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    HARRY TROLL, Public Administrator, Appellant, v. MARY O. SPENCER et al., Executors.
    Division One,
    November 29, 1911.
    1. DEMURRER: In Equity Case. A demurrer to the evidence at the close of plaintiff’s case in an equity proceeding is an anomaly, and not good practice. Instructions of any character fill no office in an equity case, and are out of place, and no ‘ error can be predicated upon the giving or refusing of them.
    2. -: -: Sustained: No Exception. If the demurrer to the evidence in an equity case is sustained and the bill dismissed, the case on appeal will be considered on its merits, though no exception to the court’s ruling on the demurrer was saved, if plaintiff filed a motion for a new trial, challenging the judgment as being for the wrong party, inequitable and contrary to the evidence, and saves an exception when that motion is overruled.
    3. RESCISSION: Settlement: Fraud: Misrepresentation: Accounting. Where the executrix of deceased’s will made a full settlement with a brokerage firm for all' claims and demands she had against them and assigned her Interest in the unclosed option deal to them, a rescission of that executed contract of sale, based upon alleged false representations made to her, who was ignorant of the truth and who' relied upon them, cannot be allowed if no witness testifies to any false representation or deception, or to any facts from which either could be inferred; and without a right to rescission there is no right to a further accounting.
    4. -: -: -: -: Deception: Book Accounts: In Pencil and Ink. Whether or not the fact that the books of the brokerage firm were partly in pencil and partly in ink throws a suspicion on the integrity of those books and calls for an explanation, if the executrix saw those books and long before she made a contract of sale of her testator’s interest in the account she, through her attorney, assisted by expert friends, examined them, and with that knowledge executed the contract of settlement and sale, she was not deceived thereby. Knowledge prevents deception. Equity extends her right hand to the deceived and wronged, but she • does not proceed in a revengeful or whimsical mood in ripping up executed contracts.

      5. -: Option Deal: Cards With Numerals: Possession Prima Facie Evidence of Ownership. - The fact that “cards,” bearing numeral captions, and figures, words and signs pointing to option deals through a brokerage firm, issued by a board of trade, and issued in that form to conceal the identity of the dealer from outsiders, were found in the possession of the dealer after his death, does not of itself show prima facie that he owned the whole of the account indicated by the numerals, since such cards, in and of themselves, are colorless and neutral as to the fact of ownership and quantum of interest. At most they only furnish a clew leading up to a discovery of the facts in the books where the account was kept under the respective numerals as a heading, and they must” be interpreted by the books; and if the books rebut several ownership in the dealer, and his testatrix, with full knowledge of the books, obtained by an examination of them by herself, her attorney and expert friends, settled with the broker on the basis that her husband was the owner of only one-third of the account, instead of sole owner of the whole, there is no deception, and no room for a rescission.
    6. -: -: Fiduciary Relation: Settlement.- Even were it true that the relation existing between a broker and his customer is a confidential one, fiduciary in character, and that the broker carries the burden of showing his dealings with his customer were fair, yet the broker discharges that burden when, with full knowledge on the part of the customer of the state of the account, he makes a full settlement with him and enters into a solemn contract importing such settlement.
    7. FRAUD: Proof: Suspicion: Option Deal. Fraud is never conjectured. It is not permitted to rest on mere suspicion. There must be facts from which it may be inferred. Small things may show it, if, when put together in their natural relation, they point indubitably to it. He who asserts it must prove it; and while it may be difficult to prove it, that difficulty does not dispense with the necessity of proof. And in investigating charges of fraud, courts of equity, as do- courts of law, assume men, even though they be brokers and their customers, dealing in options, are honest and act from correct motives, until the contrary is shown. .
    •Appeal from St. Louis Circuit Court. — Eon. Jas. E. Withrow, Judge.
    Affirmed.

      Schnurmacher & Bassieur for appellant.
    (1) A court of equity will at the instance of one party to a contract, set aside such transaction or contract if it was made upon the misrepresentation or fraud actual or constructive of the other. Steinmeyer v. Siebert, 190 Pa. St. 471; Winter v. Bullock, 6 Ga. 230; Morris v. Budlong, 16 Hun, 570. (2) A confidential relationship exists between a broker and his customer, and the broker in settling with his customer should make the fullest disclosure. Slight fraud under such circumstances will justify a court of equity in setting aside the transaction based upon it. Morris v. Budlong, 16 Hun, 570; Phillips v. Beldon, 2 Edwards’s Chancery 1; Steinmeyer v. Siebert, 90 Pa. St. 471. (3) Where the consideration for a release or an assignment given is so inadequate that the conscience of the court is shocked or where the consideration is grossly inadequate and there are some other circumstances which place the party giving up his rights on the inadequate consideration at a disadvantage, then a court of equity will relieve the aggrieved party of such contract and set the same aside. Holmes v. Fresh, 9 Mo. 200; Railroad v. Brown, 43 Mo. 294; Nelson v. Betts, 21 Mo. App. 219; Cannon v. Gilmer, 33 South. 659. (4) Courts of equity have in some cases refused to set aside the contracts or settlement agreements between principal and agent or customer and broker, and allow the agreements to stand, but nevertheless compel the broker or the agent to account for the additional moneys due. Moses v. Noble, 5 South. 181; Phillips v. Beldon, 2 Edwards’s Chancery 1; Farnum v. Bruce, 26 Mass. 212. (5) A demurrer to evidence is not known in equity and cannot be offered or interposed.

      Boyle <& Priest and T. E. Francis for respondents.
    (1) Where, in an equity case, the evidence adduced for the plaintiff does not make out a prima facie case, it is proper for the court to sustain a demurrer to the evidence. Anthony v. Bldg. Co., 188 Mo. 704; Bank v. Simpson, 152 Mo. 638. (2) The action of the trial court in sustaining a demurrer to the evidence and dismissing plaintiff’s bill is not open to review, because no exception, was saved to that ruling. Haniford v. Kansas City, 108 Mo. 172; Harrison v. Bank, 9 Mo. 161; Carter v. O’Neil, 102 Mo. App. 391. This rule aplies to cases of equitable cognizance. Swearingen v. Newman, 4 Mo. 456; Cook v. Davis, 4 Mo. 622. (3) There was no evidence tending to prove that plaintiff’s testate owned any other or greater interest in account No. 35 than that for which the settlement was made, and the charge of fraud was, therefore, unproved and the judgment dismissing the bill was correct, since fraud must be proved, not conjectured, and facts that give rise only to a suspicion of its existence do not establish it. Kilpatrick v. Wiley, 197 Mo. 123; Priest v. Way, 87 Mo. 16; South Missouri Lumber Co. v. Crommer, 202 Mo. 504; Funkhouser v. Lay, 78 Mo. 458; G-aresche v. MacDonald, 103 Mo. 1; Rum,bolds v. Parr, 51 Mo. 592; Webb v. Darby, 94 Mo. 621. (4) The evidence establishes that all the facts that are relied upon in this case to prove that plaintiff’s testate owned all of account No. 35 were known to the executrix at the time the settlement was made. If these facts are sufficient now to warrant an inference that misrepresentations were made concerning the ownership of said account, they were sufficient then to apprise said executrix that she ought not to act upon the representations, and plaintiff, therefore, was not entitled to recover. 20 Cyc. 32; Anderson v. McPike, 86 Mo. 293. (5') The evidence establishes that the agent who made the settlement for the Taylor estate did not rely upon the statements made by defendants’ agent that decedent owned only a two-fifths interest in account No. 35, but, on the contrary, believed he owned a larger interest and only settled because of the financially embarrassed condition of the estate, and hence the judgment dismissing the bill was proper, since fraudulent misrepresentations, to furnish ground for rescission, must have been relied upon in making the settlement. Anderson v. McPike, 86 Mo. 293; Brown v. Leod, Co., 190' Mo. 681; Priest v. White, 89 Mo. 609.
   LAMM, J.

Plaintiff sues in equity, the general object and nature of his bill is to set aside and annul a so-called “receipt or release” given by Bessie M. Taylor, executrix of W. J. Taylor’s will, to the firm of Spencer and Dennison, to declare the same null and void because of fraud and to have an accounting.

At the close of plaintiff’s case defendants demur to the evidence, the same is sustained, the court orders plaintiff’s bill dismissed (which is done) and he comes up by appeal.

There are three questions here, viz.:

First. Is a demurrer to the evidence in the line of allowable procedure in equity cases?

Second. If so, must the party cast on such demurrer save an exception below to the ruling thereon in order to have a review of the merits on appeal?

Third. If there-be no such exception saved in the bill of exceptions and if no such exception is necessary then was the bill well dismissed? (and herein of the merits).

A short history of the case is not amiss. The record shows that in September, 1903] and prior thereto, William J. Taylor and John F. Wright were dealing in “puts” and “calls” as partners in the grain commission business in Chicago. They were members of the board of trade. At thát same time Corwin H. Spencer and Uriah R. Denniston were in the same line as partners and members of said board of trade. Denniston lived, and had charge of the firm’s office, in Chicago; Spencer lived in St. Lonis. Though Taylor and Wright were partners, yet Taylor dealt in grain options on his own hook and, it seems, on joint account with others. On September 25, 1903, Taylor was run over by a railroad train and killed. His affairs were in a bad way. Among other debts, he owed Wright, his partner, forty or fifty thousand dollars. He died testate, leaving as his widow, Bessie M. Taylor. Nominated executrix of his will, she presently sued out letters of administration in the probate court of Cook county, Illinois, qualified as executrix and took upon herself the burden of settling the estate. After her husband’s death and prior to her said appointment, Warren Pease was her personal attorney. After her appointment Pease was her attorney as executrix. He seems to have been equipped with zeal and ability in that behalf. Several “cards” were found on the person of Mr. Taylor at the time he was killed and several others were found in his papers in the office of Taylor and Wright, which cards came into her possession at once. They bore the caption numerals “35,” and have figures, words and signs pointing to his trading in grain through Spencer and Dennis-ton as his brokers on the boards of trade of Chicago and St. Louis, selling in one market for future delivery in May and December, and buying in the other for like delivery. On these cards were figures, abbreviations and cant trade words — among the latter, the words “long” and “short,” long meaning bought and short meaning sold. It seems, speaking in brokers’ idiom, that these deals were in the nature of “straddles” or “spreads” and that some of his trades were “open trades.” It seems these cards did not bear Mr. Taylor’s name, and that, barring the possession of these cards, he died leaving behind no memoranda or other evidence that he was dealing in grain options through. Spencer and Denniston. It seems, also, that it was customary for those dealing in puts and calls on the Chicago hoard of trade to get such cards with only numeral captions, the object being to conceal the identity of the person and possibly the state of his deals from those not initiated in the mysteries of option dealing and whose curious eyes might fall on the cards. Presently Mr. Pease applied to Denniston for information and was informed by him that Taylor had been dealing in grain through his firm as brokers, and that he had bought grain for May and December delivery on the St. Louis market and had sold for the same delivery on the Chicago market. The books of that firm showed three accounts. One was the joint account of three persons, each of them equally interested in the deals, viz., Taylor, Martin and Denniston; another was the joint account of Taylor and Martin; and another was the separate account of Taylor. This separate account bore the caption “35 special.” The joint accounts as shown, by the hooks were under the caption “35,” and there were letters (viz. “T,” “M” and “D”) prefixed to the separate deals indicating the persons who were interested in them. There were earmarking memoranda on these books in ink and pencil. It appears that it was customary to designate an account and card by a number when the deals were joint as well as when individual. Mr. Pease called to his assistance a friend of Mr. Taylor, a Mr. Fyfe, an expert board of trade man, and a Mr. Bates, another expert of like ilk. Fyfe in the company of Pease examined the hooks of Spencer and Denniston. Those books showed the individual account, “35 special,” had been closed prior to Mr. Taylor’s death, and that he stood indebted to Spencer and Denniston in the rise of three thousand dollars on that account. They also showed that joint account “35” was open, and that if at the time of Taylor’s death such deals had been closed at prevailing market prices no profit was coming to fiim therefrom. Presently, however, after the appointment of Mrs. Taylor as executrix, the market turned in favor of these deals, and in November, 1903, she through Mr. Pease demanded the deals be closed and that she be allowed to take down the profits for the benefit of the estate. Thereat there was a long negotiation. Neither the executrix nor Mr. Pease knew whether account “35 ” was a joint account, in part of Taylor, Denniston and Martin and in part of Taylor and Martin, or was the separate and exclusive account of Taylor. On that issue of fact hinged the amount due Taylor’s estate. In that condition of things (and doubting the showing made by the books) they called on Denniston for proof and accepted the proof furnished, viz., the affidavit of a Mr. Bailey, bookkeeper of Spencer and Denniston and the oral statement of Mr. Denniston. If their statements were true Taylor had a third interest in the deals made by Denniston, Martin and Taylor on joint account, and a one-half interest in the deals made by Martin and Taylor on joint account. On this basis, on the 11th day of November, 1903, because of said favorable turn in the market, there was due Taylor’s estate the rise of seventeen thousand dollars on account “35.” Deducting therefrom Taylor’s indebtedness on account “35 special,” it left a balance due the estate of about fourteen thousand dollars. It was without money to litigate. The executrix had the cards found in Taylor’s possession. She had the statements of Bailey and Denniston that account number “35” was a joint account. Pease her attorney and her expert friend Mr. Pyfe had free access to the books of Spencer and Denniston, and Pyfe examined them. Armed with all the information from those sources, and guarded by the advice of counsel learned in the law, and her expert friends Bates and Pyfe, it was deemed best by those interested in the Taylor estate to settle the matter. The plan adopted was as follows: The throwing of a large amount of wheat on the St. Lonis market to close the deals before the option time of delivery it was feared would demoralize that market and unfavorably affect other deals there. Accordingly Spencer and Denniston offered to take an assignment of the interest of the Taylor estate in account number “35” and this offer was accepted. To this end the attorney for the executrix caused the controversy and proposed settlement to be brought to the attention of the probate court of Cook county by a petition. That court heard the matter, advised itself and by its order of record authorized the sale and settlement. Thereupon pursuant to such authority the executrix received the settlement price and executed the following assignment and release (omitting exhibits, which are mere itemized details of the accounts):

In consideration of tlie sum of $13,910.96, this day paid tome, Bessie Taylor, executrix of the will of William J. Taylor, deceased, and widow of said deceased, by Spencer & Denniston, a firm composed of Corwin H. Spencer and Uriah R. Denniston, I, the said Bessie Taylor, executrix of said will, do hereby sell, assign and transfer to said firm of Spencer & Denniston the three accounts, hereto attached, and all of the right, title and interest of the estate of said William J. Taylor, deceased, and of myself as the executrix of said will and as widow of said deceased, therein, the first of said accounts marked Exhibit A, containing a statement of certain closed trades in grain in which said William J. Taylor’s estate, said Denniston and William H. Martin are interested; the second of said accounts marked Exhibit B, containing a statement of certain open trades in grain in which said William J. Taylor’s estate, said Denniston and said Martin are interested, and the third of said accounts marked Exhibit C, containing a statement of certain open trades in grain in which said William J. Taylor’s estate and said Martin are interested.
This assignment is made pursuant to an order of the probate court of Cook county, and the purpose of it is to transfer absolutely to said Spencer & Denniston the said accounts and all moneys that are due or may grow due thereon or out of .the transactions therein. referred to, and to confer upon the said firm of Spencer & Denniston tile entire property in and to said accounts and moneys and the proceeds and avails thereof.
Witness my hand and seal this 11th day of November, A. D. 1903.
(Seal) Bessie Tayloe,
Executrix.

The sale was afterwards duly approved by the said probate court, and the money received was distributed among the creditors.

Presently Mrs. Taylor made settlement and resigned as executrix and John F. ‘Wright, said former partner of Taylor, was appointed administrator, d. b. n., g. t. a. Afterwards he settled as such administrator and was discharged. Afterwards he procured his discharge to be set aside and the administration was reopened by an order of said probate court. This was in 1905. Afterwards ancillary administration was begun in the city of St. Louis, and plaintiff, as public administrator of that city, was put in charge. Thereupon (Spencer having departed this life, and defendants being executors of his will) he instituted this suit against them on the theory that Taylor owned the entire interest in account “35” involving the purchase in one market and the sale in the other of 500,000 bushels of grain. That his profits in that deal on the 11th of November, 1903, were about three times what his executrix received, that his executrix was deceived into making the settlement and transfer by false and fraudulent concealments and representations of said Denniston, which said representations were made and procured to be made, for the very purpose of misleading her into believing the profits belonged partly to Martin, Denniston and Taylor, and partly to Martin and Taylor, instead of wholly to Taylor, as the very fact was. It is charged that these representations were made by her husband’s brokers knowing them to be false, that they were made to. be relied and acted on by executrix, that they were relied and acted upon and were the procuring and moving cause of the settlement and assignment. The bill, as said, prayed that the settlement-in the form of a “receipt or release” be set aside, declared null and void and cancelled and surrendered, and that an accounting be had between the Taylor estate and defendants, executors of the will of Corwin H. Spencer.

To that bill defendants' answered with a wealth of averment, but as the defense was not reached at the trial, other than as it appeared by the admissions of the pleadings and by plaintiff’s own showing, it will not be necessary to burden the opinion with the allegations of that voluminous pleading. Suffice it to say it denied the fraud, admitted the settlement, its authorization and approval by the probate court, alleged good faith, truthful and full disclosures, pleaded payment of more than was due, etc., and made a full showing of the condition of the account, as appearing on the books of Spencer and Denniston.

The foregoing is a sufficient statement of the facts uncovered at the trial and of the scope of the pleadings. To it we may add that the bill of exceptions shows that plaintiff saved no exception to the ruling on defendants ’ demurrer to the evidence. In his timely and unsuccessful motion for a new trial he challenged defendants ’ right to a demurrer in an equity case, and, as another ground for a new trial, asserted that under the pleadings and proof, the decree should have been for. plaintiff and that the bill was improvidently dismissed.

If there be other record facts helpful in determining questions raised, they will appear in the course of the opinion.

I. It is asserted by plaintiff’s counsel that a demurrer to the evidence is unknown to equity trials. They cite no authority to the proposition in their brief and none in their printed argument, but put the matter somewhat on the premise that they are unable to find any precedent for presenting a demurrer to the evidence in an equitable proceeding. On the other hand, counsel for defendants say they gleaned closer than their adversaries and cite us to eases in our own reports as precedents. [Anthony v. Building Co., 188 Mo. l. c. 718; Bank v. Simpson, 152 Mo. 638.] But, as presently seen, the cited cases amount to nothing more than evidence that the thing, whether well or ill, has been actually done, and has been tolerated. They do not amount to an adjudication that it was well done, nor do they amount to a judicial exposition of the matter, nor the assertion of an established rule of practice grounded on the reason of the thing, or long usage. We have, therefore, been put to our own research and canvass of the matter, wherefrom our conclusion is that an instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case in an equity proceeding is an anomaly, hence is not good practice. Because:

(a) In the first place instructions of any character are out of place in an equity suit. At very bottom and root an instruction is but advice to a jury, or to the court sitting as the jury. In a law case, tried without the help of a jury, instructions fill the useful office of showing on what theory of law the case was tried. In a law case, tried with the help of a jury, instructions fill the essential office of telling the triers of fact what principles of law are applicable under .the pleadings to the facts found by them to exist. But in equity the scene shifts and another condition springs. In an equity case for the chancellor to give instructions is but for him to give advice to himself — he merely talks the matter over with himself and tells himself how to do. Now as a case in equity on appeal is heard ele novo (barring a certain preference allowed by the upper to the lower court in weighing oral testimony and tagging it with a credit value) it is a matter of no concern whatever to the upper court what advice the lower court gave to itself; for bad advice or good advice nisi, (taken or rejected) is immaterial in equity on appeal. On appeal the advice, as well as.the ratio decidendi, are drotmed in the decree and lost sight of — the question remains only on the decree itself. Therefore on appeal our bounden duty (when the judgment is duly challenged) is to see whether it did equity. If it did, that is the end of the matter. If it did not, then upon our consciences is laid the burden of seeking equity and doing it ourselves. Accordingly it has been held that even if the chancellor call a jury in an equity ease, the finding of the jury is merely advisory (Shaffer v. Detie, 191 Mo. l. c. 388); he can follow or reject that advice as he sees fit (Lewis v. Rhodes, 150 Mo. l. c. 501). It follows that the instructions the chancellor gives the jury, when bad, are mere harmless error. To use an adage of the ancients, they are mere goat’s wool — i. e., things of no. pith. This, since if he give bad advice to the jury and get bad advice back (a natural result) the thing amounts to nothing. It is a tempest in a teapot; for he can reject the jury’s bad' advice, and notwithstanding the same do equity by his decree. [Hall v. Harris, 145 Mo. 614; Bouton v. Pippin, 192 Mo. l. c. 474.]

A fortiori, if the chancellor (absent a jury) give instructions to himself, and they are wrong, error cannot be predicated of the giving of them, because he can still go on and decide the case right. On the other hand, if the instructions be good, and the decision bad, it ought not to stand on appeal. It follows that instructions in an equity case amount to nothing. ' So, the mere action of the chancellor in giving or refusing them likewise amounts to nothing. If that be so, then an exception to the action of the chancellor in giving an instruction in the nature of a demurrer to the evidence in an equity case amounts to nothing. In this aggregation of nothings, the maxim applies: Ont of nothing, nothing comes.

Hence the general rule is, that error (so called) in giving or refusing instructions in an equity case is no error at all; for such instructions, or such exception to them, will not he considered on appeal. [Wendover v. Baker, 121 Mo. 273; McCollum v. Boughton, 132 Mo. 601; Hall v. Harris, supra; Shaffer v. Detie, supra; Conran v. Sellew, 28 Mo. 320; Ellis v. Kreutzinger, 31 Mo. 432.]

A demurrer to the evidence being akin to a peremptory instruction, or an instruction, in the nature of a demurrer, comes, .we think, within the reason of the foregoing rule. It fills no such office in an equity case that error can be predicated on the mere giving or refusing of it. The court’s action stands in the nature of a finding of facts, and the reversible error, if any, lurks in the judgment itself.

(b) In the second place (and heading to the same conclusion just announced) in some instances demurrers to evidence have been assigned an office by appellate courts, yet it will be found to be that of a mere convenience; that they in effect always cut behind the demurrer, as a demurrer, search the record on the merits and sustain or reverse the judgment because the judgment itself did or did not do equity.

In other cases demurrers to the evidence in equity cases have been held to be “novel” or “anomalous” and out of place. For example: Baker v. Satterfield, 43 Mo. App. l. c. 594, was in equity. In that case defendants interposed a demurrer to the evidence which was sustained over plaintiff’s objection. On appeal time was spent in argument in charging error to that ruling. In reply to that contention, that court said: “If this was an ordinary action at law, then there would be some point in this contention. But, since it is a suit in equity, a demurrer to the evidence is improper. Instructions in such a case are entirely immaterial.” In that ease the court treated the demurrer as of no consequence and went directly to the merits.

In Leeper v. Bates, 85 Mo. 226, at the instance of defendant the court sustained a demurrer to the evidence, and following that dismissed the bill. On such phase of the case the court said: “In equity proceedings, a demurrer to the evidence is, perhaps, novel. But if the petitioner makes no case, the chancellor need not call upon the other side for a showing; he may at once dismiss the bill. And sustaining a demurrer to the, evidence may not, under our practice, be an objectionable method of doing this. But this appeal depends upon another question.” Thereat the court passed from the demurrer to the merits.

In Healey v. Simpson, 113 Mo. l. c. 345, a demurrer was sustained to the evidence in an equity case. In speaking to that point this court said: “It is difficult to perceive what office a demurrer to the evidence in an equity case performs.” IVe then went on to treat the case as disposed of on its merits, and because the court improperly dismissed the bill, following its ruling on the demurrer, the judgment was reversed.

Anthony v. Building Co., 188 Mo. 704, was an equity case in which the court sustained a demurrer to the evidence, but it was held on the record here that the judgment entry (which by the way, is the same entry we are dealing with in this case, viz., “Demurrer to the evidence is sustained and the bill dismissed”) meant no more than that on the evidence the bill was dismissed for want of equity in the case.. In that case, there was a colloquy between court and counsel, preserved in the bill of exceptions, shoAving the court construed his judgment to mean that the bill was dismissed on its merits. In the instant case the court put a like construction on the judgment by a narration in the bill of exceptions, as follows: ‘ ‘ Thereupon the court . . . announced that the demurrer to the evidence would be sustained and the bill would be dismissed and a judgment and decree entered for defendants dismissing plaintiff’s' cause on the merits.”

Bank v. Simpson, 152 Mo. 638, an equity case, rode off on a demurrer to the evidence. The question of practice was not discussed, but a close gloss shows that we considered a dismissal of the bill below, following the chancellor’s ruling on the demurrer, was equivalent to a finding on the facts, and that the bill was dismissed for want of equity.

In Hiss v. Hiss, 228 Ill. l. c. 421, it was ruled that: ‘ ‘ Where issues of fact in a chancery ease are tried by the chancellor, the parties not being entitled to a trial by a jury as a matter of right, a demurrer to complainant’s evidence is anomalous to the practice. . . . The demurrer of that character interposed in this case should not have received the consideration of the court.” Thereat, putting aside the demurrer, the court took up the question whether the case made on plaintiff’s evidence had equity in it. The pronouncement of the Hiss ease is incorporated in the test of 38 Cyc., p. 1945.

In the foregoing view of it, the same conclusion follows announced in subdivision “a” of this paragraph of. the opinion, namely, that on appeal the demurrer is immaterial, hence the exception thereto is immaterial, where the judgment itself is assailed as without equity.

The sum of the whole matter is this: While in some cases we have considered demurrers to the evidence- in equity cases and have ruled on exceptions saved to giving them, yet such demurrers and sucii exceptions are not vital to a consideration of the merits (where the merits are here on another exception) and; when we have thus considered them, we have put the matter on the foot of a finding of facts below whereby a judgment results dismissing the bill on the merits.

II. The next question is this: Is the case here on its merits? We hold it is. The record shows that in due time plaintiff filed a motion for new trial. In that motion- he challenged the judgment, in that it was for the wrong party, was inequitable and contrary to the evidence. His motion was overruled and he saved an exception. In this condition of things, we rule that motion and exception bring the case here upon its merits in spite of the fact that a demurrer to the evidence was sustained below and no exception was saved thereto. This ruling inevitably follows as a sequence from the rulings made in subdivisions “a” and “b” in the first paragraph of this opinion. We are glad-to reach such conclusion, on -the reason of the thing, on an interesting question of equity practice. It accords with the equity maxims: Equity looks to substance, not form. Equity proceeds in accordance with what is good and right (ex aequo et bono).

Indeed, conscience and the very merits of a matter are inseparably joined by the eternal verities, the nature of things, and in administering equity, pure and undefiled, we may adopt as a cardinal rule the commandment of the marriage ritual, viz.: Whom God hath joined together, let no man put asunder. And to prevent that untoward result, the saying of Philips, Com’r, in Noble v. Blont, 77 Mo. l. c. 239, anent the conservatism of our courts which “would not sacrifice the ends of justice upon the sharp edge of technicality,” is apposite.

The premises considered, the point of respondents’ counsel, that the merits are not here for review, is disallowed.

III. Of the merits. The facts sufficiently appear in the forepart of this opinion. Rescission is asked of an executed contract of sale. The right to rescission is put upon the foot of fraud. The fraud is charged to be certain alleged false representations made to the personal representative of the Taylor estate, who was ignorant of the truth. It is charged that such representations were made to be relied on and were relied on, whereby that estate was defrauded out of large profits in account “35” — the theory of the bill being that Taylor at the time of his death owned the whole account, and that is the theory of appellant on this appeal.

As I see it, the case is without equity. Because: False representations were the pegs on which the pleader hung his fraud. Without such there was no fraud. Without fraud there was no right to rescission. Without the right to rescission there was no right to an accounting, and no case. Now, no witness testified to any false representations or deception, or to any facts from which they could he inferred. There was no documentary testimony tending to show such. There was not a-scintilla or iota of testimony that Taylor owned an interest in account “35” save what the books of Spencer and Denniston showed he owned. There was not a line, scrap, patch or shred of memoranda tending to show any such ownership. There was no proof of any fraudulent concealments. The personal representative of the estate had access to the brokers’ books. Those books told their own story to the experts assisting the executrix and her attorney. Conceding, for the purposes of the casé, that the representations of Denniston, the books and bookkeeper were relied on, yet there is nothing to show them jointly or severally unworthy of reliance. At the trial plaintiff had the same information the executrix had nearly five years before when she took $14,000 of Spencer and Denniston’s money and made the transfer, and not a whit more. Armed with that information and the advice of her learned counsel and expert friends she settled the matter under the eye and auspices of the probate court. On the very information she had then, and on which she settled and made her transfer, the present administrator asks a chancellor to rip up the settlement. It will be interesting to examine the theory on which that request is pressed.

It is argued, as we grasp it, that the books of Spencer and Denniston were partly in ink and partly in pencil, that such fact threw a suspicion on the integrity of those books and calls for explanation. But if that be a suspicious circumstance the executrix was not deceived thereby. She saw that condition at the outset, and long before she made her adjustment. Now, knowledge prevents deception. It cures the ills of deception; for he who knoias all cannot be deceived.

Moreover, a question about those entries arose on those books before the settlement and transfer. The executrix wanted to know whether the entries, tending to show that Mr. Taylor was a joint owner in the account instead of the whole owner, were made on the dates set down and cotemporaneously with the thing itself, or were made at a later time. She was curious in that behalf. She took time to consider. She called for and got an affidavit of the bookkeeper, and on the showing made by him, on her own investigation, on representations by Dennistoii, on the state of the books, on the advice of counsel and expert friends, she rested satisfied. She went further. Out of .abundant caution, she got the probate court’s authority to settle, and pursued it. Years afterwards, when one of her husband’s brokers had died, the estate put a' new hand at the bellows and goes into court of equity’ through a. new administrator and seeks to rescind the settlement and transfer. On new facts, or on a new discovery? Not at all — on the same old representations, the same ancient investigations, the same old books and on a state of things in all respects precisely as things were when the estate negotiated, settled, received its money and made its transfer in 1903. We cannot very well write the law to be that a party is entitled to rescind under such circumstances. Equity delights in amicable adjustments. Equity will not disturb the repose and peace flowing from a settlement except its jurisdiction is invoked, in favor of one without knowledge a't the time, by satisfactory evidence of deception, fraud or mistake.

Another theory of appellant’s learned counsel seems to be that the possession by Taylor of the cards issued by the brokers made a prima facie showing in his favor that he owned the whole of account “35.” That those cards in his possession raised a presumption he was such owner. On such premises, it is argued that plaintiff made a prima facie case of fraud in the settlement. But we see nothing warranting us in making any such presumption of fact or in our allowing such stress on a prima facie case of ownership, as would make the case break on that point. We have reached this conclusion because the cards, in and of themselves, are colorless and neutral on the fact of ownership and quantum of interest. They do not speak of this, that or the other interest in account “35'.” The mere possession of the cards is of little significance. At most they would furnish a clew leading up to a discovery of the fact's in the books and, disconnected from the books, the cards were no probative evidence of ownership. The fact is that cards bearing numerals were issued and received for the identical purpose of concealing the identity of the dealer. The fact also is that such cards were issued when several were dealing on joint account. Another fact is that the cards and the books must be taken together to interpret the cards and identify the owners of the account. As heretofore pointed out, things were arranged in that way designedly as a screen of concealment. Finally, if we allowed the possession of the cards to make a prima facie case of full ownership, yet such ownership was successfully rebutted by the books. Such prima facie case, if any existed, existed and was known at the time of the settlement. Wherefore, absent actual fraud, the matter stands foreclosed.

Something is made, in argument of the relations existing between a broker and his customer. . It is insisted that such relation is a confidential one, fiduciary in character, and that a broker carries the burden of showing that his dealings with his customer were fair. But does the broker not discharge that burden, when, as here, he makes settlement with his customer and enters into a solemn contract importing such settlement and transfer of the subject-matter of the account? If that were not so, then all plaintiff had to do in this case was to prove the relationship, prove dealings, prove the settlement and stop, for defendants thenceforth carried the burden of proof. In that theory the fraud, which is the gist of the action, would be presumed from the relationship of broker and customer and proof of dealings and settlement, and the burden of disproving fraud would be cast upon the broker. We cannot very well write the law that way. Contra, plaintiff pleaded, the fraud and carried the burden of proving it. He who alleges has the onus probandi.

The rule is that fraud is never conjectured. As an eagle does not catch flies, so equity deals not with mere trifles in a search for fraud. Small things may show it, if, when put together in their natural relation, they point indubitably to it. Fraud is never presumed except there be facts shown from which it can be inferred. It does not rest on mere suspicion. The precept is that one is not permitted to give weight to smoke, and suspicion is but smoke. He who asserts fraud, as said, must prove fraud. It may be difficult to prove, but that difficulty does not dispense with the necessity of the proof. There was once a rule in Venice that a charge, even if anonymous, placed in the mouth of St. Mark’s lion (said lion being a statue there) east the burden on the person named to disprove the charge. But the rule does not obtain among people possessing refined ideas of justice. In investigating a charge of fraud, courts of equity, as do courts of law, assume men are honest and act from correct motives, until the contrary is shown. So much as' that is due to the dignity of human nature. It is said that those dealing in grain options on boards of trade are classified as “bears,” “bulls” and “lambs.” But we take it that, however they masquerade as animals, in trade cant, or in a Pickwickian sense, Uhey are still men for judicial ends, and are entitled in the first instance to a presumption of honesty. The doctrine of original sin is not applied in chancery. "We recall no case declaring the law otherwise up to this time.

So far as we can see, account' “35,” worthless on the death of Taylor, became of some value on a favorable turn of market, and was transferred for full value to Spencer and Denniston on the 11th day of November, 1903, on full and truthful disclosures and on an exhibit of the books of the firm. So far as we can see., Spencer and Denniston were not obliged to close the account on that day; for, under the terms of the deals, the trades were open trades for future delivery. Whether on the contract day of delivery there would have been any profit in those deals is not disclosed. The trades were closed voluntarily on demand of the executrix. The settlement thus made is in nowise impugned by the testimony. Equity does not proceed in a revengeful or whimsical mood in ripping up executed contracts. Equity extends her right hand to the "deceived, and wronged. She desires above all things that they have restitution, but in our case the estate of Taylor was not wronged or deceived. And while “equity delights in a quick show of clean hands” (Per DeArmond, Com’r, in Leeper v. Bates, 85 Mo. 224) yet such showing was once made and the proof here did not call for another showing.

The judgment below was right; accordingly it is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    PHILLIP McANANY, by Next Friend, MARY McANANY, Appellant, v. WILLIAM C. HENRICI and CHARLES P. SHIPLEY.
    Division One,
    November 29, 1911.
    l; NEGLIGENCE: Falling Board from House: Injury to Pedestrian: Expert Opinion of Defect. A piece of crown molding fell from a wooden house, and struck a pedestrian passing on the sidewalk. Three expert witneses testified that, from the appearance of the molding and the nails which had held it in place, it must have been loose and insecure for a period of several months, if not years; that for a period of about two years there must have been a crack or opening of not less than one-eighth of an inch between the molding and the parts of the building to which it had been nailed; and that the crack must have been large enough to have attracted the attention of the owner and his tenant had they exercised ordinary care to discover it. Held, that the testimony was incompetent for two reasons: first, because the matters and things testified to by the experts were'not proper subjects of expert testimony; and, because, an opinion of an expert cannot be based upon an opinion.
    2. -: -: Expert Testimony. Expert testimony is not admissible unless it is clear that the jurors themselves, for want of experience or knowledge of the subject, are incapable of drawing correct conclusions from the facts proven.
    S. EXPERT TESTIMONY: What Is. Expert testimony is the opinion of a witness possessing peculiar knowledge, wisdom, skill or information regarding a subject-matter under consideration, acquired by study, investigation, observation, practice or experience, and not likely to be possessed by the ordinary layman or an inexperienced person Who is incapable of understanding the subject under consideration without the aid of the opinion of some other person who possesses special knowledge, wisdom, skill or experience.

      4. -: Facts to Which Expert May Testify. An expert witness cannot, by his opinion, establish that a crack existed between the molding, which 'fell-and struck a passing pedestrian, and the walls or eaves to which it had once been nailed, nor that the crack must have been of not less than an eighth of an inch wide, nor that it must have existed for months or years prior to the time the molding fell. But those facts having been established by eye-witnesses, the expert may give it as his opinion that those conditions indicated to their minds looseness and insecurity in the molding.
    5. -: Opinion Upon Opinion. All expert testimony, must be predicated upon facts or conditions conceded to be true or existing, or assumed to be established by other testimony; and that necessarily excludes the possibility of basing one opinion upon another opinion.
    Appeal from Jackson Circuit Court . — Hon. Charles R. Pence, Special Judge.
    Aeetrmed.

      Guthrie, Gamble & Street, Boyle & Howell and A. F. Smith for appellant.
    (1) Plaintiff was entitled to go to the jury under the doctrine of res ipsa loquitur. Roberts v. Mitchell. 21 Ont. App. Rejo. 433; Clare v. Bank, 1 Sweeney, 539; Mullen v. St. John, 57 N. Y. 551; Barnowski v. Nelson, 89° Mich. 523<; Railroad v. Hopkins, 12 L. R. A. 189, and note; Vincett v. Cook, 4 Hun, 318; Burne v. Broadle, 2 Hurlst. & C. 722; Scott v. Dock Co., 3 Hurlst. & C. 596; Kerney v. R. F., L. R. 5 Q. B. 411; L. R. 6 Q. B. 759; Smethurst v. Church, 148 Mass. 261; Howser v. Railroad, 80- Md. 96; Ryder v. Kinser, 65 Minn. 85 ; Yolmar v. Rylo, 134 N. Y. 418; Favers v. Munav, 84 N. Y. S-. 558; Lubelsky v. Silverman, 96 N. Y. 1056. (2) Expert testimony is not controlling, but only in aid of the jury. Hall v. City, 138 Mo. 618'. (3) The testimony of the experts was competent as expert testimony in aid of the jury. Boetter v. Iron Co., 124 Mo. 104; Combs v. Const Co., 205 Mo. 3891; Egan v. Dry Dock Co., 12 N. Y. Sup. Ct. App. Div. 568; Turnpike Co. v. Case, 80 Md. 36; Cook v. Castner, 63 Mass. (9 Cush.) 266; Morgan v. County, 92 Iowa, 646; Bush v. Railroad, 166 N. Y. 216; Hand v. Brooklyne, 126 Mass. 324; Cate v. Prank, 112 Cal. 613; Ferguson v. County, 57 Iowa, 604; Taylor v. Towne, 43 Conn. 36; McConnell v. City, 80 Iowa, 295; Carr v. Railroad, 92 Hun, 74; Caven v. Bodwell, 97 Me. 381; City v. Humers, 33 Ark. 116; Sneda v. Libera, 65 Me. 343; Tremblay v. Mapes, 169 Mass. 284; Insurance Co. v. Pruitt, 75 Ind. 125 ; Stanwick v. Butler, 93 Wis. 430; Smith v. Guguerty, 4 Barb. 625; Bettys v. Township, 115 Mich. 228; Snyder v. Mfg. Co., 134 Ga. 324. (4) The testimony of the experts was competent, even if it was not a case for expert testimony, as an opinion upon a complexity of facts which could not be so intelligently and satisfactorily explained to the jury as to enable the jury to form an opinion as well as the witness observing the facts. 5 Ency. Ev. 520; 12 Am. and Eng. Ency. Law (2 Ed.), 422; Eyerman v. Sheehan, 52 Mo. 221; Const. Co. v. O’Brien, 81 Mo. App. 639; State v. Patrick, 107 Mo. 175

      Sebree, Conrad <& Wendorjf for respondents.
    (1) Though the ground specified in the order sustaining the motion for a new trial may not justify the order, yet if the record in the case shows that there was error committed in the course of the trial not so specified that did justify it, the action of the court will be sustained. Miller v. Madison Car Co., 130 Mo. 517; Crawford v. Stock Yards Co., 215 Mo. 402. (2) The court erred in the giving of plaintiff’s instruction number one. (3) The verdict is so excessive as to manifest bias and prejudice on the part of the jury. (4) The- court erred in refusing the instruction of the respondent Henrici in the nature of a demurrer to the evidence. Frankie v. City of St. Louis, 110 Mo. 516; AVhiteley v. McLaughlin, 183 Mo. 160; Coates v. Merriwether, 144 Mo. App. 89'; Reinhardt v. Holmes, 143 Mo. App. 212; Pope v. Boyle, 98 Mo. 527; McCord v. St. Joseph Water Co., 181 Mo. 692; Braddelley v. Shea, 33 L. R. A. 47; Wilcox v. Hines, 100- Tenn. 524; Timlin v. Standard Oil Co., 129 N. T. 314; Monroe v. Carlyle, 176 Mass. 199; Ward v. Hinldeman, 37 Wash. 365; Tully v. Railroad, 134 Mass. 503; Rigg v. Boston Beach Bridge Co., 158 Mass. 314. (5) The court was right in granting a new trial on the ground that it erred in admitting expert testimony offered by the plaintiff. Wigmore on Evidence, secs. 1918, 1928; Lee v. Publishers, 155 Mo. 616; Benjamin v. Railroad, 133 Mo. 289; Gutridge v. Railroad, 94 Mo. 468; Dammann v. City of St. Louis, 152 Mo. 186; Morgan v. Mfg. Co., 120 Mo. App. 590; Rossier v. Railroad, 125 Mo. App. 159; Graney v. Railroad, 157 Mo. 666; Breen v. Cooperage Co., 50! Mo. App. 213; McGrath v. Company, 197 Mo. .104; Leonard v. Storage Co., 121 Mo. App. 105; Smart v. Kansas City, 91 Mo. App. 592.
   WOODSON, J.

The plaintiff, on July 3, 1905, while walking along one of the principal streets of Kansas City, was struck on the head and seriously injured by the falling of a board, known as “crown molding,” which had blown from a certain building presently to be described, belonging to the defendant Henrici, and occupied by defendant Shipley as his tenant. Suit was brought by the plaintiff against both of said parties to recover $15',000, damages for the personal injuries sustained, which it is claimed were caused by the negligence of the defendants. A trial was had which resulted in a verdict and judgment for the plaintiff, for the sum of $10,000. A motion for a new trial and in arrest of judgment were filed, which were by the court sustained, for the reason, assigned by the court, that it had erred in admitting certain expert testimony. From the order of the court granting the new trial, the plaintiff duly appealed the cause to this court.

The facts of the case are few, simple and practically undisputed, which are as follows:

For some time prior to the year 1903, the respondent Henriei was the owner of the building in question, located at No. 1413 Genesee street, Kansas City, Missouri, which was a frame structure, one story in height, and was about twenty-three or four years old, and had been used as a church, but subsequently by respondent Shipley for storage purposes. After the Missouri River flood of the summer of 1903, the defendant Henriei had the building repaired and repainted all over, by a firm of contractors, known as the Pelletier Construction Company, of that city. The building was located in the flood district, and for that reason the repairing before mentioned became necessary, but the crown molding previously mentioned was not affected by the waters. But the employees of the construction company testified that in repairing the building they made a thorough inspection of the entire structure, including the crown molding, and wherever they found a board off, or loose, they replaced it, and renailed all loose boards and timbers.

The painters who did the painting (two coats) for the contractors, also testified that while doing the painting they inspected and painted the entire building, including the crown molding.

Also -the respondent Henriei testified that prior to the time when the repairing was done, with that object in view, he made a thorough inspection of the entire structure, crown molding included, and ascertained what repairs were necessary, and then employed said contracting company to do the work; and that after the- work was completed, he again inspected it, to see if the work had been done according to contract.

Shipley, the other respondent, testified that at the time he rented the building, and frequently thereafter, he made careful inspections of the building.

After thus familiarizing themselves with the condition of the building, all the parties mentioned testified that they never saw or detected .that the crown molding was loose, or otherwise in a defective or dangerous condition, prior to the time of the injury, and thought they would have seen it if any such condition existed.

Several disinterested witnesses, who had frequently passed the building during the previous years, testified that they had, in the ordinary way, while passing, observed the building and had seen no defects about it, and that they saw nothing which indicated anything to the contrary.

The testimony for the appellant was to the effect that the building, as previously stated, was an ordinary, one-story frame building, fronting west, with what is known as a gable front. The highest point of the roof, which was in the center of the building, was not shown, but it sloped equally in both directions, presenting a front in the shape of the letter Y inverted. The building stood close to the property line, and the sidewalk ran along the front thereof. That prior to the time Henrici had the building repaired there were many loose weather-boards scattered all over the same, most of which were nailed back, while others were moved and were replaced with new ones. That these boards had become loose, because the nails which had held them rusted in two, probably caused by the waters of the flood. On the day of the accident the wind was quite high, but not more than what might have been expected in that climate.

I copy the following almost literally from the statement of the case, made by counsel for appellant, which the evidence tends to support, viz.:

“While plaintiff was on some errand, one of the crown moldings, descending from the top of the roof in the center on the south side to the lowest point of the eaves on that side, fell and struck him.. The length of the board was about 14 feet. This crown molding on buildings is a part of the finish or decoration and does not serve any direct useful purpose. The edge of the roof extends over the building and is referred to in the testimony as the ‘eaves.’ Back from the outer lines of the eaves and perpendicular from and at right angles with the eaves is the ‘facia.’ The crown molding stands at an angle of about forty-five degrees from the edge of the eaves downward and inward to the facia, and necessarily has beveled edges at both places of contact, and is held in place by nails driven through the crown molding into the eaves on one side and the facia on the other. This particular piece of molding was nailed, in the opinion of experts, based on an examination of the remnants, with. cut steel nails. Cut steel nails differ from wire nails in their form in this, that the cut steel nail tapers from the head to the point and the point itself is blunt. The wire nail is round and equal in diameter its entire length except at the extreme end where it sharply tapers down to a small point. These nails differ in their effect upon the fibre of the wood into which they are driven and in their holding qualities in this, that the blunt head of the cut steel nail crushes the wood and breaks and destroys the fibre as it is driven in, so that, the fibre being broken, the wood does not close with the tendency to compression around the nail as is the case with a wire nail, where the fine point simply spreads the fibre and leaves it unbroken to close tightly around the nail. "When a cut steel nail begins to rust away, the fibre does not hold it so tightly and increasing quantities of moisture may enter, and, as the fibre does not shrink up around the tapering nail, there is a tendency to loosen and let the wood slip along it in whatever direction pressure or gravity tends to draw it, thereby exposing part of the nail freely to the weather and leaving it loose in the wood. With the wire nail of equal thickness substantially its entire length, and with the fibre spread instead of broken, this tendency to rapidity in the deterioration of the nail itself and the looseness of the board on the deteriorated nail does not exist in the same degree.
“The pieces of crown molding on this front were not mitered at the top bnt met with a square joint, so that either piece of molding in place would hold the other piece in. place even though the nails were insufficient in themselves for that purpose, until vibration of the. building] or a good wind from the right direction shook it loose.
“A young man passing this place on the morning of the accident saw the lower end of this crown molding flapping backward and forward some inches in the wind. Again passing about the middle of the afternoon he found the plaintiff stretched on the sidewalk bleeding from the wound, the piece of molding with blood on it lying on the sidewalk beside him, and the molding gone from the place where he had seen it working in the wind in the morning. He identified the piece produced at the trial as the piece he had seen on the sidewalk, and testified that at the first trial it was in the condition he had then seen it, but had lost a considerable portion of the rusty nails then in it, either by their dropping out altogether or being broken off.
“Along what was the lower edge of this crown molding when in place were irregular splotches of paint mixed with dirt and extending in to the inner or out-of-sight side of the molding a considerable distance, built up in places to a protuberance or splotch of a quarter of an inch. There was also a smear of tar on the back or inner surface of the molding near its center.. In the repairs made by Henrici in 1903 the building had been repainted and the roof retarred.”

The foregoing statement of' the physical condition of the building and the materials of which it was constructed, made by counsel for appellant and the writer. is as strong or stronger in his favor than the evidence preserved in this record warrants.

In addition to the foregoing evidence, the appellant, over the objection and exceptions of counsel for respondents, offered three expert witnesses, who after qualifying as such, were permitted to testify, that from an examination made by them of the crown molding which fell from the building and injured the appellant, and the nails with which it had been fastened to the building, it must have been in a loose and insecure condition for a period of several months, and probably years antedating the date of the letting of the building by Henrici to Shipley; also that at the time Henrici leased the building to Shipley, and for a period of twenty months or more before the accident, there must have been a crack or an opening between the crown molding and the parts of the building to which it was attached of such dimensions that it could have been seen by Henrici and'- Shipley, by the exercise of ordinary care, in time to have repaired the same, and thereby have prevented the injury.

The court granted a new trial in this cause, for the reason that it had erred in admitting the expert testimony previously mentioned.

This is the salient point in this case, and if that testimony was erroneously admitted, and should not be considered for that reason, then clearly there was no case made for the jury. Even counsel for appellant, without that evidence, recognizes the fact that there is an entire absence of proof tending to show that there was any defect in the building at or about the crown molding mentioned, or that there was any evidence or manifestation of any insecurity in that regard, or that there was' anything about the molding which would have enabled a detection thereof upon inspection. But seeking to bridge this otherwise impassable gulf separating appellant from a right of recovery, counsel called three expert witnesses who testified in substance that, from the appearance of the molding and the nails which had held it. in place, the molding must have been loose and insecure for a period of several months, if not years antedating the date of the leasing of the premises by Henrici to Shipley; that for a period of about two years prior to the date of the accident, there must have been a crack or opening of not less than one-eighth of an inch between the crown molding and the parts of the building to which it had been attached by means of nails; and that the crack must have been sufficiently large and apparent to have attracted the attention of the respondents had they exercised ordinary care in that regard. In other words, the experts did not testify that there was in fact a crack there, but it was their opinion, based upon the evidence previously mentioned, that a crack must have existed there of such dimensions and for a sufficient length of time to have enabled both of the respondents to have discovered the defective condition of the molding had they exercised ordinary care in that regard.

Clearly this testimony was incompetent for two reasons: first, because the matters and things testified to by the experts were not proper subjects of expert testimony; and, second, because an opinion of an expert cannot be based upon an opinion, any more than one presumption can be predicated upon another presumption.

We will briefly consider these two propositions in the order stated.

(a) The outward physical condition of the molding and' the nails which had held it in position, could have been seen and understood just as well by the jury as it was seen and understood by the experts; and likewise, they were just as competent to describe the molding, the building, the fastenings, and the cracks, if any there existed, as well as the general physical appearance thereof, as were the experts who testified in that regard. Yes, much better, for they would have-testified from observation, while the experts would, only have given their opinions.

Such things, almost daily, fall under the observation of the ordinary citizen, and there was nothing in the appearance thereof which could not have been seen and as readily understood by him, as could have been done by an expert who never saw it.

That being unquestionably true, then the testimony of the expert witnesses should have been excluded, for the rule is firmly established in this State and elsewhere that expert testimony is not admissible unless it is clear that the jurors themselves, for want of experience or knowledge of the subject, are incapable of drawing correct conclusions from the facts, proven. And it necessarily follows that if the ordinary witness and citizen can understand such matters, then the juror who is selected from the latter, must also be capable of understanding them. [Benjamin v. Street Railway Co., 133 Mo. l. c. 289 ; Gregory v. Chambers, 78 Mo. 294; Hurt v. Railroad, 94 Mo. 255; Railroad v. Union Stock Yards Co., 120 Mo. 541.]

The proposition discussed in this paragraph, will be further considered in connection with the second proposition mentioned, because of their close relation.

(b) In the consideration of the second proposition previously mentioned it might be well to understand what expert testimony really is.

That term has been so frequently defined by this court and the various courts of appeals, in numerous decisions, it becomes unnecessary for us to seek learning elsewhere upon that subject. The substance of those decisions may be stated as follows:

Expert testimony is the opinion of a witness possessing peculiar knowledge, wisdom, skill or information regarding a subject-matter under consideration, acquired by study, investigation, observation, practice or experience, and not likely to be possessed by tbe ordinary layman or an inexperienced person, and consequently wbo is incapable of understanding the subject under consideration, without aid of the opinion of some person wbo possesses such knowledge, wisdom, skill, practice or experience; and a person wbo is competent to give expert testimony, is denominated as “expert witness.” [See cases previously cited; also Benjamin v. Railway, 50 Mo. App. 602; Riley v. Sparks, 52 Mo. App. 572; Bradford v. Railway, 64 Mo. App. 475; Turner v. Haar, 114 Mo. 335; Goins v. Railway, 47 Mo. App. 173; Helfenstein v. Medart, 136 Mo. 595; State v. Wisdom, 84 Mo. 177.]

Now by recalling the evidence in this case, it will be remembered that outside of the expert testimony there was no pretense whatever made that there was in fact a crack or opening between the place of molding, which fell and injured the appellant, and the wall of the building, or the eaves of the roof, but it was the mere opinion of the expert witness, first, that a crack must have been there of not less than one-eighth of an inch in width, and, second, that it must have existed for some months or years prior to the date Henrici leased the building to Shipley down to the date of the unfortunate accident; and, third, that those conditions indicated to their minds looseness and insecurity of the molding in question.

(In order to avoid confusion, it will here be conceded, that if the first two conditions just mentioned bad been established by eye witnesses, speaking from their own knowledge, then the third condition predicated thereon might very properly have been proven by the testimony of expert witnesses.)

From that condition it is argued that the law imposed the duty upon the respondents to have discovered the loose and insecure condition .of the molding, and that, too, in time to have prevented the injury.

In passing, I desire to state that, in my opinion, in order to reach the conclusion thus stated by learned counsel for appellant, they must necessarily occupy inconsistent and contradictory positions in the case, namely: They in the first place contend that it was necessary, and that the nature of the case required the testimony of expert witnesses, not only to show that the crack mentioned actually existed, but also that it could have been seen by respondent, and that, too, in time to have warned them of the loose and insecure condition of the molding. Now if that is true, then by what process or reasoning can it be logically contended that the respondents, who were not experts, could or should have been required to have discovered the loose and insecure condition of the molding? If it required the testimony of expert witnesses to establish the fact that a crack of the character mentioned actually existed, then it seems to me indisputably true that it would have required an expert to have seen it; if in reality it did exist.

Nor is it any answer to this suggestion for counsel for appellant to make the counter suggestion that they were unable to find any witnesses who actually saw the crack, and who could testify of their own knowledge to its existence, for the simple reason that the inability of a party litigant to procure competent witnesses by whom to establish the facts of his case, by no means authorizes him to revert to incompetent witnesses to prove these facts.

Suppose, for instance, counsel for appellant could have produced eye witnesses who saw the crack hr opening, then unquestionably they would, have been competent to' have testified to that fact. So say all the authorities; and if that be true, which unquestionably it is, then, it is because it is a proper subject of proof by laymen and non-expert witnesses, and did not require the peculiar knowledge of an expert to explain the subject under consideration. So by the last analysis, the proposition stated in paragraph (a) of this opinion, must be true, namely, that the subject under consideration was not a proper matter for explanation by expert testimony.

But returning to the subject we had in hand prior to the digression caused by the foregoing passing remarks, namely: Is it proper to predicate one expert opinion upon another? Counsel for appellant contend for the affirmative, while counsel for respondents deny that proposition.

Preliminary to my observations upon this question, I desire to state that the rule which requires all expert testimony' to be predicated upon facts or conditions conceded to be true or existing, or assumed to be such in the hypothetical question propounded to the expert, is as old as our jurisprudence, and is as unbending as were the laws of the Meeds and Persians, which, in my opinion, would exclude the right to base one opinion upon another, and this case is no exception to that rule.

Counsel for appellant cite, and rely chiefly upon the cases of Boettger v. Iron Co., 124 Mo. l. c. 104, and Combs v. Construction Co., 205 Mo. l. c. 389, in support of their contention. In the first case, this court held that it was proper to show by expert testimony what effect a knot or crossgrain in a stick of timber used in a scaffold, mentioned in the opinion, would have upon its strength. And in the last case, it was held that it was proper to permit an expert to testify that a certain number of nails of a given size were necessary to make certain cleats mentioned withstand the service to which they were subjected.

. There can be no question but what the ruling in both of those cases was correct, but they fall far short in sustaining the position here advanced by counsel for appellant. If the opinion, for instance, in the first case, had gone one step further, and had held that it was not only proper to show by expert testimony what effect the knot and crossgrain in said stick of timber had upon its strength, but that it was proper also to show by the same character of testimony that the knot and crossgrain mentioned actually existed, then that ease would have been parallel to the case at bar. But instead of showing the existence of the knot and cross-grain in that case by the opinions of or the testimony of expert witnesses, their existence was established by eye witnesses, who testified from their own knowledge of their existence. But if the attempt there had been the same as it was here, namely, to show in the first instance, by expert testimony, that the knot and crossgrain mentioned must have existed in point of fact; and, second, that in their opinions the existence of the knot weakened the timber and caused it to break, doubtless quite a different ruling would have been announced in that case.

So in the case at bar; when counsel for appellant attempted to show by expert testimony, first, that there must have existed a crack or opening between the molding and the parts of the building to which it had been fastened, and, second, that said crack or opening weakened, or was evidence of the weakened condition of the molding, or the fastenings of the molding, they offered to do that which is not authorized by the law of evidence.

The same observations apply equally well in the second case relied upon by counsel for appellant. There the existence of the cleats and their purpose were shown by the testimony of eye witnesses, and the court very properly admitted expert testimony to show what number of nails were necessary to make them secure, etc.; but it would have been error if the court had permitted counsel in that case to have shown by expert witnesses that, in their opinions, such nails were not only necessary, but also to have shown in the first place that, in their opinions, such cleats in fact existed, and, second, what nails were necessary to hold them in place.

' We are, therefore, of the opinion that the conrt erred in admitting the expert testimony mentioned, and consequently we are also of the opinion that the court properly granted respondents a new trial for that reason.

We therefore affirm the judgment of the court, granting a new trial.

All concur.


text:
    CLINTON COUNTY to use of TOWNSHIP 54, RANGE 30, v. E. T. SMITH and E. C. HALL, Appellants.
    Division One,
    November 29, 1911.
    1. SCHOOL BOND: Payments: Credit on County Records: Account. Payments by the principal on a township-school-fund bond and the crediting of them by the county clerk in the records of the county court, and his failure to indorse such payments on the bond itself, did not make the principal indebted to the county on an open account, and did not make the bond executed by him and his sureties a collateral agreement to pay that account, and did not keep the Statutes of Limitations from running as to the sureties.
    2. -: Liability of Surety: Limitations. In so far as the rights of the county are concerned, the principal and sureties on a township-school-fund bond are to be considered as joint promisors, and a payment of any sum on the bond by. the principal before the Statute of Limitations runs is binding on all alike; and if an action on the bond is not barred as to the principal it is not barred as to the sureties; nor does the fact that the payments when made were entered upon the records of the county court, instead of being indorsed as credits on the bond itself, change the legal effect of the payments, or lessen the liability of the sureties.
    3. -: -: Laches: Delay in Bringing Suit. Since the sureties and principal on ai township-school-fund bond are joint promisors and alike liable for its payment, mere delay in-bringing the suit against the principal, for any length of time, short of the period fixed by- the Statute of Limitations, does not amount to laches and does not relieve the surety from liability to pay when sued. The principal was under no greater legal obligation to pay the county the amount of the bond than were the sureties.
    Appeal from Clinton Circuit Court. — Hon. John G,. Park, Special Judge.
    Affirmed.

      W. S. Herndon and E. G. Hall for appellants.
    (1) The payments, if made, were on the loan account and not on the bond, which was given as personal security required by the statute. (2) Any payments, made were properly credited on the loan account and not on the bond, as the bond, like the mortgage on the real estate, was given as a security for the loan. It was no more evidence of the loan than the mortgage. (3) The loan account, if competent evidence, showed that on January 1, 1895, there was default in the payment of interest which was never paid, and for more than twelve years the plaintiff had-a cause of action on the bond (except for the Statute of Limitations) against defendant for such default. And it was not optional. (4) One of the’ express conditions of the bond was: “And it is further agreed and understood, as a condition of this bond, that should default be made' in the payment of the interest when due, or should the principal of this bond fail to give additional security hereunto when lawfully required, in either case both the principal and interest shall become due and payable forthwith.” So that the surety could rest assured that the real estate, as long as it was worth $500,. made him safe. (5) Where the obligee has done anything to injure the surety the court is glad to lay hold of it in favor of the surety. 1 Brand on Surety & Guaranty, sec. 93. And the claim against the surety must be strictissimi juris. As to the first proposition: '“A bond'is a specialty, being under seal.” 4 Am. & Eng. Ency. Law, p. 620, and note 2. A bond by a third party, that is, one other than the debtor, or promisor, is, however, regarded ás a guaranty. 4 Am. & Eng. Ency. Law, p. 620. If the payments on this loan can be considered as payments on the bond we contend that such payments would not raise a new promise as to defendant E. O. Hall, the surety. 19 Am. & Eng. Ency. Law, p. 309; R. S. 1909, secs. 1909,1910 and 1911; Leach v. Asher, 20 Mo. App. 659; Zervis v. Unnerstall, 29 Mo. App.'474; Maddox v. Duncan, 62 Mo. App. 476. It is held by many of the states that the payment of interest by a joint obligor will bind only the one making the payment. And the ground seems to be that such payment is equivalent to a new promise and acknowledgment of the debt. McBride v. Hunter, 64 Ga. 655 ; Davis v. Mann, 43 111. App. 301; Dougherty v. Hoffstetter, 12 Ind. App. 699; Steel v. Souder, 20 Kan. 39; Walters v. Knapp, 23 S. C. 578; Succession of Voorhees, 21 La. Ann. 659; Ettinge v. Hull, 2 Dem. Sur. (N. Y.) 562; Probate Judge v. Stevenson, 55 Mich. 320; Exeter Bank v. Sullivan, 6 N. H. 124; Meitzler v. Todd, 12 Ind. App. 381; Gould v. Cayuga Co. Nat’l Bank, 86 N. Y. 75; Decatur v. Lainer, 7 Ala. 595; Hunter v. Robertson, 30 Ga. 479; Littlefield v. Littlefield, 91 N. Y. 203; 25 Oye., pp. 1355-1356. (6) The loan of the school fund in this case was made to Elias T. Smith, and an account of the same was kept Tby the county clerk upon the books of the county, and when Smith made payments of interest or principal the same were credited on said account and not on the bond, which was given as personal security for the loan, as required by section 10816, Revised Statutes 1909, which is the same as the section under which the loan here was made. In this case the bond did not bear interest, but the debt, which the bond guaranteed, did bear interest, and consequently became a part of the loan debt, and tbe payment of interest in no way released or reduced tbe liability of tbe surety on tbe bond or changed bis status in any way (except to make tbe debt become due), as he was bound for tbe penalty of tbe bond only. Then bow could any payment made by tbe principal on tbe loan be regarded as a new promise on tbe part of tbe surety to pay tbe bond, or penalty? It is said, tbe reason why the payment of interest is considered a new promise by tbe one who makes it is because interest is considered a part of tbe debt. Brown v. Latham, 58 N. H. 30; Am. and Eng. Anno. Cas., p. 980; 19 Am. & Eng. Ency. Law, 309. Tbe payments made by Smith did not toll tbe Statute of Limitations as to defendant Hall, because bis liability was not a joint liability. Tbe plaintiff must allege and prove a default on tbe part of Elias T. Smith that is a breach of tbe conditions of tbe bond, and damages to be satisfied out of tbe penalty. Regan v. Williams, 185 Mo. 628, 88 Mo. App. 577; Maddox v„ Duncan, 62 Mo; App. 474; Munroe v. Herndon, 110 Mo. App. 509; Thompson v. Thompson, 121 Mo. App. 524.

      Lester B. Hooper for respondent.
    All tbe questions raised by appellant in this cause pertinent to the issues, are answered and fully settled. Vernon County v. Stewart, 64 Mo. 408. Tbe case of Maddox v. Duncan, 143 Mo. 621, and Regan v. Williams, 185 Mo.' 628, strongly uphold tbe early case of Vernon County v.. Stewart, and utterly annihilate appellant’s contention that the Statute of Limitations avails him in this case.
   WOODSON, J.

This was a suit brought by tbe relators against the appellants on a school bond, executed by E..T- Smith as principal and E. C. Hall and Daniel Smith sureties, to recover tbe amount due thereon. Tbe bond was for five hundred dollars, bearing eight per cent interest and was secured by a mortgage or deed of trust upon certain real estate described in the pleadings.

The suit was brought after various payments of the principal and interest had been paid; also after the real estate had been sold under the deed of trust, and the- proceeds thereof had been credited thereon. There was still due thereon, at that time, approximately the sum of $714.55-.

The trial was had before the court without the intervention of a jury, which resulted in a judgment' for the respondent and against the sureties, for the penalty of the bond, and eight per cent interest thereon until paid.

E. T. Smith the principal was never served and Daniel Smith suffered a judgment by default against him. After unsuccessfully moving for a new trial and in arrest of judgment, Hall appealed to this court.

The bond sued on was in the following words and figures:

“State of Missouri, County of Clinton.
“Know all men by these presents, that we, Elias T. Smith, as principal, and............ as sureties, jointly and severally firmly bind ourselves and our respective heirs, executors and administrators to the county of Clinton, State of Missouri, in the sum of $500, to be paid to said county for the use and benefit of the school fund of township- 54, range 30, of said county, to the payment whereof we jointly and severally bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals and dated the 1st day of September, A. D. 1890'. íhe conditious of this bond are: That whereas, the said Elias T. Smith, principal, has this day borrowed from said county the sum of $500, belonging to the capital school fund of township 54,' range 301, of said county, which said sum of money the said principal and sureties agree to pay to said county for the use and benefit of the said township school fund on or before the .... day of........, A. D. 18.., with interest thereon from the date hereof until paid at the rate of eight per cent per annum, said interest to be paid annually on the .... day of........ of each and every year until the whole debt shall be páid off and discharged. Now, therefore, if the principal and sureties shall well and truly pay or cause to be paid the said sum of money borrowed and the interest thereon according to the tenor and effect of this bond, then this obligation shall be void; otherwise, it shall remain in full force. But it is expressly agreed and understood that all interest not punctually paid when due, shall, when due, be added to the principal and shall bear interest at the‘same rate as the principal until paid. And it is further agreed and understood as a condition of this bond that should default be made in the payment of the interest when due, or should the principal of this bond fail to give additional security hereunto when lawfully required, in either case both the principal and interest shall become due and payable.” Then followed the signatures of the parties.

While the bond is not dated, yet the petition stated and the evidence showed that the bond was executed on September 1, 1800.

Counsel for appellant Hall asked the following-declarations of law, which were by the court refused.

“1. The court, sitting as a jury, declares the law to be: That under the pleadings and evidence in this case, the finding must be for the defendant, E. C. Hall.
£ £ 2. The court, sitting as a jury, declares the law to be: That under the evidence, the liability of the defendant, E. C. Hall, on the instrument sued on was a collateral liability, and that the payment of part of the interest thereon by the principal, E. T. Smith, did not prevent the running of the Statute of Limitations as to the said defendant, E. C. Hall.
“3. The court, sitting as a jury, declares the law to he: That if the court finds that the defendant E. C, Hall was surety on the bond sued on, and further finds that by the laches of the plaintiff or its agent, the county court, the said E. C. Hall was injured, then such surety should be relieved from liability to the extent of such injury, if any.”

The court made a special finding of facts and gave certain conclusions of law, which were as follows:

“I have carefully considered the defense based upon the Statute of Limitations. The bond is dated September 1, 1890, and the penalty is $500, Mr. Smith, the principal, on January 7, 1891, paid $13.30; February 3, 1892, $40-; October- 5, 1897, $70; October 7, 1903, $20’; December 9, 1904, $20 ; April 3, 1906-, $200, and the sale of the mortgaged premises produced a net credit on the bond of $192.20', December 5’, 1906. Mr. Hall has paid nothing on the bond and has never acknowledged the debt.
“In this case, Daniel Smith’s and E. C. Hall’s signatures appear at the foot of the instrument after Elias T. Smith’s, and although the recitals do not show in what capacity Daniel Smith and Mr. Hall acted, they are, beyond question, not principals, but sureties. But being sureties, signing the bond with their principal, and at the same time, they made the identical contract which he made, and, under the issues here, are bound to the precise extent to which he is bound. They are all payors and comakers.
“There is, therefore, no escape from the conclusion that this case is governed by Vernon County v. Stewart, 64 Mo. 408. The ten-year limitation (R. S. 1899, sec. 4272) is not available to defendants, and the finding and judgment must be for plaintiff.
“Plaintiff has alleged that the amount due on the bond was, on September 21, 1906, $714.55. A computation of principal, interest and credits shows that on June 10, 1904, when action was brought, $68-5.92 was the amount of the debt. The best authorities are to the effect that the liability of the surety, at the time recourse is had on the bond, is limited to the penalty of the bond. If, after that, the surety fails or refuses to pay, he is liable for interest and damages for detention of the fund. [27 Am. & Eng. Ency. Law (2 Ed.), 453; Brighton Bank v. Smith, 12 Allen, 243, 90 Am. Dec. 144; Insurance Co. v. Swain, 189 Pa. St. 626, 42 Atl. 297; Folz v. Trust Co., 201 Pa. St. 583, 51 Atl. 379; Thomas Laughlin Co. v. Surety Co., 114 Fed. 627.]
“Judgment, therefor, will go for the plaintiff for the amount of the penalty of the bond with interest after service of summons, June 12, 1907, at eight per cent per annum, the contract rate, $538.55.”

I. Counsel for appellant make and discuss many legal propositions in their briefs, but in the view we take of the case it is only necessary to notice two of them, namely: the Statute of Limitations and the alleged laches of the plaintiff in not bringing its suit at an earlier date. We will consider those questions in the order stated.

The record shows that E. T. Smith, the’ principal in the bond, made the following payments at the dates stated, namely: January 7, 1891, $13.30; February 3, 1802, $40; February 6, 1893, $40; January 15, 1894, $40'; October 5, 1897, $70; October 7, 1903, $20; December 0,1904, $20; April 3, 1906, $192.20, the proceeds of the sale of the land under the deed of trust.

This record shows that instead of those payments being indorsed upon the bond, the clerk of the county court, whenever a payment was made, would give Smith, the principal in the bond, credit therefor" on the records of the court.

From that course of dealing, counsel for appellant Hall seems to have reached the conclusion that Smith, the principal in the bond, was indebted to the county for the use of the school district on an open account, and that the bond sued on and executed by E. T. Smith and the sureties was only a collateral agreement to pay that account. Manifestly that is the> view'of respondent’s counsel, as clearly appears from the second declaration of law asked by them.

"With all due respect for their ability and legal learning, we are constrained to take a different view of the transaction. The record no where shows that E. T. Smith was indebted to the county on account, for any sum,- for any purpose, but it does show that he borrowed from the county on September 1, 1890', $500 of the school district mentioned, and that he executed the bond in suit therefor with Daniel Smith and E-. C. Hall as sureties.

In so far as the county is concerned, all three are to be considered as joint promissors, and the payment of any sum on the bond by the principal before the Statutes of Limitations runs is binding upon all of them alike. This is fully settled by this court in the case of County of Vernon v. Stewart, 64 Mo. 408. There, as here, the suit was on one of these’ school bonds, and the defense was the Statute of Limitations, the same as here. The bond in that case was executed January 15, 1860, and some four or five years thereafter the principal in the bond died, ánd the administrator to his estate was duly appointed and qualified. The bond was duly presented to the probate court for allowance, and was by that court allowed, June 7, 1867, and assigned to the third class of demands; and on December 2, 18691, the administrator of said estate paid on said demand the sum of $44.33. Some time after January 15, 1870, and prior to December, 1874, suit was brought on said bond against the sureties, to recover the balance remaining due thereon. As before stated, the -ten-year Statute of Limitations was interposed as a defense by the sureties. In discussing that question, on page 410, the court in speaking through Sherwood, C. J., said:

“Repeated decisions of this court have settled the matter beyond controversy, that the payment of a portion of a debt evidenced by a promissory note, or similar obligation, by one of the payors before the expiration of the statutory period, would prevent the operation of the statute against the comaker as well as the party paying. [Craig v. Callaway County, 12 Mo. 94; Lawrence County v. Dunkle, 35 Mo. 395; Block v. Dorman, 51 Mo. 31.] And no reason is seen why the same principle is not applicable, where, as. in the present instance, the legal representative of one of the makers makes a similar payment. The statute,after treating of new promises and acknowledgments in writing, and the effect to be given them, explicitly provides: ‘Nothing contained in the two preceding-sections shall alter, take away, or lessen the effect of a payment of principal or interest by any person;’ thus clearly showing that the Legislature intended to make, and did make, a marked distinction between the attendant results of promises or acknowledgments on the one hand, and partial payments on the other. And if that language just quoted will not comprehend the payment by an administrator, it is difficult to see what language, short of a direct designation of the administrator, would be sufficiently comprehensive to accomplish that result. Had Clinton, the principal in the bond, remained alive and made the payment referred to, no doubt could arise, under the foregoing decisions, but that such payments would effectually prevent the operation of the statute as to the defendant. Can it alter the nature óf the case, because the duty of paying the debt is devolved upon the administrator, rather then, and instead óf, the decedent?
“We are clear that-it cannot. If the defendant, instead of the administrator had made the payment, could it be seriously doubted that he would have recourse against the estate of his principal? Upon what theory would such recovery be founded, except that of the continued existence of the mutuality and privity incident to the contract at the time of its formation? In McClurg v. Howard, 45 Mo. 365', it was held that although the partnership was dissolved, yet a partial payment béfore the- statute had run by Howard’s former copartners would take the case out of the statute as to him. And it would seem obvious that the dissolution of a copartnership could accomplish no less towards sundering existing relations, than the death of one of two or more joint obligors. The cases of Smith’s Adm’r v. Irwin, 37 Mo. 169, and that of Cape Girardeau County v. Harbison, Adm’r, 58 Mo. 90, have not the slightest applicability here? because in neither case had any payment been made by the administrator. In the former an allowance was had against the estate-of one of the makers, after the statute had attached; and in the latter case, the administrator had in making a deed of trust, acknowledged, after the claim was barred, the existence of the debt. Any remarks, therefore, in those cases, which are dehors the controlling facts incident to each, cannot be deemed as possessed of any authoritative value.”

In the case at bar we are not required to go to the same length that this court did in that case. Here E. T. Smith, the principal in the bond, made the payments on the bond in person, before the statute had run, and not by his administrator, as was done in the case cited.

By the case of Regan v. Williams, 185 Mo. l. c. 628, the rule in the case last cited is somewhat limited, and rightfully so, in my opinion, yet that limitation does not affect the case at bar, but restates the rule more clearly than any case which I have been able to find. In that case the court said:

“II. In reply to the defense that the Statute of Limitations had run against the note before this action was begun, plaintiff asserts that the payments of interest by the Scott Investment Company and Carey to March 21, 1892, prevented the running of the statute, not only in favor of said parties but of the defendant as well. The ruling that payment by a principal will suspend the statute as to a surety is invoked as applicable, because by operation by law, the subsequent grantees of the land covered by the deed of trust became principals and the defendant a surety. The proposition contended for is sound enough, generally speaking. [Craig v. Calloway Co. Ct., 12 Mo. 94; McClurg v. Howard, 45 Mo. 365; Block v. Dorman, 51 Mo. 31; Vernon County v. Stewart, 64 Mo. 408; Bennett v. McCanse, 65 Mo. 194.] These payments were made while the note was still alive, and the rule is well established that payments made by the principal, or by one of several joint obligators, before the debt is barred, will stop the statute. But the reason why a payment by the principal stops it as to a surety, is not because one is principal and the other surety, but because both are usually joint promisors; that is, the surety is affected by the act of the principal ini his capacity as a joint promisor. The idea is that persons who jointly bind themselves are all liable to the promisee by virtue of their original agreement, so that performance or part performance by one is the act of all. [Sigourney v. Drury, 14 Pick. 387; Brandam v. Wharton, 1 Bar. & Ald. 463; Atkins v. Tredgold, 2 Bar. & Cres. 23.] The principal only applies where the payment was made by one originally liable. [Sigourney v. Drury, supra.]

And in Maddox v. Duncan, 143 Mo. l. c. 621, this court said:

“In Craig v. Callaway County, 12. Mo. 94, it was ruled that the payment of interest by one of several joint obligors in a bond before the Statute of Limitations attaches takes it out of the Statutes of Limitations as to the others. So it was held in Vernon County to use, etc. v. Stewart, 64 Mo. 408, that part payment made upon a bond by the administrator of one of the joint makers within the statutory period would prevent the running of the Statute of Limitations in favor of the other makers of the bond. And in Bennett v. McCanse, 65 Mo. 194, it was intimated that part payment of a note by a comaker will arrest the running of the statute as against all the parties-to the note. The same rule was announced in Bender v. Markle, 37 Mo. App. 234. When this case was before the St. Louis Court of Appeals (Maddox v. Duncan, 62 Mo. App. 474), Rombauer, J., in delivering the opinion, of the court, said: ‘In Leach v. Asher, 20 Mo. App. 656, and Zervis v. Unnerstall, 29 Mo. App. 474, we reviewed the decisions in this State on'that subject and were forced to conclude that the rule as stated in Craig v. Callaway County Court, supra, was the rule prevailing in this State, whatever the rule may be in other jurisdictions.’ ”

If we follow the rule announced in the foregoing cases, then we must hold in the case at bar, that the respondent’s cause of action is not barred by the Statute of Limitations, for the reason that the payments were made by E. T. Smith, the principal in the bond, which is binding upon his sureties or joint promisors, and the mere fact that the payments were entered upon the records of the county court, instead of the bond itself, does not change the legal effect of the payments.

We are therefore of the opinion that the trial court properly refused the second declaration of law asked by counsel for appellants.

II. It is finally insisted by counsel for appellants, that respondent should be debarred of a right of recovery for the reason that it has been guilty of laches by the great delay in bringing this suit.

This claim, is clearly devoid of all merit, for the simple reason that the record shows that insofar as the respondent is concerned, the principal in the bond, E. T. Smith, and the sureties, Daniel Smith and E. C. Hall, were joint promisors, and under those facts, it was no more the duty of the respondent to sue E. T. Smith, one of the makers, in the absence of the statutory notice, than it was to sue the other two joint promisors, Hall and Smith, and the mere delay, short of the statutory period of limitation, in suing any one of them will not release the others.

Moreover, insofar as the respondent is concerned, it was just as much the duty of appellant, Hall, to go and pay off and satisfy the bond, at is was the duty of E. T. Smith. This is elementary, and has been so frequently adjudicated by this and other courts of the State that it would be a useless waste of time to cite additional authorities in support thereof.

If appellant objected to the delay of respondent, why did he not pay off and discharge the bond as he agreed to do, and then look to E. T. Smith, since they as between themselves were not joint promisors? By so doing, the school district would have lost nothing, nor would the respondent, for the reason that he could by proper proceedings have subjected the real estate conveyed by the deed of trust to the county to secure the loan, and thereby have reimbursed himself for the-money so paid by him on the bond, which was more than ample for that purpose, if the evidence offered upon that point by appellant is true.

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

All concur.