author: VALLIANT, J.

text:
    CRAIN et al., Appellants, v. PETERMAN.
    Division One,
    December 22, 1906.
    1. APPELLATE PRACTICE: Law Case: No Instructions. Where no instructions were given or asked by either side in ejectment tried to the court, a judgment for plaintiff will on appeal be upheld if there is sufficient in the record on any point to justify it, and that will be considered the decisive point in the case.
    2. EJECTMENT: Acts of Possession: Cutting Grass Under Lease. Evidence that one who cuts grass off of the unoccupied land had been heard to say that he did so under a lease from the-title owner, is of small probative force to show that the title owner had ever been in possession.
    3. -: -: -: Herding Cattle. The acts of defendant’s grantor, who had bought under a void tax judgment, of herding cattle, cutting timber and selling to others the right to do so, do not amount to actual possession, though done under color of title and actual claim of title.
    4. -: Limitation: Thirty Years. Where the title owner for thirty consecutive years after the title emanated from the Government paid no taxes and had not been in possession, he and those claiming under him are, under the thirty-year Statute of Limitations (sec. 4268, R. S. 1899), given only one year after the actual lawful possession of defendant or his grantor began to bring suit, and if the suit' is not brought within one year, the title vests in the person in possession.
    Appeal from Dent Circuit Court. — Ron. L. B. Wood-side, Judge.
    Affirmed.

      John W. McClellan and Ed. J. Shuck for appellants.
    (1) Plaintiffs insist that the law presumes that every possession is rightful and consistent with and not in opposition or adverse to title and ownership. Hunnewell v. Burchett, 152 Mo. 611. Therefore, it devolves on defendant to show that the. possession of Shuck was not the possession of Aaron Gr. Crain. , (2) Again, it is the contention of defendant that the acts of ownership exercised by Shuck were not such acts as would prevent the running of the Statutes of Limitation; that the acts were not open, notorious and continuous and were not such acts as a passer-by wpuld be presumed to see. Now, this would be a correct proposition of law when applied to the disseizor, to the wrongdoer, and to the person claiming title in disregard of the rights of others; however, the acts as above stated need not be so strong if the party claiming by the Statutes of Limitation can show by evidence that the party being ousted knew of the claims of the disseizor or ouster, (Nye v. Alfter, 127 Mo. 529), but is the true owner of the land required to be in possession as long as an ouster to break the possession of a wrongdoer? Is it not a fact that a single week or even' a day would be time sufficient to break the Statutes of Limitation and defeat the acquiring of title by a wrongdoer? There is great difference between the possession required to acquire title by the Statutes of Limitations and the possession required or necessary on the part of the party who has the superior title to break the continuity of possession so as to defeat the acquiring of title by the Statutes of Limitations whether it be the ten or thirty-year Statuts of Limitations, because the one “adverse possession” designates a possession in opposition to the true title and real owner, and it implies that it commenced in wrong by ouster and disseizure and is maintained against right (Hunnewell v. Burchett, 152 Mo. 611), while the other is only the ordinary acts of ownership incident to the use and enjoyment of property by the party holding under the superior title.

      D. W. Clements for respondent.
    (1) No reversible error is assigned or shown. Hamilton v. Boggess, 63 Mo. 243; Weller v. Wagner, 181 Mo. 151. (2) Plaintiffs’ cause of action is barred by the general ten-year Statute of Limitations. Draper v. Shoot, 25 Mo-. 197; Benne v. Miller, 149 Mo. 237. (3) Plaintiffs’ cause of action is barred by the thirty-year Statute of Limitations. Pharis v. Bayless, 122 Mo. 116; Shumate v. Snyder, 140 Mo. 77; Collins v. Pease, 146 Mo. 135'. (4) Respondent’s is the better title. Hunnewell v. Burchett, 152 Mo. 611.
   VALLIANT, J.

Plaintiffs sue in ejectment for the possession of 320 acres of land in Dent county.

Plaintiffs introduced in evidence the Government plat-book showing that the land in question was entered by Aaron G. Crain in 1857. They also introduced evidence tending to show that Crain died in 1879 and that the plaintiffs are his heirs at law. Also that from 1870 to 1875 a man named Shuck, who is now dead, lived near the land and used to cut grass on it and he was heard to say that-he had a lease from Crain under which he cut the grass.

The testimony on the part of the defendant tended to show as follows:

Aaron G. Crain never lived in Missouri; neither he nor anyone claiming or who might claim under him had for thirty consecutive years been in possession; and neither he nor anyone claiming or who might claim under him had for that period of time paid any taxes on the land.

A sheriff’s deed on a judgment against one S. M. Alward for the taxes of 1875 and 1876, conveying the land to A. H. Love, dated October 11, 1879, duly recorded.

A sheriff’s deed to said land on judgment against N. I. Kenyon, A. H. Love, L. Judson and Aaron G. Crain, for the taxes of 1896, to A. H. Love, dated April 6,1899, and warranty deed from Love to defendant Peterman, December 11,1902, both duly recorded.

There was evidence for defendant tending to show that immediately after Love received the first sheriff’s deed in 1879 he placed it on record and exercised acts of ownership over the land, herding cattle, cutting timber, etc., but the first actual possession under his title was in 1895 or 1896 and that was the first actual possession by anyone. Since that date the land has been in the actual possession of Love or one claiming under him, and Love or his assignee has paid the taxes every year from 1879 to date except for the year 1896.

This suit was brought July 24, 1908. A jury was waived and the cause was tried by the court; no instruction or declaration of law was asked or given; the finding and judgment were for the defendant, and the plaintiffs appealed.

In the absence of any instruction or declaration of law asked by either party or given by the court we do not know exactly on what legal point the case turned, but in such condition of the record, if there is sufficient in the record on any point to justify the finding and judgment, we will presume that that was the decisive point in the case.

After it was shown by defendant’s evidence that neither Crain nor anyone claiming under him had been in possession of the land or paid any taxes thereon for more than thirty consecutive years, the plaintiff attempted in rebuttal to show such possession and for that purpose introduced the evidence above stated in regard to the cutting of grass by a man named Shuck. But there was no evidence of actual possession, and the evidence that Shuck in justification of his act of cutting the grass had been heard twenty-five or thirty years ago to say that he had a lease from Crain which gave him such authority was, if competent at all, not such evidence as to which a trier of the facts was bound to accord much probative force.

The acts of Love, after he recorded his sheriff’s deed, in, herding cattle, cutting timber and selling to others the right to do so, were more ostensible acts of ownership than the cutting of grass by Shuck, yet those acts did not amount to actual possession, though done under color and actual claim of title. [Nye v. Alfter, 127 Mo. 529'.]

Defendant’s possessory title began only in 1895 or 1896 which was less than ten years before the filing of this suit. But under section 4268, Eevised Statutes 1899, known as the thirty-year limitation, that possession was sufficient to defeat plaintiff’s recovery. Under that statute when neither Crain nor anyone claiming under him had been in possession or paid any taxes for a period of thirty consecutive years, he or anyone claiming under him was given only one year in which to bring his suit after the actual lawful possession of Love, or that of the man under him had begun, and the statute provides that in case suit is not brought within one year the title to the land shall vest in the person in possession. The plaintiffs did not bring their suit within the period allowed by that statute and therefore they are barred.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CRAVES, J.

license: Public Domain

text:
    BINZ v. HYATT et al., Appellants.
    Division One,
    December 22, 1906.
    1. MATURITY- OF BONDS: Meaning When Used in Contract. The defendants in 1894 entered into a written agreement reciting that they had paid plaintiff for a certain property with ten bonds of $1,000 each, “secured by a mortgage or deed of trust on the property of” a certain company, “maturing in 1913, and bearing interest,” and guaranteed that “if said bonds shall not be paid at maturity and if for that reason the mortgage or deed of trust Securing the same shall be foreclosed,” they would be present at the sale and malte the property bring the principal sum of all the bonds issued. Held, that the word “maturity” thus used was merely descriptive of the bonds, and does not' mean that the agreement was that defendant was to attend a sale in 1913; but, the mortgage providing that the deed of trust could be foreclosed upon default in the payment of interest, and the bonds themselves having referred to the mortgage, and the lex loci allowing only one foreclosure for the entire debt, the agreement obligated defendants to be present at the foreclosure sale for failure- to pay interest, and they are liable for whatever damages resulted to plaintiff for failure to meet that obligation.
    2. LIMITATIONS: Administrator: Contingent Continuing Liability. The two-year Statute of limitations as to fixed liabilities of an administrator on a contract entered into by his intestate, does not bar his liability on a contract under which the liability is contingent and the maturity of which may reach beyond the period of two years after letters have been issued and notice given.; it does not bar the claim until two years after the liability ceased to be contingent and became fixed.
    Appeal from Buchanan Circuit Court. — Hon Wm. L. Jarrott, Special Judge.
    Affirmed.

      Vinton Pike, G. P. Strop and Scarritt, Scarritt & Jones for appellants.
    (1) The memorandum sued on is nothing more than a strict guaranty, and should not receive a broader or more liberal interpretation than is signified by the words used when given their ordinary and usual meaning. Our contention is that the guaranty stated clearly that these bonds mature November 27, 1913, and that if the plaintiff held the bonds until that date and default was made in the payment of them at maturity and for that reason the mortgage was foreclosed and the property sold to satisfy the bonds, they would bid $15,000 for the property. And we submit that unless this court goes beyond the terms of this guaranty agreement and looks to some -other document, or unless this court assumes, out of a false and impartial notion, of charity, to mate a better contract for the plaintiff than he made himself, the construction placed upon this undertaking by the trial court must be discarded and the defendant be held to be not liable to this action. (2) The. writing of December 12, 1894, on which this suit is founded, is an agreement of guaranty, and as such the court will strictly construe the language used in favor of the guarantor and will not extend his liability beyond the precise terms of the agreement. Allen v. Bank, 4 Mo. App. 66; Mitchell v. Railton, 45 Mo. App. 277. (3) Resort cannot be had to the mortgage or to the bonds to define the word “maturity” in order to change the date to which the phrase “at maturity” refers as declared by the contract itself. This contract is within the statute of frauds. R. S. 1899, sec. 3418; Warren v. Mayer Mfg. Co., 161 Mo. 112; Rucker v. Harrington, 52 Mo. App. 481; Ringer v. Holtzclaw, 112 Mo. 519; Biest v. Shoe Co., 97 Mo. App. 155; Bruckam v. Dry Goods Co., 91 Mo. 454. (4) This bond is payable in, Missouri and is a negotiable instrument. It expresses a promise, for value received, to pay a certain sum of money at a certain time to a certain person or to the order of a certain person. These are the sole requisites of negotiable paper in Missouri. Crawford v. Johnson, 87 Mo. App. 478; Clark v. Porter, 90 Mo. App. 143; Bank v. Goodloe-McClellánd Com. Co., 93 Mo. App. 123.. (5) But the deed of trust in question does not even, provide that in case of default in interest the principal shall mature absolutely. Miller v. Wagenhauser, 18 Mo. App. 11; Gart v. Bagley, 110 Mo. 54; St. Louis v. Laughlin, 49' Mo. 559'; St. Louis v. Porter, 29 Mo. App. 605; Brooks v. Cook, 44 Mich. 617. (6) The alleged cause of action against Burnes, administrator, is barred under the Statute of Limitations. R. S. 1899, sec. 86.

      Kendall B. Randolph for respondent.
    (1) Contingent claims, maturing during administration, may be allowed against tbe estate at any time during tbe two years next after such maturity, although letters of administration may have been issued years before the maturity of such claims. Miller v. Woodward, 8 Mo. 169; Finney v. State, 91 Mo. 227; Chambers v. Smith, 23 Mo. 174; Burton v. Rutherford, 49 Mo. 258; Tenney v. Lasley, 80 Mo. 664; State v. Tittman, 134 Mo. 168; Taylor v. Priest, 21 Mo. App. 687; Morgan v. Gibson, 42 Mo. App. 244; State v. Tittman, 54 Mo. App. 501. (2) The recital in the contract with reference to the maturity of the bonds was simply descriptive of the instruments themselves. The obligors in the early part of their contract entered upon a general description of the bonds, and in that connection correctly described them as falling due by their terms on the 27th day of November, 1913. (3) Evidently the parties in making and accepting this contract, were looking to a foreclosure sale whenever it might become necessary or be considered necessary to protect the plaintiff bondholder. Its purpose was to safeguard him against loss, to the extent at least of enabling him to realize on his bonds their full face value. Hax v. Plax, 84 Mo. App. 313. The parties knew that only one foreclosure, under the mortgage or deed of trust, could be made. They knew that on account of the non-payment of interest it might take place at any time. It was expressly so provided in the mortgage or deed of trust, to which they referred in their contract. It was the sale under this foreclosure, whenever it might occur, that Hyatt and Owens agreed to attend. (4) The interpretation and force of contracts must be governed by the law of the State where they are to be performed and enforced. Smoot v. Judd, 161 Mo. 684; Watts v. Creighton, 55 la. 154; Leavitt v. Reynolds, 79 la. 351. Although the proper demand was made on the trustee by the bondholders, to institute this foreclosure suit, such demand was not, in fact, necessary. The mortgage or deed of trust gave him express authority on his own motion to declare the bonds due and to institute the suit of foreclosure. And the bringing of the suit was a sufficient declaration of election to have all the bonds fall due, no demand of payment being necessary. Hawes v. Ins. Co., 109 Mich. 324; Whitcher v. Webb, 44 Cal. 127; Dean v. Applegarth, 65 Cal. 392; Clemens v. Luce, 101 Cal. 432; Johnson v. Van Velsor, 43 Mich. 208; Buchanan v. Ins. Co., 96 Ind. 520; Harper v. Ely, 56 111. 179; Swearengen v. Lahner, '93 Iowa 147; Brown v. McKay, 151 111. 315; Morling v. Bronson, 37 Neb. 608. (5) A case like the one at bar is Stickney v. Evans, 127 Mass. 202.
   CRAVES, J.

Plaintiff, Fred Binz, brought suit in the circuit court of Buchanan county, against Calvin C. Hyatt and James N. Burnes, administrator of the estate of John R. Owens, deceased. Trial was had in that court in which plaintiff recovered as against both defendants for $9,192, and defendants appealed. The suit is bottomed upon the following written instrument, viz:

‘ ‘ To Fred Binz:
“Having this day purchased of you an undivided one-half interest in the sausage works, and all personal property owned by the firm of Hoefer & Binz, in the city of St. Joseph, Missouri, and having paid for said property in ten certain bonds secured by a mortgage or deed of trust on the property of the Merchants Coal Company of Cincinnati, Iowa, said bonds being of the face value of one thousand dollars each, and being numbered from six to fifteen inclusive, maturing on the 27th day of November, 1913, and bearing interest at the rate of six per cent per annum, payable semiannually, I therefore, in compliance with our verbal agreement, hereby guarantee that if said bonds shall not be paid at maturity, and if for that reason the mortgage or deed of trust-securing same shall be foreclosed, and the mortgaged property sold to satisfy said bonds, that I will be present at said sale and bid fifteen thousand dollars for the property secured by said mortgage or deed of trust.
“Dated at St. Joseph, Missouri, this 12th day of December, 1894.
“C. O. Hyatt,
“J. R. Owens.”

The record so far as the evidence is concerned, is short and no particular conflicts therein. Such parts of the evidence as require notice, will receive attention in the course of the opinion. The serious questions are (1) the construction to be given this written contract, and (2) the Statute of Limitations as to the estate of John R. Owens.

I. That the contract is one of guaranty and is sub-' jeet to the rule of strict construction may be conceded. The whole controversy in this case turns upon the meaning of the word “maturity,” as it appears in the clause1 of the contract reading, “I, therefore, in compliance with our verbal agreement, hereby guarantee that if said bonds shall not be paid at maturity, and if for that reason the mortgage or deed of trust, securing same shall be foreclosed, and the mortgaged property sold to satisfy said bonds, that I will be present at said sale and bid fifteen thousand dollars for the property secured by said mortgage or deed of trust.”

Plaintiff claims that the “maturity” in this clause mentioned is the maturity called for in the deed of trust, and not the date of the maturity of the bonds, as recited in the first part of the agreement. Defendants urge that the sale they were bound to attend was a sale after November 27, 1913, the date of the maturity of the bonds as expressed in the face of the bonds. Thus the contention was sharply drawn. What is the meaning of the word “maturity” as used in the clause quoted above? The clause in the contract saying, “Maturing on the 27th day of November, 1913, and bearing interest at the rate of six per cent per annum, payable semiannually,” is merely descriptive of the bonds, as also are the words, ‘ ‘ Secured by a mortgage or deed of trust on the property of the Merchants Coal Company of Cincinnati, Iowa.”

In other words, the recitals contained in the first part of the contract are merely descriptive of the bonds and the mortgage or deed of trust, with reference to which the parties were contracting.

In order that there be a fair understanding of the case it will be necessary to summarize a little from the evidence. The bonds mentioned were not “carriers without luggage,” for in their face they refer specifically to the mortgage, and further contain a provision by which they can be paid before maturity and stop the interest, in this language: “The said Merchants Coal Company, however, reserving the right to pay off this bond at any time before maturity by paying the principal thereof with five per cent premium and all accrued interest to the date of such payment; giving notice of its intention to do so by publication in a newspaper of general circulation in the city of Cincinnati, Iowa, once each week, for four successive weeks prior to the date when payment will be made, and thereupon all interest thereon shall cease on the day designated in such notice as the day on which the same shall be paid. This bond is one of a series of fifteen bonds of like form and tenor, the payment of which is secured by a mortgage or deed of trust to R. A. Brown, trustee, bearing even date herewith and duly recorded, to which mortgage or deed of trust, and the provisions and conditions thereof, reference is hereby made. This bond shall not become obligatory until the certificate hereon endorsed shall be signed by E. A. Brown, Trustee.”

The mortgage or deed of trust which was introduced in evidence among other things provided: “In case default be made in the payment of interest on any of the said bonds, and such default shall continue for ninety days after demand duly made therefor, in the manner hereinbefore provided, then the principal, as well as the interest of all said bonds shall, at the election of the trustee, upon written notice by said trustee to the coal company, become and be at once due and payable, and be so held and deemed for the purpose of entry, sale and foreclosure in the manner hereinbefore provided, and for all other purposes whatsoever. Said notice to be given to the coal company by the trustee as herein provided may be given at the election of the trustee, but he shall not be bound to give same unless requested in writing by holders of one-fourth of the bonds secured by this mortgage or deed of trust then outstanding and unpaid, and unless indemnified as aforesaid.”

According to the evidence, the trustee Brown, at the request of the bond-holders, proceeded in the Iowa court to foreclose the deed of trust, procure judgment of foreclosure as well as judgment for the full amount of the bonds and interest. The property was sold and brought but little more than the expenses of foreclosure and of the receiver appointed in that proceeding. Under the evidence the corporation executing the bonds is totally insolvent, and at this foreclosure sale the signers of the contract in suit did not appear and bid at all.

It is conceded that this mortgage is an Iowa contract, and, bearing upon the question of maturity, the following Iowa statutes were in evidence:

“Sec. 4557. "When a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. A special execution shall issue accordingly, and the sale thereunder shall be subject to redemption as in cases of sale under general execution.
“Sec. 4558. If the mortgaged property does not sell for sufficient to satisfy the execution, a general execution may be issued against the mortgagor, unless the parties have stipulated otherwise.”

In addition upon the back of each bond was the Trustee’s Certificate, in this language:

‘ ‘ Trustee’s Certificate.
“This is to certify that this is one of a series of bonds numbered from one to fifteen, both inclusive, issued in conformity with and under the provisions qf the deed of trust or mortgage within named.
“R. A. Brown,'Trustee.”

Now by the terms of this contract the signers thereof obligated themselves to be present at a mortgage sale of property sold to satisfy these bonds, if the mortgage was foreclosed. There could be but one sale of property under a foreclosure of the mortgage. The court decreeing the foreclosure might direct separate sales of different species of property and at separate times, but this is rarely done, so that the parties to this contract in our mind had in view but one sale, and that a sale under a foreclosure of this mortgage. The bonds themselves refer to the mortgage, the trustee’s certificate on the back thereof makes specific reference to the mortgage, under the terms and powers of which the bonds were issued. Taking this contract from the four comers of the instrument itself and giving it a reasonable construction, we hold that the word “maturity” as therein used, has reference to the maturity of the bonds as provided for by the mortgage and the statutes of Iowa, above quoted, which are as much a part of the mortgage, as if -written therein, for this mortgage is an Iowa contract.

In onr judgment this is the only reasonable construction to be given this contract. The parties in the contract refer to both the bonds and the mortgage or deed of trust, and these instruments refer to each other. We must take the contract and the instruments referred to therein, and construe them all together to get the real meaning of this contract, and when this is done, it is apparent that they could have had in view the one sale to be had under the foreclosure of the mortgage, and a sale to be had at the maturity of the bonds as said maturity is provided for by the mortgage. We therefore hold the first contention of the appellants to be not well founded. A very similar case is found in Stickney v. Evans, 127 Mass. 202.

II. We come now to the Statute of Limitations as urged by the Owens estate. John R. Owens died in July, 1899; James N. Burnes was appointed administrator about August 1, 1899, and duly published notice of the grant of his letters of administration as required by law; this notice contained the usual provision as to the allowance of claims and stated that all claims not presented within two years would be barred. The administrator further charged by way of answer, and the facts showed, that more than two years had run from the date of the letters of administration. The sale under the foreclosure proceeding occurred October 18, 1902, under a decree of foreclosure of date September 9, 1902. This suit was filed February 19, 1903. The foregoing are sufficient of the facts for this proposition.

The liability under the contract is a contingent one. It could not arise until the contingency had happened, to-wit, the foreclosure sale and the failure of Hyatt .and Owens to be present and bid $15,000 thereat. It is not a claim where there is a fixed liability, the maturity of which might reach beyond the period of this special Statute of Limitations, but it is a claim where there is only a contingent liability, which liability might never arise. 1'n such cases the statute relied upon by appellant, section 185, Revised Statutes 1899', does not begin to run until the liability under the contract becomes fixed by the happening of the contingency. The statute bars ordinary demands, but not demands which arise under the contract pleaded in this case. [State ex rel. v. Tittmann, 134 Mo. l. c. 168; Tenny v. Lasley, 80 Mo. l. c. 668; Burton v. Rutherford, 49 Mo. l. c. 258; Taylor v. Priest, 21 Mo. App. l. c. 687; Morgan v. Gibson, 42 Mo. App. l. c. 244.]

In the case at bar there was no liability until October 18,1902, and no claim could have been presented prior to "that date; the authorities above cited, as well as others in this State, are to the effect that the statute would not begin to run, in a case of this kind, until October 18, 1902, the date upon which there became a fixed liability under this contract.

It therefore follows that .the action is not barred as to the Owens estate.

There are no further serious contentions made by counsel for appellants, so that from what has been said we conclude that the judgment of the circuit court should be affirmed, and it is so ordered.

Brace, G. J., and Valliant, J., concur; Lamm, J., not sitting.


author: LAMM, J.

text:
    GEORGE DESCHNER, by Next Friend, NANCY C. DESCHNER, Appellant, v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY.
    Division One,
    December 22, 1906.
    1. CONTRIBUTORY NEGLIGENCE: One Car Following Another: Question for Jury. An eleven-year-old boy stepped on a platform and waited for a rapidly running passenger car to pass, and before attempting to cross the track looked in the same direction the car went to see if another was coming, but did not look in the opposite direction and hence did not see a mail ear coming from that direction 150 feet or more behind the other that had just passed. He took a few steps on to the track and was struck by the mail car. The mail car was an irregular car, and his evidence was that it could not be seen from where he was on the platform, because the passenger car obstructed the view, until that car had passed, and that the gong of the mail car was not sounded, and that the motorman did not look out for him and did not see him. Held, that the issue of contributory negligence, under the facts, was for the jury, and was not a question of law to be determined by the court.
    2. -: -: -: Child: Looking Twice. An eleven-year-old boy, capable, experienced with tracks and cars and in taking care of himself, is not excused by the law if he does not look for a car as he attempts to cross a street railway track. But when he looks and sees a car and waits for it to pass, and then looks in the direction it has gone and sees none coming, whether or not he is required to look twice, that is, to see whether or not another car is following closely behind the rapid car he first saw, depends on the circumstances — the frequently with which cars, to his knowledge, closely follow each other on the same track, his quickness of thought, his mental grasp, his coolness, the absence of impulsive and boyish thoughtlessness, the fact that the following ear was an irregular car, and the fact that it could not be seen from where the boy was standing on the platform until after the other had passed, etc.
    2. -: Boy: Care Required. A boy eleven and one-half yeas old is not chargeable with the same degree of care as is required of a man. He is chargeable with the prudence of the ordinarily prudent boy of that age, under like circumstanceSi

      4. -: —-: When an Issue for Jury. Where two views may he fairly entertained hy reasonable men of the conduct of a boy, under given circumstances, the question of whether or not he was guilty of such contributory negligence as bars his recovery for personal injuries, is an issue for the jury.
    5. -: -: -: New Trial: Peremptory Instruction for Defendant. Where the issue of contributory negligence was one for the jury, and they being properly instructed on that subject found for plaintiff, the granting of a new trial on the ground that the court should have given a peremptory instruction for defendant, is error, unless that action can be sustained on other grounds.
    6. -: Vigilant Watch Ordinance: Declarative of Common Law. The Vigilant Watch ordinance of St. Louis, providing that “the conductor, mortorman, gripman, driver or any other person in charge of each ear shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible,” may be sustained not only as a reasonable police regulation, but both duties by it prescribed, namely, of a vigilant watch and the duty to stop as soon as possible on the appearance of danger, may be sustained as simply declarative of the common law.
    7. -:--: -: Not Sounding Gong: Eliminating Vigilant Watch. Merely because there is no evidence that the car was not stopped in the shortest time and space possible, is no reason for omitting from the instruction a requirement on the part of the motorman to keep a vigilant watch — there being evidence that he did not keep such watch.
    8. NEGLIGENCE: Duty to Sound Gong: Assumption: Instruction. There being substantial evidence that there was time and space in which the motorman could, after the injured party started from the platform on to the track, have warned him by sounding •the gong, with which the car was supplied, the strap to the gong being in the motorman’s hand, an instruction which assumes that it was defendant’s duty to warn the injured party and which assumes that he had time and space to perform that duty by the use of the gong, is not erroneous.
    9. - :-: -: -: Appellate Practice: Theory Below. It is a wise and stiff rule of appellate practice that a case should be heard on the same theory on which it was heard below. Where the case was tried and the instructions on both sides proceeded on the theory that it was the duty of the motorman to see and warn the injured party, that theory will be adopted by the appellate court, in ruling on an instruction which assumes that a failure to give such warning was negligence.
    10. -: Instruction: Omitting Proximate Cause: Aided by Defendant’s. An instruction for plaintiff which fails to require the jury to find that defendant’s negligénce was the proximate cause of the injury, or which dimly embodies that requirement, may be cured by one given for defendant which clearly imposes that duty.
    11. GRANTING NEW TRIAL: Insufficient Reasons. Where the reasons assigned by the trial court for granting defendant a new trial were insufficient and no other substantial reasons are pointed out on appeal, the act of the court will be held to be error, and the judgment reinstated.
    Appeal from St. Louis City Circuit Court.— Eon. Franklin Ferriss, Judge.
    Reversed and remanded (with directions).

      Dodge & Mulvihill and A. G. Maroney for appellant; Walter E. Saunders of counsel.
    (1) The order granting a new trial on the ground that “a peremptory instruction at the close of plaintiff ’s case should have been sustained, ’ ’ impliedly overruled the demurrer at the close of the whole case, since the motion for a new trial contained this as one of the grounds. In this condition of the record this court has nothing to review unless it is its duty to examine the whole record to see whether the final demurrer should have been sustained, though overruled when presented, and impliedly overruled by the terms of the order granting a new trial. Herdler v. S. & R. Co., 136 Mo. 3; Miller v. Madison Car Co., 130 Mo. 523; Candee v. Railroad, 130 Mo. 153. This court will only examine the grounds on which the motion for a new trial was sustained, in the absence of an affirmative showing by the party in whose favor the new trial was granted that it was properly set aside on other grounds. Emmons v. Quade, 176 Mo. 28. (2) The demurrer to the evidence, both at the close of plaintiff’s case and at the close of the whole case, was overruled by the trial court and should have been overruled, because the case ought to have been submitted to the jury, both as to the motorman’s failure to ring his bell, and also as to his failure to comply with the Vigilant Watch ordinance, an ordinance under the police power (Sluder v. Railroad, 189 Mo. 107; Moore v. Railroad, 194 Mo-. 1), which is both pleaded and proved. The case was submitted to the jury on the former ground, but the court, at the defendant’s request, instructed the Vigilant Watch ordinance out of the case — on what theory we cannot conceive. The order of the court, granting a new trial, because the demurrer at the close of plaintiff’s case should have been sustained is therefore, clearly erroneous. (3) The defendant, by introducing evidence, waived the demurrer to the plaintiff’s evidence to the extent of assuming the risk of supplying, by its own evidence, the defects, if any, in the plaintiff’s case; therefore, if the demurrer to the evidence can be considered at all, all the evidence must be examined, and the burden is upon the respondent, under the Candee case, supra, to show that the demurrer should have been given. Storck v. Mesker, 55 Mr. App. 31; Eswin v. Railroad, 96 Mo. 290; Weber v. Railroad, 100 Mo. 195. (4) In passing upon a demurrer, every inference is to be taken most strongly against the demurrant, and the court must indulge every inference of fact in favor of the party offering the evidence which a jury might indulge with any degree of propriety. Moore v. Railroad, 194 Mo. 1. (5) ■ If there is any error in instruction 1 in failing to charge as to proximate cause, which appellant denies, because this form substantially has been used and approved (Koenig v. Railroad, 193 Mo. 717), it is cured by instruction 4, granted for defendant, which is very specific on this point, since all instructions must be read together. Austin v. Railroad, 115 Mo. App. 146; Freymark v. Railroad, 111 Mo. App. 208. The same theory was advanced in the instructions granted by the court of its own motion and those granted for defendant. Walker v. Railroad, 193 Mo. 480; Chinn v. Naylor, 182 Mo'. 594. (6) When two street care are running in rapid succession in the same direction on a double track street railway, and' a foot passenger looks for one, sees it, stops, lets it pass, looks in the other direction, and then steps on the track without again looking, and is immediately struck by the second car, it is always a question for the jury whether he used ordinary care, and this is particularly true as to a child of eleven years; and, under the facts developed in this record, showing it to be a regular station of the defendant for receiving and discharging passengers —the platform placed there for this purpose — and known to be such by the motorman. Moore v. Railroad, 95 Mo. App. 737, 194 Mo. 1. (7) Failure to ring the bell may be the proximate cause of the accident, and negligence, per se, under certain conditions. In this case the defendant assumed in its instructions that it was its duty to ring the bell. Foley v. McMahon, 114 Mo. App. 442; Koenig v. Railroad, 173 Mo. 698; Butler v. Railroad, 93 S. W. 877. (8) Whether or not a child of eleven years is guilty of contributory negligence is nearly always a question for the jury. The standard of ordinary care as to a child of eleven years, under such circumstances (submitted to the jury in this case), is necessarily a question for the jury, unless the court has the power in the present condition of this record, and is prepared to say that the accident was unavoidable. This was expressly submitted to the jury by instruction 5', given for defendant, and the jury found the accident was not a “mere accident without fault of anyone” or unavoidable. Butler v. Railroad, 93 S. W. 877; Walker v. Railroad, 193 Mo. 482; Schmitz v. Railroad, 46 Mo. App. 380; Beier v. Railroad, 94 S. W. 876; Mullia v. Railroad, 94 S. W. 288. (9) Unless the evidence of contributory negligence is so clear that there is no reasonable ground for two opinions about it, the court cannot pronounce the injured party’s acts contributory negligence, as a matter of law, but should submit the case to the jury to decide the point, as a matter of fact. Young v. Waters-Pierce Oil Co., 185 Mo. 634; Holloway v. Kansas City, 184 Mo. 19; Erickson v. Railroad, 171 Mo. 647; Walker v. Railroad, 193 Mo. 482. (10') This ease should be reversed, and, since the defendant has had its day in court, the verdict of the special jury should be reinstated and judgment entered thereon. Scullin v. Railroad, 184 Mo. 695; Heintz v. Railroad, 92 S. W. 353; Herdler v. 8. & R. Co., 136 Mo. 3; Schmidt v. Railroad, 163 Mo. 645.

      Jefferson Chandler and T. M. Pierce for respondent.
    (1) The court did not err in holding that the case should not have been submitted to the jury at the close of the plaintiff’s evidence. The physical facts and the testimony clearly showed that the plaintiff was the author of his own misfortune and that his injuries were directly caused by his own negligence in stepping in such close proximity to the defendant’s car that it could not be stopped in time to have avoided striking him. Ries v. Railroad, 179 Mo. 1; Guyer v. Railroad, 174 Mo. 344; Schmidt v. Railroad, 192 Mo. -215. (2.) It has ever been the rule in this State that there can be no recovery where the party injured gets upon a railway track at a public crossing or elsewhere without looking or listening for an approaching car, whether the defendant’s negligence also contributed directly to produce her injury or not. Kelly v. Railroad, 75 Mo. 140; Maher v. Railroad, 64 Mo. 267; Harlan v. Railroad, 64 Mo. 480; Zimmermann v. Railroad, 71 Mo. 476; Hanselman v. Railroad, 88 Mo. App. 123 ; Skip-ton v. Railroad, 82 Mo. App. 143; Molyneux v. Railroad, 81 Mo. App. 25. Likewise, it has been held that children and infants are chargeable with contributory negligence as a matter,of law. Walker v. Railroad, 193 Mo. 453; Holmes v. Railroad, 190 Mo. 98; Graney v. Railroad, 140 Mo. 89 ; Payne v. Railroad, 146 Mo. 585. (3) It is a matter resting in the sound discretion of the trial court to determine as to the granting of a new trial, and all doubts as to the proper exercise of the discretion are resolved in favor of the action of such courts. Ins. Co. v. Curran, 45 Mo. 142; Baughman v. Fulton, 139 Mo. 557; Bank v. Armstrong, 92 Mo. 282. Even if the error pointed out in this instruction, taking all the instructions together, may not have been sufficient to reverse a judgment, yet, in support of the action of the trial judge, we must presume that the court, with its better knowledge of the trial, and the effect the error may have had upon the result, acted correctly. Bunyan v. Railroad, 127 Mo. 12. (4) The court erroneously instructed the jury. The trial court was manifestly correct in recognizing his mistake in having given instruction 1 for four reasons: First. Because it assumed as a matter of law that the motorman was negligent if he did not sound his bell or gong so as to give timely warning of the approach of the car. Koenig v. Railroad, 173 Mo. 725; Schmidt v. Railroad,-163 Mo. 645. Second. Because the instruction would warrant the jury in finding that the plaintiff was guilty of no negligence if he stepped in front of a moving car without looking or listening. Third. This instruction would also have warranted the jury in finding that the' defendant was liable if it failed to sound a bell or gong as a warning to the plaintiff, whether such failure to sound a bell or gong was the immediate and proximate cause of the accident or not. Karle v. Railroad, 55 Mo. 477; Murray v. Railroad, 101 Mo. 236; Green v.. Railroad, 192 Mo. 143. Fourth. There is no statement in

      the petition that plaintiff by virtue of his minority was lacking in understanding of the danger of the situation, which he experienced, as stated in the record. There was no issue made in the pleadings of the want of capacity of plaintiff, and, hence, there was nothing to submit to the jury in respect of that matter. 1 Thomp., Neg\, sec. 384. (5) The error of the court in submitting the instruction herein criticised was not cured by any instruction of the defendant. The doctrine of aider does not apply. Clancy v. Railroad, 192 Mo. 652; Stewart v. Anders, 110 Mo. App. 243; Hamilton v. Railroad, 89 S. W. 894. (6) The petition of plaintiff fails to state a cause of action. It is not alleged in the petition that the conduct of defendant caused the injury complained of. Beach, Cont. Neg., sec. 7; Allen v. Railroad, 183 Mo. 411.
   LAMM, J.

George Deschner, a minor, through his mother, as next friend, sued defendant, a street railway company, for damages' — counting on negligence. A special jury awarded him $5,000 and judgment went accordingly. Thereat defendant filed a motion for a new trial, which being sustained, defendant was eased of the judgment. Thereat plaintiff appealed from said order and seeks to retain his verdict.

The grounds upon which the court sustained the motion for a new trial are two, viz.: First, “that the court erred in refusing a peremptory instruction at the close of plaintiff’s case;” and, second, “in the first instruction given,” — the referred to “first instruction” is one given on the court’s own motion and will be set forth further along.

The case on the facts, in a nutshell, is this:

Manchester avenue runs east-and-west in St. Louis and is one hundred feet wide. Tamm avenue comes from the north, at an angle, into Manchester, and is forty feet wide. At the northeast corner of Tamm and Manchester avenues is a mail box from which postal clerks on postal cars, run by defendant, take up mail. Along the north side of Manchester avenue axe houses and a sidewalk, on the south side none, but defendant’s double tracks are there laid, the south track for east-bound cars, and the north for west-bound cars. South of Manchester avenue is a strip of ground devoted to tracks of the Missouri Pacific railroad — a high fence separating this strip from Manchester avenue. S'aid grounds of the Missouri Pacific Railroad Company are bounded on the south by another fence, and south thereof and southeast of the mouth of Tamm avenue, in a back lot, plaintiff' lived with his mother. About south of the mouth of Tamm avenue, and over the fence bounding the Missouri Pacific grounds on the south, is a stile to accommodate foot-travelers intending to go north and reach Manchester and Tamm avenues, or board defendant’s cars.' These same northbound travelers, before reaching Manchester avenue, cross another stile, north of the former one and over the fence between Manchester avenue and the Missouri Pacific grounds. One descending this last stile, on the north side of the fence, faces west. Fifteen feet west of this stile is a platform for the accommodation of the traveling public in getting on and off defendant’s cars, which platform is raised above defendant’s track, say, a foot and a half. Connecting this platform with the stile last aforesaid are three planks laid lengthwise for a walk. The south rail of defendant’s east-bound (or south) track is five feet from said fence. Said rail is very close to the platform, and is a little farther from the said walk connecting platform and stile. On defendant’s said tracks, red passenger cars and white mail cars run.

An understanding of the locus is aided by the following diagram:

On February 18, 1901, George Deschner was about eleven years and a half old. From the evidence here, he seems to have been a sturdy and self-reliant little fellow, experienced for one of his age and familiar with the environment and the passage of cars there, having lived with his mother about 250 feet from the place of the accident for ten years, attending school in the third grade and, after school, busying himself in delivering milk to customers on Tamm avenue to aid in keeping the wolf from his mother’s door. He had been at this for, say, four or five years.

After school was out, about four o’clock in the afternoon of said date, he took a two-gallon can, as usual, containing on that day a gallon and two pints of milk, and started from his mother’s barn (shown on the diagram), crossing the south stile, the Missouri Pacific tracks and the north stile, as usual, into Manchester avenue and stopping on the walk connecting the north stile with said platform. It should be said that to the west of where he then stood and along the fence was a line (and maybe two) of telephone poles, 100 feet from pole to pole. The grade of defendant’s tracks to the west is a one per cent up grade. At this immediate time there was a red passenger car running very fast down this grade from the west to the east and approaching George. This car was in plain view from Dale avenue, a block west. It “cut in” on the track shortly west of Dale avenue ahead of a mail car also bound east, and at or about the crossing of Dale avenue and possibly a ways- east of Dale, there was testimony indicating the two cars were right close together.

We infer that the lad saw the passenger car, possibly when he was descending the steps of the stile. If not, he saw it when he reached the walk and it was then 160 feet away. But he was so situated with reference to this red passenger car that it hid the white mail car from his view — at least, he saw only the one. He put down Ms can of milk and planted Mmself, lie says, on the middle plank of this walk to let that ear go by. When it went by, intent on his mission, he looked to the east to see if a car was approaching him (“come out,” as he expressed it) on the north track, but he looked no more to the west. The south track being clear, as he supposed, and finding no car passing on the north track he picked up his can of milk and took three or four steps, he estimates, and then was in defendant’s south track, where, in passing over, he was run down by said white mail car, which he had not seen or heard and which was, as said, following the red one to the east, was rolled, smashed and shoved under this car for twenty-five or thirty feet and when taken out was unconscious, with bones broken and other serious injuries.

As no question is made over the extent of his injuries, the details may be spared. His excuse for not looking to the west was that he did not expect one car to be so quickly following another on the same track, and he thought if there was no car coming out of the east on the north track, it would do to cross. ' There was a conductor, motorman and a postal clerk on this mail car, the postal clerk and the conductor being inside, and, as we understand it, the way to get in and out was by means of a side door. Whether there were windows in the car’s ends does not appear.

It will not be necessary to swell the opinion with the details of the testimony. Suffice it to say plaintiff introduced testimony from eye-witnesses tending to show the motorman was not looking ahead, but was looking to the north or northeast towards the mail box as he approached said platform; that the car gave indications of a stop; that the postal clerk jumped out of the side door of the going ear, west of the platform, and ran to the northeast towards the mail box, some of the evidence indicating he got very close to it, and there was testimony also that about this time the motorman appeared to be looking at the postal clerk running to the box.

Plaintiff introduced other testimony tending to show the postal clerk, or some else, hallooed that some one was under the car; that at this halloo the car stopped, the motorman got'off and the postal clerk ran back and he and the motorman found plaintiff under the car. And plaintiff produced other testimony tending to show no gong was sounded at any time immediately before he was struck, though it was in proof on plaintiff’s side that a gong had been sounded back at the Dale avenue crossing as a signal for the passenger car to clear the way. It stands substantially conceded that neither the conductor nor the postal clerk saw the boy before he was seen under the car.

The evidence of the conductor and the motorman, testifying on behalf of defendant, tended to show the gong was sounded constantly as it approached and ran by the platform. The testimony of the postal clerk was to the effect that he did not remember to have heard a gong. The testimony of all three was to the effect that they did not intend to stop the car there for mail on that trip, and that while the postal clerk did get out of the car, yet he did not do so until the car was stopped by the motorman, that he did not go to the mail box, but got out because of the sudden stop and then the motorman informed him he had ‘ ‘ run over a kid. ’ ’ The motorman testified the boy was standing on the platform and not on the walk, that he had his eye on him for 100 feet, and that when he got.within three .or four feet of him the boy, who had been facing north, threw his head over his shoulder to the east and went on the track immediately in front of the ear. Whereat, the • motorman says, he stopped his car (then running at seven or eight miles an hour) as soon as his instant and full use of all the appliances at hand would permit.

There is a conflict in the testimony as to the distance the red car was from the white one at the time plaintiff stepped on the track and was struck. The motorman testified he was a block behind the red car “all the way,” meaning, we suppose, from Dale avenue down to the platform. The testimony of plaintiff’s eye-witnesses did not make the distance so great. One of the plaintiff’s witnesses testified the cars were ten, twelve or fifteen feet apart at a point 250 feet west of Tamm avenue or the platform; but he said that when the white car reached Tamm avenue the red car had nearly got to Knox avenue, a “long block” away. Another of plaintiff’s witnesses testified the red car was one-half block distant from the white one, but we cannot tell from the printed abstract at what point his observation was made.

None of plaintiff’s eye-witnesses saw him get on the track or saw him hit. So, too, the case is barren of any evidence indicating it was possible to stop the car after George was in actual peril. Moreover, there was no evidence the mail car was running on any schedule time and there is not a particle tending to show it was usual for one car to follow another so quickly at that point.- Nor was there any evidence showing the number of people who frequented the platform and walk and who got on and off cars there, or whose presence might be expected with reasonable certainty. Nor was there any evidence of any ordinance regulation relating to sounding a gong at any designated place or under any designated circumstances — for instance, at the intersection of streets. There is, however, evidence abstracted falling from the lips of the motorman and tending to show that he always sounded his gong when approaching a “street” and that he considered the point of the accident filled that bill and sounded his gong there at that time in accordance with custom. The motorman testified he held the strap to the gong in Ms hand at the time, and says he knew what nse the platform and stile were pnt to, i. e., that passengers got on and off there. The significance of all this crops out in connection with instruction numbered 1, given by the court, and then stamped as erroneous on the motion for a new trial.

So much for the facts.

The case was tried on paper issues that may be summarized as follows: the petition, among other averments of negligence, counted on the negligent violation of an ordinance known as the Vigilant Watch ordinance, the material portion of which is as follows: “The conductor, motorman, gripman, driver or any other person in charge of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible.” The petition further proceeds on the theory that Tamm avenue “intersects” Manchester avenue at the point in question; and after setting forth the Vigilant Watch ordinance and alleging a negligent violation of the same in its requirement of a vigilant watch, as well as its requirement of stopping, it proceeds as follows: “And the said motorneer negligently failed to ring the gong or bell, or give the plaintiff any warning of his approach, and the said motorneer negligently failed to keep his car under control when approaching the intersection of a public crossing greatly frequented by foot passengers, and he negligently failed to observe the provisions of the ordinance heretofore mentioned, all of which directly contributed to cause the injuries hereinafter complained of. ’ ’

The answer was a general denial, and also pleaded new matter, in substance and effect constituting a plea of contributory negligence.

The reply was a general denial.

I. On this record did the court err in setting aside the verdict on the first ground, to-wit, that plaintiff had no case and the demurrer should have been given? We think so.. And this, because:

1. The issue of contributory negligence, under the foregoing facts, was for the jury and was not a question of law to be determined by the court. It may be conceded for the purpose of this case that an adult person, acting as plaintiff did, to-wit,. failing to again look to the west to see if another car was following the passenger car on the south track, would have been guilty of negligence deemed in law the proximate cause of his resulting injuries — though this concession is only made for the purposes of this case, since much may be said, and possibly soundly said, on the other side. See remarks of Bland, P. J., arguendo, in Moore v. Railroad, 95 Mo. App. l. c. 736-7.

2. But George Deschner was not an adult. He was a capable boy of more experience with tracks and cars and in taking care of himself than the average boy of his age, but nevertheless he was a child in judgment, in prudence, in forethought, as well as in years, and must be dealt with as such.

It ha» been held that a railroad track itself is a sign of danger. It has been held that the danger of going upon such track without looking at all is one so apparent as to be within the easy comprehension of a child of the age of plaintiff. A boy, raised in a city and living for years in proximity to steam and street railway tracks, knows as well that a car will Mil him or maim him if it strikes him as he does that he will get burned if he pokes his hand in the fire. So that, the law does not excuse a boy of his age in not using his eyes in so simple a matter as looMng for the approach of a car when he is about to enter upon a track laid for cars and on which they, to his knowledge, run with more or less frequency. [Payne v. Railroad, 136 Mo. 562; Graney v. Railroad, 140 Mo. 89; Graney v. Railroad, 157 Mo. 666; Walker v. Railroad, 193 Mo. l. c. 480, et seq.; Spillane v. Railroad, 135 Mo. l. c. 424, et seq.; Holmes v. Railroad, 190 Mo. 98.]

But no two cases are as like as two peas. What is contributory negligence as a matter of law'in one case, where the problem is simple, may be less as a matter of law in another, where the problem is more confusing and complex. This boy did look. He looked for a car coming out of the west, and saw one. He looked for one coming out .of the east, but saw none. He covered both tracks with his eye. Not only so, but he waited until the. east-bound car passed. The question in this case is not whether as a matter of law he would have been guilty of contributory negligence if he had not looked once, but the question is whether this child as a matter of law should be held guilty of contributory negligence for not looking twice. This is a much more complex proposition than not looking at all; for whether a boy would look twice would depend upon the frequency with which cars, to his knowledge, followed each other upon the same track — the one closely behind the other. It would depend, too, on the boy’s quickness of thought* his mental grasp, his coolness and precision of judgment, and, more than all, on that absence of impulsive and bounding thoughtlessness and lack of disposition to be worried by cares and responsibilities, which, say what we will, is one of the charms of buoyant youth— the loss of which makes a child prematurely and sadly old.

As an abstract proposition, the need and likelihood of cars following each other so closely might not appeal to a small boy. Longer experience with and closer observation of the facts might teach such boy there is often a congestion of cars, that they are frequently off schedule time, and may naturally be expected to run at each other’s heels. But such condition of .things (being ont of tbe ordinary) is confusing even to a man, and it is witbin common observation that it catches such a one on the hip, now and then, unaware. Here there was no proof this boy had seen mail cars follow passenger cars so closely. There was no proof he ever saw two cars of any class follow each other so closely at that point, and, if there had been such proof, we would not be willing' to say as a matter of law that, in taking it for granted the ordinary and usual condition of things would exist at that time, namely, that there would be a pronounced distance between two cars going the same way on the same track, the plaintiff was guilty of negligence. Such conduct may be very well within the conduct of a reasonably prudent boy eleven and a half years old.

The judgment of a boy must not be measured by the same yard-stick with which the law measures the judgment of a man. To make a man out of a boy seems to be the somewhat miraculous work of time and nature, but we consider it beyond the power (and should be beyond the disposition) of the law. So that, if a boy eleven and a half years old acts with the prudence of the ordinarily prudent boy of that age, under like circumstances, it is well enough; and in this case whether plaintiff did so act could be better determined by jurymen who see and hear him than by this court who did neither.

The rule is that, taking a boy as a boy and a man as a man, where there can be, not one view, but two views fairly entertained by reasonable men of a given line of conduct, the issue is for the jury and not for the court. [Holmes v. Railroad, supra; Campbell v. Railroad, 175 Mo. 161; Walker v. Railroad, 193 Mo. l. c. 482, 483; Young v. Waters-Pierce Oil Co., 185 Mo. l. c. 667; Erickson v. Railroad, 171 Mo. l. c. 659, 660.]

The jury were properly instructed on the question of contributory negligence. They found that issue in favor of plaintiff and we see nothing in the record upon which to predicate a disturbance of that finding. Hence, there was error in granting a new trial, unless the lower court may be sustained on other grounds.

II. Assuming, under the finding of the jury, there was no contributory negligence in this case, the next question is, was the jury properly instructed on the negligence, if any, of defendant? Defendant’s main contention on this score is that the court erred in giving instruction numbered 1 and, ergo, did right when it corrected its own error.

In developing this contention, it is argued by defendant that the court erroneously assumed it was negligent not to sound a bell so as to give timely warning of the approach of the car. Defendant contends the fact of negligence should have been submitted to the jury and not assumed by the court.

Instruction numbered 1 reads thus:

“If you find from the evidence that the plaintiff used ordinary care (that is, such care as an ordinary careful boy of his age and intelligence would use under similar circumstances), in stepping upon the track in front of the mail car without first looking west to see if a car was coming, and if you further find from the evidence that the motomeer did not sound his bell or gong so as to give timely warning of his approach, and that if he had done so the boy would have been warned in time to have kept out of danger, then plaintiff is entitled to a.verdict.”

(a) It will be seen at a glance that the instruction assumes it was the duty of the motorman under the circumstances of this case to sound the gong at the point in hand, and if he did not do so it was negligence. Did the court do right in that assumption under the peculiar facts here?

It will be better in considering this contention to go back a little. It seems, after plaintiff introduced the Vigilant Watch ordinance, the effect of that ordinance was entirely instructed away and taken out of the case. Now, in so far as the Vigilant Watch ordinance provided that “on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible, ’ ’ the court did exactly right, since there was no evidence that this car was not stopped in the shortest time and space possible, and, hence, plaintiff could not recover on that theory.

But that was not all there was of heart and substance in the Vigilant Watch ordinance. That ordinance provided that “the conductor, motorman, grip-man, driver or any other person in charge of each car shall keep: a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving, towards it” — the other provision, relating to stopping on the first appearance of danger, is an added duty. While the whole of this ordinance has been sustained on the theory that it is enacted under the police power of a city, yet in substance and logical effect both duties, the duty of a vigilant watch, especially for children, and the duty to stop as soon as possible on the appearance of danger, may be well sustained as simply declarative of the common law.

To hold that a motorman, driving a killing machine on iron rails in the people’s highway, should keep a vigilant watch for everyone moving towards the track, especially children, is as much as (and no more than) to say that humanity and common sense dictate such course; and to hold such to be a duty, even in the absence of an ordinance, would not strain, let alone break, the common law applicable to crowded cities and the use of a highway, common not only to street railways under their easement but, primarily, to all travelers. Indeed, if an elder equity is held to be a better equity, why may not an elder, a primary and a necessary use (a use that is the prime condition precedent— the raison d’ etre — to any street) be held to be somewhat superior to a subsequent one created by. easement and carved out of the common people’s common inheritance, to-wit, their right to safely come and go on a public thoroughfare? Showing the pre-existing, dominant idea of public use, it has been held that a city council has no authority to establish a street for the use of a business corporation or an individual, but that the right to establish a street is traced back to the need of the public at large. [In re Twenty-first Street (Kansas City v. Hyde), 196 Mo. 498; see, also, Scullin v. Railroad, 184 Mo. l. c. 704, et seq. and cases cited.]

We think the court erred in not submitting to the jury a rule of law embodying the duty of the defendant to keep vigilant watch, especially for children approaching a track, as plaintiff prayed it to do.

But the foregoing determination is not decisive. The question still remains, was the instruction, as given, a correct one? Let us see. On plaintiff’s theory the motorman neither saw the child nor rang the gong; on defendant’s theory the motorman did both. . On plaintiff’s theory it was the duty of the motorman to see the child and to ring the gong; and on defendant’s theory, below, as shown by its course at the trial, it was the duty of the motorman to do both. Why then waste time with a discussion on the existence of a duty, assumed to be a duty by both litigants and assumed to be a duty by the court, and by defendant in its instructions? It is true the evidence does not show the extent of the presence of people at and about this platform, but yet people had the right to be there. Not only so, but they were invited there by defendant itself. That it owed a duty to look out for them and, by warning, protect them from danger, is too plain for argument. So that, whether that duty arose as a general duty on account of its being a street, or on account of its being an intersection of two streets, or on account of its being a place provided by defendant for travelers to congregate and to get on and off its cars, or whether it arose in this specific instance because of the known presence of this boy with a can of milk, evidently bent on a mission to cross and temporarily arrested in that mission by the passage of the first car, is of small moment.

If defendant was causing the gong to be sounded as it approached and passed the platform, it escapes liability under the fact here. So the court instructed the jury. If, however, the gong was not sounded, as some .of the evidence indicates, and if there was an appreciable time and distance in which it might have been sounded by the use of ordinary care after the lad resumed his journey or showed an indication of doing so by picking up his can of milk, and before he got into peril, then the defendant may be liable if its failure to sound the gong was the proximate cause of the injury. The case proceeds upon the theory on both sides that a very few steps and a very short time took the boy into peril. On this account, while the matter becomes close and narrow, yet we think the evidence on all hands shows the boy out of danger at one time and shows that it took an appreciable time for him to get into danger after his stop, and, therefore, during that appreciable time, in which by his movements in picking up the can and directing his steps towards the track he showed he was about to cross, he was entitled, as a matter of law, to a warning that this car proposed to occupy the very spot he was entering upon. It is true the car could not stop, but inability to stop does not measure the full duty of defendant in such case. The car was equipped with a bell, the strap to that bell under this evidence was in the motorman’s hand, and in case of a car going as this one was, twice as fast as a man could walk, there was time enough and space enough while the boy picked up his can and took those steps to have warned him, and, therefore, there was negligence in not warning him.

Not only so, but as the instructions on both sides proceed on the theory that it was the duty of the motorman to see the boy and warn him, and the case was • tried on that theory below, the contention now under consideration is controlled by the wise and stiff rule of appellate practice that a case should be heard here upon the same theory it was heard below. [Walker v. Railroad, 193 Mo. l. c. 483, et seq.]

Where the facts are undisputed, an issue may be dealt with as a question of law. A court, in a given instance, may say certain acts constitute negligence. In another instance, it may say certain acts constitute contributory negligence. In yet another instance, it may say that given acts constitute neither negligence nor contributory negligence. Now, in this case, the question of warning was a disputed fact, and, therefore, the court submitted that issue of fact to the jury by instruction numbered 1. But the evidence is substantially one way that there was time and space in which to warn this boy by a gong after he started to this track and, as said, we are not willing to say the court might not assume it is negligence not to do so.

Accordingly, we hold in this case that the instruction under review, which assumes it was the defendant’s duty to warn the boy and assumes it had time and space to perform that duty by the use of the gong, was not a vicious instruction. The learned trial judge had a first impression of his right to make those assumptions, and that first impression was the best, as first impressions not infrequently are.

(b) Defendant’s learned counsel assail instruction numbered 1 from another side. They argue the instruction is erroneous in not submitting to the jury the issue of the proximate cause of the injury. Is there substance in this argument?

The mere proof of negligence is not sufficient to support a verdict. It is one step, but there is another, to-wit, the causal connection between the negligence and the injury. [Harper v. Terminal Co., 187 Mo. 586.] The triers of fact must find the pleaded negligence was the proximate cause of the injury before a recovery will lie, and, of course, that issue should be put to them. Now, that issue was hinted at in the instruction under review, but was not plainly put to the jury. The jury were simply told by that instruction: “and that if he had done so” (i. e., if the motorman had sounded the gong so as to give timely warning of his approach) “the boy would have been warned in time to have kept out of danger, then,” etc. But what the jury saw in the court’s instruction through a glass darkly, they saw face to face when the whole body of the law was declared to them by the reading of defendant’s instruction numbered 4, which runs as follows:

“Before the plaintiff can have a verdict in this case, the law requires him to prove to your satisfaction, by a preponderance or greater weight of evidence, negligence (of the kind submitted to you) on the part of defendant, and also that such negligence (if any is proved) was a proximate cause of the accident and hurt received by plaintiff; and if the plaintiff has not so proved negligence of the kind submitted to you, on the part of defendant, or its motorman in charge of the mail car, and that such negligence was a proximate cause of the accident, then your verdict must be for the defendant.”

In the light of this instruction of defendant, all darkness in the court’s instruction numbered 1 faded away, even as the morning sun dispels the fog. The issue of proximate cause was flatly put to the jury and under the doctrine of aider, the point in hand is also rtded against defendant. [Lee v. Railroad, 195 Mo. l. c. 426, et seg.]

III. But, defendant’s learned counsel say, if there was error in granting a new trial on the two assigned grounds, there are other substantial reasons for granting a new trial; and if the court did right but gave a wrong reason, still its ruling should stand. This is so. [Emmons v. Quade, 176 Mo. l. c. 28-9; Mockowik v. Railroad, 196 Mo. 550.]

One of these unassigned reasons, deemed by defendant’s counsel sufficient, is that the petition did' not state a cause of action. The argument hinges on the fact that the petition alleged several pretermitted duties and averred several acts of negligence and follows these allegations with this averment: “All of which directly contributed to cause the injuries hereinafter complained of.” Defendant’s counsel argue that by that allegation plaintiff should be held to have pleaded his own contributory negligence and thus stated himself out of court. That is, if defendant’s complained-of acts merely contributed” to cause the injuries, then the petition (ex vi termini) proceeds upon the assumption that acts of plaintiff caused the injury with defendant’s acts merely contributing thereto. Which theory is ingenious and happy as a fanciful conceit and does credit to the acumen and versatility of learned counsel. But, however much the judicial mind may be diverted, it is not convinced thereby. It might be if defendants, in cases of personal injuries, by a long and exclusive use of the words “contributed,” contributing, ’ ’ and contributory, ’ ’ in connection with negligence, would be held to have filed a caveat, as it were, or taken out a copyright on that use, that then a plaintiff would be precluded from safely using the same for any purpose, and the argument would have force. Indeed, contributory negligence may well have come to be looked on as a valuable asset of all defendants in such pickle. But, reading the allegation with its context, it is plain that plaintiff was entitled to use the word ‘ ‘ contributed ’ ’ without thereby implying his own negligence. The allegation means that the pleaded acts of negligence contributed with one another to form an aggregation — that is, like rills flowing into a common reservoir of negligence — which accumulation of negligences caused plaintiff’s injuries; and the allegation was, therefore, well enough.

Other reasons for sustaining the lower court are suggested and have been examined, but we deem them without persuasive merit.

Our conclusion is that the court erred in its order granting a new trial. That order is, therefore, reversed and the cause is remanded with directions to set aside the order granting a new .trial and reinstate the verdict and the judgment of plaintiff as of the date originally entered, so the judgment may bear interest from that date — the latter to avoid the trouble referred to in Scullin v. Railroad, 192 Mo. 1.

All concur.


text:
    JAMES L. PATTERSON, Appellant, v. N. B. PATTERSON.
    Division One,
    December 22, 1906.
    1. FINDING OF FACTS: Copied in Decree or Judgment. The statute does not contemplate that a written finding of facts is to he copied into the decree or judgment, and incorporating it therein adds nothing to it beyond what such a course gave it according to ancient chancery practice.
    2. - Appeal: No Bill of Exceptions. Where the evidence was not preserved in a bill of exceptions, an appellant cannot ask the appellate court to reverse the judgment in an equity case on' the ground that upon the finding of facts, which was incorporated in the judgment, the judgment should have been for him. The appellate court is not bound by the chancellor’s finding of facts, and unless all the evidence is set out in the bill, the case will be disposed of upon the record proper, which does not include the finding of facts.

      3. -: -: -: Agreed Statement. Whatever expressions may be found in former decisions that may be interpreted to mean that a finding of facts in an equity case, whether incorporated in the judgment or not, is binding on the appellate court and is to be taken as an agreed statement, were not so intended, unless such finding was in fact agreed upon and as • such was incorporated in the record as a part thereof.

      i. -: No Evidence. In the absence of the evidence in an equity case, the presumption on appeal is' in favor of the correctness of the judgment.
    Appeal from Greene Circuit Court . — Hon. James T. Neville, Judge.
    Affirmed.

      Rechow £ Pufahl for appellant.
    (1) The court erred in rendering judgment for defendant upon' the finding of facts as incorporated in the judgment. Upon the facts as found, the judgment should have been for plaintiff. (2) "When the finding of facts is incorporated in the judgment, then it becomes a part of the judgment, and if the conclusion of law is not warranted by the facts thus found this court will reverse and enter up the proper judgment, or reverse and remand the ease. Blount v. Spratt, 113 Mo. 48; Land Co. v. Bretz, 125 Mo. 422; Fitzpatrick v. "Weber, 168 Mo. 572; Shaffer v. Detie, 191 Mo. 388; Leavitt v. Taylor, 163 Mo. 170; Hill v. Combs, 92 Mo. App. 251.

      G. H. Skinker and Delaney £ Delaney for respondent.
    The finding of facts by the trial court, particularly where such findings are excepted to as in this case, cannot be substituted for the evidence. State ex rel. v. Jarrott, 183 Mo. 204; Fitzpatrick v. "Weber, 168 Mo. 573; Hoeller v. Haffner, 155 Mo. 589; Sevon v. Stevens, 143 Mo. 384; Rumsey Mfg. Co. v. Kaime, 173 Mo. 551; Soderberg v. Pierce, 33 Mo. App. 60; Harris Banking Co. v. Miller, 190 Mo. 640. Therefore as plaintiff has failed to embody the evidence in his bill of excep>tions, there is nothing left for the court to review, and the appeal should be dismissed.
   VALLIANT, J.

This is a suit in equity to compel defendant to re-convey to plaintiff certain land in Polk county, which it is alleged was conveyed by plaintiff to defendant in 1898 under the express agreement that it should be reconveyed to plaintiff on demand after his return from a then contemplated journey to Alaska, that the conveyance from plaintiff to defendant was without other consideration than the agreement to re-convey. The answer of defendant admits the conveyance to him, denies the alleged agreement to re-convey, pleads the Statute of Frauds, and pleads also that the conveyance was made by plaintiff to defraud his creditors.

The trial resulted in a judgment for defendant and the plaintiff appealed.

In the record of the judgment before us we read: “This cause is submitted to the court for hearing and the court proceeds to hear the evidence and being sufficiently advised in the premises, the court finds the issues in favor of the defendant and dismisses plaintiff’s bill upon the following finding of facts on motion of plaintiff heretofore filed for the finding of facts in this cause which finding is in the following words, to-wit: ’ ’ then follows what seems to be a review of the evidence covering not only the particular transaction specified in the pleadings, but also other business transactions between the plaintiff and defendant, who are brothers, and business transactions between plaintiff and other members of his family, and the court’s conclusions from the evidence.

The pith of those conclusions is as follows:

In 1897 the plaintiff and defendant owned the land in question in the proportion of three-fifths to the plaintiff and two-fifths to defendant; they were also engaged in a mercantile business as partners on or near the premises.' At that time the plaintiff was living in the State of California; the defendant was living in Polk county, Missouri, in sole possession of the land and alone managing the mercantile business. In October, 1897, the defendant, at the instance of the plaintiff, prepared a deed to be executed by plaintiff conveying to defendant the plaintiff’s three-fifths interest in the land and also a bill of sale of plaintiff’s interest in the mercantile business and sent the same to plaintiff in California to be executed. This deed and bill of sale were executed by the plaintiff (that is, signed and acknowledged) but not returned to defendant or delivered, but were carried by plaintiff to Alaska and retained by him there until June, 1901, when he sent them to defendant by mail, with direction to place them on record, which was done. The chancellor drew the conclusion from the evidence that those documents were not intended by the parties to convey the title to defendant for his own use, but to be held in trust for the plaintiff and reconveyed to him at his request, and also that the motive was to place the property in a position where it would be subject to the partnership debts of plaintiff and defendant, incurred in their mercantile business, in preference to- certain individual debts which- the plaintiff had incurred; that defendant had all the while until just before the filing of this suit recognized the plaintiff’s right to the property, but that he had incumbered it largely for indebtedness incurred by the partnership or by himself individually, the evidence is not clear as to which.

The plaintiff’s bill of exceptions contains the request of the plaintiff for a finding of the facts and a statement that the facts found are incorporated in the judgment and hence no necessity to repeat them; it contains also a motion for a new trial founded alone on the proposition that on the facts found the judgment should have been for the plaintiff. There is no evidence contained in the bill of exceptions.

The only assignment of error is that on the findings the judgment should have been for the plaintiff.

Respondent asserts that the evidence in the case did not justify the findings, and that as it is an equity case the findings are not binding on this court, and that this court should not reverse a judgment in respondent’s favor without forming its own opinion of the facts founded on the evidence.

This is a case in which it is important not only to how on which side is the preponderance of the evidence, but also to know the character of the evidence. The plaintiff pleads a case of express trust which can be proven only by written evidence signed by the party sought to be charged. What the character of the evidence adduced was we do not know. In the petition it is said: “That said agreements and understanding was evidenced by correspondence between the plaintiff and defendant. ’ ’ By this we understand, since the parties lived in different States, that the business was transacted by letter correspondence by mail. The court in its findings alludes to letters that passed between the parties, concerning which the court says: “The court finds that the most material letters in this case on both sides are missing, and it is very hard to ascertain the true facts, and while these facts (meaning those found) are not in éxact accordance with the testimony of either and are contradictory somewhat of the testimony of both, they are between the lines of the testimony in the case, and I think the true state of facts.”

The first serious question for our consideration is, shall we examine the judgment in this case in the light alone of the so-called findings and reverse it if we should be of the opinion that the facts so found do not justify it?

• It is in accordance with the ancient practice in equity courts for the court to make special findings of the facts in issue and recite the same in its decree and this is still frequent and good practice under our code of civil procedure, although special findings are not, under our code, even in equity cases, absolutely required. Section 695, Revised Statutes 18991, which makes it the duty of the court on the timely request of either party to state in writing its “conclusions of fact found separately from the conclusions of law,” does not alter or affect in any manner the ancient practice above mentioned of expressing in the .decree the facts found. It is not contemplated by that section that “the conclusions of fact” there called for shall be incorporated in the judgment or decree. The statute says they shall be stated in writing, but that does not mean embodied in the judgment. The findings called for by that statute get all their legal force, whatever that may be, when the requirement prescribed by the statute is complied with, that is, when the court states the conclusions in writing separate from the conclusions of law; incorporating them in the judgment or decree adds nothing to them as products of the statute. And on the other hand the-findings of the facts by the chancellor, not as in obedience to the ■ statute, but as in conformity to the ancient chancery practice, and incorporating the facts so found in the decree, gives them a character for which they are in no sense indebted to the statute.

The statute is satisfied and its purpose is fully accomplished when the court reduces to writing the facts it finds and causes the paper to be filed; the copying of them in the decree is not called for by the statute, and it adds nothing to them as a statutory requirement, but whatever force, if any, the findings of facts may have by being recited in the decree they have by force of the original chancery practice independent of the statute.

In the case before ns the clerk has taken the useless labor to copy in the decree the court’s review of the evidence and conclusions thereupon, from which it appears that the court finds in the main the issues for the plaintiff and renders judgment for the defendant. Now the plaintiff asks this court to reverse the judgment because under the facts found the judgment was for the wrong party. This court has authority not only to reverse a judgment of the circuit court which it deems to be erroneous, but in a proper case to enter here the judgment that the trial court should have entered. [Sec. 866, R. S. 1899.] Therefore, if we should now say that the judgment before ns must be reversed because it is erroneous on the facts found, it would be our duty to enter here the judgment that the trial court ought to have entered in conformity to those facts, and respondent would be shut out forever, although if we had the evidence on which the chancellor based his findings, we might find the facts contrary to his findings, and affirm the judgment as being for the right party. If that practice were adopted it would give the appellant in a case like this a great advantage and would destroy the authority of the appellate court to review the findings of facts in an equity case. Rule 7 of this court requires the appellant in an equity case to embody all the evidence in his bill of exceptions. Suppose the appellant in this case had complied with that rule and had brought up all the evidence; is there any doubt but that we would have examined the evidence to see if it justified the findings of the chancellor? Then is it possible that appellant by disregarding the rule can obtain such a great advantage as he now claims?

The circumstances of this case illustrate the wisdom of our rule. The plaintiff seeks to have the defendant declared a trustee of an express trust; he says the land was conveyed to the defendant with the positive agreement that it was to be re-conveyed to him on his return and demand; the defendant denies the alleged agreement and invoked the Statute of Frauds. Such an agreement could be proven only by evidence in writing signed by the defendant. We gather from the general discussion of the evidence in the court’s finding that there were letters in evidence that passed between the parties and also some oral testimony, all of which may have been incompetent and received over the defendant’s objections, but in the condition of the record before iis we cannot judge of that phase of the ease.

Among the recitals in the decree as of the findings of facts is this: “The court finds that the most material letters in this case on both sides are missing’, and it is very hard to ascertain the true facts, and whilst these facts (by which we understand the court to mean the main fact found) are not in accordance with the testimony of either and are contradictory somewhat of the testimony of both, they are between the lines of the testimony in this case, and I think the true state of facts.” It is on that kind of finding that the plaintiff asks us to reverse this judgment.

It is suggested that if defendant was dissatisfied with the findings of facts he could have excepted and filed his bill of exceptions embodying therein the evidence. That suggestion would impose on the defendant in whose favor the judgment was rendered the burden that the law imposes on the plaintiff who is the appellant. But the defendant could not bring the evidence here, even if he were willing to bear the burden, because the judgment was wholly in his favor and he cannot appeal from it. If he had filed a bill of exceptions it would have lain in the circuit court and could never have heen brought to us. A party can bring up his bill of exceptions only when he takes an appeal or sues out a writ of error. It sometimes happens that a judgment or decree is partly in favor of one and partly in favor of the other, in which event there may be cross appeals, both may appeal, each party complaining of the judgment in so far as it was against him, but when the judgment is altogether in his favor he cannot appeal.

Our rule 7 contemplates a case in which this court is asked to review the proceedings that occurred during the trial in an equity case. A party in an equity case may if he sees fit appeal from the judgment or decree without a bill of exceptions, he may stand on the record proper, but in that event he can only assail the judgment on the ground that it is not supported by the pleadings, he cannot ask a reversal of the judgment on the ground that it is not justified by the findings of facts. Rule 7 prescribes what shall be embodied in the bill of exceptions, it does not affect a case that is brought here on appeal based alone on the record proper. But in the case now in hand the appellant does not claim that on.the face of the pleadings the judgment is erroneous; his claim is that on the findings-of facts it is erroneous, and he contends that for the purposes of this appeal we are to take those findings as incontestably true. The plaintiff is wrong in that contention. Whilst there are expressions in the opinions in some eases heretofore decided by this court that seem to say that the findings of facts by the court are to be treated as an agreed statement or a special verdict, yet when it was a material question in the case we have never held otherwise than that in an equity case we are not bound by the chancellor’s findings of facts, but that it was our duty to examine the evidence and find the facts for ourselves. Whatever expressions there may be, therefore, in former decisions that may be interpreted to mean that the findings of facts in an equity case were binding on us were never so intended.

Blount v. Spratt, 113 Mo. 48, was an equity case and came to this court with only the pleadings, the finding of the facts and the judgment. In the course of the opinion it was said: “The findings stand as a special verdict or an agreed case; and, unless the conclusions of law, upon the facts found, were correctly pronounced, the judgment must be reversed. [Rannells v. Isgrigg, 99 Mo. 28; Munford v. Wilson, 15- Mo. 540; Gage v. Gates, 62 Mo. 414; Sutter v. Streit, 21 Mo. 159.]” It was not necessary to the decision in that case that'the court should decide what effect should be given to the findings of facts and what was there said was doubtless called out by the argument of counsel for respondent who was insisting that his motion to dismiss the appeal should be sustained because the bill of exceptions did not contain the evidence. But the material fact on which the decision in that case turned was found in the plaintiff’s favor and the judgment was in his favor and the defendant who was the appellant was insisting that on that fact, without disputing it, without questioning its correctness the judgment was wrong. If the essential fact on which the plaintiff relied was found in' his favor and the defendant saw fit to bring the case here on the fact as found in favor of his adversary, without challenging its correctness, how could the plaintiff object? What force would there be in the plaintiff’s objection'that the defendant had failed to bring up the evidence? Besides, the result must have been the same even if the defendant had brought the case here' on the pleadings and. judgment alone without the facts found by the court. The plaintiff in that case had brought suit to set aside-a deed of trust on the ground that she was insane at the time she executed the deed. The petition stated that in April, 1888, the plaintiff, then a married woman and owning the land, joined her husband in executing the deed; that she was then incapable of making a deed because she was insane, and that afterwards in December, 1888, she was declared insane by proceedings in the probate court and a guardian was then appointed for her. That was the sole ground on which she asked to have the deed cancelled and the trial court found that that was the fact and declared the law to be that she “was on account thereof incapable and incompetent to make a contract or deed.” The defendant appealed from that judgment, taking the position before this court that that fact, admitting it to be true, did not entitle the plaintiff to a cancellation of the deed and this court sustained the defendant in that position and reversed the judgment. The cases cited in the opinion in that- case as supporting the proposition that the findings of facts are to be taken as a special verdict? are cases in each of which there was an agreed statement of facts, except one case, and that one was an action at law.

Land Company v. Bretz, 125 Mo. 418, was a suit in equity to compel a specific performance. There was no bill of exceptions in the record. The cause came to this court on writ of error and was presented for judgment on what purported to be the record proper, in which record was contained the finding of facts; the findings were for the plaintiff, but the judgment was for the defendant. The peculiar feature of that case, as it bears on the point now under discussion, is that the finding of facts was by agreement of the parties and whilst it was not what might strictly be called an agreed statement of facts yet it was presented to this court as if the parties had agreed to the facts and agreed that they should be entered on the record of the court, which was done. The point was made in the brief for defendant in error in that ease that findings of fact were not part of tbe record unless made so by a bill of exceptions, but this court treated those findings as having been entered of record by agreement. •Defendant in error did not question the correctness of the findings or complain that the plaintiff in error had not brought up the evidence.

In Leavitt v. Taylor, 163 Mo. 158, at the request of the plaintiff the trial court made a finding of facts, which finding was in favor of defendant, rendered judgment in defendant’s favor, and the plaintiff appealed. The court held that as plaintiff did not except to the finding of the trial court he was concluded by it.

In Fitzpatrick v. Weber, 168 Mo. 562, it was expressly held that in an equity case this court was not bound by the finding of facts by the chancellor. And in Shaffer v. Detie, 191 Mo. l. c. 387, Lamm, J., speaking for the court, said: “However, the point in hand [the finding of the facts by the chancellor] is in no wise decisive or controlling, because this is an equity case, as will presently be seen, and it has been held that section 695, supra, relating to special finding of facts by the trial court and on request, ‘was not intended to have and did not have any effect on the power or duty of this court in equity cases. ’ ’■’ Citing Fitzpatrick v. Weber, supra.

In State ex rel. v. Jarrott, 183 Mo. 204, it was sought to compel a circuit judge by mandamus to sign a bill of exceptions in an equity case which contained none of the evidence, but only the pleadings, the findings and the decree. It was insisted by the relator that he had the right to bring his cause to this court for review on the findings of the chancellor and the judgment, and to have the judgment reversed if it was not right on the facts found.- But this court denied the writ, and, per Gantt, J., said: “The opposite party has obtained rights by this decree. He has a right to have the whole evidence upon which, his decree is based before this court before it is reversed. He may be able from that evidence to show that the circuit court’s findings were erroneous, and the decree right notwithstanding.”

That is the doctrine of this court and although, as we have seen, there are some dicta in some of our former cases, that may seem to sustain the appellant’s contention in this case, yet when those cases are sifted down to the points really decided it will be found that this court has never decided a case contrary to the law as laid down in the Jarrott case just quoted.

Since the appellant has not brought up for our examination the evidence that was adduced at the trial he is not entitled to have the judgment reversed, even if we should be of the opinion that it is' not a correct legal result of the facts found. In the absence of the evidence the presumption is in favor of the correctness of the judgment.

The judgment is affirmed.

All concur.