author: GANTT, J.

text:
    THE STATE v. JACOB L. BETZ, Appellant.
    Division Two,
    December 10, 1907.
    1. EMBEZZLEMENT: Bailee: Sale and Return. Defendant wrote a jewelry company “to send him by express on memorandum one or two nice diamonds,” and the company replied: “The goods described below are sent at your risk for examination and selection but none áre considered sold nor does the title pass until the regular bill of sale has been sent. Please make return within — days of their receipt,” and this followed with a description of four diamonds and their wholesale price. Held, that this was not a “sale and return,” that is, a sale of the four diamonds with an option to defendant to return them if he should not like them, but an option to purchase them if he was satisfied, and hence the title did not pass to defendant, of all four or any one of the diamonds, and a sale without a selection and without payment was, under section 1914, Revised Statutes 1899, an embezzlement as a bailee.
    2. -■: -: -: Necessary Element. The class of contracts known as “sale and return” exists where the privilege of purchase or return is not dependent on the character or quality of the property sold, but rests entirely on the option of the purchaser to retain or return. Hence where diamonds were sent to defendant for “examination and selection,” he was under no obligation to take any until after he had examined and selected one or more of them, and thus whether he would become a purchaser was dependent upon their character and quality. And until he did select one or more of them and notified the company the title did not pass to him.
    3. -: -■: Narrowed by Contract. The legal responsibility of a bailee may be narrowed or enlarged by any special contract, express or implied.

      4. ■ ■ <: ——: -: At His Risk. And, hence, the fact the diamonds were consigned to defendant at his risk is not conclusive evidence that the transaction was a sale and not a bailment. ,
    5. —i-: —-------: Bailment as to Some: Sale as to Others. Where the defendant was, under the facts, a bailee of all four of the diamonds, he was not injured by an instruction which told the jury he was a vendee as to two of them,, and if they found he was a bailee as to the other two, etc., they would find him guilty. The instruction was too favorable to defendant, but of that he cannot complain.
    Appeal from Gentry Circuit Court. — Hon. Wm. G. Ellison, Judge.
    Affirmed.

      J. W. Peery for appellant.
    (1) “The term bailee, when used in statutes declaring what acts of embezzlement shall constitute a public offense, is not to be understood in its large, but in its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods first bona, fide and then fraudulently convert. Where it does not appear that any fiduciary duty is imposed on the defendant to restore the specific goods of which the alleged bailment is composed, a bailment under the statute is not constituted, though it is otherwise where a specific thing, whether money, securities or goods, is received in trust and then appropriated. Unlike embezzlement by servants, of goods not yet come into the master’s possession, it is of the essence of this form of embezzlement that the offense should be limited to the particular article bailed; and if the agent have liberty to dispose of such article, then he is not a bailee under the statute. ’ ’ 1 Whart. Crim. Law (9 Ed.), sec. 1055; Dotson v. State, 51 Ark. 119; Reg. v. Hassall, 8 Cox Crim. Cas. 491; Webb v. State, 8 Tex. Crim. Rep. 310; Krause v. Commonwealth, 93 Pa. St. 418; 2 Bishop, New Crim. Law, sec. 857. (2) “The term bailment implies that the owner of the property has placed it in the hands of another who is, at some time, to re-deliver it to the owner in its integrity or in an altered form agreed upon; if, however, the person to whom the property is delivered, has the option to pay for it in money, or in some other property, or to restore it, snch option is inconsistent with the character of bailment, and the transaction is, in law, a sale, regardless of what the parties to the transaction may have called it, or have thought it to be.” O’Neal v. Stone, 79 Mo. App. 284; Potter v. Mill Co., 101 Mo. App. 581; Coleman v. Lipscomb, 18 Mo. App. 443; In re G-alt, 120 Fed. 64; Singer Mfg. Co. v. Ellington, 103 111. App. 517; Lyon v. Lenon, 106 Ind. 567; dickering v. Bastress, 130 111. 206; Bradley-Alderson & Co. v. McAfe, 149' Fed. 254. That the transaction between the jewelry company and the defendant constituted a conditional sale, and not a bailment, is also clearly shown by the following cases: Tufts v. Wynne, 45 Mo. App-. 42; Peters v. Featherstun, 61 Mo. App. 466; Bicking v. Stevens, 69 Mo. App. 168; Barnes v. McCrea, 75 la. 267; Smith v. Aldrich, 180 Mass. 367; Forrest v. Nelson, 108 Pa. St. 481; Dearborn v. Raynor, 132 Pa. 231; Basser v. Buxton, 86 N. C. 335; Cont. & B. Co. v. Trust Co., 108 Fed. 1; Morgan Elec. d. v. Brown, 193 Pa. St. 351; Harper v. Hogue, 10 Pa. Super. Ct. 624; Equitable Co. v. Eisentrager, 68 N. Y. 866; Plow Co. v. Clark, 102 la. 31; State v. Barton, 125 N. C. 702. (3) “The class of contracts known as contracts of ‘sale or return’ exist where the privilege of purchase or return is not dependent upon the character or quality of the property sold, but rests entirely upon the option of the purchaser to retain or return. . . . The recognized distinction between bailment and sale is that, where the identical article is to- be returned in the same or in some altered form, the contract is one of bailment, and the title of the property is not changed. On the other hand, where there is no obligation to return the specific article and the receiver is at liberty to return another thing of value, he becomes a debtor to make the return, and the title to the property is changed. In such case the transaction is a sale. ’ ’ 1 Beach, Mod. Law. Cont., sec. 746. “Title to goods sold ton memorandum,’ that is, ‘sale or return,’ passes to the vendee upon delivery, subject to a defeasance by exercising the option to return the goods. Until the right to return has been exercised the goods are at the vendee’s risk, and if they are destroyed in his possession, he is liable for their agreed value. ’ ’ Amidon v. Powell, 14 Mo. App. 577. “The general proposition, that a delivery of an article at a fixed price, to be paid for or returned, constitutes a sale, is not questioned. Where the option is with the party receiving, to pay for or return the goods received, the uniform current of authorities is that such alternative agreement is a sale.” Crocker v. Gullifer, 44 Me. 491; Hotchkiss, v. Higgins, 52 Conn. 205. (4) The custom prevailing among jewelers, whereby jewelry is sent by wholesale to retailers under a “memorandum” contract, to remain the property of the wholesaler, and to be paid for only after sale by the retailer, or if not sold to be returned, constitutes a conditional sale and not a bailment. Eisen-.' berg v. Nichols, 22 Wash. 70; People v. Gluck (N. Y.), 80 N. E. 1022; Krause v. Com., 98 Pa. St. 418.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    It is insisted that the memorandum offered in evidence, which memorandum accompanied the four diamonds, was not a paper which placed the title in defendant ; but was rather a paper that retained the title in the prosecuting witness, C. B. Norton Jewelry Company. It should be remembered that defendant, in his order, asked the prosecuting witness to send him “by express on memo, one or two nice diamonds, one to one and one-fourth carat.” Therefore, when, the prose>cuting witness sent four diamonds to defendant, it will readily be seen that these diamonds were placed with defendant as a bailee. There was no sale of the goods, certainly not of all four of the diamonds, neither was there a conditional sale of all four of the diamonds. Which one of said diamonds did defendant buy, which ones did he intend to return to the Kansas City firm? It cannot be argued that an attaching creditor of defendant could have taken said diamonds in satisfaction of- a debt, neither can it be argued in case of the death of defendant, his personal representative could have taken charge of and sold said diamonds. The diamonds were sent to defendant for his examination and selection, they were not considered sold, neither did the title pass until a regular bill , of sale had been sent to him. During the interval between the time when he received the four diamonds, and the time that he made the selection and remitted for the ones that he intended to keep and return the ones that he did not want, the title was in the Kansas City firm, and defendant was a bailee of that firm. If he had failed to remit to said firm, that firm could have taken possession of the property, because no title had passed and because there had been no sale of said property. Sec. 1914, R. S. 1899; Schouler’s Bailments and Carriers, secs. 2, 3. “It is a bailment where goods are sold by A to B, the agreement being that they are to remain the property of A until paid for, or to be returned to A if not paid for. ’ ’ Lawson on Bailments, sec. 8; Harrington v. King, 121 Mass. 269'; Dunlap v. G-leason, 16 Mich. 158; Kohler v. Hayes, 41 Cal. 455; King.v. Bates, 57 N. H. 446 ; Wheeler v. Heil, 115 Pa. St. 482; Benj. on Sales, p. 356.
   GANTT, J.

— This is an appeal from a conviction of the defendant in the circuit court of Gentry county, for embezzlement as a bailee, under section 1914, Revised Statutes 1899'. The indictment contained three counts, the first charging embezzlement under said section, being the one upon which defendant was convicted; and the second also attempting to charge embezzlement under both sections 1912 and 1914; and the third count charging grand larceny. The second count was, upon motion, quashed, and after the trial was entered into, a nolle prosequi was entered as to both the second and third counts, and the cause was submitted to the jury on the first count alone.

The evidence showed that defendant was a retail jewelry merchant in the city of Stanberry, in said county, and had been dealing with and buying jewelry and diamonds from the C. B. Norton Jewelry Company of Kansas City for six or seven years.

On January 4, 1905, defendant wrote to this company the following letter or order:

“J. L. BETZ,
Jeweler and Optician,
Stanberry, Mo. 1-4-05.
“C. B. Norton Jewelry Co.,
Kansas City, Mo.
“Dear Sir:
“Please send me by exp. on Memo one or two nice diamonds, 1 to 1% Kt. and oblige,
“Tours very truly,
“J. L. Betz.”

In response to said order the company sent to defendant by express the four diamonds described in the indictment, together with the following hill:

“C. B. Norton, Pres, and Treas, H. N. Norton, Vice Pres. W. M. Lewis; Sec.
“Established 1873.
‘‘Bills not paid at maturity subject to sight draft particular attention paid to filling orders.
Goods sent by mail only by special request and at risk of party ordering,
‘ ‘ Consigned on memorandum- by “C. B. Norton Jewelry Company, Jobbers of Diamonds, Watches, Jewelry, Clocks, Silverware, Tools, Materials and Optical Goods.
‘ ‘ 1013 and 1015 Grand Ave. Bell and Home Tel., 2073
Main.
“Kansas City, Mo. 1-6-’05.
“ J. L. Betz,
“The goods described below are sent at your risk for examination and selection, but none are considered sold, nor does the title pass until a regular bill of sale has been sent you. Please make returns within — days of their receipt.
“1 Dia. 5252 11-4 l-64c. 135.00 170,86
1 Dia. 5819 11-16 l-64c. 138.00 148.78
1 Dia. 3550 1 l-8c. 125.00 140.63
1 Dia. 3503 11-12 l-16c. 140.00 218,75”

Upon cross-examination the president of the company testified as follows:

“Q. Mr. Norton, I believe you stated awhile ago that defendant’s Exhibit No. 1 is the bill which you sent to defendant with the shipment of this lot of diamonds? A. Yes, sir.
“Q. And how long had you been doing business with the defendant? A. Probably six or seven years.
“Q. You commenced doing business with him and selling him- goods when he was at Maitland, did you not? A. Yes, sir.
“Q. And continued there and after he moved to Stanberry? A. Yes, sir.
“Q. How many goods did you sell him during those years — approximately? Pew or many bills? A. Why, we sold him a good many goods.
“Q. The prices named in this bill, to-wit, $170.86; 148.78140.63, and 218.75, were the wholesale prices oí these diamonds ? A. Yes, sir.
“Q. And you said in, answer to the court’s question, that the title to these diamonds were to remain in you until he made his selection? A. Until they were reported on.
“ Q. Until he made his selection, is what you said, is it not? A. It reads in there just exactly what it is.
“Q. Then this printed matter here in this bill-head constitutes the only agreement or arrangement you had with Mr. Betz? A. Yes, sir.
“By the Court: You mean arrangement or agreement under which the goods were shipped to him? A. Under which the goods were shipped to him. The letter says ‘memorandum’’ just exactly as the bill says.
“Q. Mr. Norton, you had many times, in the six or seven years intervening before the sending to Mr. Betz of this bill, sent him goods on like bills, had you not? A. Yes, sir.
“Q. And he would either return the goods to you or pay for them? A. Yes, sir. Yes, sir.
“Q. And that course of dealing has existed for six or seven years ? A. Why, yes, sir.
“Q. And if you had received from Mr. Betz a draft for six hundred odd dollars — whatever it is — for these diamonds, he would have been within his rights, under your arrangement and dealing with him, would he not?
“By Mr. Showen, counsel for plaintiff: Wait a minute. If the- court please, we object to that for the reason that, if Mr. P'eery is going t.o stand on his bill of sale here, as he starts out, it certainly is not competent to show some other arrangement — if that is his defense.
“By the Court: Well, I don’t know about that— go ahead.
. “Q. That is true, isn’t it, Mr. Norton? A. Yes, sir. We would have given a regular bill for it then.
“Q. You would have taken the money and they would have been his goods? A. Yes, sir, and sent him a regular bill for the goods.
“Q. They would have been his goods? A. They certainly would.
“Q. In other words, he had the option of returning the goods to you or paying for them? A. He had the option to return the goods or pay for them. He certainly did. Yes, sir.”

The defendant admitted upon the trial that he appropriated the goods mentioned in Exhibit No. 1, and described in the indictment, to his own use. Shortly after receiving the diamonds, he sold his stock of jewelry in Stanberry and went to Lincoln, Nebaska. The diamonds in question were pawned by him in that city, together with other diamonds of the value of $1,500 or $1,800. The defendant was arrested in Lincoln, and State’s witnesses, Norton and Solon, visited him in jail at that city and had a conversation with him. They asked defendant why he had done that way, and he replied: “I can’t tell you why I done this. I don’t understand why I did the way I did. You have always treated me all right, and I had no need to have used you in this way.”

At the close of the State’s case, the defendant asked a peremptory instruction directing the jury to acquit the defendant, which was refused, and exceptions duly saved. The defendant offered no evidence and made five requests to the court for instructions on certain propositions, the substance which was that under the law and the evidence the transaction between the C. B. Norton Jewelry Company and the defendant was a conditional sale or “sale or return” and not a bailment, and that defendant could not therefore be convicted as a bailee under section 1914. These requests were refused by tbe court, and tbe defendant excepted. Thereupon the court instructed the jury, in substance, that under the letter or order and bill hereinbefore set out, the defendant became a bailee of the company, “as to all but two of said diamonds,” and if he converted them, he was guilty under the first count of the indictment. The defendant excepted to each of the instructions given by the court, because the court had failed to instruct on all questions of law arising in the case, necessary for the information of the jury in making up their verdict.

Under the instructions the jury found the defendant guilty of embezzlement as a bailee under the first count of the indictment and assessed his punishment at two years’ imprisonment in the penitentiary. In due time defendant filed his motion for a new trial, alleging numerous grounds therefor. This motion was continued until the next December, 1906, term of said court, when it was overruled. To which action of the court defendant duly excepted, and thereafter duly perfected his appeal to this court.

I. The learned counsel for the defendant rightfully, we think, urges that the main proposition for decision in this case is whether under the evidence in the case the defendant was a bailee of the four diamonds, which were sent to him by the Norton Jewelry Company on the 6th of January, 1905. If the transaction evidenced by the letter of the defendant to the Jewelry Company and their letter to him on the 6th of January, 1905, constituted a sale, then of course defendant was not a bailee and not subject to prosecution under section 1914, Revised Statutes 1899, as he would not answer the description of the person against which that section was levelled. The learned counsel insists that this transaction as shown by the correspondence between the Jewelry Company and the defendant falls within that class of sales known in the law as “sale or return,” in which it is held that title to goods so sold passes to the vendee upon delivery subject to a defeasance by exercising the option to return the goods. The general proposition that a delivery of an article at a fixed price to be paid for or returned constitutes a sale, is not questioned. When the option is with the party receiving to pay for or return the goods received, the uniform current of authorities is that such an alternative agreement is a sale. [Crocker v. Gullifer, 44 Me. 491; Hotchkiss v. Higgins, 52 Conn. 205.] In Sturm v. Boker, 150 U. S. l. c. 328, the Supreme Court of the United States said: “The class of contracts known as contracts of 'sale or return’ exists where the privilege of purchase or return is not dependent upon the character or quality of the property sold, but rests entirely upon the option of the purchaser to retain or return. In this, class of cases the title passes to 'the purchaser subject to his option to return the property within a time specified, or a reasonable time, and if, before the expiration of such time, or the exercise of the option given, the property is destroyed, even by inevitable accident, the buyer is responsible for the price. The true distinction is pointed out by Wells, J., in Hunt v. Wyman, 100 Mass. 198, 200, as follows: 'An option to purchase if he likes is essentially different from an option to return a' purchase if he should not like. In one case the title will not pass until the option is determined; in the other .the property passes at once, subject to the right to rescind and return.’ ” Judge Story, in his work on Bailments (9 Ed.), section 2, after criticising the definitions given by Sir William Jones, Chancellor Kent and Blaokstone, of bailment, himself • defines bailment as ‘ ‘ The delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust.” It will be seen from this definition that bailment, in his opinion, need not always contemplate a redelivery of the goods to the bailor. In many cases when personal property is delivered by the owner to another it becomes of great importance to determine whether the title to the property had been transferred or not and the facts in each case construed in the light of the law must determine whether the transaction is a sale or a bailment. Applying the foregoing general statements of the law to the transaction between the Norton Jewelry Company and the defendant in this case, was this a case of ‘ ‘ sale or return” or was it a bailment? The defendant in his letter of January 4,1905, requested the Norton Jewelry Company “to send him hy express on memorandum one or two nice diamonds, 1% Karat. ’ ’ In response to this letter, the Jewelry Company wrote him as follows: “J. L. Betz, The goods described below are sent at your risk for examination and selection but none are considered sold nor does the title pass until the regular bill of sale has been sent you. Please make return within — days of their receipt.

1 Dia. 5252 11-4 l-64e. 135.00 170.86

1 Dia. 5819 11-16 l-64c. 138.00' 148.78

1 Dia. 3550 11-8. 125.00 140.63

1 Dia. 3503 11-12 l-16c. 140.00 218.75.”

Now, was this an option to purchase if he was satisfied with the diamonds, or was it a sale of these four diamonds with an option to return them if he should not like them? In our opinion, it was but an option to purchase if he liked them or any one of them or any number of them. He had not requested the company to send him more than two diamonds. Obviously there had been no agreement as to the price of either one of the diamonds and a delivery of a specific diamond to him with the privilege of returning the same in a specified time if lie should become dissatisfied therewith. Moreover, as said by the Supreme Court of the United States, the class of contracts known as contracts of “sale or return” exists where the privilege of purchase or return is not dependent upon the character or quality of the property sold, but rests entirely upon the option of the purchaser to retain or return. Now in this case, the diamonds were sent to the defendant for his examination and selection and thus whether the defendant .would become the purchaser was dependent upon the character or quality of the property and he was under no obligation to take either until after he had examined and selected one or more of them.

As already seen in Hunt v. Wyman, 100 Mass. 198, the title to the diamonds under this agreement did not pass until the defendant exercised his option and selected one or more of them and advised the Norton Jewelry Company of his selection. In this connection, we are referred by the learned counsel to that class of cases in which it is said that if the person to whom the property is delivered has the option to pay for it in money or other property or restore it, such option is inconsistent with the character of bailment and the transaction is in law a sale regardless of what the parties to the transaction may have called it or have thought it to be, but if we are right in holding that these diamonds were delivered to the defendant under a special agreement for his examination and selection, then clearly, in our opinion, this was but an option to purchase at the prices designated in the letter of the Jewelry Company to the defendant, and it was entirely competent for the company to reserve, as it did, the title, and to notify the defendant that these goods were not sold until he had made his selection and notified the company and received hi's bill of sale for the same. There was nothing offensive to sound morals or to any positive rule of law which prevented the Jewelry Company from imposing this condition upon their delivery of the diamonds to the defendant as between the defendant and the company, and we have no question before us in this case of the rights of' an innocent purchaser for value and without notice. Judge' Story in his work on Bailments (9 Ed.), sections 31, 32 and 33, announces the doctrine to be that the legal responsibility of a bailee may be narrowed by any special contract, either expressed or implied, and so it may in like manner be enlarged. The stipulation in the memorandum of the bailment expressly negatives any right in the defendant to dispose of such diamonds until he shall have made his selection and notified the company and received a’bill of sale therefor. We think it is too clear for discussion that the correspondence between the Jewelry Company and the defendant did not amount to a sale of all four of the diamonds, nor of any particular one of them, as the minds of the two contracting parties never met upon any such proposition. The goods were simply delivered to him temporarily in order that he might, if he was satisfied therewith, make a selection therefrom, and as he never made any selection or choice and notified the Jewelry Company of his selection, in our opinion, the title did not pass to him and he was a bailee thereof within the meaning of section 1914, Revised Statutes 1899'. Had the defendant ordered a definite number of diamonds of a certain value and fineness and promised to pay for them either upon delivery or at a future date, and in response thereto the Jewelry Company had sent him the exact number of diamonds that he ordered and of the exact value and had accepted his terms to pay for the same upon delivery at some future date, and included the option for return within a specified time, then the defendant could have invoked the doctrine of “sale or return” as announced in the numerous decisions cited by learned counsel for tbe defendant. But in our opinion, tbe facts of this case do not bring it within that rule, and when the defendant after receiving the diamonds under the correspondence had between him and the Jewelry Company, made no selection of the said diamonds or either of them and gave the company no notice of such selection, but fraudulently disposed of the same and converted the same to his own use with the fraudulent intent to deprive the company without its consent of its property therein, then and there he was guilty of embezzlement within the meaning of section 1914.

Nor do we agree with the defendant that the fact that these goods were consigned to him at his risk was conclusive that the transaction was a sale and not bailment. As was said in Sturm v. Boker, 150 U. S. l. c. 330, “The defendant’s common law responsibility as bailee exempted him from liability for loss of the consigned goods arising from inevitable accident.' A bailee may, however, enlarge his legal responsibility by contract, express or fairly implied, and render himself liable for the loss or destruction of the goods committed to his care — the bailment or compensation to be received therefor being a sufficient consideration for such an undertaking.”

II. But it is urged that the first instruction of the court was erroneous in telling the jury that the defendant under the circumstances recited in it ‘ ‘ thereby becomes the bailee of such Jewelry Company as to all but two of the diamonds,” and if the defendant “without the consent of the said Jewelry Company appropriated to his own use the two diamonds in excess of the number ordered by him each being then and there of the value of thirty dollars or more, then they would find him guilty.” It is argued that as all of the diamonds were shipped at one time in one package and under one bill and with the regular wholesale price of each stated and the defendant had the same right, privilege and option as to each of them, it is illogical to say that the transaction was a conditional sale as to a part of them and bailment as to the others. As already said, in onr opinion, the defendant was a bailee of all four of the diamonds and not a vendee. But it does not follow that the defendant was in any manner injured by the circuit court conceding that he might be a vendee as to the two diamonds which he ordered and a bailee as to the two which he did not order. Under no interpretation of the correspondence could the defendant claim to be a vendee of more than two of the diamonds and as to the other two he was clearly a bailee without any right to dispose of the same until after he had selected them and notified the Jewelry Company that he had elected to take all four of the diamonds at the prices named and received a bill of sale therefor. The instruction, in our opinion, was too favorable to the defendant, but of that he cannot complain in this court. It simply narrowed his liability to two of the diamonds, when in our opinion, he was bailee as to all four of them. We find nothing in the oral testimony of Mr. Norton to the effect that the defendant had the option of returning the goods or paying for them at the prices specified in the order of the Jewelry Company to him, which changes our opinion as to the character of the transaction between them. Unquestionably he had the option after an examination of these diamonds to have elected to purchase all of them at the prices mentioned and notified the Jewelry Company of said option to purchase, and had he done so and had accompanied his notice of such selection with a remittance of the amount specified as the value thereof, he would have been fairly within his rights, but he did nothing of the kind. Without making any selection and without notifying the Jewelry Company that he had made his selection and without paying anything for either one of the four diamonds and without receiving a bill of sale for either of them, he fraudulently disposed of all four of them and left the State.

In our opinion, there is no reversible error in the record and the testimony was ample to sustain the charge in the indictment, and the judgment of the circuit court must be and is affirmed.

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


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. LOUIS KUEHNER, Appellant.
    Division Two,
    December 10, 1907.
    APPELLATE JURISDICTION: Constitutional Question: How Raised. A constitutional question is not lodged in the case, so as to give the Supreme Court jurisdiction of the' appeal, by a demurrer alleging simply that the statute upon which the information is based is unconstitutional and void. A general allegation that a statute is unconstitutional and void is not sufficient to raise the question of its validity, but in some way the specific provisions of the Constitution infringed upon must he pointed out.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.
    Transferred to St. Louis Court of Appeals.

      N. P. L. Rosch for appellant.

      Herbert 8. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State; Clarence T. Case of counsel.
   BURGESS, J.

— On the 22nd day of July, 1907, the assistant prosecuting attorney of the St. Louis Court of Criminal Correction filed an information in said court charging the defendant with wilfully and unlawfully laboring on Sunday, contrary to the form of the statute in such case made and proyided. The defendant demurred to the information, alleging as grounds therefor: (1) That the facts alleged in the information do not constitute any offense under the laws of this State; (2) that section 2240', Revised Statutes 1899, upon which the information was based, is unconstitutional. The demurrer was overruled, the case went to trial, and the defendant was convicted, his punishment being assessed at twenty-five dollars and costs. After filing ineffectual motions for a new trial and in arrest Of judgment, defendant appealed to this court.

It is evident that this court has no jurisdiction of this appeal unless it be upon the ground that a constitutional question is involved, and this question could only have been raised by the defendant in the trial court by in some way pointing out the specific provision of the Constitution infringed upon. A general allegation, as in the case at bar, that a statute is unconstitutional and void, is not sufficient. [Ash v. Independence, 169 Mo. 77; State to use v. O’Neil Lumber Co., 170 Mo. 7.] Nor is a demurrer to the evidence, on the ground that the statute on which the proceeding is based is unconstitutional and void, sufficient; nor yet is it sufficient that the same claim is made in the motion for new trial and in arrest. [St. Joseph v. Metropolitan Life Ins. Co., 183 Mo. 1.]

This court being without jurisdiction, the record is ordered transferred to the St. Louis Court of Appeals.

All concur.


text:
    THE STATE v. GEORGE W. BALLANCE, Appellant.
    Division Two,
    December 10, 1907.
    1. INFORMATION: Murder: “Thereby Giving.” An information which charges that “defendant did give to him,” etc., is not defective for failing to use the words “thereby giving.”
    2. --: Prosecuting Attorney: Officially Sworn. It is not necessary that the information charge that the prosecuting attorney was at any time prior thereto duly sworn and took upon himself an oath of office as prosecuting attorney of the county. If the prosecuting attorney alleges that he “upon his own knowledge, information and belief and under his oath of office as such prosecuting attorney, now here informs the court,” etc., that is sufficient in that respect.
    3. HOMICIDE: Prosecution: Instruction for Manslaughter. Where, by defendant's own testimony, there was no personal violence by deceased upon him, and at most only opprobrious and insulting words, no instruction for manslaughter in the fourth degree should be given.
    4. -: Murder in Second Degree: Instruction: Insulting Remarks. An instruction telling the jury that if defendant shot and killed deceased while defendant was in a violent passion suddenly airoused by opprobrious epithets or abusive language, then such killing was not deliberate, but although such killing was not deliberate, yet if it was done wilfully, premeditatedly and of his malice aforethought, as those terms had already been explained, the killing would be murder in the second degree, was not erroneous, but a correct statement of the law.
    5. -: Insulting Remarks: “Alone.” An instruction telling the jury that “no words or epithets, however opprobrious or insulting, can justify the killing of the party who uses them,” correctly states the law. The defendant is not entitled to have the word “alone” inserted after the word “insulting” or anywhere else in the instruction.
    6. -: -■: Justification. Insulting or opprobrious epithets may arouse the passion to such an extent that if the person to whom they are applied, acting under the heat of passion engendered thereby, kills the one using them, such provocation will reduce the killing to murder in the second degree, but they do not amount to a justification of the killing.
    Appeal from Maries Circuit Court. — lion. William H. Martin, Judge.

      Affirmed.

      Watson é Holmes and Joseph J. Grites for appellant.
    (1) The court erred in overruling appellant’s motion in arrest of judgment, for the reason that the information is insufficient to support a judgment of conviction. A careful examination of this information discloses the fact that it nowhere shows or alleges any connection whatever between the assault and the mortal wound which it alleges was inflicted upon deceased. It does not allege that the mortal wound was inflicted by or was the result of the assault. The words “thereby giving” to the said deceased or their legal equivalent nowhere appear in this information. Without these words or their legal equivalent no indictment or information for murder is sufficient to support a judgment of conviction. State v. Brown, 168 Mo. 449'; State v. Furgerson, 152 Mo. 92; State v. Birks, 199 Mo. 271. It is the inflexible rule in criminal pleading that in all indictments or information for felonies nothing can be left to intendment or implication. State v. Brown, supra; State v. Furgerson, supra; State v. Hagan, 164 Mo. 658; State v. Williams, 184 Mo. 261; State v. Woodward, 191 Mo. 617. (2) The court erred in failing to instruct the jury on manslaughter in the fourth degree. State v. Branstetter, 65 Mo. 149; 1 East’s Pleas of the Crown, p. 232; 2 Bish. Crim. Law (6 Ed.), sec. 697’; 1 Russ, on Crimes (7 Am. Ed.), p. 580; State v. Holmes, 54 Mo-. 153; Young v. State, 11 Humph. 200; Har. & Thomp. Cas. on Self-Defense, p. 474.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. It is an exact copy of one that has heen approved by this court. State v. Burnes, 148 Mo. 171; State v. Scott, 199 Mo. 150. (2) No error was committed by the court in failing to give instructions on manslaughter in the fourth degree, as the evidence for the State tended to prove that the defendant was guilty of murder in the first degree or murder in the second degree, and the evidence for the defendant tended to prove that he acted in self-defense. Under this evidence, therefore, there was no half-way ground, and the defendant could not possibly have been convicted of manslaughter in the fourth degree. But aside from that, the defendant did not ask any instruction on that subject, neither did he, at the time, save his exceptions to the failure of the court to fully instruct the jury on all the law of the case. This failure to save his exceptions at the proper time constituted waiver. State v. Urspruch, 191 Mo. 50'; State v. Finley, 193 Mo. 211. (3) No errors were committed in the giving of the instructions, as said instructions are exceedingly favorable to defendant and fairly and fully stated the law to the jury. (4) Where there is substantial evidence tending to show that the defendant is guilty, this court will not usurp, the functions of a jury, nor attempt to pass upon the weight of the testimony, but will defer to the finding of the jury, as approved by the trial court. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo: 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
   GANTT, J.

— At the October term, 1905, of the circuit court of Maries county, the prosecuting attorney of said county filed the following information in said court:

■‘■‘State of Missouri, Plaintiff, v. George W. Ballanee, defendant.
“ Leslie B. Hutchinson, prosecuting attorney within and for the county of Maries and State of Missouri, upon his own knowledge, information and belief and under his oath of office as such prosecuting attorney now here informs the court, that George W. Ballanee, at the county of Maries and State of Missouri, on the 22nd day of September A. D. 1905, in and upon one Jasper Copeland then and there being feloniously, wilfully, premeditatedly, deliberately on purpose and of his malice aforethought did make an assault, and with a dangerous and deadly weapon, to-wit, a revolving pistol loaded then and there with gunpowder and leaden balls which he, the said George W. Ballanee, in his hands then and there had and held at and against him, the said Jasper Copeland, then and there feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought did shoot off and discharge and with the revolving pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice' aforethought, did shoot, strike and penetrate and wound him, the said Jasper Copeland, in and about a vita] part of the body of him, the said Jasper Copeland, giving to him, the said Jasper Copeland, at the said county of Maries and State "of Missouri, on the 22nd day of September A. D. 1905, with the dangerous and deadly Aveapon, to-wit, the revolving pistol aforesaid, and the gunpowder and the leaden balls aforesaid in and upon the left breast of him, the said Jasper Copeland, one mortal wound of the width of about one-half inch and the depth of about eight inches, of which said mortal wound, he, the said Jasper Copeland, at the county of Maries and State of Missouri, on the 22nd day of September A. D. 1905, then and there of the mortal wound aforesaid, instantly died; and so Leslie B. Hutchinson, prosecuting attorney aforesaid, upon his oath as such prosecuting attorney, and his own knowledge, information and belief aforesaid, does say, that he, the said George W. Ballance him, the said Jasper Copeland, in the manner and by the means aforesaid, feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought at the said county of Maries and State of Missouri, on the 22nd day of September A. I). 1905, did kill and murder, against the peace and dignity of the- State.'
“Leslie B. Hutchinson,
“Prosecuting Attorney.
“Leslie B. Hutchinson, being duly sworn, upon his oath says that the matters and facts stated in the above and foregoing information are true according to his best knowledge, information and belief.
“(Seal.) Leslie B. Hutchinson,
“Subscribed and sworn to before me this 2nd day of October, A. D. 1905.
“L. N. Hawkins, Circuit Clerk.”

The defendant was arrested and was duly arraigned on the same day and the ease was continued until the April term, 1906. At the April term, 1906, to-wit, August 9, 1906, the defendant was put upon his trial and convicted of murder in the second degree and his punishment assessed at fourteen years in the state penitentiary. And after unsuccessful motions for new trial and in arrest of judgment, the defendant was duly sentenced in accordance with the verdict of the jury and from that sentence he appeals to this court.

The State’s evidence tended to prove that the deceased married a daughter of a brother of the defendant, and that the defendant and the deceased were farmers. In the spring of 1905, the defendant rented a farm to the deceased and the latter was to pay one-third of the crops as rent therefor. About a week prior to the day of the homicide, the deceased made arrange ■ ments with one Spencer to meet him on this rented place on the 22nd of September, to trade com for a horse, Spencer desiring to look at the crop of com before trading. On the 22nd of September, the defendant and his son were in this field cutting com when the deceased came into the field and walked up near where they were at work. The deceased had been at work that day on another place and in an opposite direction from his house, and in returning to his house passed through this corn field where the defendant was. The deceased had a corn knife with a gunny sack wrapped around it which he was carrying on the elbow of his left arm, and a bunch of grapes in his left hand. Two persons in passing near the said corn field that afternoon heard three pistol shots in the direction of the place where the body of the deceased was afterwards found. Later on in the afternoon Ed. Ballance, who was a brother of the defendant and the father-in-law of the deceased, went over to where the deceased’s body was lying and found that the deceased had been shot twice, and was lying on his back. The gunny sack was still wrapped around the com knife, and both were under the body of the deceased. A bunch of grapes was under his left hand. The ground being soft, there was no difficulty experienced by this witness and Gibson, Hodges and Bede, who came over later, in seeing the tracks along the ground. These tracks led from the place where the deceased entered the field and up close to where the defendant and his son were at work. The deceased’s tracks further led past where the defendant was at work and into some corn that was still standing and up to the body of the deceased. Tracks made by the defendant, which were smaller tracks, were also found going from the direction of where he was.at work in the corn row, and going in the direction that the deceased was walking. These tracks did not go all the way up to the deceased’s body, but turned and came back to the corn row. Near where the defendant’s tracks turned were found three empty shells and one loaded cartridge, all being the kind used in a thirty-eight caliber pistol.

When Ed. Ballanee saw the defendant later in the afternoon, he asked the defendant why he had killed the deceased, to “which the defendant replied, “I had to.” Ed. Ballanee then said, “If you had to, why did you follow him?” The defendant at first denied following him, but afterwards said he did run after him because he was scared. Dr. H. J. Von Gremp testified that he was acquainted with the deceased and was called to hold a post-mortem examination on the 24th dnv of September. The first wound was one on the left side, «about two inches above the nipple and six inches from the point of the shoulder. The ball passed downward an inch or more before passing into the cavity, passing between the third and fourth rib. The second wound entered on the right side near the center of the hip bone, the ball passing forward. In the opinion of this physician, the wound that entered on the left side near the heart was fatal, and the deceased probably died within a few minutes. The evidence further shows that the deceased was a little over six feet tall, while the defendant was not more than five feet and nine inches in height. «Tames Cisco, who was a member of the coroner’s jury, assisted in washing the body of the deceased on the evening of the shooting, and discovered grape juice and grape hulls in the mouth of the deceased. He also discovered that the teeth and tongue of the deceased looked like he had been eating grapes. Constable McDaniel testified that he arrested the defendant the day after the shooting and that the defendant had a thirty-eight caliber pistol in his pocket at the time, which pistol was loaded. About a week before the shooting, the defendant tried to borrow a pistol from «Tohn Houtz, he visited Houtz’s place, stayed all night and talked to Houtz about getting his pistol, but Houtz refused to let him have it. The next day Houtz’s pistol disappeared, and this was the-pistol with which the shooting was done.

The defendant’s evidence tended to prove that he and his son were working in the corn field in question on the afternoon of the 22nd day of September, when the deceased came up behind him and said, “What are you God damn sons of bitches doing here?” When the defendant replied that they were cutting corn, the deceased said, “If you God damn sons of bitches don’t get out of here, I will kill you both.” The defendant’s evidence further tendedlo prove that the deceased drew a corn knife on him, and that the defendant backed off some twenty steps and into some standing corn when he shot deceased in the breast. The deceased turned, and as he turned the defendant fired the second shot. •The defendant denied shooting more than twice, but did not explain how he happened to empty from his pistol the three shells and one loaded cartridge near the place where the'deceased’s body was found. The defendant further proved, that the deceased made some threats against the defendant prior to .the day of the difficulty.

In rebuttal, the State proved that there were no tracks made by the defendant back into the growing corn.

At the close of-the evidence the court of its own motion instructed the jury on murder in the first and second degree, self-defense, threats both communicated and uncommunicated and the credibility of witnesses. And at the request of the defendant, the court gave two instructions. The defendant saved his exceptions to all the instructions given on behalf of the State.

I. The information in this case is assailed as insufficient because it is asserted that it does not allege that the mortal wound was inflicted by or was the re-suit of the assault and because the words “thereby giving” are omitted from the information and their legal equivalent nowhere appears therein, and we are cited by the learned counsel for the defendant to the cases of State v. Brown, 168 Mo. 449, and State v. Birks, 199 Mo. 271. We think this criticism of the information is not well founded. It charges in substance that the defendant-on the 22nd of September, 1905, at the county of Maries and State of Missouri, in and upon one Jasper Copeland, then and there being, feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought did make an assault, and a certain revolving pistol, then and there loaded with gunpowder and leaden balls, which he, the said defendant, in his hand then and there had and- held at and against him, the said Jasper Copeland, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose- and of his malice aforethought did shoot off and discharge and with the revolving pistol aforesaid and the leaden balls aforesaid then and there feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought did shoot, strike and penetrate and wound him the said Jasper Copeland in and about a vital part of the body of him the said Jasper Copeland, giving to Mm, the said Jasper Copeland at the said county of Mariés and State of Missouri on the 22d day of September, 1905, with the dangerous and deadly weapon, to-wit, the revolving pistol aforesaid and the gunpowder and the leaden balls aforesaid, in and upon the left breast of him the said Jasper Copeland, one mortal wound of the width of one-half inch and the depth of eight inches, of which said mortal wound, he the said Jasper Copeland at the county of Maries and State of Missouri instantly died. This information is distinguishable from the one condemned in State v. Green, 111 Mo. 585, State v. Williams, 184 Mo. 261, in that this information clearly charges that the defendant with the leaden balls did strike, penetrate and wound the said Jasper Copeland in a vital part of his body. It is also distinguishable from the indictment in State v. Brown, 168 Mo. 452, in that the information in that case wholly omitted the allegation of giving the deceased a mortal wound, whereas this information, as already seen, after alleging that the defendant did strike, penetrate and wound the deceased in a vital part of his body, proceeds to charge that the defendant did give to him the said Jasper Copeland at the county of Maries and State of Missouri on the 22nd day of September, 1905, with the dangerous and deadly weapon, to-wit, the revolving pistol, aforesaid, and the gun powder and leaden balls aforesaid, one mortal wound, etc. Thus using words of similar import to the words, “thereby giving,” and for this reason this information is also easily distinguished from the case of State v. Birks, 199 Mo. 271. [State v. Arnewine, 126 Mo. 567; State v. Burns, 148 Mo. 167; State v. Scott, 199 Mo. 150.]

It is nest insisted that this information is fatally defective because it does not state in the charging part that Leslie B. Hutchinson was at any time prior thereto duly sworn and took upon himself an oath of office as prosecuting attorney of Maries county. By reference to the information, it will be seen that the prosecuting attorney alleges “that upon his own knowledge, information and belief and under his oath of office as such prosecuting attorney now here informs the court, ’ ’ etc. This was sufficient. It has never been required that the prosecuting attorney or the Attorney-G-eneral in presenting an information shall allege his title to his office and his compliance with all the prerequisites to his right to perform its duties. We think there is no merit-in this objection to the information and a similar objection made to the conclusion of the information for the same reason must be held unavailing.

II. Error is predicated upon the failure of the circuit court to give an instruction upon manslaughter in the fourth degree. This instruction could only have been based upon the testimony of the defendant and his son and an inspection of that testimony very clearly indicates that there was no lawful or reasonable provocation, that is to say, no personal violence whatever by the deceased upon the defendant, and it is a settled law of this State that mere words, however opprobrious and insulting, do not of themselves constitute lawful or reasonable provocation so as to reduce a homicide from murder to manslaughter. This subject has been so recently reviewed in State v. Gartrell, 171 Mo. 489, that further discussion is deemed unnecessary. The evidence upon the part of the State tended to show that defendant was guilty of murder in the first or second degree and the testimony on the part of the defendant tended -to prove that he was acting entirely in self-defense. There was no error in failing to instruct upon manslaughter, even if the court had been requested so to do, or if this record showed any exception to the failure of the court in that regard, which it does not.

III. Instruction number six given by the court of its own motion is alleged as error. That instruction advised the jury that if the defendant shot and hilled Copeland, while he, the defendant, was in a violent passion suddenly aroused by opprobrious epithets or abusive language then such hilling was not deliberate, but although such hilling was not deliberate, yet if it was done wilfully, premeditatedly and of malice aforethought as those terms had been already explained in the other instructions; the hilling would be murder in the second degree. This instruction is a correct statement of the law of this State on this subject. [State v. Gartrell, 171 Mo. l. c. 515 to 519.]

IY. Instruction eleven given by the court is also assailed. To understand this instruction it must be borne in mind that the deceased was shot and killed by the defendant in a field which the deceased had rented from the defendant that year, and in which his corn crop was still standing. The court in this eleventh instruction told the jury that “threats alone will not justify an assault, but if they believe from the evidence that the deceased had before the killing made threats against the defendant, and that at the time of the- difficulty he by any act, or said anything which indicated a purpose on his part to then carry said threats into execution hy killing the defendant or doing him some great bodily harm, then they would take such threats into consideration together with all the other circumstances in evidence in determining the purpose of the deceased and the reasonableness of the defendant’s apprehension, if he had any, of his safety at the time of the killing, but notwithstanding such threats, if any, that deceased had the right to be in the corn field for the transaction and conduct of his affairs, and if while so conducting himself, he did not seek or bring on the difficulty which resulted in his death, but that the defendant was the aggressor, then such threats did not constitute an excuse or justification of the defendant for the killing of Copeland.” This instruction is in no way obnoxious to the criticism of defendant’s counsel, that it in effect told the jury that the deceased had a right to go into the field and assault the defendant. The language “that he had a right to be in the corn, field for the transaction or conduct of his affairs” cannot reasonably be distorted into the meaning ascribed to them by the learned counsel for the defendant. The instruction was entirely proper in the circumstances of the case and in no way unfavorable to the defendant.

V. Instruction number thirteen is challenged. In these words the court instructs the jury “that no words or epithets, however opprobrious or insulting, can justify the killing of the party who uses them. ’ ’ It is insisted that the word “alone” should have been added after the word “insulting.” This instruction correctly declared the law of this State. Insulting or opprobrious epithets may arouse the passion to such an extent that if the person to whom they are applied, acting under the heat of passion engendered thereby, kills his adversary, such provocation will reduce the killing to murder in the second degree, but they do not amount to a justification of the killing of the party who uses them. [State v. Gartrell, 171 Mo. l. c. 516, 517; State v. Gordon, 191 Mo. l. c. 125.]

We have carefully examined all the assignments of error in connection with the record in this case, and are of the opinion that the defendant had a fair and impartial trial and that there is no reversible error in the record and the judgment is affirmed.

Fox, P. J., and Bürgess, J., concur.


author: BURGESS', J.

text:
    FRED J. GOULD, Appellant, v. JOHN P. ST. JOHN and W. W. NOYES.
    Division Two,
    December 10, 1907.
    1. NEW TRIAL: No Evidence. The trial court has a right to grant a new trial on the ground that the verdict for plaintiff was against the weight of the evidence, or on the ground that there was no evidence to sustain the verdict, unless it abuses its discretion in so doing.
    2. -: -: Discretion. Trial courts have large discretionary powers in granting new trials, especially where the weight of the evidence is involved; and the Supreme Court will not interfere with the exercise of that power unless it appears that it was unwisely exercised.
    3. -: Preponderance of Evidence. Where the evidence does not preponderate in favor of the plaintiff, it is not only the province of the trial court to set aside the verdict for plaintiff and grant defendants a new trial, but it is its plain duty to do so.
    4. —'-: Presumption. A presumption is always to be indulged in favor of the correctness of the order of the trial court granting a new trial.

      5. -: Rea! Estate Agent: Commissions. In this case plaintiff recovered judgment for $5,654.50 against defendants as his alleged part of the profits received by defendants for selling certain coal lands, under an agreement that he was to receive one-half of the profits made by defendants in the sale of lands to customers brought or .sent by plaintiff to them, and the question at issue was whether the purchasers were procured by plaintiff, and whether defendants had notice of any effort by plaintiff to secure such customers before plaintiff’s employment was terminated. The trial court set aside the verdict and granted a new trial on the ground that there was no evidence to sustain it and on the ground that it was against the weight of the evidence, and that action of the court is upheld, not only as being clearly within its discretionary powers, but also as its plain duty, since the evidence does not preponderate in favor of plaintiff.
    Appeal from Morgan Circuit Court. — Hon. Jas. E. Has ell, Judge.
    Affirmed.

      Scott J. Miller with William Forman for appellant.
    (1) The evidence must be, under a demurrer, most favorably considered to the plaintiff and the testimony on the part of the plaintiff should be taken as true, and every reasonable inference therefrom in plaintiff’s favor should be made. Schermerhorn Bros. v. Herold, 81 Mo. App. 461; Dorsey v. Railroad, 83 Mo. App. 528; Steube v. Chritopher, 85' Mo. App: 640; Pauck v. St. Louis Dress Beef Co., 150' Mo. 467. The court was right when it overruled this demurrer at the time of the trial, aud was wrong when it had a change of heart and set aside the verdict, for the reason that it should have sustained this demurrer. (2) If there was any evidence in this case on either side tending to prove the issues in plaintiff’s petition, the cause should have g’one to the jury. Kern v. Legion of Honor, 167 Mo. 485; Wolfe v. Knights & Ladies of Honor, 160' Mo. 675. (3) The evidence of defendant Noyes was sufficient to take this case to the jury. Plaintiff was the moving canse of the trade. Leonard v. Roberts, 36 Pac. 882; Loyd v. Mathews, 51 N. Y. 124; Anderson v. Cox, 16 Neb. 10'. (4) If the trial court was wrong in granting the motion for a new trial, the Supreme Court will correct the trial court’s error. Haven v. Railroad, 165 Mo. 216; Roe v. Bank, 167 Mo. 406.

      John F. Gibbs and Moore $ Williams for respondents.
    (1) The contract sued on, being in writing and without ambiguity, plaintiff’s authority as agent or broker for the sale of real estate is to be ascertained from the instrument. Bank v. Schamburg, 38 Mo. 228; State ex rel. v. Bank, 45 Mo. 528. This rule is fundamental. 2 Parsons on Contracts (5 Ed.), p. 547. (2) An agent cannot delegate his authority without the writing under which he acts gives that power. This rule is recognized in all the text-books. Story, Agency (7 Ed.), secs. 13, 14 and 34; Bacon Ab., p. 892; 2 Kent Com. (10 Ed.), p. 892; Ewell’s Evans’ Agency, p. 38; 1 Am. and Eng. Ency. Law, 972, 978, 1005. Under this rule plaintiff has no case. (3) (a) On the evidence the lower court properly sustained the motion for a new trial. Plaintiff did not send or bring any purchaser, giving due notice, to- whom a sale of lands for defendants were made. He was not the procuring- or proximate cause, and the demurrer was well taken. Campbell v. Yanstone, 73 Mo. App. 84; Loving Co. v. Cattle Co., 176 Mo. 330; Pollard v. Banks, 67 Mo-. App. 187; Hayden v. Grillo, 26 Mo. App. 289; Warren v. Cram, 71 Mo. App. 638; McCrory v. Kellogg, 106 Mo. App'. 597. (b) It is not sufficient that he- be one of a chain of causes, or a remote cause, leading to a sale, if completed. Ramsey v. West, 31 Mo. App. 676; Ewell’s Evans on Agency, 341; Ziedler v. Walker, 41 Mo. App. 118; Yoder v. White, 75 Mo. App. 155; Spootswood v. Morris, 6 L. R. A. 665; Baumgarti v. Hoyen, 54 111. App. 502. 1. Under the contract defendants could sell, or employ as many agents or brokers as they saw fit. To be entitled to commissions the broker must be the procuring cause. Dole v. Sherwood, 5 L. R. A. 720; Brannin v. Roach, 47 Mo. App.. 290; Wylie v. Bank, 61 N. Y. 415; McC'lave v. Paine, 49 N. Y. 561; Putman v. How, 39 Mass. 363; Glascock v. Vanfleet, 100 Tenn. 603; Page v. Griffin, 71 Mo. App. 524; Alden v. Ernie, 121 N. Y. 688. 2. “A broker who has no exclusive contract or right to sell, is not entitled to a commission by showing that his efforts among others contributed to the sale, and that but for them a sale would not have been made, but he must go further and show that his services were the effective or predominating cause.” Whitcombe v. Bacon, 170’ Mass. 479. 3. When plaintiff’s agency ended, and also agency of defendants for the sale of the lands, on which a commission is claimed, were ended by limitation, before a sale had been consummated, plaintiff had no interest in the labor of defendants in purchasing the lands for a fixed compensation paid by the purchasers. Ramsey v. West, 31 Mo. App. 676; Page v. Griffin, 71 Mo. App. 524; Sibald v. Bethlehem Iron Co., 83 N. Y., 378; Loving v. Cattle Co., 176 Mo. 330; State ex rel. v. Walker, 88 Mo. 279; Green v. Wright, 36 Mo. App. 298. (4) Plaintiff was entitled to no part of the $1309 paid to defendants on account of the option contracts, which were forfeited, even though he had procured the pur-’ chasers. Ziedler v. Walker, 41 Mo. App. 118. (5) The representations of plaintiff to the agent who was the procuring cause of the option sale to Magenheimer & Ryan, that he was a partner of defendants, had no foundation in fact or in law; he was simply agent or broker. Hughes v. Ewing, 162 Mo. 285; Durke v. Gunn, 41 Kan. 496; Mackie v. Mott, 146 Mo. 231; Thompson v. Holden, 117 Mo. 118. (6) The lower court properly ruled that the demurrer was well taken. TIad this not been the case, still the new trial was properly granted as a matter of discretion, and this court will not interfere. Herndon v. Lewis, 175 Mo. 116; Hinzeman v. Railroad, 182 Mo. 116; Somerville v. Stockton, 178 Mo. 121; Haven v. Railroad, 155 Mo. 231.
   BURGESS', J.

— This is an appeal from an order of the circuit court of Morgan county setting aside a verdict for $5,654.50 in favor of the plaintiff, and granting a new trial to defendants, the reasons given by the court for sustaining the motion for a new trial being specifically stated as follows:

‘ ‘ First. Because the court erred in overruling the demurrer to the evidence offered by defendants at the close of plaintiff’s case.
“Second. Because the court erred in overruling the demurrer to the evidence offered by defendants at the conclusion of the case.
“Third. Because the verdict is against the weight of the evidence.”

The action brought by plaintiff against the defendants was founded upon the following contract:

“Versailles, Mo., Dec. 4, 1902.
“Fred J. Gould, Versailles, Mo.
“Dear Sir: — We will give you one-half of all the gross profits made by us in the sale of any real estate to customers brought or sent us by you. When the party is sent us, you must give them a letter of introduction, or otherwise notify us, before such sale is made that such buyer is your customer. We will pay you your share in each sale as soon as the same is completed. You to transact this class of business in this county solely through our firm. You to bear your own expenses; we to bear ours; this arrangement to be terminated at the will of either of us, but such termination not to interfere with any deal on hand, or otherwise made. “Very truly yours,
“St. John & Noyes.
“I hereby accept the above conditions and will use my best efforts for the success of the undertaking.
“Fred J. Gould.”

The petition alleges that the defendants had an option on a large tract of land, comprising 5,111 acres, in Morgan county, and known as the ‘ ‘ Halderman Tract; ’ ’ that plaintiff, after having entered into said contract with defendants, began trying to find customers for said land, and did obtain customers to whom defendants sold said land at a profit to the defendants of $37,054.75, for one-half of which sum, $18,527.37, plaintiff prayed judgment.

The defendants, during the years 1902 and 1903, were real estate agents and brokers, with headquarters at Versailles, Morgan county, and plaintiff, who was also a real estate agent, resided at Ohillicothe. He came to Versailles in the fall of 1902, and, prior to this contract, had been handling some deals for himself and another party. It appears that, besides the tract of land in question, the defendants had several coal properties for sale. About the date of the contract between plaintiff and defendant there came from Illinois to Versailles some parties who were trying to purchase a coal mine owned by Hubbard & Moore, among them being Suit Brothers, prospective purchasers, and C. W. Waldeck and George H. Lucas, real estate agents. Waldeck, it woxdd appear, came with Suit Brothers to inspect the mine, and Lucas was acting as an agent for Hubbard & Moore, and had become acquainted with Gould, the plaintiff. According to plaintiff’s evidence, while negotiations in reference to this Hubbard & Moore coal mine were pending, he got into conversation with Lucas, and mentioned to him the coal lands for sale by defendants, whereupon Lucas said, “Mr. Gould, I can procure some buyers for these coal lands.” Plaintiff took Lucas to see Mr. St. John, one of the defendants, and Lucas told St. John that he knew of parties in Peoria who were very ranch interested in coal. Mr. St. John said, “We will he willing to give yon, Mr. Lucas, if you can make a sale to these parties, five per cent.” The plaintiff agreed with St. John to bear one-half of said five per cent. It would seem also, according to plaintiff’s evidence, that there was an understanding between Lucas and Waldeck that the latter should receive one-half of the said five per cent commission promised by St. John in the event Waldeck secured any purchasers for said land, and that Waldeck and Lucas were practically partners.

The tract of land in question was not sold until some time in 1903, before which time, on February 28, 1908, the contract between plaintiff and defendants had been terminated by the latter, and what part plaintiff took in the negotiations which finally resulted in the sale of the land is shown only in a telegram which, on January 5, 1903, he sent to C. C. Magenheimer, who, with others, purchased said land. Plaintiff had heard of Magenheimer through Lucas and Waldeck. The latter had interested Mr. Magenheimer in the land negotiations, and on January 5th, 1908, he came to St. Louis on business, and while there he accidentally met plaintiff, who, as he,supposed, was a partner with St. John & Noyes. Waldeck said to plaintiff, “Magenheimer can’t hear a word from St. John & Noyes,” and then suggested that he, Gould, send a telegram to Magenheimer, at Peoria, Illinois, which he did. This telegram was as follows:

“St. Louis, Mo., 1-5, 1908.
“0. C. Magenheimer, Peoria, 111.
“Send on mining engineer to examine coal lands, Morgan county. When can you send him? Answer.
“Fred J. Gould,
“for St. John & Noyes.”

This message was answered by Magenheimer, on January 7th, as follows:

“Peoria, 111., Jan. 7th, 1903.
“ To- Fred J. Gould, care of St. John & Noyes,
“Versailles, Mo.
“Just received message. Will be there first of the week to examine coal lands. Letter.
“C. C. Magenheimer.”

Magenheimer did not know Gould, and before sending him said telegram he inquired of Waldeck who Gould was, and Waldeck told him that he was a partner with St. John & Noyes.

It appears from the evidence on the part of the defendants that St. John first met Waldeck at Versailles at the time the latter, with the other gentlemen mentioned, had come there to look at the Hubbard & Moore property. St. John, who was introduced to Waldeck by the clerk of the hotel where the party stopped, suggested to Waldeck that his firm had several tracts of coal land for sale, specially mentioning a tract of 1,000 acres, known as the ‘ ‘ Bailey tract, ’ ’ belonging to a General Hudson, and offering to give Waldeck five per cent commission on all sales to purchasers brought to his firm by him. Waldeck accepted the proposition, stating that he knew of parties in Peoria, Illinois, whom he thought he could interest and influence to purchase this Bailey tract as well as other lands which defendants had for sale. In a day or two Waldeck, with Suit Brothers, left for Illinois, the latter failing to buy the said Hubbard & Moore property. Before leaving, Waldeck made arrangements with St. John to have a description and plat of the Bailey land sent to him at Pekin, 111., where he resided, and St. John sent him the same a few days after. Shortly after receiving the de>scription and plat of the Bailey land at his home in Pekin, Mr. Waldeck went to Peoria and showed them to C. C. Magenheimer and got him interested as a prospective purchaser of the lands, and wrote a letter on December 27th to defendants acquainting them with such facts. On the same day Magenheimer also wrote the defendants, stating that a letter sent by them to Waldeck had been handed to him for answer; that he was favorably impressed with the proposition therein stated, and promising to come to Versailles with a mining engineer and examine the coal land after receiving a reply to- his letter. St. John answered this letter promptly and invited Magenheimer to come at once. This letter was misdirected-and delayed, so that Magenheimer did not get it in due time, and he wrote or telephoned Waldeck that he had not received an answer to his said letter to St. John. Waldeck went to St. Louis, where, as stated before, he accidentally met with Could, and, thinking Gould' was a partner with St. John & Noyes, he told him that Magenheimer had not heard from St. John & Noyes and suggested that he send Magenheimer the telegram heretofore referred to. On January 8, 1903, three days after receiving said telegram, Magenheimer notified Waldeck by letter that he would start for Versailles the Monday following and see what could be done when he got there. Waldeck telephoned defendants on January 13th that he would be there Monday morning with three parties, and he went to Versailles with Magenheimer and Mr. Collier, an engineer who accompanied Magenheimer to examine the coal property. With them was Jeptha Ryan, who came from Leavenworth, Kansas; and met them at Tipton. On the arrival of the Magenheimer party in Versailles, they were introduced to defendants by Waldeck as his customers, or men whom he had brought to look at the coal lands. Gould appeared on the scene after the Magenheimer party had begun negotiations with the defendants, and, as appears from the evidence, against the wishes of St. John, Magenheimer and Ryan, joined the party on their visit to the coal property. They first went to the Bailey coal land, which was the only property called to their attention prior to their visit, then to the Hubbard & Moore mines, and, next day, at the suggestion of St. John, the party went to the Halderman lands and examined what was known as the Stover Coal Bank located there. On the return of the party to Versailles, Magenheimer and Ryan made an option contract with defendants for the purchase of the Bailey tract, but afterwards forfeited the money they had paid on it and the sale was not completed. At the request of these men, St. John also negotiated with Hubbard & Moore for a sale of their property. Hubbard & Moore made the deal, and Magenheimer and Ryan made a payment of $2,000 thereon, but this deal also fell through, and the money paid was forfeited. The defendants also, at the time of this visit, agreed to sell Magenheimer and Ryan the Halderman tract, being the lands described in plaintiff’s petition, and on which defendants had an option. The offer, however, was such that defendants did not feel authorized to make the contract proposed, and St. John, therefore, took it to Mrs. Halderman, the owner, who was at the time at Hot Springs, Arkansas, and got her signature to the contract which was also signed by Magenheimer and Ryan. St. John had told Gould some time in December that his firm had an option on this Halderman tract, but Gould said that such was not the fact, as the lands had been sold, and stated that he had just come from St. Louis, and knew they had been sold to the “Hanna crowd”; so that it would seem that Gould had nothing to do with negotiating the sale of this tract. The terms of this contract between Mrs. Halderman and Magenheimer and Ryan do not appear in evidence, but St. John testified, without contradiction, that the contract of purchase fell through by reason of failure of the purchasers to meet the terms of payment, and they forfeited the amount paid. After-wards a second contract was made, but expired late in tbe fall of 1903. After the second contract fell through the defendants no longer represented Mrs. Halderman, their option on the land and contract with her having expired. Some time afterwards Mrs. Halderman conveyed the lands to the Morgan County Coal Company, which, as appears, was organized by Magenheimer, Ryan and the Eberhardt Brothers, of Mishawaka, Indiana, and this deal was effected by the assistance of Mr. St. John. Before this was done, Magenheimer and Ryan came to St. John, stating that they had been unable to buy the lands from Mrs. Halderman, and that they had enlisted the Eberhardt Brothers. They made a proposition to St. John that if he would go to New York and succeed in buying the lands for them at a stipulated price they would give him $10,000. St. John accepted the proposition, and after two or three trips to. New York succeeded in buying the property, and Eberhardt Brothers, who were with Magenheimer and Ryan in the deal, paid St. John $10,000', which was no part of the consideration received by Mrs. Halderman, who was represented in the deal by Mr. Athana, her son-in-law. Out of the forfeited payments on the previous contracts for the sale of this land St. John & Noyes also received or retained, as their compensation, the sum of $1309, sending the remainder of the forfeited money to Mrs. Halderman.

On the trial, plaintiff Gould claimed that it was his influence with George H. Lucas and Mr. Waldeck that resulted in bringing Magenheimer and his associates to Versailles to look at the lands. However, in a letter dated January 22,1903., written by Magenheimer to the defendants, in which he enclosed the telegram of January 5th sent him by Gould, he says: “I did not know Mr. Gould until I received this telegram, but this was long after our first correspondence and my correspondence and interview with Mr. Waldeck. I do not consider Mr. Gould in the deal whatever so far as I am concerned. I did not act on this telegram, hut upon your own correspondence.”

From the evidence of Lucas, who testified for the plaintiff, it appears that some time after he was at Versailles with Suit Brothers and Mr. Waldeck, and after ■he had dropped his connection with Hubbard as land agent at Versailles, he wrote St. John to get a contract as agent to find purchasers for lands defendants had for sale, and that he got such contract, the terms of which do not appear in evidence. In a letter dated December 24, 1902, sent to defendants, Lucas names various persons whom he had been trying to interest in the Bailey tract, stating to them that he had no coal lands to sell, and giving to them the address of the defendants who, he said, had coal lands. The letter also stated that Waldeck had seen Magenheimer in Peoria, and that the latter was interested and willing to look at the one thousand acres (Bailey tract) provided he could get an option and take experts to examine the land before buying. This letter was written the same day as that of Waldeck to defendants, and the same day that Magenheimer wrote them proposing to come to Versailles as soon as he could hear from them. But it does not appear that Lucas ever had any correspondence or negotiations with Magenheimer.

It appears from the evidence of Lucas and Waldeck that they had been associated as land agents in, some transactions in Ulinois. as also in attempting to make a deal for Suit Brothers at the time Lucas met St. John in Versailles, but St. John at the time had no knowledge of such fact. Waldeck said that he intended, on account of their past joint transactions and because they had failed to effect a trade for Suit Brothers, to divide his commission with Lucas on the Bailey tract, if a sale of that tract had been made, and that he so informed the defendants at a later period.

According to St. John’s testimony, his firm- had never authorized plaintiff Gould to act with Waldeck or to use the name of the firm in sending telegrams or ■letters. He stated that Gould introduced Lucas to him on the 4th or 5th of December, 1902, and that as Lucas wanted to sell real estate for his firm he offered to give him five per cent commission on all sales made to customers whom he might bring them, but that he did not remember having any agreement whereby Gould was to pay one-half "of such five per cent commission and his firm the other half. He also testified that he had met Waldeck and entered into the contract with him in regard to commissions before meeting Lucas.

Many letters and telegrams which passed to and fro between the various parties mentioned in this state-' ment were introduced in evidence, most of which, however, have no bearing upon the issues in this case, and only such as seems pertinent are referred to.

It thus seems that the only question presented by this appeal is whether the action of the court in setting aside the verdict and granting a new trial can be sustained upon either of the grounds assigned by the court for sustaining the motion. . In Miller v. Madison Car Co., 130 Mo. 517, it is held that when the trial court, in granting a new trial, recites the reasons therefor as required by section 801, Revised Statutes 1899, it will be presumed on an appeal from such order that the ruling of the court was founded alone on the grounds as stated. In the case at bar, the reasons assigned are, in effect, that there was no evidence to sustain the verdict, and that' the verdict was against the weight of the evidence. The court, unless it abused its discretion in so doing, had the right to grant a new trial upon either ground. It is well established that courts, in granting new trials, have large discretionary powers, and especially when the weight of the evidence is involved, and the Supreme Court will not interfere with such discretion unless it appears to have been unwisely exercised. We do not think the evidence preponderated in favor of the plaintiff, and the court in effect so held in sustaining the motion for a new trial. This being the case, it was not only the province of the court to grant a new trial, but it was its plain duty to do so. [Bank v. Wood, 124 Mo. 72; Taylor v. Railroad, 163 Mo. 183.] In McKay v. Underwood, 47 Mo. 187, it is held that the granting of a new trial on the ground that the verdict is against the weight of the evidence rests peculiarly with the judge presiding at the trial. To the same effect is Baughman v. Fulton, 139 Mo. 557; Iron Mountain Bank v. Armstrong, 92 Mo. 265; Eidemiller v. Kump, 61 Mo. 342; Cook v. Railroad, 56 Mo. 380; Reid v. Ins. Co., 58 Mo. 429. Besides, the presumption is to be indulged in favor of the correctness of the court in granting the new trial, and there is nothing disclosed by the record to overcome this presumption. The judgment is affirmed.

All concur.