance and a contract in' pursuance thereof are valid.
    2. -: Location: Divergence: Delegation to Engineer. Power to locate a sewer in a city of the third class is legislative, and cannot be delegated to the city engineer; but a slight divergence from the line or course of the sewer, between the starting point and terminus designated in the ordinance, in order to avoid a deep cut, is not a location of the sewer on a route different from that indicated by the ordinance;
    3. -: -: —-: Estoppel: Acquiescence. The city is estopped to deny its authority to make the contract by a recital in the contract that the work of constructing the sewer is let to plaintiff in pursuance to a specified ordinance; and its acquiescence and satisfaction with the work are shown by provisions in the contract authorizing the council to revoke the contract if the contractor should fail to comply with the instructions of the engineer or fail in any manner to comply with the specifications contained in the contract, and by no action on its part attempting to annul the contract.
    4. -: Ultra Vires Contracts. There is a marked distinction between the acts of cities which are ultra vires and acts which are merely irregular. It is within the authority of a city to establish a sewer district, provide for the sewer’s construction by contract, and pay for it out of the city revenues.
    5. -: -: Construing Statutes. In the interpretation of such contracts, in a suit against the city for the value of the work done, the statutes are not as strictly construed as in suits on special taxbills or benefit assessments to enforce a lien against private property for a public improvement. In such case a substantial compliance with the ordinance, contract and specifications is all that is required.
    6. -: Acceptance. Where a sewer was constructed in sub-* stantial compliance with the contract, the city cannot refuse to pay for it by arbitrarily refusing to- accept it.
    Appeal from Jasper Circuit Court. — Now. Howard Gray, Judge.
    Affirmed.

      George V. Farris, J. J. Nelson, Morris Pritchett and A. E. Spencer for appellant.
    (1) The ordinance must specify all the statutory requirements, and the power can only be- exercised under such an ordinance. R. S. 1899, secs. 5847, 67591. Public sewers may only he established at such points, to such extent, of such dimensions and under such regulations as may be provided by ordinance. Hence, an ordinance fixing the points at which the sewer is established, its extent, dimensions and regulations is an essential prerequisite. 'Without an ordinance covering these matters the whole proceeding is void, and plaintiff cannot recover. City to use v. Eddy, 123 Mo. 546; Wheeler v. City, 149 Mo. 36; State v. Butler, 178 Mo. 313; City v. Donohue, 190 Mo. 407. The statute contemplates an ordinance as the basis of the establishing of a public sewer system and the construction of the sewer; and further, an ordinance that by its terms, or by apt reference, is definite and certain as to what -sewer is to be built, where it is to be constructed and how, of what material and in what manner. City v. Martin, 95 Mo, App. 28; Heidelberg v. County, 100 Mo. 69; Andersqn v. County, 181 Mo. 46. (2) If it be true in this case the city could only proceed by ordinance, plaintiff’s action must fail, for he did not build, the sewer between the points, or along the route specified in the ordinance. Anderson v. Ripley County, 181 Mo. 58; City v. Collier, 68 Mo. App. 483; Galbreath v. Newton, 30 Mo. App. 380; People v. Board, 43 N. Y. 227. (3) Where the city was authorized, by ordinance, to establish a public sewer, and contract for construction of such sewer it could not delegate the exercise of the necessary judgment and discretion in such matters to the city engineer or any other person. Smith, Municipal Corporations, p. 549, sec. 564; Matthews v. City, 68 Mo. 115; Neill v. Gates, 152 Mo. 585; Ruggles v. Collier, 43 Mo. 353; City v. Eddy, 123 Mo. 546; Cooley, Constitutional Limitations (4 Ed.), p. 248. (4) Plaintiff, in dealing with the officers of defendant city, was bound to ascertain the authority of these officers, including City Engineer Bell, and to know that these officers were acting within the scope of their lawful powers. Cheeney v. Brookfield, 60' Mo. 53; Wheeler v. City, 149 Mo. 36 ; Saxton v. St. Joseph, 60 Mo. 153; Thornburg v. School District, 175 Mo. 23.

      A. M. Whitivorth, Edtvard J. White and Thomas & Hackney for respondent.
    (1) The courts cannot hold this ordinance void because of the manner in which the counsel exercised its 'legislative discretion. Hernán v. Schulte, 166 Mo. 409; Barber Asphalt Paving Co. v. French, 158 Mo. 534; Kansas City v. Trieb, 76 Mo. App. 478. Nor can this general ordinance be held to he illegal because it lacks precision or only loosely complies with the law, since it provides the manner in which the improvements are to be made and the sewers mentioned constructed. Sheehan v. Gleeson, 46 Mo. 100; St. Louis v. Oeters, 36 Mo. 456; St. Joseph v. Owen, 110 Mo. 445; St. Joseph v. Landis, 54 Mo. App. 315; State ex rel. v. St. Louis, 56 Mo. 277; Becker v. Washington, 94 Mo. Mo. 375; Kansas City v. Mastín, 169' Mo. 80; Young v. Kansas City, 27 Mo. App. 101; Galbreath v. Newton, 30 Mo. App. 380; Barber Asphalt Paving Co. v. IT11man, 137 Mo. 543; Ross v. Cates, 183 Mo. 338. (2) The special contract, under which the sewer in controversy was constructed, had all the essentials of a valid municipal ordinance, and after its adoption by the council, was tantamount to a special ordinance governing the construction «of the sewer. R. S. 1899', sec. 5832; Tarldo v. Cook, 120 Mo. 1; Aurora Water Co. v. Aurora, 129 Mo. 540; Tipton v. Norman, 72 Mo. 381; St. Louis v. Poster, 52 Mo. 514; Dillon, Mun. Corp., sec. 309. (3) The contract sued on was a valid, legal contract, not inconsistent with the terms of the general ordinance, establishing the sewers to be constructed; it was not a variance from the terms of the general ordinance and did not delegate to the engineer legislative functions that the council could alone exercise. Guild v. Andrews, .137 Ped. 369; Guyer v. Rock Island, 215 111. 144; Barber Asphalt Paving Co. v. Garr (Ky.), 73 S. W. 1106; Roth v. Hax, 68 Mo. App. 283; Barber Asphalt Pav. Co. v. Hezel, 155 Mo. 391; Ross v. Gates, 183 Mo. 338; St. Joseph v. Owen, 110 Mo. 445; St. Joseph v. Landis, 54 Mo. App. 315 ; State ex rel. v. St. Louis, 56 Mo. 277; Mobile v. Shea, 127 Ped. 521; St. Louis v. Oeters, 36 Mo. 456; Akers v. Kolkmeyer, 97 Mo. App. 520; Walker v. Chicago, 202 111. 531; Allen v. Melrose '(Mass.), 57 N. E. 1060; Bank v. Ridge, 183 Mo. 506. (4) Even if the contract sued on constituted a material variance from the general ordinance authorizing the construction of the sewer and it was not of sufficient formality to be held a special ordinance on the subject, it was nevertheless a valid, subsisting contract for the construction of the sewer, and the work and materials having been done and performed under the terms of such contract and not upon an implied obligation, defendant is liable thereon, though such contract was informal'or irregular, after having enjoyed the advantages and benefits of the work and materials furnished. Water Co. v. Aurora, 129 Mo. 583; Devers v. Howard, 88 Mo. App. 253; State ex rel. v. Milling Co., 156 Mo. 620; Foncannon v. Kirksville, 88 Mo. App. 2791; Water Works Co. v. Joplin, 177 Mo. 496; Akers v. Kolkmeyer, 97 Mo. App. 520'.
   BURGESS, J.

This is an action to recover the sum of $7,69240, the same being a balance claimed by plaintiff: to be due him by defendant for the construction of a public sewer in defendant city, under a general and, what is claimed by plaintiff, a special ordinance, and contract therefor, based upon certain plans and specifications covering the details and manner of construction. The length of the sewer, when completed, was about eleven thousand three hundred feet. Plaintiff recovered judgment for the sum of $7,246.55, from which judgment the defendant, after unavailing motions for new trial and in arrest, appeals.

The petition alleges that on the 12th day of August, 1901, the defendant, as a city of the third class, entered into a contract with him, in writing, for the construction of the sewer, under which the plaintiff agreed to furnish all the labor and materials and complete the sewer, in accordance with the terms and conditions of the contract, and the defendant agreed to pay therefor, according to a fixed schedule of prices, per unit, for all such labor and materials; that the contract was executed in duplicate and filed with the •city clerk, as required by law; that the work of construction was to be carried out, in accordance with the specifications adopted by the defendant and under the direction and supervision of the defendant’s city engineer, who was given power to make alterations and require additions to said specifications, all additions to be paid for at the same rate as the labor and materials originally provided for; that within the time agreed upon the plaintiff completed the construction of the sewer, in accordance with the terms and conditions of the contract, under the orders and directions of the defendant’s city engineer;'that all labor and materials used were fully paid for hy the plaintiff and that the sewer was accepted by the defendant. Plaintiff also set out, in his petition, an itemized1 statement of the amount due at the contract price, for labor, and materials furnished, aggregating the sum of $9,692.40; credited the defendant with a payment thereon of two thousand dollars, and alleged a demand and refusal to pay the balance due; alleged that on November 18, 1901, the defendant’s city engineer filed his final and supplemental estimate of the amount due the plaintiff, in the aggregate of $9,048, and alleged that said city engineer erroneously estimated only 547 cubic yards of solid rock excavated, whereas, in truth and in fact, plaintiff excavated 611 cubic yards of solid rock, in making excavations for the sewer, and that the city engineer only estimated 4,762 cubic yards of earth and loose rock, whereas, 5,698 cubic yards were excavated under the contract. That on notice from the city engineer, after completion of the sewer, the plaintiff did certain portions thereof over; he repaired and did additional work on the sewer and re-constructed all parts that were objected to by the city engineer; that after the final and supplemental estimate by the city engineer, the defendant, on February 1, 1902, appointed a new city engineer, who attempted to make another estimate, and the inability of such new city engineer to make a proper estimate and the improper conduct on the part of such new city engineer, in the making of such new estimates, are also alleged.

The answer admits the incorporation of defendant and the payment of two thousand dollars on the contract, and denies all other allegations of the petition.

As an affirmative defense it is alleged that the sewer mentioned in the petition was a public sewer, such as under the laws of Missouri could only be established at such points, to such extent, of such dimensions, and under such regulations, as were provided by ordinance of defendant city. That the city never passed any ordinance establishing such sewer, and fixing and defining the points where the same was established, the extent and dimensions thereof, and the regulations under which the same should be constructed, and therefore such contract as defendant’s officers may have attempted to make with plaintiff concerning said sewer was and is ultra vires and void.

That the only ordinance ever passed by defendant’s council was Ordinance No. 407, passed October 15, 1900, providing that a public outfall sewer system is hereby established, to be known as “The Yine Street Sewer,” “The Church Street Sewer” and the “Fourth Street Sewer.” “That the only provisions in said ordinance concerning said Fourth Street Sewer are:

“The Fourth Street Sewer shall begin in the center of Fourth street, at the junction of Webb street; thence west on Fourth street to Roan street; thence south to ravine; then following the natural watercourse of said ravine westward, crossing the Electric railroad át Barrett Heights Addition; thence in a more northerly direction passing west of the Webb City College, and terminating about forty rods north of the Mineral Ridge road; the Fourth Street Sewer shall be constructed of pipe ten and twelve inches in diameter, laid at an average depth of four feet.” That said ordinance is defective and insufficient in that it fails to definitely locate the points at which said sewer is to be constructed, the extent and dimensions thereof, the material and quality thereof, out of which the same is to be constructed, and fails to provide any regulation for the construction thereof, as to the method or time of construction, the kind and quality of material to be used or otherwise; by reason whereof any contract defendant’s officers may have attempted to make with plaintiff concerning said sewer was and is ultra vires and void.

That on August 12,1901, the mayor and city clerk of defendant undertook to enter into a contract with plaintiff for the construction of a public sewer in said Fourth Street Sewer District, but said contract, as above stated, was unauthorized and void. That whatever work defendant did under said pretended contract was not done between the points and along the route indicated in and by said Ordinance No. 407, but was done along a different route and between different points.

The answer also charges that its city engineer Bell’s estimate of $9,049.50, and the claim of plaintiff as submitted to defendant’s counsel for $9,995.25, were fraudulently made by said parties with intent thereby to cheat and defraud defendant. That the work done and material used by plaintiff under said pretended contract amounted to only $4,161.08, so that if said contract, or any part of it, he held legal and binding on defendant, plaintiff is only entitled to receive, for so much thereof as is so legal and binding, for the quantities and at the price last above stated. That when plaintiff claimed to have finished the work, defendant’s then city engineer, Atwater, made a correct final estimate of $4,161.08 and defendant refused to receive the work under the estimates of Bell or plaintiff.

That plaintiff’s claim was never properly presented to defendant in writing as required by law, with a full amount of the items, verified by the oath of the claimant, or his agent, that the same were correct, reasonable and just.

Then follows a claim for damages for failure to complete sewer within time required by the pretended contract, if same be held valid.

The reply is a general denial, with statement of matters directed solely to defendant’s claim for damages.

The facts are about as follows:

On October 15', 1900, the council of defendant passed an ordinance, No. 407, establishing a public outfall sewer system in the defendant city, designating the size of pipe and the course of the sewer, and limiting the cost thereof, which ordinance is as follows:

“Be it ordained by the council of the city of Webb Oity, Mo., as follows:
‘ ‘ Section 1. That a public outfall sewer system is hereby established, and the same shall be designated and known as ‘The Yine Street Sewer,’ ‘The Church Street Sewer,’ and ‘The Fourth Street Sewer.’
“Sec. 2. The following shall be the general course, size of pipe used, and the approximate cost of the aforesaid sewers mentioned in section one: . . . The Fourth street sewer shall begin in the center of Fourth street, at the junction of Webb street, thence west on Fourth street to Roan street, thence south to ravine, then following the natural watercourse of said ravine westward, crossing the electric railroad at Barrett Heights Addition, thence in a more northerly direction passing west of the ‘Webb City College and terminating about forty rods north of the Mineral Ridge Road; the Fourth street sewer shall be constructed of pipe ten and twelve inches in diameter, laid at an average depth of four feet, and shall cost approximately $7,346.62.
‘ ‘ Sec. 3. This ordinance shall be in full force and effect from and after its passage, adoption and approval.”

On August 5,1901, plaintiff made bid for constructing the sewer in question at the price of $3,912.80, which bid was accepted by resolntion on the same day.

After the written offer and proposal of the plaintiff was accepted by the defendant’s council, a special contract covering the specific terms and conditions under which the sewer was agreed to he constructed and paid for, was regularly entered into by the defendant’s council on August 12, 1901, or almost a year after the passage of the general ordinance, establishing the necessity for the sewers, and the plans, map, profile and specifications, as part of this latter contract, showed the location and construction of the sewer in detail, at the exact location where it was later constructed, and the map or profile, showing such location, was filed with the city clerk along with the plans and specifications constituting a part of this special contract, and was adopted and recognized by the council and its sewer committee, as a part of this special contract.

This contract, so adopted by the defendant’s council, after specifying the general power of the council, under the general ordinance No. 407 and the “authority vested in the said council by charter and general ordinance,” proceeds to let, to the plaintiff, the work of constructing this sewer, on the terms and conditions, and at the place specified in the plans, map, specifications and profile filed as a part thereof. The contract provided that the work should all be done in a workmanlike manner “and in strict conformity with the plans of such work, on file in the office of the city engineer of the city of Webb City; in strict obedience to the directions, which may, from time to time, be given by the said 'city engineer . . . and in strict accordance with the following plans and specifications, which are hereto attached and made a part of this contract.” At this time, as a part of such plans, there was a npap or profile, showing the exact location of such sewer, filed in the office of the city clerk and used by the council and the different bidders on the work, which was adopted, as a part of this contract, governing the construction of this sewer.

Under the contract, the plaintiff was required to commence work át such points as the defendant’s city-engineer should direct and to conform to his directions and instructions as to the mode of doing the work; the ■ city engineer was given power to discharge any of the plaintiff’s employees; all work implied by the contract, was to be done without extra charge; any extra work directed by the city engineer was agreed to be performed, and “to prevent disputes and litigation,” the city engineer was given full power to determine the amount or quality of the several kinds of work “and his estimates and decisions” were made final; any citizen and taxpayer, complaining to the city engineer, had a right, under this contract at the expense of the plaintiff, to a commission, to inquire into the quality or standard of his work; the city engineer was given authority “to make alterations in the line, grade, plan, form or dimensions of the work contemplated, or any part thereof, either before or after the commencement of the work to be done, ’ ’ and such alterations were stipulated to furnish no basis for damages or loss of anticipated profits, but the increased labor or materials, included in any such alterations, if made, were to be paid for, according to- the amount furnished, at the stipulated price, per unit, therefor. In the contract the right was reserved to the council, on notice, at any time, to order the work thereunder stopped and a failure to comply with the instructions of the defendant’s city engineer, gave the defendant’s council, at any time, a right to cancel the contract. The contract set forth a list of prices, per unit, for labor and materials furnished by the plaintiff; provided for the payment of the amounts due under the contract, on the estimate of the city engineer, less 15 per cent, to be retained until final completion of the work, and it gave “the city” the right to refuse payment, “should the measurement and the computation” be found or known to be improperly made.

Accompanying the contract are the plans, specifications and details, governing the manner of making the excavations; protection against accidents; the repairing and restoring of the streets; the laying of pipes and cementing and joining of “t’s” and joints, artificial foundations, rock cuts, handholds, lamp holes, manholes, flush tanks, brick masonry, cement work, mortar, concrete, stone masonry and all the general and special details of the work.

The final estimate and acceptance of the sewer by the defendant’s city engineer, under whose orders the work was done, was handed to the defendant’s council, on November 11, 1901, the additional claim and demand of the plaintiff, for work and materials performed and furnished, but not included in the city engineer’s final estimate, was presented and filed, at the same time and, on February 15, 1902, the new city engineer, Atwater, recommended the acceptance of the entire sewer and payment therefor, upon the basis of his later estimate and measurements.

T. B. Hudson, the foreman of the plaintiff, in the construction of the sewer, testified that the defendant’s city engineer set the grade stakes, in setting out the line of the sewer; he gave the grade and location at each point and it was constructed exactly in accordance with the grade and location given.

J. D. Gloswick testified that he worked for plaintiff on the construction of the sewer; that the city engineer, Bell, gave the grades and location of the sewer, and that he set the grades stakes and the ditch was dug according to his directions.

Samuel Bell, city engineer in Webb City, from 1898 until 1902, testified that on account of the location of the ground, the sewers in Webb City were divided into three parts, or districts; that what was known as the Fourth Street sewer, was constructed by the plaintiff, under his supervision and direction; that before advertising or accepting bids for this sewer, there were prepared by him plans and specifications approved by the council; the proposed bidders all had access to these plans; the contracts were all on the basis of one yard of rock, concrete, etc., and if they didn’t find any, they didn’t get anything for it; the amount due the plaintiff, as reported to the council, was correct; he saw the work every day and had exclusive charge of it as city engineer, and made the measurements himself, to determine the amount of his estimate; there was a difference between the plaintiff’s foreman and the witness as to the amount of solid rock excavated by the plaintiff, but the witness said he made careful estimates of the places where there was no rock and where there was rock, that he considered solid rock.

Counsel for the defendant objected to going into the basis of the engineer’s estimate, as follows:

“Mr. Spencer: In the absence of a showing of fraud, in a contract, like this, . . . his classification is final.”

The city engineer, continuing, further testified that the sewer was constructed according to the red line on the plat or map filed by him with the city clerk; that the sewer was not placed on Fourth street, between Webb and Roan streets, because there was a high hill in between those streets, on Fourth street, and that had to be avoided by coming around where the red line on the plat located the sewer; at the place 'where it was located the cut was only four or five feet, but had it been located on Fourth street, between Webb and Roan street, it would have been fifteen feet through the high hill; that the expense was lessened by building the sewer on the line shown on the plat or map; that the sewer was extended east, to the alley east of Thom, street, under the directions of Mr. Shaffer, chairman of the sewer committee, with the concurrence and consent of the other members of the committee; that the plat or map was made by the witness, as city engineer, prior to the letting of the contract, and that this map was used before the council at the time of the letting of the contract therefor. That there was a committee of the council "appointed to go over the line of the sewer and procure the right of way, consisting of two members of the council and Mr. Joe Stewart; that they went over the line together; that in the construction of the sewer the entire length he marked out on the ground the- location of the sewer, and Mr. Whitworth constructed it at the place designated; that he made an estimate just before the letting of the contract, after the profile map was made; the map was shown the council and then filed with the city clerk as the engineer’s profile of the work.

That the map was made long before any work was done, or any contract was let for the sewer; that in making the map and locating the sewer he followed the general course of the sewer, as established in the general ordinance; that after taking the elevations he found that he had a fall of one hundred feet, and that it wasn’t á question of following a direct line, or the line mentioned in the general ordinance, but he followed the general course in his profile and located the sewer where it was best for the city, in a southwesterly direction from Webb street, and then in a westerly direction until the branch was intersected; that this course . was made necessary on account of the hill in Fourth street.

The witness alsó testified that the location of the sewer at the place shown on his map or profile was adopted long before the contract was let to the plaintiff, and that the city council had adopted this location before the bidding was done. The sewer was constructed at the place he directed; where he staked it out, and, as located and constructed, it is a complete sewer and sufficient to give good service to the city. That if the sewer had been located on Fourth street it would have had a cut of from twenty-five to thirty feet deep for the people to connect with it, whereas it is only four or five feet deep where it is, and, as now constructed, the sewer is a part of a complete sewer system for the defendant city.

The plaintiff, Whitworth, testified that the sewer was constructed by him in strict accord with the profile and directions given him by city engineer Bell; that when the. sewer was finally finished Mr. Wertz, Mr. West, Mr. Potts and City Counsellor Pritchett all went out to inspect it; there were.no objections raised by any of this committee and the work was then all finally completed and ended. He also testified that he was never asked or requested by Mr. Bell, city engineer, to build the sewer west on Fourth street between Webb* and Roan streets, nor was there any line for a sewer marked out for him to build on there; that he followed the city engineer’s instructions and directions, went by his grade stakes and that the officers and committees of the city council knew where he was building the sewer and that they never- asked him to change it or move it to Fourth, nor objected to the construction on the line shown on the map. That on notice from Engineer Bell he reconstructed the concrete work south at the Frisco grade crossing, and then the work was accepted as finished and complete. That after the new city engineer, Atwater, was appointed he was asked by him to raise some pipe a little and he did that and everything else required of him, and then the new city engineer, Atwater; told him the sewer was absolutely correct with those repairs made.

For the defendant, W. D. Wertz testified that he was the mayor of Webb City and was a member of the council when the sewer was built; that the sewer followed the genera] < course of the branch, and to lay it on Fourth street would have necessitated á cut of twenty feet or more in the street; it would have been a very much more expensive location than that adopted by the council; that for this reason the council authorized the letting of the contract and the construction of the sewer at the place shown on the profile map and plat prepared by the city engineer; he was a member of the sewer committee; understood the place the sewer was being constructed and the place specified in the map and contract and never asked the sewer built on Fourth street, nor did any member of the council; Shaffer was chairman of the sewer committee and looked after it most of the time; after the sewer was completed they all went over it and there appeared to be nothing wrong with it, and that night Mr. Whitworth •presented his bill for allowance.

Mr. Atwater, the new city engineer, testified that he had measured up the sewer after it was finally completed, and that it measured 11,431 feet; that he had the plaintiff take up some of the sags and line up the sewer pipe; that he had seen the plaintiff’s claim and estimate on file in the city clerk’s office; that on the 10th of December he was along the line of the sewer and saw the plaintiff reconstructing the concrete work at the Frisco grade crossing; that at the time of the trial the sewer was a complete sewer on a grade that worked all right, and it was only a question about paying for it now.

Section 3847, Revised Statutes 1899, provides that: “The council shall have power to cause a general sewer system to be established, which shall be composed of three classes of sewers, to-wit, public, district and private sewers. Public sewers shall be established along* the principal courses of drainage, at such points, to such, extent, of such, dimensions and under such regulations as may be provided by ordinance.”

Tbat tbe city bad tbe power to pass an ordinance establishing public, district and private sewers, is not doubted; but defendant contends tbat tbe ordinance in question is defective and invalid, and not a sufficient ordinance to authorize tbe defendant to contract for the construction of a sewer, because not in compliance with tbe requirements of tbe statutes of tbe State comprising tbe charter of cities of this class; tbat it is not sufficient as to tbe establishment of tbe points or tbe extent of dimensions of tbe proposed sewer, and does not provide, as required by statute, any regulations concerning tbe construction thereof; tbat it is too indefinite and uncertain to be tbe basis of any contract for construction of sewer work; tbat it fails to provide or designate tbe character,or quality of tbe pipe out of which tbe sewer is to be constructed, or bow much shall be ten and bow much twelve inches in diameter,-and fails to provide any regulations whatever for tbe construction of tbe sewer.

All sewers in incorporated cities can only be constructed in pursuance of an ordinance passed by tbe counsel of such city for tbat purpose. [City to use v. Eddy, 123 Mo. 546; Wheeler v. City, 149 Mo. 36.]

It is evident that it was not tbe purpose of tbe ordinance to make tbe course of tbe sewer any more definite than it does. It designates tbe point of beginning and points out tbe direction it shall take to a ravine; then to follow tbe natural water course of said ravine westward, “crossing tbe electric railroad at Barrett Heights Addition; thence in a more northerly direction passing west of tbe Webb City College and terminating about 40 rods north of tbe Mineral Ridge Road.” It further provides tbat tbe sewer shall be constructed of pipe ten and twelve inches in diameter, laid at an average depth, of four feet, and shall cost approximately $7,346.62.

We are unable to agree with the defendant that the ordinance is not sufficient to authorize defendant to enter into the contract sued upon for the construction of the sewer, or that it does not sufficiently establish the points or the extent or dimensions of the sewer, or that it is too indefinite and uncertain, or otherwise invalid. In passing upon a similar ordinance in Sheehan v. Gleeson, 46 Mo. 100, the court said: “But defendant’s counsel criticise it as not being sufficiently specific, and insist that too much discretion is still left to the engineer. We should first premise that, as a matter-of necessity, some discretion must be left to the executive officers. It would be difficult for ordinances to specify every particular of a work; but they must be more or less general, and must take many things for granted in the history, geography and topography of the place, and in the arts called into requisition by the improvements ordered. And we should further premise that an ordinance may lack desirable precision, and still may so provide for the manner in which the improvement shall be made, and be such a compliance with the law, although a loose one, that the courts would not be authorized to invalidate the action of the city officers under it. It is not every irregularity or .omission that goes to the substance of a proceeding.”

Plaintiff contends that the ordinance is only declaratory of the legislative necessity for the establishment of the sewers therein mentioned, and purports to establish the general course, size of pipe, and approximate cost thereof, and that all of the prerequisites asserted by defendant to be necessary, that is to say, the details of the location and construction of the sewers, were regulated and governed by the later special contract and ordinance, and the map, profile, plans and specifications which were adopted by the city council were in the office of the city clerk and city engineer at the time the’contract for the work was let to plaintiff.

The records of thé city council showed that at a meeting of said council, held on the 15th day of July, 1901, on motion of Wertz, a member of said city council, seconded by Shaffer, the city engineer was ordered to advertise for bids on the construction of the Fourth street sewer, after the amount of damages and costs on securing the right of way had been paid; that on August 5,1901, at another meeting of said council, bids for the construction of the said sewer were opened, and John T. Whitworth’s bid of $3,912.80 being the lowest, he was awarded the contract for building the sewer, on motion of F.isher, seconded by Ashcroft, all present voting “Ves,” and the city counselor was instructed to prepare contract and bond for acceptance of the council; that at a meeting of sáid council, held August 12, a contract with J. T. Whitworth for the construction of the Fourth Street sewer, with bond in the sum of two thousand dollars, signed by said J. T. Whit-worth, ‘ with A. M. Whitworth and A. C. Carter as sureties, were read and, on motion of Ashcroft, seconded by Covert, the same were accepted, all present voting “Yes.”

While there was but the one ordinance, the plans and specifications for the sewer were prepared and filed by the city engineer in his office, in pursuance of the directions of the city council, prior to the time the contract for the construction of the sewer was let, and,- being full and complete in every detail as regards the construction of the sewer, were treated' and regarded by the council just as if the same had been authorized by ordinance, and must be regarded as supplying the necessary details of the construction of the sewer not specified in the ordinance, and as in effect taking the place of the ordinance in these respects.

When the ordinance is considered in connection with the plans and specifications, as we think it should be, the sewer was built within the terms thereof. Defendant, however, insists that the city could not delegate the exercise of the necessary judgment and discretion for the location of the sewer to the city engineer. It is well settled that legislative powers cannot be delegated (Matthews v. City, 68 Mo. 115; Neill v. Gates, 152 Mo. 585; Ruggles v. Collier, 43 Mo. 353; Smith on Municipal Corporations, sec. 564; Cooley on Constitutional Limitations (4 Ed.), p. 248); and that the power to locate sewers in cities of the third class is of that character is clear, because express power so to do is vested in such cities by section^ 5847, Revised Statutes 18991.

The contract sued upon is in all material respects in compliance with the plans and specifications, and, therefore, not at variance with the terms of the general ordinance, and did not, we think, delegate to the city engineer legislative functions that the city council alone could exercise. The general course of the sewer, its termination, and the size of the pipe to be used in its construction are designated by the ordinance ; and the slight divergence from the line or course of the sewer, between its starting point and terminus, was not in fact a location of the sewer upon a route different from that indicated by the ordinance, and resulted in no injury to the defendant.

In State ex rel. Cavender v. St. Louis, 56 Mo. 277, it is held that while it was the duty of the city council, under' its charter, to establish the sewer districts by ordinance, it was not necessary that it pass another and special ordinance to determine the particular route, or dimensions, or material, or laterals of the sewer within the district, but that these details might be intrusted to the engineer to be regulated by contract. [See, also, Guild v. Andrews, 137 Fed. 369; St. Joseph to use v. Owen, 110 Mo. 445; Roth v. Hax, 68 Mo. App. 283; Guyer v. City of Rock Island, 215 Ill. 144.]

Contracts intrusting to the city engineer the details of the supervision and direction of the construction of sewers and the manner of the carrying out and- the quality of the materials and the engineering features of the construction have been held not to delegate legislative powers to such officer. [Mobile v. Shea, 127 Fed. 521; State ex rel. v. St. Louis, supra; St. Joseph to use v. Owen, supra; St. Joseph to use v. Landis, 54 Mo. App. 315; Allen v. Inh. Melrose (Mass.), 67 N. E. 1060.]

In Mobile v. Shea, supra, a written contract was entered into between a city and a contractor for the construction of a system of sewerage for the city, in accordance with plans and specifications annexed, and at prices for work and materials shown in a schedule annexed, although the right was reserved to change the amounts from those shown in the plans and specifications. It was further provided that all estimates of work done and materials furnished should be made by the city engineer, and all differences and disputes in relation thereto, or any matter or thing arising in reference to the construction of said sewerage system, should be referred to him, and his decision thereon should be conclusive, final and binding on both parties. It was held that the work done and materials furnished by the' contractor in constructing the sewers, although the plans and specifications were, in some instances, departed from, were done and furnished under the contract, and at the prices therein fixed, and that as to amount of same and the other matters involved the estimate of the city engineer was final.

The contract in this case recites, “Whereas the council of the city of Webb City, under the provisions of ordinance No. 407, approved October 15, 1900, and by authority vested in the said council by charter and general ordinances of the city of Webb City, did let unto the said J. L. Whitworth the work of constructing sewers in'the city of Webb City, as by the above-mentioned ordinance specified.” It also provides that if the contractor shall neglect to comply with the instruction of the engineer relative thereto, or shall fail in any manner to comply with the specifications or stipulations contained in the contract, the city council shall have the right, with the consent of the mayor, to annul and cancel the contract and reject the work or any part thereof. Yet the work was permitted to go on, with full knowledge by the city authorities of the manner in which it was being done, without protest on their part; at least, without taking any steps to cancel or annul the contract. Not only this, but the plat and profile showing the location .and course of the sewer as constructed (which the evidence of the city engineer Bell showed was filed and made a part of the special contract’ before its adoption by the council), takén in connection with the verbal evidence, show that the variance in the location from the Fourth street line mentioned in the ordinance was for the advantage and benefit of the city, and this seems to be the reason why the council and its committees made the change, and sufficiently explains the reason for the approval of the sewer by the city engineers Bell and Atwater, both of whom testified that the sewer as constructed is a complete and serviceable sewer. The recital in the contract quoted estops defendant from denying its authority to make the contract, and its acquiescence in the manner of the sewer’s construction and the work done tends to show that the work was being done satisfactorily to the defendant.

There is a marked distinction, as indicated by the authorities, between the acts of municipalities which are ultra vires and acts which are merely irregular. In this case the acts of the city authorities were within the scope of their power. The contract was in writing, as required by statute, and the plans, profile and specifications were all filed with the city clerk, and used and adopted by the council, and also used by the committee and its authorized officers before and after the construction of the sewer, and there was no departure therefrom. [Beach on Pub. Corp., secs. 693-700.]

All cases relied upon by defendant were suits between the city and a third party to enforce a lien for improvements, under statutes which, because of their special character, are strictly construed; or . actions ag’ainst the city upon a contract which was invalid. In the case at bar the contract sued on was between parties capable of contracting with respect to the subject-matter thereof, and the same rule does not apply as that which obtains in cases for the enforcement of a special lien against property for street improvements. In this class of cases a substantial compliance with the ordinance, contract and specifications,, is all that is required.

It has been held that material changes in a contract for city work made by a city engineer, in whom was vested, as in this casé, the power to make changes, were no barrier to the contractor’s right to recover for the work done. [Kingsley v. Brooklyn, 78 N. Y. 200; Mulholland v. New York, 113 N. Y. 631; Messenger v. Buffalo, 21 N. Y. 196.]

Water Co. v. City of Aurora, 129 Mo. 540, was an action by plaintiff, as assignee, to recover of the defendant city hydrant rentals claimed to be due it in consequence and by the performance, of a contract made between plaintiff’s' assignor and defendant, and which consisted of certain ordinances passed by defendant, adopted by the tax-payers, and accepted by plaintiff or its assignor. Defendant denied the validity of the contract, on constitutional and other grounds. Sherwood, J.,' speaking for the court, said:

“The city had it in its power to ratify what had previously been done, inasmuch as ordinance 35 passed, its adoption by the requisite vote, and the acceptance, by Ouiney, constituted a completed contract, one infra vires the municipality. On this point the learned author already cited observes: ‘A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of the corporate powers, but not otherwise. Ratification may frequently be inferred from acquiescence after knowledge of all material facts, or from acts inconsisteni with any other supposition. The same principle is applicable to corporations as to individuals.’ [1 Dillon on Mun. Corp. (4 Ed.), see. 463.]
“Now here the only ratification would be with regard to the simple acceptance of the work, work done under full sanction of legitimate authority. ‘Strong evidence of the assent of the corporation is not required; but such assent must be shown.’ [Dillon on Mun. Corp., sec. 464.]
“We incline to the opinion that there has been a sufficient ratification of the report of the waterworks committee shown, and acceptance of the works by the use of the water for such a length of time, without objection, and by payment of the first installment due for hydrant rentals, amounting to nearly eight hundred dollars. Having received the benefit of a contract fairly and lawfully made, the city should not he permitted to shirk the burden which goes hand in hand with the benefit received, by refusing to technically accept what it is. perfectly willing to actually use. Such conduct will not be tolerated in a court of justice, and we shall treat the works as accepted by the city.”

The issues as to whether plaintiff had complied with the terms of the contract, as to any fraud or conspiracy between plaintiff and the defendant’s engineer, the question of damages due the defendant for delay in completing the sewer, and the .amount due plaintiff under the contract, were all submitted to the jury by instructions which are not criticized by defendant, and the finding was for plaintiff upon all of the issues, and the verdict is conclusive upon each and all of them.

The sewer having been constructed in substantial compliance with the terms of the contract, it was defendant’s duty, upon notification, to receive the same, and it cannot refuse to pay therefor although arbitrarily refusing to formally accept it. As was said by Mr. Justice Field in Gas Co. v. San Francisco, 9 Cal. 1. c. 469, “The obligation to do justice rests equally upon it [the corporation] as upon an individual: It cannot avail itself of the property of labor of a party,. and screen itself from responsibility under the plea that it never passed an ordinance on the subject.”

The judgment is for the right party, and no error, in our opinion, having been committed by the trial court against the appellant materially affecting the action, we are prohibited by statute (sec. 865, R. S. 1899) from reversing, the judgment.

The judgment is affirmed.

All concur.