text:
    AMERICAN METAL COMPANY, Appellant, v. A. A. DAUGHERTY and MINE LaMOTTE LEAD & SMELTING COMPANY.
    Division Two,
    May 14, 1907.
    1. APPELLATE PRACTICE: Action at Law: No Instructions or Exceptions to Evidence: Replevin. In an action at law, tried by the court without a jury, where no instructions were ashed or given, and no exceptions were saved to the admission or rejection of evidence, the appellate court will not weigh the evidence or determine whether or not the finding and judgment of the trial court was correct on the evidence, but if there was substantial evidence to support the judgment it will affirm it. And a suit in replevin is an action at law.
    2. REPLEVIN: Interest and Title. The plaintiff in an action of replevin must prove a general or special property interest in and a right to immediate possession of the goods replevied. And where the trial court found against plaintiff, and no instructions were ashed or given and no exceptions saved to the admission or rejection of evidence, the appellate court will only inquire whether there was substantial evidence to support the finding.
    3. -: -: Facts in Evidence. Plaintiff, by verbal sale, bought of the owner of Mine LaMotte in Madison county, 11,000 pigs of lead, to be delivered in East St. Louis, and the next day confirmed the sale by letter in these words: “This serves to confirm our purchase of you of 11,000 pigs of your lead.” There was no evidence that the purchase was of any particular lot of 11,000 pigs of lead, nor that the purchase was of all the lead at the mine, nor that the lead had been collected or segregated and identified in any manner, or that it was even on the mine lands, but it does appear that at the time there were at least 35 more pigs than the number called for by the contract and replevied. S-eld, that a contract for the sale of personal property is purely executory until the property is specifically designated Or segregated, and the vendee gets no title until that has been done; and plaintiff having failed to show a specific property interest in the 2,600 pigs at the mine which were not delivered, and the contract calling for a delivery in East St. Louis, a judgment for defendant in plaintiff’s suit in replevin will not be disturbed.

      4. -: -: Contract óf Sale: Appropriation. The appropriation of specific goods to the fulfillment of a contract of purchase must be made with the express or implied consent of the purchaser, and until this is done the title does not pass to him.
    Appeal from Madison Circuit Court.— Hon. Ií. A. Anthony, Judge.
    Affirmed.

      E. D. Anthony for appellant.
    (1) Delivery is not essential to the transfer of title. • The intention may be proven by express declaration or be inferred from the circumstances, and particularly where everything is done besides delivery, including payment of the purchase price. Tiedeman on Sales (1 Ed.), secs. 84, 86; Nance v. Metcalf, 19 Mo App. 183. (2) The subject-matter of the sale was individualized by C. P. Stephen, Leathe’s agent, taking the lead and hauling it to the railroad station for shipment, and was the subject of replevin by plaintiff. It was in transit and to all intents and purposes was delivered. (3) The verbal contract of sale and the memorandum confirming the same operated as a complete transfer of title, and such contracts have been upheld by the courts. Smith v. Shell, 82 Mo. 215; Paulconer v. Samples, 57 Mo. App. 302; Armsby Co. v. Eckerly, 42 Mo. App. 299. (4) The lead in controversy had been manufactured and was in transit at the time defendant interfered, and the title had previously passed to plaintiff. Ober v. Carson’s Ex., 62 Mo. 209'; G-off v. Belche, 62 Mo. 400; McClelland v. Lead Co., 85 Mo. 636. (5) All of the lead sold had been set apart and was kept separate from any other lead in the warehouse at the station, and was a delivery. Rickey v. Zeppenfeldt, 64 Mo. 277.

      Stewart, Eliot, Chaplin & Blayney and John C. Brown for respondents.
    (1) Where an action at law is tried by the court sitting as a jury, and no instructions were asked or _ given, and no exceptions saved to the admission or rejection of evidence, if there is substantial evidence to support the judgment of the court, the action of the trial court will be affirmed. Iron Co. v. Pubis, 42 Mo. App. 206; Bray v. Kremp, 113 Mo. 552; James v. Life Assn., 148 Mo. 15; Rice, Stix & Co. v. McClure & Harper, 74 Mo. App. 383; Gentry v. Templeton, 47' Mo-. App. 55. (2) Plaintiff in a replevin suit must prove a general or special property interest in the thing to be replevined and a right to immediate possession. Poe v. Stockton, 39 Mo. App. 550; Broadwater v. Dame, 10 Mo. 277; Gartside v. Nixon, 43 Mo. 138; Wright v. Richmond, 21 Mo. App. 76; McMahill v. Walker, 22 Mo. App. 170; Scott v. Riley, 49 Mo. App. 250; Hinchey v. Koch, 42 Mo. App. 230. (3) A contract to sell chattels which are not specified or designated is purely executory until the chattels are designated or individualized, and the vendee gets no title until this has been done. Ober v. Carson’s Ex’r, 62 Mo. 213; England v. Mo-rtland, 3 Mo. App. 490; Freight & Cotton Press Co. v. Stanard, 44 Mo. 83. (4) The title usually vests in the vendee upon delivery to him of the chattels sold; if, however, it be urged that the title vests in the vendee prior to delivery, this cannot be until there has been an appropriation by the vendor of goods to fill the contract. Such appropriation must consist of a setting apart of specific chattels to fill the contract, in such a manner as to show a clear intent on the part of the vendor that the specific chattels shall be used to fill the contract, and in such a way that the vendor cannot later change his mind. Tiedeman on Sales, sec. 89; Ober v. Carson’s Ex’r, 62 Mo. 209; Groff v. Belche, 62 Mo. 400; England v. Mortland, 3 Mo. App. 490. (5) If the terms of the contract are that the vendor shall pay the freight or undertake to make the delivery at another point than the place of shipment, then the place of delivery is at the point designated, and no title vests in the vendee until the goods have been delivered to the vendee at the designated point. Benjamin on Sales (7 Am. Ed.), sec. 363; Nicholson v. Golden, 27 Mo. App. 132; Thomas v. Ramsey, 47 Mo. App. 84.
   GANTT, J.

Plaintiff brought this action of replevin against the defendant^, for two thousand six hundred pigs of lead weighing about eighty pounds each, of the alleged value of $9,360, in the circuit court of Madison county, and obtained possession of the said property and sold the same.

The defendants in their answer admitted possession of the property at the commencement of the suit, but denied all the other allegations of the petition, and for further and special defense, defendants allege that the plaintiff was nokthe real party in interest, but that the suit was instituted and was being prosecuted under a contract and understanding between one S. H. Leathe and the plaintiff, whereby the property in controversy, or the proceeds thereof, were to be paid or had been paid to the said Leathe. Defendants further answering allege that the personal property described in the petition belonged to the Mine LaMotte Lead & Smelting Company, at the institution of the suit, and is still owned by said company, and that defendant A. A. Daugherty is only interested in said personal property as a stockholder, officer and agent of said last-mentioned company, and that the property at the institution of the suit, and now is, of the market value of twenty thousand dollars, and defendants demanded a return to them of all of said personal property and for all other and proper relief.

For reply, plaintiff contends that the Mine LaMotte Lead & Smelting Company had no' .title or interest in the property replevined.

The cause was tried without a jury and the circuit court gave judgment for the defendants, and found that the property in controversy, to-wit, 2,598 pigs of' lead, had been delivered to the plaintiff under the order of delivery made in the cause and that the market value thereof was $8,781.24, and that the same had been sold and disposed of by the plaintiff and was not at the date of the judgment in its possession and thereupon the court adjudged that the defendants recover from plaintiff and its securities C. F. Stephens, S. H. Leathe and E. D. Anthony, $8,781.23, the market value of the lead in controversy, and that execution issue therefor. Motions for a new trial and in arrest were filed and overruled and an appeal taken to this court. Objections were filed in due time by the respondents to the abstract of record filed by appellant herein. The objections to this abstract were well taken, but as the respondents, without waiting for the action of this court thereon, supplied the defects in appellant’s abstract by a full additional abstract, it will, in our opinion, be more satisfactory to dispose of the cause on the record as it appears from the two abstracts.

1. This is an action at law, and no instructions were requested or given and no exceptions were saved to the admission or rejection of evidence, and in such cases, it has been repeatedly ruled by this court that it will not weigh the evidence and determine whether or not the finding and judgment of the circuit court was correct on the evidence, but if there is substantial evidence to support the judgment of the circuit .court, its judgment will be affirmed. [Miller v. Breneke, 83 Mo. 163, and cases cited; Bray v. Kremp, 113 Mo. 552; James v. life Association, 148 Mo. l. c. 15.]

2. The facts as we glean them from the abstracts are these: On the 14th of February, 1903, the plaintiff, the American Metal Company, through its agent, Sol Roos, in the city of St. Louis, purchased of Samuel Leathe eleven thousand pigs of lead at $3.97% cents per hundred pounds, f. o. b., at East St. Louis, less one-half per cent commission spot cash, by verbal sale, and on the next day confirmed the said purchase by a letter in writing. At that time Samuel H. Leathe was the owner of what was known as the “Mine LaMotte” properties in Madison county, Missouri, and on February 18,1903, Mr. Leathe sold the Mine LaMotte properties to the firm of Daugherty and Albers of New York, but held possession of it under a contract, which provided that until the purchase money for said property had been paid by said Daugherty and Albers, the said Leathe should remain in full possession and carry on the business therewith and therein and receive all income therefrom. On March 6, 1903, the purchase money having all been paid, Leathe surrendered the property to Daugherty and Albers.

On behalf of the plaintiff, C. F. Stephens testified that for six years prior to the 6th of April, 1903, he had lived in Madison county, and was the manager of the Mine- LaMotte estate for Samuel H. Leathe, the owner at that time; that witness was present when Mr. Leathe sold the eleven thousand pigs of lead to the American Metal Company, and that under the instructions of Mr. Leathe, witness caused to be delivered to the American Metal Company in East St. Louis, eight thousand four hundred pigs of lead as fast as he could obtain cars therefor, and that he had the remaining two thousand six hundred'pigs placed in the warehouse of the Mine LaMotte property, and that the reason he had not shipped out this two thousand six hundred pigs was because he was forbidden to do so by Mr. Daugherty; that the warehouse where this lead was stored at Mine LaMotte station, belonged to the Mine LaMotte estate, being part of the property that once belonged to' S. H. Leathe, and sold to the Mine LaMotte Lead & Smelting Company; that the transfer of the property between Leathe and Daugherty and Albers was completed on the 6th of March, 1903, and that most of the loading of the eight thousand four hundred pigs was done subsequent to that date; that before the transfer, witness had been shipping some of the lead; that the railroad company was behind with the cars, which witness had ordered in the middle of February, and he did not get the cars until the first of March, and the first shipment was made the day before the transfer of the property; that but for the delay in receiving cars all the lead would have been loaded and shipped in the month of February; that these shipments were made to the American Metal Company, East St. Louis, care of the Clover Leaf Railroad Company; that payments for this lead were made directly to Mr. Leathe; that after March 6, when Mr. Daugherty took charge of the properties, some fifteen or twenty shipments were" made of this lead, and that Mr. Daugherty had made no objection until the last shipment to his, witness’s knowledge, and that Mr. Daugherty knew of the sale and its confirmation of the eleven thousand pigs before he took charge of Mine LaMotte. Concerning the two thousand six hundred pigs of lead in dispute in this action, it appears that the lead when manufactured is first located at the refinery; that thereafter the lead is hauled by teams to the warehouse; that this warehouse holds from seven thousand three hundred to seven thousand four hundred pigs. In answer to the court’s question, “When was the two thousand six hundred lot of pigs placed in the warehouse at Mine LaMotte?” the witness, Mr. Stephens, answered that there was only way he could explain; that the warehouse holds about seventy-three or four hundred pigs, and that witness tried to haul and keep it full as fast as he shipped out. As fast as witness loaded the cars, the remainder of the lead was hauled over from the refinery to the warehouse. This was all in March, 1903. The two thousand six hundred lot was placed there sometime during the month of March. In fulfillment of the contract between Leathe and the American Metal Company, the first bill of lading was shipped out on the '5th of March; on the 6th of March, the property had been surrendered to Daugherty and Albers and all of the eight thousand four hundred pigs except the first shipment was shipped out after Daugherty and Albers had taken possession of the Mine LaMotte properties under their purchase from Leathe. When Daugherty stopped the shipments, he put a padlock on the warehouse, which at that time contained two thousand five hundred and ninety-eight pigs in one pile and thirty-five in another. Matters were in this situation when this replevin was commenced.

The agent of the plaintiff, Mr. Loeb, testified that he was notified by Mr. Leathe that a certain amount of lead had been locked up in the metal house, at Mine LaMotte, and that Leathe could not finish the delivery of the eleven thousand pigs, to-wit, the two thousand six hundred pigs, a portion of which the plaintiff had paid for; that thereupon Mr. Leathe suggested to witness to institute a replevin, and thereupon the plaintiff instituted this suit upon the following guarantee:

“The American Metal Company, plaintiff, v. A. A. Daugherty and the Mine LaMotte Lead & Smelting Company, defendants. In the circuit court of Madison county, Missouri, September term, 1903. The undersigned Samuel H. Leathe hereby requests the above-named plaintiff to institute this action of replevin for tbe two thousand six hundred pigs of lead described in the petition herein and in consideration that said plaintiff will institute and prosecute this action, he the undersigned herewith undertakes, promises and agrees to pay all the expenses of the prosecution of said case and to hold the plaintiff entirely free and harmless from all damages or loss on account of said suit. Samuel H. Leathe, St. Louis, April 1,1903. Witness, George W. Lubke.”

And since the institution of this suit, the American Metal Company has not done anything in respect to the suit. Whatever has been done on behalf of the plaintiff, has been done by someone else.

On the part of the defendant, Mr. Daugherty testified that between February 4th and March 6, 1903, the contract for the sale of the land in controversy was not shown to him,-and that he saw it for the first time during the week of the trial in the circuit court; that he never approved or ratified that sale by shipments of any ore; that he did not go into the warehouse and point out to the deputy sheriff the lead which the sheriff had levied on, or called the sheriff’s attention to what lead he should take; that he was not aware of the number of pigs in the warehouse until the sheriff told him; that the lead at the time when and the place whereit was replevined was worth $4.22% cents per hundred pounds; that he was familiar with the custom of the commission men who handled such products, and that he did not make any payments before the lead was shipped; that they only made payments as against bills of lading on lead; that he had never authorized Mr. Stephens to make any shipments" of lead, nor gave him or Mr. Leathe any directions about shipping in February, and that he did make objections to Mr. Stephens about the shipments about the time of the transfer of the Mine LaMotte property before the last shipment.

Mr. Stephens testified that he was in St. Lonis on the 2nd day of March, 1903, and met both Mr. Daugherty and Mr. Leathe in Mr. Leathe’s office; that Mr. Leathe informed Mr. Daugherty that he had sold all the lead he had had on hand there at Mine LaMotte, about eleven thousand pigs, and at the same time took out of his desk the letter of confirmation of the sale to plaintiff and showed it to Mr. Daugherty, and this was before the final payment by and delivery to Mr. Daugherty.

As already said, the plaintiff requested no instructions and the court gave none and therefore this court cannot say upon what theory of the law and finding of facts the court gave its judgment save and except that the court made a finding that plaintiff had no title to the property in controversy and that the defendants were at the institution of this suit and now are entitled to the possession of said property as against plaintiff. Upon this state of facts the plaintiff insists that this was a sale of specific goods without condition by Leathe to plaintiff and the title passed immediately and without further acts of the parties.

It is the settled law of this State that the plaintiff in an action of replevin must prove a general or special property interest in and a right to immediate possession of the goods replevined, and therefore, before the plaintiff in this case was entitled to- judgment, it was bound to show a general or special property and a right to the immediate possession of the two thousand six hundred pigs of lead replevined. The circuit court found against plaintiff on this point, and we are only to inquire whether there was any substantial evidence justifying the court in so doing. Mr. Leathe, who made the sale to the plaintiff of the eleven thousand pigs of lead, did not testify, but the deposition of Mr. Roos, the agent of the plaintiff, was taken. It nowhere appears in Roos’s testimony that this is a purchase of any particular lot of eleven thousand pigs of lead, nor of all the lead on hand at Mine LaMotte, nor that the lead had been collected together or identified in any manner. The memorandum of purchase by Eoos to Leathe is as follows: “This serves to confirm our purchase of you of eleven thousand pigs of your lead. ’ ’ These words cannot be construed as being a purchase of any specific lot of lead, but simply of eleven thousand pigs of Leathe’s lead, and it does appear that at the time of that sale there were on hand at least thirty-five more pigs, and how these thirty-five pigs came to be separated from the balance, nowhere appears. There was no evidence indicating on what part of’ the Mine LaMotte property the eleven thousand pigs of lead were located at the time of the sale. Indeed, there is no evidence that any mention was made by Leathe or Eoos of Mine LaMotte in their transaction, nor that it was in any sense a condition of the trade that the lead which Leathe was to furnish was to come from the Mine LaMotte. All that the plaintiff was interested in was that the lead should be delivered, f. o. b., East St. Louis. A contract to sell personal property which is not specific or designated is purely executory until the property is designated or segregated and the vendee gets no title until this has been done. The plaintiff relies upon the proposition that the subject-matter of the sale was individualized by Mr. C. F. Stephens, Leathe’s agent, taking the lead and hauling it to the railroad station for shipment, and that it was a subject of replevin. It was also said in his counsel’s brief, that it was in transit and to all intents and purposes delivered. The record, in our opinion, does not bear out this contention of counsel. This lead was never delivered to the railroad station, and pigs were hauled to the warehouse located on the Mine LaMotte property and belonged to it. There is no basis in the evidene© for asserting a delivery of the lead to the railroad; the warehouse was the property of the Mine LaMotte Lead & Smelting Company, and not the warehouse of the railroad, neither can it be said that it was in transit.

Ober v. Carson’s Ex., 62 Mo. 209, is cited by plaintiff in support of its contention. In that case, plaintiff sold 101 bales of cotton and later 36 bales to the defendant, defendant examined the cotton and rejected two bales, which were rolled aside, and defendant accepted the remainder.. Plaintiffs directed the weighers to deliver the cotton and told defendant to haul it off, which he was doing when the cotton burned. In that case there was a sale of a certain number of bales of cotton not specified, but the vendor appropriated cotton to fill the sale, and the vendee in accepting it was hauling it away when it was destroyed. In this case there was no appropriation of a specific lot of lead and no delivery to the vendee nor to a common carrier for the vendee, nor was the delivery at the place called for in a memorandum of the sale. Clearly .the two cases are so dissimilar in their facts that the decision in Ober v. Carson’s Ex., supra, cannot be said to support the plaintiff’s claim in this case.

Plaintiff also cites Groff v. Belche, 62 Mo. 400, but in that case there was a sale of oats in stacks, which the vendor was to thrash and measure and deliver to the purchaser, who was to furnish sacks; the vendor did thrash and measure the oats and fill all the sacks, which the purchaser furnished, and stored the balance, and this court held that that was such a delivery of the property as to pass the title. There the vendor had done all that the contract of sale required at his hand; not so, however, in this case; here the vendor has not even delivered the lead to a common carrier to be transported to the place of delivery, to-wit, East St. Louis, and it cannot be said that the vendor had relinquished all further claim as owner, or that the buyer had assumed control of the lead with all the liabilities of the owner.

There is nothing in McClelland v. Picher Lead & Zinc Co., 85 Mo. 636, that has any bearing upon the issues in this case.

It is also said by counsel for plaintiff that all of the lead sold had been set apart and kept separate from all other lead at the station, and was a delivery, but counsel overlooks the written memorandum of the contract’ which required the lead to be delivered not in defendant’s warehouse at Mine LaMotte, but on board the cars in East St. Louis. But aside from all of this discussion, after the delivery of the Mine LaMotte property to Daugherty and Albers by Mr. Leathe, Mr. Leathe had no right to go upon the property and appropriate lead to fulfill an unexpired contract of lead made while he was in' the possession; he may or may not have the right to adjust with Daugherty and Albers in the Mine LaMotte property and appropriate the lead thereon to the fulfillment of his contract with plaintiff. But we think that the judgment of the circuit court could well have been based upon the finding that there had been no sufficient appropriation of the two' thousand six hundred pigs replevined in this action to the contract with plaintiff, because there is absolutely no evidence that plaintiff had ever assented to any such appropriation. Dp- to March 28, 1903, the plaintiff never was informed that any pigs of lead had been put in the warehouse and appropriated to it under the contract of sale; it was not until Mr. Stephen's told Mr. Leathe after March 28, that Daugherty had nailed up the warehouse and Mr. Leathe had visited the plain-, tiff’s agent at St. Louis and told him of Daugherty’s act that plaintiff knew anything of the lead replevined. And plaintiff only made this claim to this specific lead to accommodate Mr. Leathe who guaranteed plaintiff against all costs and damages arising from the suit. It is stated by Tiedeman oh Sales, section 89, that the appropriation of specific goods to the fulfillment óf a contract must be made with the express or implied consent .of the purchaser, and until this is done, the title does not pass, and this is the doctrine of Ober v. Carson’s Ex., 62 Mo. 209, and Groff v. Belche, 62 Mo. 400.

For the purposes of this appeal this court must assume that the trial court believed the evidence offered by the defendants. Upon a careful consideration of the testimony, we are of opinion that there' was sufficient evidence to justify the circuit court in finding that the title to the property had never passed to the plaintiff, and that it had no right to maintain replevin for the possession thereof as against defendant, and accordingly the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    BONSOR et al. v. MADISON COUNTY et al., Appellants.
    Division Two,
    May 14, 1907.
    1. SCHOOL LANDS: Title. The counties never had title to school lands (sections 16) granted by the United States to the State of Missouri by the Act of Admission in 1820, for the use of the inhabitants of the townships in which the lands are located, but by article 2, chapter 122, Revised Statutes of 1899, county courts are made trustees to sell or lease such lands, collect the rents, etc.
    2. -: Limitations. The Statute of Limitations ran against the legal title of the State to school lands by. the Revised Statutes of 1855 (art. 1, chap. 103, R. S. 1855); and where plaintiffs and those under whom they claim paid the county for school land, and have been in the actual, open, notorious, continuous and hostile possession of it since 1853, claiming title thereto, they have the absolute title.
    3. -: Parties Defendant. Whether or not the judges of the county court and the sheriff should have been made parties defendant to a suit to have the title to school lands decreed to be in plaintiff and to enjoin the county, the court and the sheriff from selling them, is a question that could have been raised by demurrer or answer, and if not so raised it was waived.
    4. -: Injunction to Restrain Sale: Cloud on Title. An injunction, as an original and independent proceeding, will hot lie to try title to real estate; nor does section 650, R. S. 1899, the statute in reference to quieting titles, authorize such a • suit. But a court of equity has the power to prevent a cloud from being cast upon title; and if that is the purpose of the suit, and the petition charges that the county court and the sheriff are about to sell school lands belonging to plaintiffs, the injunction will be entertained; and they Will be permitted to try the title, for such a sale would cast a cloud upon their title.
    Appeal from Madison Circuit Court. — Row. Samuel Davis, Special Judge.
    Afubmed,

      E. D. Anthony and John G. Brown for appellants.
    (1) The court.erred in overruling appellants’ demurrer. Sec. 598, R. S. 1899; State ex rel. v. Kenemore, 155 Mo. 425; 1 High on Injunctions (2 Ed.), secs. 45, 46, 56, 325; Wilcox v. Walker, 94 Mo. 88; Cren- , shaw v. Cook, 65 Mo. App. 264; Bliss on Code Pleading (2 Ed.), secs. 210 and 213. (2) The pleadings do not show that Madison county, one of the appellants, has any claim to or interest in the land, in controversy. Act of admission, sec. 6, p. 53, R. S. 1899; Ordinance of Acceptance, p. 55, R. S. 1899; secs. 8161, 8168, 8169; R. 5. 1899. (3) Respondents’ petition does not disclose any facts which if true would entitle them to equitable relief. Wilcox v. Walker, 94 Mo. 88; Freeman v. Moffitt, 119 Mo, 302; Johnson v. Flnetsch, 176 Mo. 473; Jenney v. Spedden, 38 Mo. 395; State ex rel. v. Court, 47 Mo. 594; State ex rel. v. Vining, 147 Mo. 1; Miltenberger v. Court, 50 Mo. 172; Smith, v. Johnson, 91 Mo. 13; Roden v. Helm, 90 S. W. .798,

      Robert A. Anthony, B. B. Gaboon, Sr., Moses Why-bark, Madison B. Smith, David M. Tesreau and Thomas T. Fauntleroy for respondents.
    (1) The objection of non-joinder of parties defendant must be taken by demurrer or answer, and exceptions be duly saved by motion later; otherwise-, it is waived. Franke v. St. Louis, 110 Mo. 516; Railroad v. Watson, 61 Mo. 57. (2) An act which tends to cast a cloud upon the title of real estate may be arrested or prevented by injunction. State ex rel. v. Wood, 155 Mo. 425; Bank v. City of Kansas, 73 Mo. 555. And the cloud may be removed by decree. De Bernardi v. McElroy, 110 Mo. 658. (3) While injunction as an original and independent proceeding does not lie to try title to real estate-, yet it may be invoked as an incident to an action to try title. Smith v. Jamison, 91 Mo. 18. (4) Respondents (being in possession as alleged) could not bring ejectment, but could resort to this suit in equity. Wright’s Heirs v. Christy’s Heirs, 39 Mo. 125; Wynn v. Cory, 43 Mo. 301; Verdin v. St. Louis, 131 Mo. 79. (5) This action, under the allegations of respondents’ petition, may be treated as an action based on section 650 (R. S. 1899) which is an action to quiet title, though not technically a suit in equity, and is designed to determine all the questions, whether of law or equity, relating to the respective titles of the parties, and to put at rest the controversy, as between the parties to the action. Whéeler v. Land Co., 193 Mo. 279; McCormick v. Parsons, 195 Mo. .91 (where an action under sec. 650 is treated as a suit in equity); Ball v. Woolf oik, 175 Mo. 278; Gage v. Cantwell, 191 Mo. 706. (6) The action was properly brought against the county of Madison, the said county standing in the relation of a trustee of an express trust, the trust in the county being an active one. Mississippi County v. Vowels, 101 Mo. 225; Morrow v. Pike Co., 189 Mo. 622; State v. Bonner, 5 Mo. App. 18. (7) The allegations of the petition show that Berryman and his grantees have had open, adverse, notorious and continuous possession of the land in dispute, claiming same as their own, from 1860 to the present time. Under these circumstances' all the Statutes of Limitation ran against the State, county and township, and vested absolute title in plaintiffs. Hendrickson v. Grable, 157 Mo. 42; Mississippi County v. Vowels, 101 Mo. 225. (8) Under the various provisions of article 2, chapter 122 (R. S. 1899) county courts are made trustees for the purpose of selling or leasing sixteenth section lands of the character, in dispute, and of controlling and investing the moneys arising from such sales for the benefit of the inhabitants of the township in which such land is located. No other provisions are made for selling or leasing such lands. The only duty to be performed by a State officer is the absolute duty imposed on the Secretary of State to issue a patent, when properly required by the county court. So far as the State’s trust is concerned, it may be termed a mere dry trust. R. S, 1899, art. 2, chap. 122; R. S. 1899, secs. 9828, 9829', 9831, 9832, 9840; sec. 6, p. 53, R. S. 1899. (9) The statement in the petition that plaintiffs were the owners of the land in dispute, that defendants claimed some adverse interest and a prayer for an investigation and finding of title and general relief were • sufficient, under section 650 (R. S. 1899) to authorize the court to admit evidence of adverse possession. Huff v. Land Co., 157 Mo1. 65; Meriwether v. Love, 167 Mo. 514.
   BURGESS, J.

The purposes o.f this suit seem to have been to have decreed aud declared the legal and equitable title to a forty-one acre tract of land, described in the petition, to he vested in plaintiffs, and divested out of said county and county court, and to have the sheriff perpetually enjoined from proceeding with the sale of said land,, under the order of said county court, and for general relief.

The petition upon which the case was tried, leaving off the formal parts, is as follows:

‘ ‘ Plaintiffs state that the said Katie Anderson Barclay and Shepard Barclay are husband and wife; that said Jennie Mallinckrodt and Edward Mallinckrodt are husband and wife; that said Georgiana Campbell Smith and John Campbell Smith are husband and wife; that said William O’Bannon is the duly elected, qualified and acting sheriff of the county of Madison in the State of Missouri; and that the said McFarland, Huffman and Hill are the judges of said county court of Madison county, Missouri.
‘‘Plaintiffs further state that said O’Bannon as said sheriff of said county, acting and claiming to act under an alleged order of the county court of said county, made at its adjourned term of the regular November term, .1902, advertised in the Democrat-News, a weekly newspaper published in said county, that he would on Monday, the 23rd day of March, 1903, sell at public auction as school land the southeast quarter of the southeast quarter of section 16, in township 33 north of range 7 east, containing forty acres, situated in Madison county, Missouri; that said O’Bannon threatens at and before the filing of the petition herein that he would at said time proceed to sell said land as school land, and the said county court and said defendants named as its judges will upon said sale by said sheriff proceed to cause a patent to issue or a pretended conveyance to be made to the purchaser at said sale, of said land, unless restrained from so doing by order of the circuit court of said county; that any such sale or the making of any such patent or conveyance or the issue of any such patent to the purchaser at said sale will cloud and impair the title of plaintiffs to said real estate; that said land is of much value and is reputed and. supposed by its owners to contain lead and other valuable minerals, and speculative or other purchasers may in spite of the facts hereinafter alleged bid and pay in excess of $1.25 per acre, for the claim they would acquire to said land, in order to secure some supposed right, title or interest therein to be conferred by such proposed sale; that such proposed sale or the making of a certificate of sale to the purchaser or the issuing a patent, pursuant thereto, will cloud, and cast a cloud upon the title of these plaintiffs to said real estate and will cause a multiplicity of suits thereafter to protect the rights of plaintiffs, and will do unto these plaintiffs great and irreparable injury and put them to great expense.
“Plaintiffs further allege that said land was once school land and as such once belonged to said section 16, township 33, range 7 east, in said county for school purposes, but that they through said county and through one James C. Berryman, now deceased, and the heirs, devisees and grantees of the said James C. Berry-man, are now the sole and exclusive owners of all said real estate, and that said Berryman, his said heirs, devisees and grantees and these plaintiffs who claim title to said real estate from, under, through and by the said county of Madison and the State of Missouri, and through, under and by conveyances fromthesaidBerryman, his heirs, devisees and legal representatives have been for more than thirty years since, to-wit, the year 1860, and they now are.(under color and claim of title thereto) in the adverse, continuous, open, visible, notorious, exclusive, hostile possession of all said real estate, claiming to own the same, and for. thirty years the plaintiffs and those under whom they claim from said Berryman have separately and exclusively claimed and possessed the rights to the minerals and mines upon said property, and plaintiffs and their predecessors in title to said property have continuously claimed perfect title and have possessed said lands for more than thirty years last past, adversely, continuously, peaceably and exclusively against all the world and especially have plaintiffs so claimed against said county and State of Missouri, and against all who might assert any claim to said real estate or to any part thereof under said county; that plaintiffs (and those under whom they claim) have been under said color and claim of title thereto in the open, exclusive, continuous, hostile and adverse possession of all said real estate and have paid all State, county and other taxes yearly assessed thereon by said county and by its officers since, to-wit, the year 1860, and that the premises and their said adverse possesion of real estate confers and has long since conferred upon them full and complete title to said real estate, and that although plaintiffs cannot produce the formal deed or patent for said real estate issued or made to said James C. Berryman by said county or State, yet the legal as well as the equitable title to said real estate is by reason of the premises in these plaintiffs and in no other party; that said Berryman, more than thirty years ago, bought said land from said county and paid the lawful price therefor; that the said county and the said county court of said county have neglected and refused and now neglect and refuse (though often requested so to do by said Berryman and plaintiffs) to cause a deed or patent to be issued to said James C. Berryman, his heirs, devisees, legal representatives or assigns for said real estate or for any part thereof; but said county claims and asserts title thereto for alleged school purposes adverse to plaintiffs, and in furtherance of such claim it is proceedingtohave, and it proposes and intends to have, said land sold for school purposes as though said land belonged to said county in trust for the public school or for the benefit of the school funds or some of them of said county, when in fact said land is the exclusive property of the plaintiffs.
“Plaintiffs further allege that the said judges of ' the county court as members of said court are invested by law with a trust to dispose of school lands in the said township where said land is situate; and said court is the trustee of an express trust of the legal title to lands which in fact belong to the schools; but plaintiffs aver that the equitable title to the forty-acre tract above designated is in them, because said James C. Berry-man more than twenty years ago bought the same and paid to said county court as trustee, as aforesaid, the full purchase price thereof; and said court in equity and good conscience ought to issue to plaintiffs, as the legal representatives of said Berryman, a patent for or certificate of purchase of said land, according to law; but not only does the said county court refuse so to do but it threatens to have said land resold as though it were yet school land, thereby to cast a cloud on the title of plaintiffs and to harass the plaintiffs in the enjoyment of their perfect legal title by adverse possession and occupancy and their equitable title thereto aforesaid.
“The premises considered, plaintiffs pray this honorable court for a decree declaring the complete legal and equitable title to said land to be fully vested in plaintiffs; and that said county and said county court be required to answer whether the alleged right and title of both in and to said forty-acre tract of real estate should not be divested out of both said county and said county court and invested in plaintiffs; that the court will try the title to said real estate and invest the same in plaintiffs; and will perpetually enjoin the said sheriff from proceeding with said sale or any sale of said land under the aforesaid order of said county court; and that this court will grant unto plaintiffs all other relief to which they may be entitled and which equity and good conscience require, and will render judgment for costs of suit in their favor; and plaintiffs further pray that the interlocutory restraining order heretofore made herein may be continued and enforced by this court until the final hearing of the merits of this suit.”

Defendants answered as follows:

“For answer to the amended petition of the plaintiffs filed in this cause, defendants admit that co-defendants, Henry B. McFarland, George W. Huffman and Henry Hill, are judges of the county court of Madison county, Missouri, and at the November term, 1902, of said county court they made and entered of record an order directing and commanding the sheriff of said Madison county, Missouri, to sell the real estate in controversy.
“Admit that co-defendant "William O’Bannon is the sheriff of Madison county, Missouri, and that at the time this suit was instituted said defendant had advertised and was preparing to sell said real estate.
“Defendants also admit that the real estate in controversy was originally school land and that the legal title thereto was held by the State of Missouri, in trust for the benefit of the inhabitants of township 33 north, of range 7 east, and defendants deny each and every other averment, allegation and statement in said answer contained, and pray to be discharged with their costs.
“Defendants further answering said amended petition aver that the land in controversy is school land, that the equitable title thereto is vested in the inhabitants of township thirty-three north, of range seven east, in Madison county, Missouri, and that the legal title to said property is vested in the State of Missouri, wherefore defendants pray the court that the injunction heretofore granted in this cause he dissolved and ask to he dismissed with their cost in this proceeding.”

After hearing the evidence the .court rendered the following judgment and decree:

“Now comes Hon. Samuel Davis of the Fifteenth Judicial Circuit within and for the State of Missouri, who at the request of the regular judge of this court presided at the trial of this cause, and transacts the following business in said cause as follows and rendered the following decree in this causé:
“This cause came on to he heard at the adjourned September term, A. D. 1903, before the court, the Hon. Samuel Davis, Judge of the Fifteenth Judicial Circuit of Missouri at the request of the Hon. Robert A. Anthony, Judge of the Twenty-seventh Judicial Circuit of Missouri (of which the Madison County Circuit Court ■forms a part), and with the appearance and consent of all parties, sitting to try said cause, and the pleadings were thereupon read, the evidence in support thereof produced and argument of counsel made, and all and singular the matters and issues duly submitted to the court and taken and held under advisement until this the 2nd day of April, A. D. 1904, the 6th day of the March term of the court, at which time and whereupon the court makes the following findings and final decree:
“The court finds that Madison county is one of the defendants in said cause, and also that defendant "William 0 ’Bannon was at the time of the trial of said cause and is now sheriff of said county, and that defendants Henry B. McFarland, George W. Huffman and William Henry Hill are now and were at the institution of this suit the acting county judges of the said county, and further finds that the'said Henry B. McFarland, George W. Huffman and William Henry Hill, judges as aforesaid of the county court, were prior to or at the time of the institution of this suit, to-wit, April 30, 1903, proceeding to sell the land in dispute at public vendue, believing that it was part of the 16th section and belonging to the State school fund.
‘ ‘ The court further finds that the southeast quarter of section sixteen, township thirty-three, range seven east, containing forty acres more or less, is the description of the land in dispute as aforesaid, and the same land described in plaintiffs ’ petition, and was originally school land and part of the sixteenth section, and finds that Judge James C. Berryman, a resident of Madison county, and who has long since departed this life, purchased about the year 1853, said land from the State of Missouri, together with other State school lands, and paid therefor the statutory price of one dollar and twenty-five cents an acre, and finds further that the county and State authorities whose duty it was at the time on receiving payment thereof, to make and issue to Judge James C. Berryman for conveyance of the title thereto a proper patent, and finds that notwithstanding that such was the duty of said county and State officials and officers they and each of them failed and neglected to make said patent or other conveyance for such purchase and the court further finds that Judge Berryman in good faith, believing that he had obtained the title to said lands in the manner aforesaid, took possession thereof, fenced and cleared of said land fifteen or twenty acres; that he cut timber thereon for firewood, fencing and other purposes, and also cut and hauled cord wood and the same sold to the inhabitants of Fredericktown; and further finds that he and his grantees, devisees, and heirs, farmed and cleared portions of said land and the uncleared portion he used for pasturage and timber from about the year Í853 for thirty years and more thereafter; and finds further that said land was treated and used by the said Judge Berryman as part of his homestead, his dwelling house and all outbuildings being within a few feet of the east and west line of said land situate on the northeast quarter of the southeast quarter of the section, township and range aforesaid.
‘ ‘And the court further finds that the said land has been in open, notorious, continuous, hostile and actual possession of the said Judge Berryman, his heirs, de,visees and grantees from about the year 1853 as aforesaid, up to the present time, and that said plaintiffs are now in the actual, open, notorious, continuous and hostile possession thereof.
“It is therefore ordered, adjudged and decreed that the title to the said land long since passed out of the county of Madison and the inhabitants thereof by the purchase of the said Judge James C. Berryman and that the said county of Madison, or the inhabitants of the township in which said land is situate in the county of Madison, have no title in and to said land for the reason that the same was sold to James C. Berryman as aforesaid, in the manner the law directed, and because of the actual, open, notorious, continuous and hostile possession thereof for fifty years or more by the said J. C. Berryman, his heirs, devisees and grantees, and therefore said county and the inhabitants of said township of said county have not any title thereto and have not had since about the year 1853.
“And it is further ordered, adjudged and decreed that the title, legal and equitable, to said land, be and the same is hereby firmly and forever settled and vested in them.
“And it is by the court further ordered, adjudged and decreed in order that the title to' said land may abide in plaintiffs in peace and in no way be disturbed, that the said defendant Henry B. McFarland, George W. Huffman and William Henry Hill, judges as aforesaid, of the county court of Madison county, and their successors in office, be and the same are hereby forever perpetually restrained and enjoined from hereafter in any way undertaking to interfere with said land by selling or disposing of it in any manner whatever, and that said defendants, William O’Bannon, sheriff of said county, and his successors, are likewise restrained and enjoined from selling or undertaking to sell or in any manner dispose of said property under the orders of any county court of Madison county.
“And it is further ordered by the court that the clerk of this court on the recording of this decree in the circuit court record of the county of Madison, with convenient speed, shall make a certified copy thereof and the same deposit with the recorder of deeds of said county to be recorded in the land records thereof, which, shall be the muniment of titles vesting as hereinbefore decreed said titles in the plaintiffs.
“And it is further adjudged by the court that it will be the duty of the Secretary of State on the presentation of a certified copy of this decree by the plaintiffs to issue to them or some of them a patent for said land as their interests shall appear.
“And it is further adjudged and decreed that plaintiffs recover off of defendants their costs of suit herein expended.”

Defendants appeal to this court.

No bill of exceptions was filed in this cause, so that there is nothing before us for review except the record proper, which, in this case, includes the petition, answer, judgment and decree.

Defendant»’ first contention is that the petition fails to state a cause of action against Madison county.

The land in question is what is known as school land, granted by the United States to the State of Missouri by the Act of Admission, in 1820, for the use of the inhabitants of the townships in which located. The counties never had titles tO‘ these lands; hut -by article 2, chapter 122, Revised Statutes of 1899, county courts are made trustees to sell or lease the lands, collect the rents, etc.

The proceeds of sales or leases made under said article 2 constitute a township fund, and the care and management of such fund is reposed in the county court, which shall cause correct accounts to be stated and kept (secs. 9828, 9829, R. S. 1899), and money so arising from sales and leases of school land constitute a school fund of the township, no' part of the principal ‘of which shall be expended for any purpose, but it shall be loaned by the county court, in the name of the county, for the use of the township to which it belongs (secs. 9831, 9832, R. S. 1899), and the township or schools have only the use of the moneys arising from sales of said lands, or a right to the benefit and use of the interest which may be earned by such funds. Until the lands are sold, however, the title remains in the State.

It is plain that none of these sections give the counties any title; but they do give to them the supervision of this class of school lands, which class, so far as the legal title is concerned, is entirely different from the swamp and overflowed lands which were granted to the State of Missouri by an act of Congress, and then donated by the State to the counties in which situated, the proceeds arising from the sale thereof to become a part of the public school fund of the county in which the land sold is situated. These lands are held in trust by such counties for their respective school funds. Not so with regard to the sixteenth sections, the title to which was .always in the State after their grant by the United States Government, until patented by the State to the purchaser or purchasers.

But the petition alleges and the. court found that the plaintiffs and those under whom' they claim title had been in the actual, open, notorious, continuous and hostile possession of the land, claiming title thereto, ever since 1853; so that, as the Statute of Limitations was then (art. 1, chap. 103, R. S. 1855), it ran against the legal title of the State, a county or a municipality, to lands held for public use. [Mississippi County v. Vowels, 101 Mo. 225; County of St. Charles v. Powell, 22 Mo. 525; Callaway County v. Nolley, 31 Mo. 393; Abernathy v. Dennis, 49 Mo. 468; School Directors v. Goerges, 50 Mo. 194; McCartney, Adm’x v. Alderson, 54 Mo. 320; Wickersham v. Woodbeck, 57 Mo. 59; Conn. Mut. Life Ins. Co. v. St. Louis, 98 Mo. 422; Hendrickson v. Grable, 157 Mo. 42.] It follows that plaintiffs’ possession and of those under whom they claim had ripened into an absolute title for more than fifty years before the commencement of this suit.

Defendants contend that the county of Madison, William 0 ’Bannon, sheriff of said -county, and- Henry B. McFarland, George W. Huffman and William Henry Hill, judges of the county court of said county, were improperly made defendants to this suit; but that objection could only have been raised by demurrer or answer, and as this was not done, the objection was waived. [Sec. 602, R. S. 1899; Railroad v. Watson, 61 Mo. 57; Franke v. St. Louis, 110 Mo. 516.]

While plaintiffs concede that injunction, as an original and independent proceeding, does not lie to try title to real estate, they insist that, under the allegations of their petition, it may be treated as an action based upon section 650, Revised Statutes 1899. But that statute furnishes no authority whatever for such a proceeding as this, which can only be upheld as a suit in equity to enjoin the sale of land, which sale would cast a cloud upon the legal title. Under such circumstances a court of equity will afford relief. In this case, under the judgment, the plaintiffs are the absolute owners in fee of the land, and any sale that the defendants, judges of the county court, and the defendant sheriff of said county, might make as such could pass no title, and as the county, before the State lost its title to the land and the defendants and those under whom they claim acquired title thereto, was the trustee for this land and authorized to cause it to be sold by the sheriff of the county, any sale by it as threatened, as shown by the judgment, could but cast a cloud upon plaintiffs’ title. “The jurisdiction and power of a court of equity to prevent a cloud being cast upon the title to real estate is as well established as is the jurisdiction and power to remove one already created.” [Gardner v. Terry, 99 Mo. l. c. 526; Verdin v. St. Louis, 131 Mo. 26.]

For these considerations the judgment is affirmed.

-Qamtt, J., concurs; Fox, J., not sitting.


author: GANTT, J.

text:
    ANN SCHLOEMER v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    May 14, 1907.
    1. NEGLIGENCE: Injury to Arm of Passenger: Physical Facts: Demurrer. Plaintiff’s husband was a passenger, on the fourth seat, on a street car, and rested his arm on the sill of a window, which was open and protected by four iron guards, •two and one-half inches apart, the lower one being three •and one-half inches above the sill. Plaintiff’s evidence was that he rested his elbow on the sill, his hand to his face, and that the car on the other track, as it passed, scraped the side ■of the car, and broke his arm; that the rail of the track was ■defective, and sunk down as the weight of the car came on it, and that caused the car to lurch toward the car on the other track. The arm was severed by the other car, between the -elbow and the wrist, and the hand and lower arm were thrown into the other car. Defendant’s evidence was that he sat with his side to the car, and his arm protruded through the window, over the top guard, toward the other track. Held, first, that it was not negligence for him to rest his arm on the window sill; second, the physical facts were not such as to authorize the court to declare, as a matter of law, that the accident could not have occurred as the plaintiff’s witnesses stated; and, third, for the purposes of the demurrer, it does not matter that defendant’s evidence was variant from plaintiff’s, for it was the province of the jury to weigh both, and in this case there is reason why the jury shpuld have chosen to credit plaintiff’s witnesses, since they consisted of the conductor and the only other eyewitnesses who saw the position of deceased’s arm.
    2. -: Passengers: Street Car: Care. Street car companies are held to the same degree of care and vigilance in preventing injuries to their passengers as is exacted of other railroads carrying passengers for hire — that is to say, the highest degree of care and skill which prudent men would use and exercise in a like business and under like circumstances.
    3. -: Evidence: Statement of Conductor: Impeachment. The motorman had testified that he felt no jolt or jar of the car as it passed the other, and that was material, for plaintiff’s ease was based on the fact that the rail was defective, that it gave-down under the weight of the car, and that this caused it to-lurch towards the car passing on the other track, and that the lurch caused the passenger’s arm to slip through the space-three and one-half inches wide between the window sill and the first bar above, and when it did so that ear, which came so close to the other as to scrape its side, tore off his arm. On cross-examination the motorman was asked if he had not stated to a witness that it was the third time his car had caught there within two weeks. Sold, that such evidence would not have been competent as a part of the res gestae, but the question was competent as tending to contradict the motorman’s testimony in chief, to the effect that the track was in good condition, and for the purposes of impeachment, and the testimony of the witness to whom he made the statement was also competent for the same purpose.

      4. -: -: Repair of Track: In Rebuttal. Evidence that defendant after the accident had repaired the track is not admissible, as original evidence, to establish defendant’s negligence in maintaining a defective track; but where defendant’s; witnesses have testified that the track was in good condition at the time of the accident, and has remained in the same condition since, plaintiff is not concluded by that testimony, but it is competent, for the purpose of contradicting them, for plaintiff, in rebuttal, to show that defendant has since repaired' the track.

      Appeal from St. Louis City Circuit Court. — How. Warwick Hough, Judge.
    Affirmed.

      Glendy B. Arnold for appellant; Boyle & Priest of counsel.
    (1) The physical facts testified to by both plaintiff’s and defendant’s witnesses show conclusively that deceased’s arm could not have come in contact with the northbound car in the manner as described by plaintiff’s witnesses. Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 581; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 373; Spero v. Railroad, 102 Mo. App. 250. (2) The court erred in permitting counsel for plaintiff in his cross-examination of defendant’s witness Hawkins to ask said witness if he had stated on the 20th day of May, 1903, while on his car, to one Jacob Luetzl in reference to the accident to deceased, that it was a dirty shame that they didn’t fix that track; that that was the third time that his car had caught there within two weeks, and in permitting said counsel to ask of Jacob Luetzl, in rebuttal, if Motorman Hawkins had not at the time and place made the foregoing statement to him, and in permitting Leutzl to answer the question. Wojtylak v. Coal Co., 188 Mo. 287; Hamburger v. Rinkel, 164 Mo. 407; Ruschelberg v. Railroad, 161 Mo. 79; Koenig v. Railroad, 173 Mo. 721. (3) The court erred in permitting witnesses Jacob Luetzl and Walter VanDyke to testify that they had seen defendant changing or repairing its tracks at the place of the accident after it had occurred. Wojtylak v. Coal Co., 188 Mo. 287; Bailey v. Kansas City, 189. Mo. 509.

      A. R,. Taylor for respondent.
    (1) Every averment of the petition had ample evidence in its support, and the verdict of the jury settled the facts. The contention of appellant, that deceased could not have had his injury by reason of his arm being thrown under the lower guard of the window, discredits and holds for naught the testimony of the witness, Jacob Luetzl, Joseph Schleyer, Joseph Schloemer, the son of deceased, and the conductor, Perkins. If the space between the sill and the first bar was three and one-half inches, and if the window was down, as testified by Luetzl, and by Joseph Schloemer, then if the deceased was in the position described by plaintiff’s witnesses and the conductor of the car — and the car sustained a violent lurch and collision with the northbound car, as there was ample evidence that it did do, then the explanation of the injury is natural. The shock would naturally displace his arm, the open space under the window would, without offense to nature’s law, cause his arm to go through, the proximity of the northbound car was such that it would catch the slightest extension of the arm, and the injury is thus explained in entire consistency with the physical law. (2) The evidence as to the condition of the track at the trial was most material — and, of course, any statement made by the witness tending to contradict what he said at the trial, was competent impeachment. Wojtylak case, 188 Mo. 289; Humburger v. Rinkel, 164 Mo. 407.
   GANTT, J.

This is an action by the widow of Joseph Schloemer to recover five thousand dollars as damages caused by the alleged negligence of the defendant, a carrier of passengers, in providing an insufficient railroad and defective appliances whereby said Joseph Schloemer, a passenger on one of defendant’s street cars, was injured and died on the 20th of May, 1903.

The petition alleges in substance that the plaintiff was the widow of Joseph Schloemer at the time of his death; that on the 19th of May, 1903, the defendant was a corporation and operating a railway and. cars for the purpose of carrying passengers for hire in the city of St. Louis as a common carrier of passengers; that on the said date, the plaintiff’s husband was a passenger on the defendant’s south-bound car on Eighth street at or near Julia street in the city of St. Louis, when his left arm was struck, crushed and cut off by one of the defendant’s north-bound cars on Eighth street in passing the said car on which plaintiff’s husband was such passenger, catching and crushing his hand and arm against said car on which he was such passenger and thereby plaintiff’s husband was so injured that he died from said injuries on the 20th of May, 1903. Plaintiff avers that defendant’s railway tracks were defectr ively constructed in that they were too close to each other to allow sufficient space for defendant’s cars to pass by each other at said point with safety to its passengers, and said tracks were further defectively constructed and maintained in that the inside rails were lower than the outside, causing the cars in passing to nearly touch each other and exposing the passengers on street cars, who should allow or suffer any part of their person to protrude beyond the windows of said cars, to be struck and injured by said passing cars, and said tracks were further defective in that they were worn, out of repair and thereby caused said cars to approach dangerously close to each other in passing and thereby exposed passengers to peril. Plaintiff avers that said car on which her husband was such passenger was defectively constructed in that the guard at the window was too high and permitted the arms of passengers when resting on the window sills of the car to protrude beyond said car and be endangered by passing cars in striking and injuring them. That ■whilst her husband was such passenger on said ear, riding with his elbow on the window sill of said car, his arm was crushed by a lurch or bolt of said car, and by reason of said defective condition of said car and the guard thereof, to be thrown beyond the extension of said car, and by reason of said defective condition of defendant’s tracks and said defective condition of said car and the guard thereof, was struck by another of defendant’s cars and he was injured as aforesaid; that said ears of defendant were public conveyances, and plaintiff’s husband was a passenger on one of them as aforesaid. That by the death of her husband as aforesaid, an action has accrued to plaintiff to sue for and recover five thousand dollars according to the statute in such case made and provided.

The answer is a general denial, and a plea of contributory negligence in that the injury was caused by the deceased putting his arm out of the car window so that it was struck by a passing car.

The reply was a general denial.

The evidence tended to show that plaintiff was the lawful wife of Joseph Schloemer at the time of his death. That on the evening of May 19, 1903, Joseph Schloemer was sitting in the fourth seat from the rear of the car on the east side as he rode to the place where his injury occurred. He sat in his seat and rested his elbow on the window sill of the car.

Jacob Luetzl, a passenger on this car in the third seat from the rear, but on the west side of the car, testified as to the manner in which deceased sat in the seat and rested his arm: “He was sitting by the window like that, chewing his tobacco, and it- looked — that is the way I seen him all the way down.” Q.. “"Where was his arm resting?” Ans. “On the sill, like this. He had his hand resting on his cheek and his elbow on the sill.”

Joseph Schleyer testified he got on this car at Sixth and Market streets and rode in the same seat with Luetzl. Asked if he noticed the deceased, he said: “Well, certainly, I got on at Sixth and Market and'the old man was sitting in the car and had his hand resting like this on the window sill” (indicating), “with his elbow on the window sill. ”

The conductor of this car, a witness for the defendant, on this point testified as follows: “Where were you at the time ?’’ Ans. “I was on the back platform.” Q. “You could see into the car?” Ans. “Yes, sir.” Q. “You could see all the passengers in the car that were as far forward as the third seat, couldn’t you?” Ans. “Yes, sir, I did not have many passengers on the car. ” Q. “ The passenger on the third or fourth seat was in plain view, was he not.” Ans. “Yes, sir, they were in plain view.” Q. “Now, did you see the man lying there, lying against the side of the car with one hand reaching up over the top there and sticking? (out)” Ans. “No, sir; if I did I would have stopped him.” Q. “You would not have allowed it?” Ans. “No, sir.”

The testimony further showed that the window next to which the deceased sat was open, that is, the sash was lowered into the window pocket, below the window sill. For the protection of its passengers defendant had placed across the lower part of this window and on the outside of the car, four iron bars two and one-half inches apart, the lowest bar was three and one-half inches above the sill of the window, but the testimony for the defendant tended to show that when the sash was let down into this pocket, the wooden frame on the top of the sash would stand up above the level of the window sill and that the distance between the top of this sash and the lower rod would not be over from a half to three-quarters of an inch. On the other hand, there was evidence tending to show that when the sash was down in the pocket, the space between the top of the sash or the window sill and the lower bar, was three and one-half inches. On the part of the defendant, the-testimony tended to show that the deceased was sitting in the seat with his arm resting on the rail (referring to the rods or guards to the window); that his arm was on the top one and his hand outside of the car.

The witness, Deusterhause, could not say how far his hand was extended out of the window. On cross-examination he stated that the deceased was sitting two or three seats in front of him and was resting against the east side of the car. He was asked, “He was lying against the east side of the car; here is the outside of the car and in order to get his hand out the way you put it, he had to twist it around this way, didn’t he ? ” Ans. ‘‘I did not say that he twisted it.” Q. “Did he have it hack this way, or did he have it — ” Ans. “He had it straight.” Q. “He had it straight out this way, and was dying against the hack of the car?” Ans. “Yes, sir.” Q. “And had his hand out this way.” Ans. “Yes, sir.” Q. “You saw that?” Ans. “I saw it that way.” Q. “I understand that he did not lay with his front towards the window, did he?” Ans. “No, sir.” Q. “He lay with his back and side towards the window this way.”' Ans. “No, on the side, that is with his left arm and shoulder next to the iron rods, and he had his head on his arm.” The witness indicated a posture where the arm rested slightly from the shoulder stretched out.

Madden, the motorman on the north-bound car, testified that he noticed the man’s arm as the two cars were about to pass each other. He said that the deceased was sitting in the car with his elbow doubled and out over the top of the top guard. Perkins, the conductor on the north-bound car, testified that the deceased was sitting in his seat with his elbow over the top bar and extending out from four to six inches beyond the car.

Two photographs were offered, and used in evidence and will accompany this opinion.

Weidner, who took the photographs, testified that the man whose photograph was taken in exhibit number one, was five feet ten, or five feet eleven, tall, whereas the evidence tends to show that the deceased was about five feet eight. Weidner also testified that the distance from the seat to the top of the top rod was three feet, and there was a distance of two and one-half inches from the top of the sash to the first iron rod when the sash of the window was as low down as he could get it in the pocket, and the distance between the rods was two and one half inches, and there were four rods. As to the space between the window sill or the first or lower bar, Leutzl testified that he saw the space measured within five minutes after the injury and there was three and one-half inches from the bottom of the sill up to the first rod and two and one-half inches between the other rods, and he also testified that when the window was let down, the sash went clear below the surface of the window sill. Joseph Schloemer, a son of the deceased, measured the space between the sill and the rod a few days after his father’s funeral, and found it to be three and one-half inches, and that he put the window down himself and it went down until the top of the sash was even with the top of the sill.

The evidence also discloses that the defendant at that time maintained in Eighth street double tracks, over which it operated electric cars north and south. When the ear was about midway between Carroll and Julia streets the arm of the deceased, Joseph Schloemer, was struck by a north-bound ear and severed between the elbow and wrist, the severed hand and forearm falling in the aisle and about the‘center of the north-bound car.

The evidence for the plaintiff tends to show that the arm of the deceased was caused to project beyond the window sill and outside of the car by a sudden and violent lurch of the car on which he was riding, caused by a defective condition of the track, which condition, plaintiff’s evidence tends to show, was such that the rail would go down an inch or more as the car passed over it. This lurch, plaintiff insists, brought the cars together and in this way deceased’s arm was struck by the north-bound car as it passed, and with the momentum of the combined speed of the two cars the severed arm was thrown into the north-bound car.

The defendant’s contention is that the deceased voluntarily placed his arm on the top bar across the window and in such a manner that his hand and the part of his forearm projected beyond the side of the car and thus was severed by the north-bound car as it passed.

The errors complained of are three only. • First that the court erred in not sustaining a demurrer to the evidence, because the physical facts testified to by all the witnesses conclusively established that the arm of the deceased could not have come in contact with the north-bound car in the manner described by plaintiff’s witnesses. The second and third grounds of error are predicated upon the admission of testimony, which will be noticed in the course of the opinion.

I. The insistence of the defendant that the circuit court erred in denying its demurrer to the evidence is predicated upon the claim that the deceased’s arm must have been resting on the top bar across the window, and his hand and forearm projecting beyond the side of the car, and that the physical facts were such that the deceased could not have been injured by the sudden projecting of his arm through the space between the lower bar and the sill caused by the lurching of the car on which he was riding, on account of the defective condition of the track at that point. It will he observed that the plaintiff’s petition counts upon a combination of negligent acts on the part of the defendant. ' First, in so constructing its parallel tracks as to be dangerous to passengers on its cars by the passing of said cars. And, second, that the track at the point where the injury occurred was in a defective condition, so much so that a man standing with his weight on the inside rail would cause it to give to the extent of an inch or more. The testimony on behalf of the plaintiff was that the deceased took passage on the car at Market street some twenty blocks north of the place of the injury to the deceased, and took his seat on the east side •of the car in the fourth seat from the rear of the coach. He sat next to a window and rested his left elbow on the window sill of the car with his hand upon his cheek, at least a portion of the time. He rode in this position all the way down from Market street. There was a space between the bottom bar or window guard and the window sill of three and one half inches. If this was his position, and such was the evidence of two witnesses for the plaintiff and practically of the conductor of the car also, and the car sustained a violent lurch caused by the defective condition of the track, which plaintiff’s evidence also tended to show, this lurch would inevitably bring the cars close together, and there was evidence that they scraped against each other. It was by no means a violent inference for the jury to draw that this sudden lurch would have displaced the elbow resting on the window sill and caused an- involuntary extension of the forearm of the deceased through the open ■space between the window sill and the lower bar across the window. That it was not negligence in the deceased to sit with his left elbow resting on the window :sill by which he sat, is too plain for discussion. But, at all events, the testimony on behalf of the plaintiff in this case was not such as would justify the court in having declared him guilty of contributory negligence as a matter of law. [Winters v. Railroad, 39 Mo. 468; Barton v. Railroad, 52 Mo. 253.]

The demurrer to the evidence in this case assumes, as it was said by Judge Ewing in Barton v. Railroad, supra, that the defective track and the sudden lurch of the car caused thereby, “could not have irresistibly forced the plaintiff’s arm outside of the window, or that it could not have been an involuntary or mechanical movement prompted by an instinctive shrinking from imminent danger.” [See, also, Smith v. Railroad, 120 Mo. App. 328.]

The rule of law is firmly established in this State that street car companies are carriers of passengers and are held.to the same degree of care and vigilance in preventing injuries to their passengers, as is required of other railroads carrying passengers for hire, that is to say, the highest care and skill which prudent men would use and exercise in a like business and under like circumstances.

Neither does it matter for the purposes of a demurrer that the evidence of the witnesses for the defendant was variant from that of the witnesses for the plaintiff. It was the province of the jury to weigh the testimony of both, nor do we see anything strange in the fact that the jury credited the evidence of the witnesses for the plaintiff rather than that of the witnesses for defendant, especially when it appears that the witnesses Luetzl and Schleyer, and the conductor of the car, of all the witnesses in the case, occupied the best position to observe the actions and the position of the deceased from the time he entered the car up to the moment he was injured. Certainly the testimony of Deusterhause, as it appeared in the transcript, must have been very unsatisfactory, and the conductor and motorman on the north-bound car were not in a position, considering the rapid movements of the two cars, to have caused the,, jury to have accepted their version rather than that of those who sat in immediate proximity to the deceased. And it was for the jury, in view of the physical facts demonstrated by the two photographs in evidence, to accept or reject the theory of the defendant that a man of the proportions of the deceased could have lifted his elbow over the top guard bar of the window from the position in which all the evidence shows him to have been and had his arm extending out in the manner that was detailed. In view of all the testimony, we think that the trial court committed no error in overruling the demurrer to the evidence. There was no conflict with any known physical law, if the evidence for. the plaintiff was true, and the jury by their verdict have said it was true.

II. It is next contended that the trial court committed error in permitting plaintiff’s counsel, on cross-examination of defendant’s witness Hawkins, the motorman in charge of defendant’s south-bound car at the time of the injury to the plaintiff, to ask him if he had not said on the 20th of May, the day after the deceased was injured, while on his trip south, in a conver- ' sation with Luetzl and referring to the accident to deceased, “That it was a dirty shame that they did not fix that track, that that was the third time that your car had caught there within two weeks,” and in permitting Luetzl to testify in rebuttal that the motorman had made the foregoing statement to him at the time and place mentioned. To understand this assignment of error it is necessary to show the connection in which it occurred. The witness Hawkins testified that he was the motorman in charge of the car, number 1525, on which the deceased Mr. Sehloemer was riding when his arm was severed. He was asked: Q. “Tell the jury whereabouts that happened with reference to Carroll street?” Ans. “Well, just as I remember the cars cleared! one another there in between Julia and Carroll on Eighth street ;• I never felt any jar or anything else, I did not know anything was the matter.” Q. “Do you know whereabouts the cars were at the time that the arm was lost, at the time of the--?” Ans. '“Well, I got a bell to stop at Carroll, and that is a short block from there to Julia, and my car was just regular speed there; we just speeding the motors and going--, it was not going fast, when I got a bell to stop, and I turned around and looked and I seen this mán in the car. ” Q. “You did not see the man before he was injured?” Ans. “No, sir.” Q. “Do you or not have any personal knowledge as to how that occurred?” Ans. “No, sir.” On cross-examination •counsel for the plaintiff requested Luetzl to stand up', and then asked the question above set forth, to which defendant’s counsel objected, on the ground that the defendant was not bound by any declaration that the motorman may have made and they could not. call this out in order to impeach him, to which counsel for the plaintiff replied that the witness has stated that he did not know anything about how it happened, and that he felt no jar or jerk and the plaintiff now proposes to show in explanation of how this thing happened that the car tracks were in bad condition there and that the witness’s car had caught there three times within two weeks, and to contradict his statement that he now makes on the stand that he knew nothing about how it happened. The court ruled that it was competent for the plaintiff to show by this witness the condition of the tracks at the time of the injury and that the question as to the contradiction of the witness would come up afterwards and if it was material the plaintiff would have the right to contradict it. Thereupon the plaintiff’s counsel renewed his question and asked the witness if he told Luetzl that, and he answered that he did not. He was then asked, “Now, as a matter of fact, was not your car caught there several times?” He answered, “No, it was not that I know of. ’ ’ We are cited by the learned counsel for the defendant to Koenig v. Railroad, 173 Mo. l. c. 721, where it is ruled by this court that it was incompetent to prove the statements made by a motorman made after an accident in which his car ran over a child, to the effect that he did not see the child, he was looking at the car going east, because it was a narration of a past event with respect to which he was not authorized to speak for his employer. That evidence in that case was offered in chief by the plaintiff as a part of his case and not upon cross-examination, nor for the purpose of impeachment or contradiction. Counsel also cite the case of Ruschenberg v. Railroad, 161 Mo. l. c. 79, in which a similar ruling was made. These cases must be accepted as the settled law of this State. But the question propounded in this case was for a different purpose; here, the witness had testified for the plaintiff that the cars in question had cleared each other without contact and that there was no jar or jolt, or as the plaintiff’s witnesses put it, no “lurch.” This was a material fact in issue in the case, because if the cars had cleared all right, and there was no jar or jolt, it tended directly to contradict the evidence of the witnesses for the plaintiff that there was a sudden lurch of the car that threw deceased’s arm out of the window and caused the injury. On cross-examination the motorman, the witness who had so testified, had his attention called to the time and place and to his statement tending to show that at said time and place he had made to Luetzl a statement upon the same point contradictory of the evidence he had just given as to his knowledge of the injury. It is elemental that one way of discrediting a witness is by showing either through cross-examination or by other witnesses that the witness has at another time stated the opposite of what he now. states, or has otherwise varied from his present story. But before this can be done, it is generally held necessary in the case of verbal statements, first, to ask him as to the time!, place and person involved in the supposed contradiction. And, as said by this court in Hamburger v. Rinkel, 164 Mo. l. c. 407, “Contradictory statements which may be shown for the purpose of impeaching a witness must be of facts pertinent to the issue, and which could have been shown in evidence as facts independently of the inconsistency, and not merely of opinion in relation to the matter in issue.” [1 Greenleaf on Ev. (16 Ed.), secs. 461, 462.] It will be observed that the question propounded to the witness did not call for a mere matter of opinion, which he had previously given, which is not allowable (McFadin v. Catron, 120 Mo. l. c. 263, 264, and cases cited), but was confined directly to his statement made on a previous occasion as to the condition of the track, which was a fact directly in issue and pertinent to the matter on trial. The evidence here was offered and admitted, not as original evidence as part of the res gestae, but for the purpose of discrediting and contradicting the evidence of the witness as to his knowledge of the defective condition of the track and of the collision of the cars at the time of the injury to the deceased. Under the charge in the petition that the defendant -was negligent in that it had built its tracks too close together and that the inside rail was lower than the outside rail, and the track was out of repair, it was clearly competent to show this defective condition of the track. We think, therefore, it was competent for the plaintiff on cross-examination to ask the witness whether at the given time and place and to the party named, he had not made this prior inconsistent statement, and that it was a material matter upon which he could be impeached.

Defendant also relies upon the decision of this court in Wojtylak v. Coal Co., 188 Mo. l. e. 288, but that case has little or no bearing’ here, because the alleged impeaching matter was not made by the witness sought to be impeached in that case. In that case, the witness was asked if -certain men had not applied to him words of abuse some time after the injury; it was not pretended that the witness did or said anything at the time bearing upon any issue. Certain miners had accused him of failure to do his duty, and he said nothing, and the counsel sought to get before the jury merely the defamatory statement to him by the other miners. And the circuit court permitted the impeaching witnesses to testify that the accusations denied by the witness were made. This court held in that case that the witness could not be impeached by showing that certain men abused him. While in the case at bar, -the impeachment went to the statement of the motorman as to the condition of the track, and the facts distinguish it clearly from the Wojtylak case.

III. Lastly, it is urged for reversal that the circuit court erred in permitting Luetzl and YanDyke to testify in rebuttal that they had seen defendant repairing its tracks at the place of the accident soon after the injury. Obviously this evidence, under the repeated ruling of this court, was not admissible as original evidence in chief for the plaintiff. [Brennan v. St. Louis, 92 Mo. l. c. 488; Alcorn v. Railroad, 108 Mo. l. c. 90; Railroad v. Hawthorne, 144 U. S. 202; Bailey v. Kansas City, 189 Mo. l. c. 510, et seq.] Here again it is necessary to understand the conditions upon which this testimony was admitted. For the defendant, William Finn, the defendant’s general road-master, was called as a witness. He was questioned as to the condition of the track at the time of the injury, and he testified that the track was well built and was in excellent condition. After he had stated how the track was laid, and its condition, he stated that it was in the same condition now as it was then. Then the counsel for the defendant asked this question, “Tell the jury whether or not you have made any change or repairs in it?” and he answered, “No, sir.” When the plaintiff, then in rebuttal, called VanDyke and Luetzl and by preliminary inquiry showed their knowledge of the track at the place where the injury occurred, counsel for the plaintiff inquired of them what if anything they knew of repairs being made of the said tracks at the place where the accident occurred. Thereupon the circuit court ruled that it was competent to show by these witnesses or any witness that the statement of the roadmaster (to the effect that no repairs had been made in the track at said point) was incorrect, or that he was mistaken, or that his statement was untrue, and, therefore, that this was proper rebuttal testimony. Thus it will be seen that the defendant for the purpose of sustaining its position that the track was in good condition, asked of its witness, the roadmaster, whether any repairs had been made, and in this manner to. show to the jury that the track had been so well constructed that there had been no repairs made on it. The question presented is, then, can the defendant, in order to prove that its track was in a good condition, offer evidence that it had never been repaired, and that plaintiff is concluded by such evidence, and cannot show in rebuttal that this statement was not true, by showing that there had been repairs ? While this court has uniformly ruled that evidence of repair of a highway or track after an accident, is not admissible as evidence of negligence, it has never ruled that where the defendant in proving that its track or highway was in good condition, does not stop at that, but undertakes to show that fact by proving that no change or repair was made, it was not competent for a plaintiff to rebut such statement. In this case, the evidence was admitted solely in rebuttal to tbe testimony of tbe roadmaster and was so announced by tbe circuit court when it was admitted, and no effort was made by tbe defendant to obtain an instruction from tbe court confining tbe evidence to that purpose.

In our opinion there is no reversible error in tbe record, and tbe judgment must be and is affirmed.

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