text:
    CROCKER v. BARTEAU et al., Appellants.
    Division Two,
    May 19, 1908.
    1. REFERENCE: By Agreement: Equity Matters. Where the record shows that the cause was referred to the referee by the mutual agreement of all the parties to the suit, the court did not err in so referring it, whether it involved matters of equitable cognizance or not.
    2. -: Partnership. Where plaintiff’s right for the amount ■ suef for did not grow out of a partnership arrangement between him and the defendants, but out of a contract by which they were to pay him that sum as the purchase price for a sale to them of a part interest in the properties, the suit is not one in equity, and the court did not err in referring it to a referee. Nor is the plaintiff’s right to sue at law any less because defendants agreed to pay plaintiff the purchase price as soon as that sum was realized out of the first net profits of the partnership business.
    3. NET PROFITS: Partnership: Mine. The owner of a mining lease sold a half interest to the defendants for $2,500 cash, and $2,500 when a shaft “now in process of sinking shall have reached mineral sufficient to satisfy them that good pay mineral exists in said shaft, sufficient to justify the erection of a mill on such property, then a complete concentrating mill is to be erected by all parties hereto, and in addition to the above payments it is agreed that said” seller ‘‘shall be paid the further sum of $4',166.66 out of the first net profits to be taken out of the ground,” and hereafter “all parties hereto shall bear equally all further expenses of sinking shaft and developing the property as their interests may appear.” The shaft was sunk, and the mill constructed, and the seller bore his partnership share of the expenses, and then sold his claim for $4,166.66 to plaintiff. Eeld, that, - by the words “first net profits taken out of the ground” was not meant that defendants should first be reimbursed for moneys expended by them in developing the mine, sinking the shaft, purchasing and erecting the mill, purchasing and operating machinery and paying royalties, but the first net profits, after the mill became a productive enterprise; and as the books showed that the receipts for ore sold exceeded the current operative expenses and the expenses of repairs and betterments, plaintiff is entitled to recover.
    Appeal from Jasper Circuit Court, — Row. Hugh Dabbs, Judge.
    Affirmed.

      McAntire & Scott for appellants.
    (1) The court erred in referring the case to the referee. Both the right and remedy arose by reason of the relation of the parties to each other at the time the contract was made, and that is held by our courts to be that of a partnership, and the suit should have been brought in a court of equity instead of one at law. Snyder v. Burnham, 77 Mo. 52; Plumber v. Frost, 81 Mo. 425; Brownlee v. Allen, 21 Mo. 125; Priest v. Choteau, 12 Mo. App. 252; Rankin v. Farley, 29 Mo. App. 587; Freeman v. Hemingway, 75 Mo. App. 611. (2) The words “net profits” or “first net profits” mean that which shall remain as the clear gain of any business venture after deducting the capital in the business, the expenses incurred by its conduct and the loss sustained in its prosecution. Park v. Grant Locomotive Co., 40 N. J. Eq. 167; McCluskey v. Klosterman, 20 Ore. Ill; Rubber Co. v. Goodyear, 9 Wall. 804; Long v. Kee, 42 La. Ann. 907; Hunter v. Roberts, 83 Mich. 72; Wallace v. Beebe, 12 Allen (Mass.) 354; Fuller v. Miller, 105 Mass. 103; Carter v. Arnold, 134 Mo. 208; Maloney v. Love, 11 Col. App. 288; Railroad v. Railroad, 50 Yt. 287; Hentz v. Penn. C'o., 134 Pa. St. 346; Scott v. Hartley, 126 Ind. 246. (3) “ First net profits ’ ’ cannot exist until profits have been made. Profits mean the gain which is made upon any business investment or venture when both payments and receipts are taken into account. When shown, as in this case, that the expenses far exceeded, the receipts from the date of the contract to the date at which it was sought to hold that there were “first net profits,” first net profits could not exist. People v. San Francisco Savings Union, 72 Cal. 199; Scott v. Hartley, 126 Ind. 246; Hentz v. Penn Co., 134 Pa. 343; Toombs v. Mining Co., 15 Nev. 444; Welch v. Cannfield, 60 N. Y. 475. (4) As this contract was made on January 8, 1900', expenses to begin January 1,1901, the defendants agreeing to pay their pro1portion of the previous weeks’ expenses, it was certainly contemplated that the period of time at which expenses should be considered was from the time the parties agreed that it should begin, and it clearly apip eared from the evidence that by taking the same into consideration no profits at all had arisen. Connoly v. Davidson, 15 Minn. 519'; P’eople v. San Francisco Savings Union, 72 Cal. 199; Mobile v. Railroad, 153 N. E-. 486. '

      B. F. Shipley, Gardner $ Cameron and P. D. Decker for respondent.
    (1) This is a suit at law and not in equity, because it grows out of a contract made between individuals before the status of partnership arose, whereby defendants agreed to-.pay $4,166.66 as part of the purchase price for their interest in the mine. (2) Even if the relation of partners existed, the agreement as to the deferred payment was not a partnership but an individual transaction, the same as if one partner had loaned money to the firm and taken a partnership noté for it, and therefore it can be enforced in a court of law. Willis v. Barron, 143 Mo. 450; Cinnamond v. Greenlee, 10 Mo. 5-82. (3) Even if this were a suit in equity, appellants cannot complain now, because tbe court bad jurisdiction, and appellants did not object to tbe procedure, at any time or in any manner in tbe lower court. They agreed to submit tbe case to a referee, they asked declarations of law, and they can not now for the first time claim to be injured. R. S. 1899, see. 864; Herman v. Larkin, 108 Mo. App. 392; Benton Land Co. v. Zeitler, 182 Mo. 252; Cowen v. Railroad, 48 Mo. 556. (4) Tbe intention of tbe parties, at tbe time of making tbe contract, will be carried into effect, so far as tbe rules of language, and tbe rules of law will permit. 2 Parsons on Contracts, chap. 1, sec. 3; Field v. Leiter, 118 111. 21; Holmes v. Bemis, 124 111. 454. (5) In construing a contract there is no better way to arrive at tbe intention of tbe parties than tbe construction placed upon tbe contract by tbe parties themselves. By tbe last contract between Scott and Barteau and Bolen, Scott sold a further one-sixtb interest in tbe mine to' Barteau and Bolen, and fixed tbe meaning of first net profits in these words: “It is understood that by tbe conveyance of this interest, it will reduce tbe deferred payment to be taken out of tbe ground in former contract, tbe ratio of one-sixtb less.” This expression of tbe parties is inconsistent with defendants’ theory— that defendants should be reimbursed for all moneys spent in building tbe mill and making permanent improvements before tbe purchase price for tbe interest in tbe mine should become due. Where contracts are written in such a way as to be of doubtful meaning tbe construction given by tbe parties will be adopted by tbe courts. Laing v. Holmes, 93 Mo. App. 233. (6) If tbe current receipts exceed tbe current expenses of a business, | it is apprehended the excess can be divided as profits; i although tbe capital may be spent, or not be reprej sented by salable assets. George on Partnership, pp-. ' 81 and 184; 1 Bates on Partnership, sec. 229; Braun’s Appeal, 105 Pa. St. 414; Meserve v. Andrews, 106 Mass. 419'. In estimating the profits of the business of a co-partnership, it is error to include among the expenditures such amounts as have been expended in permanent improvements to the real estate — such improvements must be regarded as capital. Braun’s Appeal, 105 Pa. St. 414; Meserve v. Andrews, 106 Mass. 419. As to the mode of ascertaining profits, where an individual not a partner is entitled to a portion of the profits, the usual method is to take the excess of current receipts over current expenses. Bindley on Partnership, p. 394; Rishton v. Grizelle, 5 Eq. 326,10 Eq. 398 ; Ins. Co. v. Yan Cleave, 191 111. 410. Profits are excess of receipts over expenses. Keaton v. Mayo, 21 Ga. 649; Livingston v. Blanchard, 130 Mass. 341; Ins. Co. v. Yan Cleave, 191 111. 410; Fuller v. Miller, 105 Mass. 103; Welsh v. Canfield, 601 Md. 469. As to the construction of clauses of contracts with reference to the payments of dividends out of profits, the courts have uniformly held that where the current ordinary receipts exceed the current ordinary expenses, the excess may be divided as profits. Davisson v. Gillies, 16 Chan. D.'347n; Bent v. Lon. Tram. Co., Id. 344; Bloxam v. Railroad, 3 Chan. 337; Flitchaft’s Case, 21 Chan. 519. Interest on capital can not be deducted before declaring dividends of profits, in the absence of a contract to that effect. 5 Eq. Ca. 329; 10 Eq. Ca. 438; Paine v. Howell, 90 N. Y. App. 660; Sanfield v. Barney, 4 N. Y. Supp: 500'. Depreciation of buildings in which a business is carried on, though they were erected by the expenditure of capital invested, is not ordinarily or necessarily considered in estimating profits. Eyster v. Cen. Bd. Fin., 94 U. S. 500; Park v. Grant Locomotive Works, 3 Atl. 166.-The profits of a company are not such as remain after the payment of every debt, but are the excess of ordinary receipts over ordinary expenses, properly chargeable to revenue account. Mills v. North R. Co., L. R. 5 Ch.an. 631; Birsch v. Cropper, 14 App. Ca. 525. Net profits are the excess of ordinary current receipts over ordinary current expenses. The expenses are limited to what is necessary to keep the capital intact. Park v. Tenille, 20 Ga. 118; Fuller v. Miller, 105 Mass. 103; Wallace v. Beebe, 12 Allen (Mass.) 354; Connelly v. Davidson, 15' Minn. 519; Jones v. Davidson, 2 Sneed (Term.) 452. A person not a partner, in any business, who is to receive or be paid a certain sum out of the first net profits, has a right to expect that the owner of the business will provide the necessary capital. The owner under these conditions can not deduct capital, or interest on capital, in the absence of a specific contract authorizing it. Braun’s Appeal, 105 P'a. St. 414; Ins. Co. v. Van Cleave, 191 111. 410; Meserve v. Andrews, 106 Mass. 419; Whitcomb v. Converse, 119 Mass. 38; Fletcher v. Hawkins, 1 B. I. 330; Parnell v. Robinson, 58 Ga. 26; Taylor v. Davis, 110 IT. S. 330; Sheldon v. Purdy, 17 Wash. 135; State v. Marion Co., 21 Kan. 434; Eyster v. Cen. Bd. Fin., 94 U. S. 500; 8 Am. and Eng. Ency. Law, 504; 90 N. Y. App. 660; 4 N. Y. Supp, 500'. Where the contract imposes a liability on the business and the partners, or stockholders, to be paid out of the first net profits of the business or venture, the partners or stockholders do not receive all the money they have put into the business of the venture, before the liability is discharged. It must.be paid out of the excess of current receipts over current expenditures. Eyster v. Cen. Bd. Fin., 94 H. S. 500; Taylor v. Davis, 110 H. S. 330; Ins. Co. v. Van Cleave, 191 HI. 410.
   GANTT, J.

— This is an action by attachment brought by the plaintiff against the defendants in the circuit court of Jasper county for $4,166.66, together with interest thereon from November 2nd, 1901. The ground of the attachment was that the defendants were non-residents of the State of Missouri, and were about fraudulently to convey and assign their property and effects so1 as to hinder and delay their creditors and have fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors. The answer of the defendants was to the merits and they admitted the execution and delivery of the contracts pleaded in plaintiff’s petition and denied each and every other allegation contained in the petition.

The petition in substance states that the defendants were partners at all the times hereinafter mentioned and engaged in mining for lead and zinc ores in Jasper county, Missouri; that on or about January 8th, 1900', Adam Scott was the owner of a certain mining lease and machinery on lots No. 9, 10, 17 and 18 on the land of the Chitwood Hollow Mining Company, which lease bore date July 12th, 1899, and ran for a period of ten years from said date and was known as the “Great Scott” mine. That on or about January 8th, 1900, said Scott executed and delivered to defendánts A. B. Barteau and A. O. Bolen a certain contract of sale of said mine and lease in words and figures as follows:

“Joplin, Mo., January 8th, 1900.

“I, Adam Scott, hereby sell and assign to A. B. Barteau and A. O. Bolen who are hereby designated as parties of the second part an undivided one-half interest in a certain lease from Chitwood Hollow Mining Company, to Adam Scott bearing date of July 12th, 1899, and running for a period of ten years from date; said lease covering lots Nos. 9, 10', 17 and 18; also an undivided one-half interest in all fixtures, viz., one Sullivan steam drill, pipes and fittings, one twenty-five H. P. boiler except one hundred dollars payment to Leedy & Co., all tools, rope, tubs, cars, derricks, lumber, etc.,with .large cage shaft down to about eighty feet for and in consideration of $2,500 in hand paid the receipt whereof is hereby acknowledged and the further conditions and stipulations hereinafter contained, viz., that said second parties are to pay me the further sum of $2,500 when said shaft now in process of sinking shall have reached mineral sufficient to satisfy them that good pay mineral exists in said shaft sufficient to justify the erection of a mill on said property then a complete concentrating mill is to be erected by all parties hereto and in addition to the two above payments made, it is agreed by and between the parties hereto that said Adam Scott shall be paid the further sum of $5,000 out of the first net profits of the mine’, as full and complete consideration. Commencing Jannary 1st, 19001, all parties hereto shall bear equal all the further expenses of sinking shaft and developing the property as their interests may appear.

“It is further agreed by and between the parties hereto that if said second parties do not make the further payment of $2,500 as above set out in second payment, then any and all payments previously made shall be held as liquidated damages and said second parties shall reassign back to said Adam Scott all their right, etc., title and interest, in the above described property as herein conveyed.

“In witness whereof we have hereunto set our hands and seals as of the date first above mentioned.

“Seal. Adam Scott.

“Seal. A. B. Barteau.

“Seal. A. O. Bolen.”

That said contract of sale was duly recorded in Jasper county, January 17th, 19001; that by the terms of said contract said Barteau and Bolen acquired an undivided one-half interest in said mine and lease, and by the terms of said contract it was agreed and understood that when the shaft of said mine then in the process of sinking should reach mineral sufficient to satisfy the parties of the contract that pay mineral existed in quantities sufficient to justify the erection of a mill on said property, then a complete concentrating mill should be erected by all parties to the contract, and that commencing January 1st, 1900, should bear equally all the expenses of sinking the shaft and developing the property. And by said contract it was further agreed that the said Adam Scott was to receive the sum of $5,000 out of the first net profits of said mine. Plaintiff avers that said shaft thus in process of sinking reached pay ore sufficient to satisfy the parties to the contract that they were justified in erecting a concentrating mill and that said Adam Scott paid his part of the expenses of sinking said shaft and building the mill and developing the property and performed all of his covenants and agreements as set forth in the said contract. That on or about February 6th, 1900, said Adam Scott executed and delivered another contract of sale conveying to said Barteau and Bolen a further one-sixth interest in said mine and lease which said contract of sale was in words and figures as follows:

“ Joplin, Mo., February 6th, 1900.

“I, Adam Scott, hereby sell and assign to A. B. Barteau and A. O. Bolen who are hereby designated as parties of the second part an undivided one-sixth interest in a certain lease from Chitwood Hollow Mining Company to Adam Scott bearing date of July 12th, 1899, and running for a period of ten years from date; said lease covering lots Nos. 9, 10, 17 and 18; also an undivided one-sixth interest in all fixtures, viz.: One Sullivan steam drill, pipes and fittings, one twenty-five H. P. boiler, one steam hoister, all tools, ropes, tubs, cars, derricks, lumber, etc., with a large cage shaft down about one hundred feet, for and in consideration of $5,000 cash in hand paid, the receipt whereof is hereby acknowledged, and the further conditions and stipulations hereinafter contained, viz., that said second parties are to pay me the further sum of $2,000 when said shaft now in process of sinking shall have reached mineral sufficient to satisfy them that good pay mineral exists in said shaft sufficient to justify the erection of-a mill on said property. Then a complete concentrating mill is to be erected by all parties hereto. Commencing February 12th, 1900, all parties hereto shall bear equal all the further expenses of sinking shaft and developing the property as their interests may appear. And it is further agreed by and between the parties hereto1 that if said second parties do not make further payment of $2,000' as above set out in second payment, then any and all payments made shall be held as liquidated damages, and said second parties shall re-assign back to said Adam Scott all their right, etc., title and interest in the above described property herein conveyed. It is understood that by the conveyance of this interest that it will reduce the deferred payment to be taken out of the ground in former contract the ratio of one-sixth.

“In witness whereof we have hereunto set our hands and seals the date first above mentioned.

“Seal. Adam Scott.

“Seal. A. B. Babteau.

“Seal. A. O. Bolen.”

Which said additional contract of sale was also duly recorded. That by said last-mentioned contract of sale said Barteau and Bolen acquired a further one-sixth interest in said mine and lease and said Scott reduced the amount of the aforesaid deferred payment of $5,000 to be paid him out of the first net profits of said mine by one-sixth, leaving a balance to be paid said Scott out of the first net profits of said mine $4,166.66; that according to said contract it was agreed that when a certain shaft then in process of sinking should reach mineral sufficient to satisfy the parties to the said contract they would be justified in erecting a mill then a complete concentrating mill should be erected by all the parties to said contract, and that all parties to the contract were to bear equally their part of the expense in sinking the shaft and developing the property. That mineral was reached in said shaft sufficient to satisfy the parties that they were justified in erecting said mill and a concentrating mill was erected and said Scott paid all of his part of the expenses of sinking said shaft, erecting the mill and developing the property and performed all of his covenants and agreements set out in said contract. That on September 5th, 1900, for value received said Adam Scott sold, transferred and assigned to plaintiff all of his right, title and interest in and to the first net profits of said mine in the sum of $4,166.66 as aforesaid. That thereafter on November 1st, 1900, said Adam Scott sold and transferred to defendant L. A. Saighman his remaining one-third interest in said mine and lease subject to the payment to plaintiff of said sum of $4,166.66 out of the first net' profits of said mine and said Saighman then and there agreed that plaintiff should have said sum of $4,166.66 out of the first net profits of said mine as aforesaid, and said payment to plaintiff of said first net profits was part of the consideration of said sale by said Scott to her, the said L. A. Saighman. The said D. E. Saighman claims some interest in said mine and lease by or through said L. A. Saighman, or as trustee or agent for her, the nature and extent of which are to plaintiff unknown. That thereafter, on or about April 1st, 1901, to about November 1st, 1901, net profits were made out of the mineral produced from said mine, and lease exceeding the sum of $4,166.66 and defendants have failed and refused to pay the same to plaintiff, although often requested to do so, and have converted the same to their own use. Wherefore plaintiff prays judgment against defendants for $4,166.66 and legal interest thereon from said time that said net profits were realized, together with costs of this suit.

At the May term, 1904, by agreement of all parties to the case, the cause was referred by the court to A. C. Burnett, Esquire, as referee to take the testimony in the cause and report his findings on the same to the court. At the October term, 1904, the referee filed his report, wherein he found the execution of the two contracts heretofore set out in the statement of the cause and in the petition, and also the assignment to the plaintiff Crocker of the $4,166.66, which according to the contract was to be paid Scott by the defendants Barteau and Bolen out of “the first net profits of the mine.” He also found that on November 1st, 1900, said Scott sold his remaining one-third interest in said mine, lease and machinery to Mrs. L. A. Saighman. He further found from the evidence that Scott and defendants Barteau and Bolen sunk the shaft on the mining lots until sufficient mineral was reached to satisfy them that good pay mineral existed and then said Scott, Barteau and Bolen erected a concentrating mill. Referee also found that said Scott kept and performed all the conditions of the said two contracts on his part. The referee found that the cost from January 1st, 19001, to March 19th, 1901, of building the mill, sinking the shaft and developing the mine so that it would produce ore amounted to $22,157.20, and found that the current expenses of operating the mine from March 20th, 1901, to November 2d, 1901, inclusive, amounted to $16,650.53, and that the defendants received from the sale of ore from said mine from March 80th, 1901, to November 2nd, 1901, inclusive, after paying the royalty thereon, the sum of $24,324.79', and that there was a net profit from said mine from March 20th, 1901, to November 2nd, 1901, inclusive, of $7,674.26. He also found by the contracts in evidence, the said Scott and the defendants were each to bear the expenses of sinking the shaft and developing the property and building the mill, in proportion to the interest of each, and that each party had paid his part of the said expenses, and that out of the first net proceeds of the sale of the ore from March 20-th, 1901, to November 2nd, 1901, the first net profits of the mine were as already stated $7,671.26, and that plaintiff as the assignee of the $1,166.66 was entitled to recover that snm with interest from November 2nd, 1901.

There was a motion by the defendants to set aside the report of the referee on various grounds and the court set it aside in so far as the referee reported his conclusion of the law, on the ground that the- law of the case was not referred to the referee, but in all other respects the report of the referee was sustained and the court rendered jiidgment for the plaintiff for $1,975.65. In due timé the defendants filed their motion for a new trial, which was heard and overruled by the court and thereupon the defendants appealed to this court in due form.

« I. The first contention of the defendants is that the court erred in referring this cause to a referee-, on the ground that Scott and the defendants were co-partners and the suit should have been brought in a court of equity instead of an action at law. We think there is little merit in this proposition for two reasons: First, the record shows that the cause was referred to the referee by the mutual agreement of all parties to the suit, and, second, for the reason that Scott’s right to the payment of the $1,166.66- did not grow out of the partnership arrangement between these- parties, but out of the contract between them by which the defendants were- to pay Scott that sum as part payment for a two-thirds interest in his lease. This liability on the part of the defendants to Scott and the plaintiff as his assignee is not different in law from what their relation would have been if defendants had given Scott their note for that amount in payment to him for the interest which they acquired in his lease with the view to a subsequent partnership in the development and operation of said mine; it was not a firm transaction to be settled upon an accounting in equity. [Willis v. Barron, 143 Mo. 450'.] In Cinnamond v. Greenlee, 10 Mo. l. c. 582, this court said: “One partner would be a competent witness by whom to prove that a second partner had advanced money for a third, as part of his portion of the capital stock of the partnership concern; and such second partner would have a right at law to recover the amount thus advanced for the third partner, even during the existence of the partnership. Such transaction does not enter into and form a part of the partnership business, so as to require the interposition of a court of equity to adjust and settle the rights of the several partners.” Nor is the right of the plaintiff to sue at law any the less because the defendants agreed to pay Scott the $4,166.66 as soon as that sum was realized out of the first net profits of the mine. Moreover, it is sufficient to say on this point that no such proposition was mooted in the circuit court, as the defendants filed a general denial, agreed to submit the case to a referee, and requested the court to give declarations of law, and in every way treated the case as an action at law and not a suit in equity and the cause was submitted to the court without the intervention of a jury, and the judge had all the evidence before him when he rendered his judgment for the plaintiff.

II. A number of declarations of law were prayed by plaintiff and the defendants, but in the view we take of the case, it is unnecessary to discuss them in detail, for the reason that the sum of the declarations given in behalf of the plaintiff was simply to the effect that if the current receipts of the said mining venture between March 20th, 1901, the time when the mill began to be operated, and November 2nd, 1901, exceeded the current expenses of operating said mine then first net profits existed, and the plaintiff was entitled to receive the $4,166.66 and interest thereon from November 2nd, 1901, if said net profits amounted to that much, or was in excess thereof. On the other hand, the declarations of law advanced by the defendants were to the effect that the defendants should be reimbursed for all moneys expended by them in the development of the mine and sinking of the shaft, the erection of the mill and the putting in of the machinery for the operation of the mine, as well as the current expenses of operating the mine and mill and the payment of royalties, and unless there was an excess of receipts over all the above expenditures, then there were no first net profits, and plaintiff could not recover. There is in fact little dispute about the facts in this case. The referee found that the cost of building the mill and buying the machinery and sinking the shaft prior to March 20th, 1901, the date when the mill begun to be operated, amounted to $22,157.20 and the circuit court affirmed this finding and the evidence tends to fully support it; indeed, it seems not to be questioned by the defendants. On the other hand, the referee found that from March 20th, 1901, the time when the mill began to be operated and the ores to be marketed', to November 2nd, 1901, the current expenses including repairs and betterments were less, than the current receipts by $7,674.26, and these facts appeared from the books kept by the company. So that, with these figures as a basis, the question recurs, after all, to the proper construction of the two contracts between Scott and the defendants and how the first net profits under said contracts are to be estimated. If the declaration of law asked by the defendants and refused by the court to the effect that defendants should first be reimbursed for moneys expended by them in the development of the mine and sinking of the shaft, in the purchase and erection of the mill, and the machinery for the operation of the mine and mill and the payment of the royalties before taking into account any of the profits of said enterprise, is correct, then plaintiff is not entitled to recover. But if a fair construction of these contracts in view of the circumstances surrounding the parties at the time they were made shall lead to the conclusion that by first net profits the parties intended the first net profits which accrued after the mine became a productive enterprise, that is to say, when the current receipts from the sale of ores taken from the mines exceeded the current expenses for operating the mine, including- repairs and betterments, then to the. amount of such excess of profits there would be net profits, then clearly plaintiff is entitled to recover, as the evidence shows that from March 30th, 1901, to November 2nd, 1901, inclusive, there was an excess of receipts over and above current expenses for that time of $7,674.26, or more than enough to pay the agreed sum of $4,166.66 on November 2nd, 1901.

In construing the words ‘ first net profits, ’ in the first contract, the words, used in the second contract must be read in connection therewith, to-wit, ‘ it is understood that by the conveyance of this interest it will reduce the deferred payment to be taken out of the ground, in former contract, the ratio of one-sixth.” At the outset it is essential to keep in view that the $4,166.66 was a deferred payment to be made to Scott as a partial payment for the interest he thereby' sold to defendants; in other words, was a part of the purchase money for said interest, and as to that the words “net profits” ought not to be construed as in the case of dividends to be distributed to stockholders in which interest on bonded indebtedness is accounted as a part of the liabilities or current expenses before dividends are payable. [St. John v. Railroad, 10 Blatchf. 279, 22 Wall. 136.] Nor yet upon the basis, of a final adjustment between plaintiff and defendants upon the final settlement of the venture upon the whole lease, but rather upon the principle announced as to the proper mode of ascertaining profits where an individual not a partner is-entitled to a portion of the profits. It is significant that the contracts not only secure to plaintiff a payment of the $4,166.66 out of the “net profits,” but the “first net profits” “to be taken out of the ground.” Bearing in mind that plaintiff had his share in the mine and defendants theirs, this was capital and each contributed his pro rata share in purchasing machinery, a concentrating mill, etc., in order to make it a producing enterprise; all this was capital. Now, notwithstanding this mine might have become vastly more valuable than it had cost plaintiff and defendant, plaintiff could not have demanded the $4,166.66 out of this increase in the value of the capital invested, but was restricted by his agreement to await the earning of “net profits” “out of the ground.” We think this capital was not to be reimbursed to the parties before- an account of “first net profits” was to be estimated. The contracts of defendants imposed a liability upon the mining project and it was to be paid out of the first excess of current receipts for ore taken out of the ground over and above the current expenses for producing said ore and the necessary charges for repairs and betterments. As said by the Supreme Court of the United States, in Eyster v. Centennial Board of Finance, 94 U. S. l. c. 503, “The capital stock of this corporation was not employed in, but to prepare for, the business of the contemplated exhibition, and the receipts of the exhibition, over and above its current expenses, are the profits of the business. These were the only profits of the business. They are, in fact, the net receipts, which, according to the common understanding, ordinarily represent the profits of a business. The public, when referring to the profits of the business of a merchant, rarely ever take into account the depreciation of the buildings in which the business is carried on, notwithstanding they may have been erected out of the capital invested. Popularly speaking, the net receipts of a business are its profits. So here, as the'business to be carried on was that of an exhibition, and its profits were to be derived only from its receipts, to the popular mind the net receipts would represent the net profits.”

f This is not a case in which the parties contemplated ythe prosecution of this mining enterprise for the full / term of their lease and to pay Adam Scott at the end of j that time the deferred payment which defendants / agreed to make him for their share in the lease and in which he must wait until the termination of the lease and until all liabilities had been paid and then to receive said $4,166.66 out of the remaining assets, if there were any “net profits.” We think it is perfectly obvious that all parties to' this agreement understood and agreed that out of the first net profits from ores taken out of the ground, Scott was to receive the balance of the purchase money due him and that by first net profits they meant the first profits arising from the receipts for ores over and above the current expenses in operating the mine, including current repairs and betterments, and it was never intended that defendants should be reimbursed for all their outlays in the way of capital before they should pay this deferred, and, we add, preferred, claim to net profits. To so hold would be to say that defendants could retain all the1 capital they had invested and require the plaintiff to wait until they had earned the full amount of their capital before paying the purchase money they had agreed to pay plaintiff. The contracts are not fairly susceptible of any such a construction. We have read the numerous authorities cited by counsel, but it would subserve no good purpose to review them at length and distinguish the various conclusions reached by the courts as to the meaning of the term “net profits” in the peculiar eirj .'cumstances of each case. Many, and indeed most, of the j cases are those growing out of partnerships or cases in which the duty of declaring and paying- dividends by ; corporations were in judgment, and while they adjudge what are and what are not net profits and the basis of ascertaining them, they throw little light upon contracts like the one upon which this action is based. The plaintiff in this case as the assignee of Scott did not bear the relation of partner or stockholder to these parties or the fund out of which he was to be paid the^ deferred payment. His right rests upon an express contract and we apprehend when the current receipts for ore exceeded the current expenses in running this mine to the extent of $4,166.66, he was entitled to recover that amount and was not concerned in the capital invested by defendants and Scott in the' enterprise, whether it had been enhanced far beyond the original investment or whether it had depreciated.. He was bound to look to the net profits to be taken from the ground, and so the circuit court held, and its judgment is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: POX, P. J.

license: Public Domain

text:
    A. G. TURNER et al. v. W. A. EDMONSTON et al., Appellants.
    Division Two,
    May 19, 1908.
    LIS PENDENS: Purchase: Writ of Error Pending: Notice: Stranger: Attorney. Where a suit involving title to real estate was tried in the circuit court, one who purchases from the successful plaintiff after the time to take an appeal has expired, does so subject to a reversal of the judgment on timely writ of error, if he has notice of the pendency of the suit in the Supreme Court. And where the notice of the writ of error was served on the respondent’s attorney, and that attorney was the purchaser, and as respondent’s attorney appeared for him in the Supreme Court, he does not occupy the position of a stranger or innocent purchaser.
    Appeal from Audrain Circuit Court. — Hon. Jas. D. Barnett, Judge.

      Aeeirimed.

      P. H. Cullen and Allen Stallings for appellants.
    (1) When the judgment defendant fails to give notice of appeal until after a sale of property under the judgment and the judgment plaintiff becomes the purchaser he is entitled to the same protection as any other bona fide purchaser, if the judgment is after-wards reversed, and upon the case being remanded, he again recovers. Frazier v. Crafts, 40 Iowa 110'; Gossam v. Donaldson, 68 Am. Dec. 723; Parker v. Andersen, 5 T. B. Mon. 455; Benningfield v. Reed, 8 B. Mon. 105; Yocum v. Foreman, 14 Bush 494; Canal Co. v. Gordon, 2 Abb. 488; Den v. Dellinger, 1 Murphy (5 N. Car.) 272; McAusland v. Pundt, 1 Neb. 211; Tuttle v. Gates, 24 Me. 396; Stimson v. Ross, 51 Me. 556; Cariell v. Ham, 4 Greene (Iowa) 460; Plolmes v. Buckner, 67 Tex. 107; Wood v. Chopin, 13 N. Y. 509; Riley v. Martinelli (Cal.), 21 L. R. A. 33, and note. (2) The purchaser is protected in the case of a sale made during the pendency of an appeal where such appeal did not operate as a supersedeas, even though the purchaser knew of the pendency of the appeal. Marks v. Cowles, 61 Ala. 299; Bank v. Van Meter, 10 B. Mon. (Ky.) 68; Rankin v. Eastin, 2 Ky. L. Rep. 427; Edmonston v. Carter, 180' Mo. 515; Brenden v. Zion Church, 71 Md. 83; Garrittee v. Popplein, 73 Md. 322; Henning v. Punnett, 4 Daly (N. Y.) 543; Hale v. Langford, 60 Tex. 555; 23 Am. and Eng. Ency. Law (2 Ed.), 1011; 3 Freeman on Executions, sec. 345, p. 1975. (3) A writ of error is a new suit and not merely a continuance of the suit the judgment in which it is brought to reverse. Macldin v. Allenberg, 100 Mo. 337; Pierce v. Stinde, 11 Mo. App. 364;-Irwin v. Jeffers, 3 Ohio St. 389; Phillips v. Benson, 85 Ala. 416; Gould v. Stern-berg, 128 111. 510; Maynard v. May, 25 S. W. 879; Benson v. Yellot, 76 Md. 159; Kramer v. Wellendorf, 129 Pa. St. 547; Shannon v. Newton, 132 Pa. St. 375. (4) The modification or partial reversal of the judgment will not affect the title which the execution creditor has acquired at the sale, unless such modification or reversal is upon so material a point or is so great in extent as to destroy the grounds for the sale or make it, inequitable for the sale to stand, as would be the case where it declared that the plaintiff was not entitled to recover as much as the sum for which the property was sold. Withers v. Jacks, 79 Cal. 297; Héwit v. Dean, 91 Cal. 617; Yndart v. Den, 125 Cal. 85; Barn-hart v. Edwards, 128 Cal. 577; Burcer v. Cady, 49 Pac. 180; Martin v. Victor Mill Co., 19 Nev. 197; Gaye v. Clapper, 19 Tex. Civ. App. 502; Jesup v. Bank, 15 Wis. 604. (5) Where the execution creditor, after purchasing at his own sale, the judgment not having been superseded by bond, sells the property to a third persons who purchases for value and without notice, and the judgment is afterward reversed on appeal, the prevailing rule is that the title of the purchaser is not affected by the reversal, and that he may retain the property as against the execution debtor. Thompson v. Wooldridge, 103 Mo. 505; Vogler v. Montgomery, 54 Mo. 577; Bartlett v. Glasscock, 4 Mo. 62; McAusland v. Pundt, 93 Am. Dec. 358; Withers v. Jacks, 12 Am., St. Rep. 143; Horner v. Zimmerman, 45 111. 14; Gentean v. Wisely, 47 111. 433; Puterbaugh v. Moss, 11 N. E. 190.

      Robertson $ Robertson and F. R. Jesse for respondents.
    (1) In this action the land was bought for a nominal sum by the plaintiff under the execution, before the writ of error was sued out, and when no appeal had been taken. Pie bought under the judgment of Roden v. Helm, which was afterwards reversed in the Supreme Court under writ of error. 192 Mo. 71. After Roden had acquired his sheriff’s deed, and still before tbe suing out of the writ of error, Roden conveyed by quit-claim deed to his attorney, W. A. Edmonston, the defendant herein. Edmonston was the attorney of record for the plaintiff in Roden v. Helm et al., and as this record discloses was thoroughly familiar with the Helm title as well as all the proceedings under which the judgment was rendered in the circuit court. Roden’s title necessarily depended upon the judgment he had obtained against the Helms. When that judgment was set aside, necessarily his title would fall and it makes no difference that he bought before suing out of the writ of error to set the judgment aside. G-ott v. Powell, 41 Mo. 416; Freeman on Ex., secs. 345 and. 347; 17 Am. and Eng. Ehcy. Law, 1019'; Freeman on Judgments, see. 484; 24 Cyc. 65; Vogler v. Montgomery, 54 Mo. 577; Holland v. Adair, 55 Mo. 40; Board of Trustees v. Fry, 192 Mo. 552. (2) The defendant herein, being* the attorney of Roden, is not an innocent purchaser, but stands in the shoes of his vendor. Railroad v. Brown, 43 Mo. 294; Board of Trustees v. Fry, supra; Gralpin v. Page, 18' Wall. 350; Young v. Schofield, 132 Mo. 660; Freeman on Executions, 347; Stroud v. Casey, 25 Tex. 754; Toogood v. Franklin, 27 la. 239; Hayer v. Cassell, 6 C.- L. N. 183. The following cases hold that either the party or the attorney purchasing at a sale under the judgment afterward reversed are not protected: Phillips- v. Benson, 82 Ala. 500; Smith v. Brittenham, 109' 111. 450. (3) Upon the reversal of the judgment according to the terms of the mandate, plaintiffs were entitled to be restored to all things they had lost by reason of the judgment reversed. Macklin v. Kinealy, 141 Mo. 131. And all proceedings and subsequent judgments founded upon such judgment are thereby annulled. Colburn v. Yantis, 176 Mo. 670; Smith v. Railroad, 49 Mo>. App. 54; Atkinson v. Dixon, 96 Mo. 577; Butler v: Eaton, 141 U. S. 240; Cowclery v. Bank, 139' Cal. 298; McAllister v. Bridges, 40 S. W. 70. (4) Defendant sets up and pleads the motion for restitution which was filed in the circuit court upon the reversal of the judgment, hut he omits to notice that that motion was ineffective for the reason that lot thirty-one of. Mrs. Sparks’ southern addition had been conveyed away to J. 0. Edmonston and that it could not be maintained against "W. A. Edmonston because he was not a party to the record in Roden v. Helm et al., and for the further reason that it involved restitution by other and different persons than Roden himself, and that Roden not being in possession of the land, it was ineffective as to him for these lands. He further sets up *an action brought against W. A. Edmonston and Roden to recover rents accruing prior to the commencement of this action, but wholly overlooks that this last-named action is for a different purpose and is a different action than this ejectment suit. Roden is not a necessary or even a proper party in this ejectment suit, whereas he is a necessary party in the suit to recover the rents and profits. An examination of the motion for restitution and the action for the accounting will disclose different subject-matter and different parties as well and a different purpose in each case than the one before the court. Before another action pending can be taken as a defense, it must be shown that the subject-matter, the parties litigant, and the relief sought in each case are identical, and that the proofs required in each would be the same. Rodney v. Gibbs, 184 Mo. 1; Garland v. Smith, 164 Mo. 1; Callahan v. Davis, 125 Mo. 27.
   POX, P. J.

— This cause is now pending before this court upon appeal on the part of the defendants from a judgment of the circuit court of Audrain county in favor of the plaintiffs. The action was one in ejectment for 240 acres of land in Andrain county. The petition was filed in the circuit court on March 30, 1906, and was in the ordinary form in actions of that character. The answer of the defendants consisted first of a general denial; second, there is pleaded the judgment obtained in the case of Roden v. Helm et al., 192 Mo. 71, detailing the circumstances by which the defendant W. A. Edmonston came into possession of the real estate here sued for; third, the defense is made that the judgment of the Supreme Court reversing the judgment of the circuit court in Roden v. Helm et al., is void; fourth, then defendants plead ownership of the judgment rendered by the circuit court in Roden v. Helm et al.; fifth, the rendition of another judgment is pleaded in favor of the plaintiffs and against the Helms rendered in the original suit of Roden v. Helm et al., after the reversal of the case in the Supreme Court. There is also pleaded in connection with the fifth defense the pendency of a motion for restitution filed in the case of Roden v. Helm et al.; also an action in accounting filed by these same plaintiffs against this same defendant and others to account for the rents received by "W. A. Edmonston from said lands accruing between the date of turning over the possession of this land to W. A. Edmonston and the commencement of this ejectment suit.

The history of the litigation involved in this controversy is fully set forth in the case of Turner et al. v. J. O. Edmonston et al., decided at the sitting of this court on February 18, 1908, and reported in 210 Mo. 421. There was a motion for rehearing filed in that case, which was by the court overruled, and learned counsel who represented respondents in that case and who represents appellants in the case at bar, concedes in his motion for rehearing in the former case that this case is a companion case to the case of Turner et al. v. J. O. Edmonston et al., heretofore referred to as being decided by this court. No one can read the records and briefs of counsel representing the appellants and respondents in the ease at bar without being convinced that the leading and controlling propositions are substantially the same as those in the case heretofore referred to decided by this court. The legal propositions are substantially the same; the land of course is different.- The claim of title of the plaintiffs in the case at bar is the same as in plaintiff’s case against J. 0. Edmonston et al., and the claim of the defendants in this case is predicated upon the same judgment and execution sale under it as were involved in the Turner case against J. 0. Edmonston et al. There is another difference, and it is as to the pleadings in the case at bar; the defenses are set out more in detail. Certain judgments are pleaded and the pendency of the motion for restitution and the suit for an accounting after the remanding by this court of the case of Roden v. Helm et al., are fully set forth in the answer. There is also this difference to be noted between the two cases, which doubtless accounts for the judgment for the defendants in the trial court in Turner et al. v. J. O. Edmonston et al., and judgment for the plaintiffs in the case at bar, that is, that the defendant J. 0. Edmonston in the former case was a brother of the defendant W. A. Edmonston in the present case, who was the attorney of Mr. Roden in the litigation of Roden v. Helm et al. With these distinctions in the two cases noted, we deem it unnecessary to further detail the facts concerning this litigation, further than to make reference to the case of Turner et al. v. J. O. Edmonston et al., heretofore referred to, in which will be found a complete history of the litigation between these parties.

There was a judgment in the trial court for the plaintiffs in this cause. Timely motions for new' trial and in arrest of judgment were filed and by the court overruled. From the judgment rendered, defendants in due time and proper form prosecuted this appeal, and the cause is now before us for consideration.

OPINION.

As indicated in the statement of this cause, the record before us clearly indicates that the leading and controlling propositions involved in this cause are the same as those which were so fully presented by counsel and discussed by Judge Burgess in the case of Turner et al. v. J. O. Edmonston et al., 210 Mo. 411, decided at the sitting of this court on February 18, 1908. We have carefully reviewed the discussion of the legal propositions in the J. 0. Edmonston case, and after a most careful analysis of the treatment of the legal questions confronting us in that case we see no valid reason for departing from the rules of law therein announced as applicable to the legal propositions discussed. In Turner et al. v. J. O. Edmonston et al., the error of the trial court in refusing to properly submit the question as to whether J. 0. Edmonston had purchased the land in controversy from his brother with notice of the defects in the judgment and title to the property, were fully pointed out. It was said in that case that “the vital question in this case is whether J. 0. Edmonston was a lis pendens purchaser of the land from his brother, W. A. Edmonston, or, in other words, did he purchase the property with knowledge of the fact that the case of Roden v. Helm et al. was pending in the Supreme Court at the time of the purchase.” In the case at bar there can be no question that W. A. Edmonston does not .occupy the position of a, stranger and innocent purchaser in this transaction, for it is disclosed by the record that, on the 31st day of July, 1904, when the writ of error was sued out in the ease of Roden v. Helm et al., the defendant, W. A. Edmonston, was served with notice as the attorney for Roden and he appeared in the case when it was first heard in the Supreme Court. It is clearly manifest that the filing of the motion for restitution and the institution of the suit for an accounting against Roden et ah, constitute no defense and have nothing whatever to do with this action of ejectment. It must not he overlooked that while this litigation was going on in the Supreme Court Roden had conveyed the lands to his attorney, W. A. Edmonston, one of the defendants in this cause, and as to the lands involved in this proceeding W. A. Edmonston had received all the rents, and also that W. A. Edmonston had conveyed a part of the land involved in Roden v. Helm et al. to J. 0. Edmonston, his brother, and as to the rents of the lands involved in the case of Turner et al. v. J. O. Edmonston, they were to be accounted for by J. 0. Edmonston; hence it is apparent that a motion for restitution could not afford a complete and adequate remedy. Had the title to this property remained in Roden and all the rents and profits been received by him, then clearly a motion for restitution in the original case of Roden v. Helm et al., after it was reversed and remanded, would have been an adequate remedy, but as the defendant here, also his tenant and co-tenant, James Henderson, were not parties to the record in Roden v. Helm et al., in order to get complete restitution it was necessary to resort to ejectment against the parties who were claiming title and holding possession, but who were not parties in the original case of Roden v. Helm et al., to restore the possession of the premises to these plaintiffs. So it is with the action brought against W. A. Edmonston and Roden for an accounting and to recover rents accruing prior to the commencement of this action. That action in no way involves the subject-matter involved in this ejectment proceeding. That suit doubtless was instituted for an entirely different purpose, that is, to have an accounting made by these parties so that it might be applied to the satisfaction of the existing judgment against the Helms. Roden is neither a necessary nor a proper party to this proceeding. He is an essential and necessary party in the suit to recover certain rents and profits received by him while he was in possession and .control of the lands of. plaintiffs.

We see no necessity for pursuing this subject further. Manifestly the case of Turner et al. v. J. O. Edmonston et al. covers all of the overshadowing legal propositions involved in the case at bar and must be held as decisive in this case: The judgment of the trial court should be affirmed, and it is so ordered.

'All concur.


author: GANTT, J.

text:
    JOHN CZERNICKE, by Next Friend, Appellant, v. HERMAN EHRLICH et al.
    Division Two,
    May 19, 1908.
    1. NEGLIGENCE: Sandpaper-Smoothing Machine: Statute. An offbearer from a steel-roller sandpaper-smoothing machine, whose duty it was to receive boards as they passed out of the machine, after having been smoothed as they passed between the rollers, and whose hand was caught between the rollers, was not injured hy the “belting, shafting, gearing and drums in a manufacturing establishment,” and hence his case does not come within either the letter or the meaning of section 6433, Revised Statutes 1899.
    2. -: -: Boy. The machine was used for smoothing lumber by sandpapering, and was four feet high and thirty-six inches wide. On top were four sets of rollers, which carried the lumber through the machine, and between them were sandpaper rollers which smoothed it. The rollers at the rear end turned out. Plaintiff was fifteen years old and the offbearer, and was told by the foreman that when a board clogged in the machine to seize hold of it and pull it out, and his testimony was that the boards when too short to reach from one set of the steel rollers to another would sometimes catch against one corner of the mouth of the machine and would clog; that he had worked only four or five days at the machine when some boards caught and clogged, and following instructions to extricate the board, he took hold of it with his right hand, and the hand was caught against the boards and the bed or bottom of the passageway, and was being mashed and in trying to release his hand he lost his balance and threw his left hand on top of the machine and down between the rollers. Held, that the court erred in sustaining a demurrer to plaintiff’s evidence.
    3. -: Assumption of Risks; Notice. One who enters the service of another takes upon himself the ordinary risks of employment. On the other hand, if there are concealed dangers, known to the employer but unknown to the servant, it is the employer’s duty to notify the servant of their existence.
    4. --: Inexperienced Boy. Although the machinery or that part of it complained of as especially dangerous is visible, yet if, by reason of the youth and inexperience of the servant, he is not aware of the danger to which he is exposed, in either operating it or approaching near to it, it is the duty of the master to inform him of the danger, if known to himself.
    5. -: -: -: Obeying Instructions. It is for the jury to say whether or not the inexperienced fifteen-year-old boy, in obeying the instructions of the foreman to take hold of a board and pull it out whenever the machine became clogged, knew the danger and assumed the risk of having his hand caught between the board and the bed.
    Appeal from Buchanan Circuit Court. — Hon. G. A. Mosman, Judge.
    Eeversed and remanded.

      W. B. Norris and W. K. James for appellant.
    (1) It is tbe duty of a master to see that a minor employed by him to operate dangerous machinery knows not only of the dangers hut the extent of the dangers of such machinery. Wood’s Law of Master and Servant (2 Ed.), sec. 349, and notes, and sec. 350, and notes; Grizzle v. Frost, 3 Fost. & Findl. 622; Combs v. New Bedford Cordage Co., 102 Mass. 572; Dowling v. Allen, 74 Mo. 13; Yanesler v. Box Co., 108 Mo. App. 628; Bummell v. Dilworth, Porter & Co., 19 Atl. 345; Tag v. McG-eorge (Pa.), 26 Atl. 671; Boland v. Railroad, 36 Mo. 490; White v. San Antonio Waterworks Co. (Tex.), 29 S. W. 253. (2) This rule applies even where the dangers are visible. Wood’s Law of Master and Servant (2 Ed.), 723; Dowling v. Allen, 74 Mo. 13; Goins v. Railroad, 37 Mo. App. 233; Henderson v. Kansas City, 177 Mo. 490. (3) Whether a minor is of sufficient age, intelligence and experience to understand the danger or hazard of the employment is a question for the jury. Wood’s Law of Master and Servant (2 Ed.), 723; Dowling v. Allen, 74 Mo-. 18; Railroad v. Brick (Tex.), 20 S. W. 513; Tag v. McGeorge (Pa.), 26 Atl. 672; Proof of Findings in Accident Cases by Black, sec. 86; Huizenga v. Lumber Co-. (Mich.), 16 N. W. 645; Boland v. Railroad, 36 Mo. 491; Adolph v. Columbia Pretzel & Baking Co., 100 Mo. App. 212; Henderson v. Kansas City, 177 Mo. 495; Thein v. Butchers Supply Co., 116 Mo. App. 11; Lawrence v. Ice Co., 119 Mo. App. 316; Longree v. Mfg. Co., 120 Mo. App. 478. (4) Whether machinery is dangerous and if so whether it should be protected should be submitted to the jury. Rogers v. Ptg. Co., 103 Mo. App. 691; Morgan v. Hinge Mfg. Co., 120 Mo. App. 3. (5) Plain.tiff’s appeal having shown, (a) that defendants operated a dangerous machine; (b) without any protection; (c) knowing its dangerous character; (d) and pi Intiff less than 15 years of age; (e) wholly inexperienced with any machinery; (f) was employed on such dangerous machinery; (g) without being warned of the dangers incident to such employment; (h) and that plaintiff while carrying out defendant’s instructions was injured on such machinery, his case should have been submitted to the jury under proper instructions.

      Bush & Stringfellow and B. A. Brown for respondents,
    (1) The case- of Smith v. Forrester-Nace Box Company, 193 Mo. 715-, is very similar to the case at bar. (2) Defendants under the circumstances of this case owed plaintiff no duty to warn bim of any danger incident to bis employment, (a) In the absence of a showing to the contrary plaintiff is supposed to have known of such dangers as well as the defendants, and nowhere in the record is there any evidence from which it could be inferred that plaintiff was not fully acquainted with all the dangers of the situation, (b) There were no dangers against which plaintiff could have been warned or cautioned which were not patent, and of which he did not know as well as the defendants. Buckley v. Mfg. Co., 21 N. E. 717; Hickey v. Taaffee, 12 N. É. 290; Nugent v. Milling Co., 131 Mo. 256; Herbert v. Boot & Shoe Co., 90 Mo. App. 316. (c) The duties to be performed by plaintiff were simple, and the defendants could not have anticipated that he would get his hand caught under any plank coming out of the machine. Nor could they have anticipated that he would fall into the top of the machine, even should he in some unaccountable way get his hand caught in the rear end of the machine. Defendants were under no obligation to warn plaintiff of the dangers they could not anticipate. Rogers v. Printing Co., 103 Mo. App. 689; Graney v. Railroad, 157 Mo. 683; Fuchs v. St. Louis, 167 Mo. 652; Holt v. Railroad, 84 Mo. App. 448.
   GANTT, J.

— This is a suit by the plaintiff, an infant, by his next friend, for damages sustained by him by having his hand caught in the sandpaper-smoothing machine owned and operated by the defendants, and about which plaintiff was employed to work when about fifteen years of age without any previous experience.

It is alleged that the said machine was defectively and negligently constructed, maintained and operated, in this, that at the corners of the end of the machine, at which said boards or other material came out from the machine, there were obstructions which impeded, obstructed and prevented said boards or other material from coming out from the machine, and that said machine had no apron or extension table connected with and extending from the end of the machine from which the said boards or other material came out from the machine; and that there were no fenders, railings, barriers or other protection in, over or about said machine to protect the hands of the person so receiving said boards or other materials from the machine, so as to prevent the hands of the person acting as offbearer from becoming caught in and injured by the rollers at or near the end of the machine. It is alleged that on about the 10th of March, 1903, and about a week before the injury complained of, plaintiff was employed by defendants to use and operate- said machine; that at the time he was so employed, he was of tender age, to-wit, fifteen years old, and wholly inexperienced as to the dangers in the use and operation of the machine; that his tender age, inexperience and ignorance were well known to the defendants, and that defendants neither at the time of employing him nor at any other time advised or warned him of the dangers from the use and operation of the said machine, but directed and ordered him to use and operate it; that the defendants instructed plaintiff that whenever a board or other material became obstructed or impeded by the said obstruction at the said corners of the machine, plaintiff should take hold of and seize upon the board so obstructed with his hands and loosen it and extricate it from the machine; that on the 17th of March, 1903, when plaintiff was receiving short boards and materials from said machine, one of said boards became obstructed by the corners of said machine and in obedience to his orders, plaintiff using ordinal care on his part, took hold of said board and attempted to extricate it from said machine and while so doing another board was pushed with great force against the board which he was seeking to loosen and thereby plaintiff’s right hand was caught, and being mashed under the board he was trying to extricate plaintiff with his other hand attempted to release his right hand, and in so doing his left hand fell upon and was thrust in said machine and was caught m the said steel rollers and was lacerated, torn and mashed and permanently disabled from work or use of any kind, for which he prayed judgment in the sum of five thousand dollars.

The defendants in their answer deny, first, each and every allegation in the petition. Second* pleaded that plaintiff’s own contributory negligence caused his injuries, in that while the machine around which he was working was in operation, but at -a time when no lumber or other material was being passed through the machine, and at a time when plaintiff was not .engaged in the performance of any duties around the machine, he carelessly and negligently laid his hand upon the machine in a position where the same was caught under one of the rollers thereof, without any fault or negligence on the part of the defendants. And for a third defense pleaded an assumption of the risk of the said employment.

The reply was a general denial of the new matter set up in the answer.

The evidence tended to show that the machine referred to in the petition was used for the purpose of smoothing lumber by sandpapering, and was of the “Invincible” pattern. It was about four feet high, thirty-six inches in width and constructed on the order of a planing machine; on top were four sets of steel rollers turned in opposite directions and which carried the lumber through the machine. Between the steel rollers were sandpaper rollers which smooth the boards as they pass through. The front rollers and the rear rollers were covered with iron shields so that it was impossible to come in contact with said rollers unless one reached over and behind the shields. The rollers at the rear end of the machine turned out, making it impossible for any object to be caught between them even in the absence of shields, unless such object should come in contact with the front of said rollers. Rods extended1 across the top of the machine in both directions so that lumber could be piled thereon. The machine was fed from the east end by a boy named Charles Rhuby, and the plaintiff was acting as offbearer at the west end. A g’ood-sized boy or man who had been off-bearer left and plaintiff, who was at the time working in the yard handling- lumber, was put to work by the foreman as offbearer. According to the plaintiff’s testimony, the boards when too short to reach from one set of steel rollers to another would sometimes catch against one corner of the mouth of the machine and' would clog. Plaintiff had worked only four or five days on the machine when some short boards caught and clogged, when, following the foreman’s directions as to extricating- the boards, his right hand was caught between the boards and the bottom of the passageway of the boards. In trying to release his right hand he lost his balance and threw his left hand on top of the machine and down between the steel rollers, which drew his fingers and palm in up to the' thumb, scraping and drawing the flesh off the palm. His evidence further tended to show the injury was very painful and permanent.

At the close of plaintiff’s case, the defendants offered a demurrer to the evidence, which the court overruled and defendants then introduced evidence until the adjournment of the court for the day. On the following morning, the court of its own motion stated that on further consideration he would sustain the demurrer, which the defendants again interposed and the court accordingly sustained. Plaintiff thereupon took a non-suit -with leave to set the same aside and thereafter in due time such motion was overruled, and he appealed to this court. A copy of the machine will accompany this opinion.

I. The action of the circuit court in sustaining the demurrer to the evidence presents the only question in this case. That the machine in which plaintiff’s hand was caught and hurt was not such a one as to- bring it within section 6433, Revised Statutes 1899, was ruled in Smith v. Forrester-Nace Box Co., 193 Mo. 715. In that case, the plaintiff was injured while working as an off-bearer from a planing machine and had his hand caught between the rear rollers of the machine, and this court said: “The plaintiff contends that this case falls within the rule prescribed by section 6433, Revised Statutes 1899, .... but the most casual reading of the statute- demonstrates that it has no application whatever to the case at bar. The statute is confined to ‘belting, shafting, gearing and drums in manufacturing establishments.’ Neither the allegations of the petition nor the evidence in this case bxfing this case within the letter or spirit of the statute. The injury complained of was not caused by any belting, shafting-, gearing or drums of the machine.” We can make no distinction between the machine in that case and the one in this case, in the- application of the statute. In Lore v. American Mfg. Co., 160 Mo. 622, it was remarked that in the absence of a statute the master at common law was not bound to fence his dangerous machinery. [Bair v. Heibel, 103 Mo. App. l. c. 632, and cases there cited.] The machine in which the plaintiff’s hand was caught was not in any way a defective machine, at le-ast there is no evidence whatever in the- record which tends to prove that it was a defective machine, either in the- construction or from use. The chief insistence of the plaintiff is that the circuit court erred in not submitting the ease to the jury on the ground that it was the duty of the master to- see that the plaintiff was duly instructed as to the danger of working about said machine. The witness Rhuby testified that plaintiff understood handling the machine. The plaintiff had worked around this machine as offbearer for from five days to a week before he was hurt. While plaintiff alleges he was inexperienced he did not testify that he did not fully understand the working of the machine or that it would he dangerous to let his hand get in the rollers.

Whether this case should have been submitted to the jury under proper instructions is a question not free from difficulty. The general rule is that one who enters the service of another takes upon himself the ordinary risks of the employment. [Smith v. Railroad, 69 Mo. 39; Porter v. Railroad, 71 Mo. 66; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Dowling v. Allen, 74 Mo. 13.] On the other hand, if there are concealed dangers known to the employer and unknown to the employee, it is the duty of the employer to notify the servant of their existence. It is equally well settled that although the machinery or that part of it complained of as especially dangerous is visible, yet, if by reason of the youth and inexperience of the servant he is not aware of the danger to which he is exposed in operating it or approaching near to it, it is the duty of the master to apprise him of the danger if known to him. [Grizzle v. Frost, 3 F. & F. 622; Clarke v. Holmes, 7 H. & N. 937.] In Dowling v. Allen, supra, it was said: “It is not a conclusion of law from the fact that plaintiff was aware of the existence of the set screw and was seventeen years old and sprightly for one of his age, that he was aware of the risk and danger of passing over the shaft while it was in motion.” And so, in Clarke v. Holmes, Byles, J., observed: “A servant knowing the facts may he utterly ignorant of the risks. ’ ’ In Henderson v. Kansas City, 177 Mo. 477, it was said: “The law does not exact the same discretion and judgment from a green, inexperienced hoy, in the handling of complicated machinery, which it would require of an experienced adult and machinist. Each may see the same object before him, but tbe inexperienced boy would be ignorant of the danger, which is apparent to the adult machinist. The court did not err in submitting plaintiff’s age, capacity and experience as elements by which to judge whether he should be barred from recovery, because he could see the engine and the place in which he was required to work.” If plaintiff can recover at all his right to do so must be predicated upon the fact that he was instructed by the superintendent that whenever the boards became obstructed in passing through the machine he should take hold of and remove the same with his hands without warning him as to the danger of doing so while the machine was in motion. We can find no evidence in the record that the machine itself was imminently dangerous unless the operator either carelessly or inadvertently put his hand among or under the rollers SO' that it might be drawn in and crushed. Plaintiff testifies that he was endeavoring to extricate a board that had been caught and impeded in its passage through the machine, and while he was attempting to obey the instructions given him to remove the same with his hand, his right hand was caught, and in endeavoring to release his right hand he lost his balance and in this way his left hand fell over into the rollers. That he might have and probably did know that if his hand was caught in the rollers it would be crushed, may be true, but it does not follow as a matter of law that he knew the danger of attempting to extricate the obstructed piece of plank or board with his hand while the machine was in motion. And considering his youth and short experience in working about the machine and taking out the boards as offbearer, we are inclined to think that it was a question for the jury under all the evidence in the case to say whether the defendants or their superintendent properly and sufficiently warned him of the danger in attempting to remove an obstructed or impeded board while the machine was in motion.

Of course we do not mean by this that the defendants are not entitled to show that he was fully apprised of the workings of the machine and had shown his capacity to handle it properly before the accident and to show, if they can, that he was fully aware of the danger or risk that he ran in attempting to extricate the boards that were or might be obstructed or impeded in their passage through the machine and that such risk was open and obvious to him, and was in no sense a hidden or latent hazard or danger incident to his occupation. "What we hold is that it can not be said as a matter of law that a boy of the age and of the short experience which plaintiff had in working about this machine and in attempting to extricate a board that had become obstructed or impeded in its passage through the machine in obedience to the directions given him by the foreman to remove said board with his hands while the machine was in motion, is guilty of such- contributory negligence as to bar a recovery on the ground that he had not been properly instructed as to the danger attendant upon such action on his part, or that he should be held to have assumed the risk of so doing as a matter of law. The case was not fully developed on the trial and we forbear from expressing any opinion as to its merits. All that we hold is that in our opinion the plaintiff was entitled to go to the jury under the evidence introduced by him under proper instructions from the court as to the measuré of the liability of the master and the plaintiff respectively. And in this view of the case, we think the court erroneously sustained the demurrer to the evidence and the judgment must be reversed and the cause remanded for a new trial in accordance with .the views herein expressed.

Fox, P. J., and Burgess, J., concur.